Ex. Gnr. Balwant Singh No. 1199193 vs Union of India (UOI) and Others

Mohinder Pal, J.—Brief facts of the case are that the petitioner was enrolled in the Regiment of Artillery on December 06, 1963 and invalidated out of service with effect from August 12, 1967 under Rule 13(3)III(iii) of the Army Rules, 1954, due to Schizophrenic Reaction (300). The Invalidating Medical Board held at Command Hospital, Southern Command, Pune, on July 04, 1967, opined the disease Schizophrenic Reaction (300) as neither attributable to nor aggravated by military service and also not connected with the service. The decree of disablement was assessed at 40% for two years. The petitioner was neither granted disability pension nor service element of pension. Hence this writ petition.

In the written statement filed by the respondents, it has been pleaded that the petitioner did not fulfil the criteria for disability pension as his disability had not been found attributable to or aggravated by military service by the Invalidating Medical Board. It is further stated that disability pension claim of the petitioner was forwarded to P.C.D.A. (P), Allahabad, for adjudication vide Artillery Records letter No. 1199193/DP-2409/NE dated November 23, 1967 and was rejected by them vide letter No. G-3/CA/67/528G4/II dated August 20, 1968, on the ground that the disability from which the petitioner suffered during service and on which his disability pension claim based, was viewed as neither attributable nor aggravated by military service. Therefore, the petitioner is not entitled for grant of disability pension in accordance with Regulation 173 of the Pension Regulations for the Army, 1961 (Part-I) for short ''the Pension Regulations'').

We have head Mr. R.A. Sheoran, Advocate, appearing for the petitioner and Mr. S.K. Sharma, Advocate, appearing for the respondents and have gone through the records of the case.

While arguing before us, learned Counsel for the petitioner has laid stress on the point that at the time of entry into service, the petitioner was found medically fit and was not suffering from any disease. He served the Army for three years, eight months and seven days and no injury or disease was detected. He argued that the disease diagnosed as ''Schizophrenic Reaction (300)'' was attributable to military service.

In Controller of Defence Accounts (Pension) and others v. S. Balachandran Nair 2006 (1) SLR 51, the Apex Court, after referring to its earlier decisions in Union of India v. Baljit Singh 1996 (1) S.C.C. 315 and Union of India (UOI) and Others Vs. Dhir Singh China, Colonel (Retd.), , held that where Medical Board found that there was absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, the High Court cannot direct the Government to pay disability pension. In that case, the respondent was having some kidney complications and the medical authorities found his illness as ''anxiety neurosis''.

After prolonged illness, the respondent was boarded out and the medical ;> authorities were of the opinion that he became unfit for continuing in service and was put under the category of ''EEE'' meaning ''unfit and useless'' and was finally discharged from service. In Union of India and Ors. v. Keshar Singh 2007 (4) SLR 100, the respondent had developed schizophrenia while in military service. The disability did not exist before entering service.

The High Court had held the illness to be attributable to Army Service and directed grant of disability pension whereas the Medical Board had given a clear opinion that illness was not attributable to military service. The Apex Court held that both the learned Single Judge and the Division Bench were not justified in their respective conclusion that the respondent was entitled to disability pension. The Apex Court also referred to its earlier decisions in Baljit Singh case (supra), Dhir Singh China case (supra) and S. Balachandran Nair''s case (supra).

In the instant case, the petitioner had joined the Army on December 06, 1963. He was invalidated but of service with effect from August 12, 1967 due to Schizophrenic Reaction (300). The Invalidating Medical Board had opined that this disease was neither attributable to nor aggravated by military service. The proceedings of Invalidating Medical Board were accepted by the competent authority. The disability pension claim of the petitioner was rejected for the reason that the disease was neither attributable to nor aggravated by military service. The petitioner did not prefer any appeal against the order rejecting his disability pension. In these circumstances, the case of the petitioner is squarely covered by the observations of the Hon''ble Supreme Court in S. Balachandran Nair''s case (supra).

The matter can also be examined from another angle by referring to the relevant provisions of the Pension Regulations.

Rules 7(b) and 7(c) of Appendix-II, referred to in Regulation 173 of the Pension Regulations reads as under:

7(b) 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 military service. However, if medical opinion holds for reasons to be sated, 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.

