Punjab-Haryana High Court
Union Of India And Others vs Ex Hav Baljinder Singh And Another on 10 December, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
CWP-28838-2024 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-28838-2024
Reserved on: 25.11.2024
Pronounced on: 10.12.2024
Union of India and Others .....Petitioners
Versus
Ex. Hav Baljinder Singh & Anr .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Bharat Bhushan Sharma, Sr. Panel Counsel
for the petitioners-UOI.
Mr. Navdeep Singh, Advocate with
Ms. Roopan Atwal, Advocate
Ms. Srishti Sharma, Advocate
for the respondent.
****
SURESHWAR THAKUR, J.
1. Through the instant writ petition, the petitioner herein prays for the setting aside of the order dated 26.07.2021 (Annexure P-3) as passed by the learned Armed Forces Tribunal concerned, wherebys the claim of respondent No.1 for the grant of disability pension was allowed.
Factual Background
2. The respondent enrolled in the army on 31.12.1992 and was discharged from the service on 31.12.2016 in a fit state of health. During the course of his service, he incurred disabilities of '(i) PRIMARY HYPERTENSION
(ii) OBESITY (iii) DYPSPLIDEMINA and (iv) SUPERO TEMPORAL BRVA @ EYE CRVO (LEFT). At the time of discharge, the release Medical Board assessed the disabilities of the applicant @ 70% for life. He pressed claim only with regard to disability No.(i) PRIMARY HYPERTENSION. His disability was MANOJ KUMAR 2024.12.14 03:01 I attest to the accuracy and authenticity of this order CWP-28838-2024 2 respectively assessed @ 32% for life by the Release Medical Board being held neither attributable to nor aggravated by military service.
3. The disability element claim of the respondent was rejected by the Competent Authority vide letter dated 28.02.2017, thus on the ground that the supra disability was neither attributable to nor being aggravated by rendition of military service.
4. Respondent No. 1 filed first appeal dated 09.01.2018 . Vide letter dated 23.01.2018, the Competent Authority rejected the disability pension claim of respondent No.1. Thereafter, second appeal was also preferred which was rejected vide order dated 22.06.2018.
5. Feeling aggrieved, respondent No.1 filed O.A., before the learned Armed Forces Tribunal concerned, wherebys he cast a challenge to the afore said rejection order. The said O.A., became allowed vide order dated 26.07.2021. The operative part of the said order is extracted hereinafter.
"Considering the law laid down by the Hon'ble Supreme Court and also the attending circumstances, the rejection of the claim of the Applicant is set aside and the Applicant is thus held entitled to disability pension from the day next to date of discharge @ 50% as against 32% for life after being rounded off as per judgment of the Hon'ble Supreme Court in Civil Appeal 418/2012 Union of India Vs Ram Avtar decided on 10-12-2014 and the arrears are directed to be released by the Respondents within a period of three months from the receipt of a certified copy of this order by the counsel for the Respondents/OIC Legal Cell, failing which the arrears shall carry an interest @8% from the date of this order.
6. Feeling aggrieved from the aforesaid order as passed upon the O.A. (supra), by the learned Armed Forces Tribunal concerned, the petitioner-Union of India has filed thereagainst the instant writ petition before this Court. MANOJ KUMAR 2024.12.14 03:01 I attest to the accuracy and authenticity of this order CWP-28838-2024 3
Inferences of this Court.
7. Before proceeding to make an effective adjudication upon the present writ petition, a useful assistance for determining whether the befallment of any disease vis-à-vis any member of the defence personnel, but post his being enrolled in the army, despite at the initial stage, upon his becoming enlisted, as a member of the combatant defence establishment, rather the same remaining undetected, yet the apposite eruption, thus post enlistment hence being construable to be either congenital or being construable to become aggravated or being attributable to military service, thus is acquired, from, the principles set forth in the judgment rendered by the Hon'ble Apex Court, in case titled as Dharamvir Singh Vs. Union of India, reported in (2013) 7 SCC 316. The relevant paragraphs of the said verdict are extracted hereinafter.
29. A conjoint reading of various provisions, reproduced above, makes it clear that:
(i) Disability pension to be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable or aggravated by military service to be determined under "Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173).
(ii) A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service. [Rule 5 r/w Rule 14(b)].
(iii) Onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally. (Rule 9).
(iv) If a disease is accepted to have been as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. [Rule 14(c)].
(v) If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led MANOJ KUMAR to an individual's discharge or death will be deemed to have arisen 2024.12.14 03:01 I attest to the accuracy and in service. [14(b)].
authenticity of this order CWP-28838-2024 4
(vi) If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons. [14(b)]; and
(vii) It is mandatory for the Medical Board to follow the guidelines laid down in Chapter-II of the "Guide to Medical (Military Pension), 2002 - "Entitlement : General Principles", including paragraph 7,8 and 9 as referred to above.
