Union Of India vs No.10165323H Ex Havildar R. Mohanan on 21 May, 2025

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Kerala High Court

Union Of India vs No.10165323H Ex Havildar R. Mohanan on 21 May, 2025

This writ petition is filed under Article 226 of the Constitution of India by the respondents in O.A.No.125 of 2019 before the Armed Forces Tribunal, Regional Bench, Kochi ('the Tribunal' for short), challenging the order dated 28.09.2022 passed by the Tribunal, whereby the claim set up by the respondent for disability pension was allowed, by rounding it off to 50%.

2. The facts in brief which led to the filing of this writ petition are as follows:

The respondent initially enrolled in the Territorial Army from 02.09.1977 to 20.08.1982 and was later recruited in the Defence Security Corps (DSC) on 21.08.1982 and was discharged from service on 30.11.2009. While in service, in June 2008, he was diagnosed with the disability 'Primary Hypertension' and was treated at Military Hospital Amritsar. Subsequently, his medical category was downgraded. In June 2009, he was diagnosed with Dyslipidemia and was admitted in INHS Sanjivani. The Release Medical Board assessed the disabilities 'Primary Hypertension' at 30% and 'Dyslipidemia' at 1-5% with a composite disability of WP(C) NO. 40108 OF 2024 4 2025:KER:38101 30% for life. However, the Release Medical Board opined that the aforesaid disabilities are neither attributable to nor aggravated by military service. The disability pension claim made by the respondent was not forwarded to the competent authority for adjudication of the pension claim, though the respondent was discharged on 30.11.2009 after a long tenure of service of over 31 years. Hence, the respondent approached the Tribunal.

3. Though, before the Tribunal, the writ petitioners/respondents raised various contentions to justify the denial of the disability pension on the ground that the disabilities 'Primary Hypertension' and 'Dyslipidemia' were neither attributable to nor aggravated by military service, the Tribunal after a detailed analysis of the contentions of both sides, by relying on the relevant provisions and regulations binding the field and also the judgments of the Apex Court ruled in favour of the respondent.

4. Heard Sri.Hari Kumar G. Nair, learned Senior Central Government Counsel (SCGC) for the petitioners and the learned counsel for the respondent.

5. The learned SCGC submitted that the Department was justified in rejecting the claim of the disability pension raised by WP(C) NO. 40108 OF 2024 5 2025:KER:38101 the respondent on the basis of the report of the Release Medical Board which is a final authority and the findings cannot be tinkered in a judicial proceedings, as it is in the domain of the Medical Expert. The court cannot assume the role of an expert and sit in the armchair of an Appellate Authority to differ with the same. Therefore, the order of the Tribunal is liable to be reversed.

6. On the other hand the learned counsel for the respondent/applicant supported the order of the Tribunal by relying on the judgments of the Apex Court in Dharamvir Singh v. Union of India and Others [(2013) 7 SCC 316], Sukhvinder Singh v. Union of India & Ors [(2014) 14 SCC 364] and Union of India and another v. Rajbir Singh [(2015) 12 SCC 264]. The learned counsel submitted that the authorities concerned were not justified in rejecting the claim of the respondent for disability pension by ignoring the applicability of the aforementioned judgments and the Regulations for Medical Services, 1983, relied on by the Tribunal, extracted in paragraph 8 of the order under challenge.

7. It is worth to extract Regulations 423(a) and (c) of Chapter VIII of Regulations for Medical Services 1983 to WP(C) NO. 40108 OF 2024 6 2025:KER:38101 appreciate the findings of fact and law arrived at by the Tribunal. The said Regulations read thus:

"(a) For the purpose of determining whether the cause of a disability or death is or is not attributable to service, it is Immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a Field Service/Active Service area or under normal peace conditions. It is however, essential to establish whether the disability or death bore a casual connection with the service conditions. All evidence both direct and circumstantial, will be taken into account and benefit of reasonable doubt, if any, will be given to the individual. The evidence to be accepted as reasonable doubt, for the purpose of these instructions, should be of a degree of cogency, which though not reaching certainty, nevertheless carries a high degree of probability. In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his favour, which can be dismissed with the sentence "of course it is possible but not in the least probable" the case is proved beyond reasonable doubt. If on the other hand, the evidence be so evenly balanced as to render impracticable a determinate conclusion one way or the other, then the case would be one in which the benefit of the doubt could be given more liberally to the individual, in cases occurring in Field Service/Active Service areas.

WP(C) NO. 40108 OF 2024 7 2025:KER:38101

(c) The cause of a disability or death resulting from a disease will be regarded as attributable to Service when it is established that the disease arose during Service and the conditions and circumstances of duty in the Armed Forces determined and contributed to the onset of the disease.

Cases, in which it is established that Service conditions did not determine or contribute to the onset of the disease but Influenced the subsequent course of the disease, will be regarded as aggravated by the Service. A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in Service if no note of it was made at the time of the individual's acceptance for Service in the Armed Forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service".