7(c) If a disease is accepted 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.

Both Rules 7(b) and 7(c) have to be read together. A perusal of these provisions makes it clear that if a disease has led to the discharge of individual, it shall ordinarily be deemed to have arisen in service if no note of it was made at the time of individual''s acceptance for military service. An exception, however, is carved out in Rule 7(b) itself that if medical opinion holds for reasons to be stated that the disease could not have been detected by Medical Examination Board prior to acceptance for service, the disease would not be deemed to have arisen during service. Similarly, Clause (c) of Rule 7 makes the position clear that if a disease is accepted 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 are due to the circumstances of duty in military service.

In the instant case, there is no material placed on record by the petitioner in this regard nor it has been averred that the same was produced before the Invalidating Medical Board to show that the disease was attributable to or aggravated, by military service.

Regulation 173 of Pension Regulations reads as under:

Primary conditions for the grant of disability pension:

Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalidated from service on account of disability which is attributable to or aggravated by military service in non-battle casualty and assessed at 20 per cent or above.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix-II. Relevant portion in Appendix-II reads as under:

Disablement or death shall be accepted as due to military service provided it is certified that:

(a) The disablement is due to wound, injury or disease which-

(i) is attributable to military service; or

(ii) existed before or arose during military service and has been and remains aggravated thereby;

(b) the death was due to or hastened by-

(i) a would, injury or disease which was attributable to military service, or

(ii) the aggravation by military service of a wound, injury or disease which existed before or arose during military service.

Note: The Rule also covers cases of death after discharge/invalidating from service.

There must be a casual connection between disablement or death and military service for attributeability or aggravation to be conceded.

In deciding on the issue of entitlement all the evidence, both direct and circumstantial, will be taken into account and the benefit or reasonable doubt will be given to the claimant. This benefit will be given more liberally to the claimant in field service case.

Regulation 423 of the Pension Regulations is also relevant. The same reads as under:

Attributability of Service:

(a) For the purpose of determining whether the cause of 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 is to be accepted as reasonable doubt, for the purpose of these instructions, should be of a degree of cogency, which though not reaching certainly, nevertheless carry the 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 doubt could be given more liberally to the individual, in cases occurring in Field Service/Active Service areas.

(b) The cause of disability or death resulting from would or injury, will be regarded as attributable to service if the wound/injury was sustained during the actual performance of "duty" in armed forces. In case of injuries which were self inflicted or duty to an individual''s own serious negligence or misconduct, the Board will also comment how far the disability resulted from self-infliction, negligence or misconduct.

(c) The cause of 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 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 medial examination prior to acceptance for service, the disease will not be deemed to have arisen during service.

(d) The question, whether a disability or death is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a medical board or by the medical officer who signs the death certificate. The medical board/medical officer will specify reasons for their/his opinion. The opinion of the medical board/medical officer, in so far as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant circumstances can be attributed to service, will, however, be decided by the pension sanctioning authority.

(e) To assist the medical officer who signs the death certificate or the medical board in the case of an invalid, the CO. Unit will furnish a report on:

(i) AFMS F-81 in all cases other than due to injuries.

(ii) IAFY-2006 in all cases of injuries other than battle injuries.

(f) In cases where award of disability pension or reassessment or disabilities is concerned, a medical board is always necessary and the certificate of a single medical officer will not be accepted except in case of stations where it is not possible or feasible to assemble a regular medical board for such purposes. The certificate of a single medical officer in the later case will be furnished on a medical board form and countersigned by the ADMS (Army)/DMS (Navy)/DMS (Air).

A perusal of the above provisions clearly reveals that under Regulation 173 of the Pension Regulations, disability pension would be computed only when disability has occurred due to wound, injury of disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. It is amply clear from a perusal of Clauses (a) to (d) of Regulation 423 of the Pension Regulations, quoted above, that in respect of a disease the Rules enumerated thereunder are required to be observed. Clause (c) provides that if a disease is accepted 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. Unless these conditions are satisfied, it cannot-be said that the sustenance of injury/disease per se is on account of military service.

In view of the legal position, discussed above, and the fact that the Medical Board''s opinion was clearly to the effect that the illness suffered by the petitioner was not attributable to the military service, we find no merit in this writ petitioned dismiss the same.

Sd/- Hemant Gupta, J.