30. We, accordingly, answer both the questions in affirmative in favour of the appellant and against the respondents.
8. An incisive reading(s) of the above extracted principles, though pointedly declare, that when a disability becomes entailed upon any member of the combatant defence establishment, and which is to the extent of 20 % or over, thereupon, though any such disabled member is required to be invalided from the Army, but yet he is required to be assigned the benefit of disability pension.
9. Nonetheless, the assignment of disability pension to any member of the combatant defence establishment, who becomes entailed with a disability in a quantum of 20 % or more, but imperatively requires a declaration from the Medical Board, rather candidly pronouncing that the said attained disability being attributable to or becoming aggravated by military service. The said declaration becomes enjoined by the "Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173).
10. Furthermore, though thereins a presumption is assigned vis-à-vis the sound physical and mental health of any member of the defence establishment concerned, especially when at the stage of his becoming enrolled, there is no note or record about his becoming beset with any disease. Moreover, though thereins there is also a further presumption, that when any deterioration theretos, thus occurs subsequently, therebys the said happening of deterioration(s) or onsettings of any disease, rather is to be presumed to be a sequel of his rendering service as a member of the defence establishment. Imperatively, the onus for proving the non MANOJ KUMAR 2024.12.14 03:01 I attest to the accuracy and authenticity of this order CWP-28838-2024 5 endowments qua benefits (supra) vis-à-vis the concerned, but is rested on the employer, and in case, the said onus remains un-discharged, thereupon, the claimant becomes entitled to receive disability pension. Moreover, all the facts and circumstances attendant to the rendition of service by the concerned, are to be closely scrutinized, thus for declaring whether the onset of any disease vis-à-vis the concerned, is a sequel qua renditions of military service and/or the same being aggravated by or being attributable to military service.
11. Be that as it may, thereins becomes also set forth a further principle(s) that yet there can be denial of disability pension to the concerned, but only upon :
a) At the time of acceptance of the concerned in military service, some notings becoming recorded by the Medical Board vis-a-vis his being beset with a disease which however, becomes concluded to be yet not rendering him unfit to become enlisted.
b) Any further deterioration thereofs, may also subsequently become concluded by the Medical Board, to not arise from rendition of military service nor being attributable to military service, rather the same being a congenital disease.
12. Further, if the medical opinion holds that the disease could not have been detected on medical examination of the concerned being made, thus prior to his becoming enlisted in service, thereupons, the same will not be deemed to have arisen during service, yet in the situation (supra), the Medical Board is required to state the reasons for so concluding.
13. Moreover, it is also declared in supra, that it is mandatory for the Medical Board to follow the guidelines laid down in Chapter-II of the "Guide to Medical (Military Pension), 2002 - "Entitlement : General Principles". MANOJ KUMAR 2024.12.14 03:01 I attest to the accuracy and authenticity of this order CWP-28838-2024 6
14. Therefore, it has to be now determined whether in terms of the above principles, whether at the time of enlistment of the present respondent in the Army, thus after a preliminary medical examination being made vis-a-vis his health, thus a note became recorded about some disease besetting him and/or whether some note became appended that the said disease was in a dormant stage. Moreover, it is also required to be determined, from the facts at hand, whether there is a causal nexus inter-se the eruption of the disease, and/or the onsettings thereofs, on to his person, thus post the enrollment of the present respondent taking place, vis-a-vis the active renditions by him of military service, wherebys, this Court may conclude that the onset of the disease but rather was a sequel of his rendering service in the Army and as such was attributable or became aggravated by his rendering military service.
15. In addition, it is also required to be gathered from the records, whether the Medical Board, did initially proceed to make a detailed incisive antecedental check, particularly appertaining to the advent of the disease, through employments of State of Art medical techniques, thus unveiling the block chain genetic connection, wherefroms, rather the disease became sourced. Moreover, if the said employment fails. Resultantly, therebys it may become concluded qua eruptions thereof, thus subsequent to the apposite enlistment taking place, rather was not congenital but owed its origin to rendition of military service besides it being attributable to or becoming aggravated by performance of military service. Contrarily, if the supra employed techniques at the stage of apposite enlistment taking place, thus by the Medical Board concerned, leads to a conclusion, that there are rather dormant incidences of any disease, but yet the said dormant disease not prohibiting the enlistment of any personnel in the army, navy or air force. Resultantly the subsequent active detection/eruption thereofs, during the MANOJ KUMAR course of rendition of military service, but would naturally lead to a well 2024.12.14 03:01 I attest to the accuracy and authenticity of this order CWP-28838-2024 7 conclusion by the Medical Board, that its active eruption but became sourced from an effective causal genetic connection wherebys there would be denial of disability pension.
16. However, now in the said endeavour, this Court is required to be extracting the contents of the opinion, as became recorded by the release medical board.