8. In Dharamvir Singh [(2013) 7 SCC 316], wherein a similar controversy arose, it was held by the Apex Court that a member of Armed Forces is presumed to be in sound physical and mental condition upon entering service, if there is no note or entry to the contrary in his records. In the event, he is subsequently discharged from service on medical grounds, the onus of proof that the deterioration in his health was not due to service conditions lies on the employer. At paragraph 33 of the said judgment the Apex Court held thus:

WP(C) NO. 40108 OF 2024 8 2025:KER:38101 "33. As per Rule 423(a) of General Rules for the purpose of determining a question whether the cause of a disability or death resulting from disease is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions. "Classification of diseases" have been prescribed at Chapter IV of Annexure I; under paragraph 4 post traumatic epilepsy and other mental changes resulting from head injuries have been shown as one of the diseases affected by training, marching, prolonged standing etc. Therefore, the presumption would be that the disability of the appellant bore a casual connection with the service conditions."

This view is reiterated in Rajbir Singh [(2015) 12 SCC 264], wherein it was further held that provision for payment of disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit those who have been sent home with disability at times even before they completed their tenure in the Armed Forces.

9. It is trite that the opinion of the Medical Board, if found erroneous due to non-appreciation of facts and circumstances, the court exercising power of judicial review under Article 226 of the Constitution of India can very well interfere with the same and correct the error. As cited by the Tribunal in the impugned order, WP(C) NO. 40108 OF 2024 9 2025:KER:38101 in Veer Pal Singh v. Secretary, Ministry of Defence [(2013) 8 SCC 83] the Apex Court held that although, the Courts are extremely loath to interfere with the opinion of the experts, there is nothing like exclusion of judicial review of the decision taken on the basis of such opinion. What needs to be emphasized is that the opinion of the experts deserves respect and not worship and the Courts and other judicial / quasi-judicial forums entrusted with the task of deciding the disputes relating to premature release / discharge from the Army cannot, in each and every case, refuse to examine the record of the Medical Board for determining whether or not the conclusion reached by it is legally sustainable.

10. The rounding off is also not a matter res integra in view of the ratio culled out in Sukhvinder Singh [(2014) 14 SCC 364], wherein it has been stated that wherever a member of Armed Force is invalided out of the service, it has to be assumed that his disability was found to be above 20%. Admittedly, the Government itself had come out with a notification dated 31.01.2001 prescribing that any disability below 20% shall be liable to be reckoned as 50% for the purpose of granting the benefit of rounding off. Paragraph 7.2 in the said notification is extracted herein below for clarity:

WP(C) NO. 40108 OF 2024 10 2025:KER:38101 "7.2 Where an Armed Forces Personnel is invalided out under circumstances mentioned in Para 4.1 above, the extent of disability or functional incapacity shall be determined in the following manner for the purposes of computing the disability element:

Percentage of disability as Percentage to be reckoned for assessed by invaliding computing of disability element medical board Less than 50 50 Between 50 and 75 75 Between 76 and 100 100"

11. Admittedly, the respondent was recruited in the DSC on 21.08.1982 and discharged from service on 30.11.2009 in low medical category. Before joining DSC, he served in the territorial Army from 02.09.1977 to 20.08.1982. The petitioners have no case that while entering service either in the territorial Army or in DSC the respondent was diagnosed with any disability or illness. It was after a long period of service in DSC, the respondent was diagnosed with disability of primary hypertension and dyslipidemia. When analysing the materials on record in the light of the provisions and judgments quoted supra, we find no sufficient ground to reach a different conclusion than that arrived WP(C) NO. 40108 OF 2024 11 2025:KER:38101 at by the Tribunal. Therefore, we concur with the finding of the Tribunal that the disability suffered by the respondent has to be treated as one connected with his service.

Having considered the pleadings and materials on record and the submissions made at the Bar, in the light of the provisions binding the field and the judgments referred to above, we are of the view that findings of fact and law arrived at by the Tribunal do not require any interference by this Court exercising the power of judicial review under Article 226 of the Constitution of India.

Accordingly, the writ petition stands dismissed.

Sd/-

AMIT RAWAL, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE DSV/-

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                  APPENDIX OF WP(C) 40108/2024

PETITIONERS' EXHIBITS

Exhibit P1          TRUE COPY OF THE RELEVANT PAGES ORIGINAL
                    APPLICATION DATED 18.01.2019 FILED BY THE
                    RESPONDENT NUMBERED AS O.A. NO. 125 OF 2019
                    ON THE FILES OF THE ARMED FORCES TRIBUNAL,
                    REGIONAL BENCH, KOCHI.
Exhibit P2          A TRUE COPY OF M.A.NO. 161 OF 2019 IN O.A.NO.
                    125 OF 2019 FILED BY THE RESPONDENT DATED
                    18/01/2019.
Exhibit P3          A TRUE COPY OF THE REPLY STATEMENT DATED IN

O.A.NO.125 OF 2019 FILED BY THE PETITIONERS DATED 18/06/2019.

Exhibit P4 TRUE COPY OF THE ORDER IN O.A. NO.125 OF 2019 DATED 28.09.2022 ISSUED BY THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI.

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