Disability Attributable Aggravat Not Reason
to service ed by connected
service with
service
PRIMARY NO NO YES Onset in peace area, hence
HYPERTENSION Neither Attributable nor
Aggravation conceded (Ref
Para 430 GMC)
OBESITY NO NO YES No Casual Relation to
Military Service. It is a life
style disease, hence Neither
Attributable nor Aggravation
conceded
DYPSPLIDEMINA NO NO YES No Casual Relation to
Military Service. It is a life
style disease, hence Neither
Attributable nor Aggravation
conceded
SUPERO TEMPORAL NO NO YES It is a congenital disease
BRVA @ EYE CRVO hence Neither Attributable
(LEFT) nor Aggravation conceded
17. A reading of the records reveals that at the time of the apposite enlistment taking place rather no note became made in terms of the principles (supra) declared by the Hon'ble Apex Court in case titled as Dharamvir Singh Vs. Union of India (supra) by the Medical Board, that some disease which however, did not forbid the present respondent, to become enlisted in the Army, did make its preliminary onsettings. If so, the declaration of law in judgment (supra) that MANOJ KUMAR therebys there is a presumption that the incurring of the said disease was a sequel 2024.12.14 03:01 I attest to the accuracy and authenticity of this order CWP-28838-2024 8 of rendition of service, is required to be favourably endowed vis-a-vis the respondent. Though the said presumption is rebuttable but the onus to lead evidence to rebut the said presumption became cast upon the petitioner. However, the said cast evidence adducing discharging onus vis-a-vis the respondent, rather for cogently rebutting the said presumption, but naturally also did cast an onerous duty also upon the Medical Board, to engage itself in the endeavour of unearthing, through employments of the State of Art block chain genetic causal connection technique(s), wherebys it may became unraveled that the onsetting of the disease onto the army personnel, became sourced from antecedental genetic family history. Moreover, therebys it was also required to be stated in the medical opinion, that the disease but for a well formed reason rather was a congenital disease and became neither aggravated by nor became attributable to military service.
18. However, a reading of opinion (supra), discloses that it has been recorded in a stereo typed form and no reasons have been recorded to the extent (supra). Reiteratedly, since no evidence to rebut the presumption (supra) has been led by the petitioner, therebys, this Court is constrained to give no weightage to the opinion of the medical board, as extracted (supra). Conspicuously, therebys no credence can be assigned to the supra ill informed reason, besides therebys the onsetting of the disease cannot be said to be a sequel of antecedental genetic family history. Contrarily, it is required to be declared to arise from rendition of military service. In addition, it is required to be declared to be attributable or becoming aggravated by rendition of military service by the present respondent.
19. Moreover, though it is stated thereins that the disease occurred while service became performed by the defence personnel rather in a peace area, but since there is no express mandate in the relevant regulations, which makes the MANOJ KUMAR 2024.12.14 03:01 I attest to the accuracy and authenticity of this order CWP-28838-2024 9 onsettings of the disease in a peace area, to not beget a further sequel that as such, it's onsettings did not arise from the rendition of military service nor it became aggravated by rendition of the military service. In consequence, the lack of the said express mandate in the regulations, does constrain this Court to conclude, that even if the onsettings of the said disease upon the present respondent thus occurred in a peace area, thereby, the said onsettings are to be declared to become aggravated by or being attributable to rendition of military service.
20. Further, since in terms of the judgment rendered by the Apex Court, in case titled as 'Union of India Vs. Ram Avtar', reported in 2014 SCC Online 1761, whereins, a declaration is made to the extent, that the benefit of rounding off, rather has to become endowed to the concerned. Resultantly also thereunders an indefeasible right became vested in the present respondent for his seeking qua the apposite roundings off being made in his favour.
21. Even otherwise since the declaration of law made in verdict (supra) makes the said declaration to be an expostulation of law in rem, therebys, the expostulation of law in rem, as made in verdict (supra) also makes the thereunders conferred benefits vis-a-vis the defence personnel concerned, to, prima facie, also entitle the concerned, thus to at any time seek the granting of the endowments as made thereunders, and that too, in the fullest complement, as spelt thereunders, besides irrespective of the bar, if any, of delay and laches.
22. Therefore, the granting of the benefit of the apposite roundings off, in terms of the verdict (supra) rendered by the Tribunal concerned, also does not suffer from any illegality and is required to be upheld.
Final Order of this Court.
23. In aftermath, this Court finds no merit in the writ petition and with MANOJ KUMAR observations above, the same is dismissed.
2024.12.14 03:01I attest to the accuracy and authenticity of this order CWP-28838-2024 10
24. The impugned order, as passed by the learned Tribunal concerned, is maintained and affirmed.
25. Disposed of alongwith all pending application(s), if any.
(SURESHWAR THAKUR) JUDGE (SUDEEPTI SHARMA) 10.12.2024 JUDGE manoj Whether speaking/reasoned : Yes/No Whether reportable : Yes/No MANOJ KUMAR 2024.12.14 03:01 I attest to the accuracy and authenticity of this order