Rameshwar Lal vs Union Of India And Others

MA 849/2017

The applicant has sought condonation of delay of 7792 days in Wing the OA on a plea that the delay was inadvertent in that the applicant was

unaware till recently of legal provisions which entitle him to disability pension. Further issues related to pension arc continuous causes for action. In

view of the reasons given, we are inclined to condone the delay in light of the judgment of the Hon'ble Supreme Court in the matter of Union of India

&, Ors. Vs. Tarsem Singh reported in 2008(8) SCC 648, 2008(11) SCALE 594 w, ith the proviso that, in case the Original Application is allowed, the

arrears will be restricted to a period of three years prior to filing of the OA.

OA No. 1146/2017

This OA is filed under Section 14 of the AFT Act, 2007 by the applicant, an Officer who retired from the Indian Army in 28. 02.1996 in the rank of

Lt. Col, who feels aggrieved by the decision of the respondents that his medical disability CHONDRO SARCOMA HUMERUS RT (OPTD) was

assessed as neither attributable nor aggravated (NANA) by service by the Release Medical Board (RMB) held in October 1995, due to which, he has

been denied disability element of pension and Constant Attendant Allowance.

Heard the learned counsels on both sides and perused the pleadings and documents on record.

Learned counsel for the applicant submits that the applicant was commissioned in the Indian Army on 31.03.1972 and retired from service on

28.02.1996. That on 11.05.1975, the applicant was posted at Ladakh i.e. High Altitude Area. The applicant while performing his duties, was giving a

demonstration of physical fitness in high altitude area to a visiting team of Army Headquarters on that day, when fell down and suffered minor

injuryonhis arm which further developed as the disease CHONDRO SARCOMA (Rt) HUMERUS due to which his right hand was amputated and he

was downgraded to low medical category A3. Throughout his service thereafter he remained in low medical category. That at the time of his

retirement, RMB was held, which assessed his medical disability @, 90% for life. It was also recorded in the RMB proceedings that the disease was

of unknown aetiology. As per the entitlement rules, the benefits in case of doubt should go to the claimant and his disability should have been assessed

as attributable to service. However, the disability was assessed as neither attributable to nor aggravated by Military Service by the Medical Board.

The case for grant of disability element of pension was processed with the competent authority but the same was rejected stating that the disability

suffered by the applicant was considered as neither attributable to nor aggravated to military service.

Learned counsel submits that at the time of entry into service, the applicant was subjected to thorough medical expmination conducted by a board of

doctors which found him fully fit medically, after which he was commissioned in the Army. The applicant was again put through medical examination

at the Training Centre before commencement of training and was found medically fit. Cotry '- The Hon'ble Supreme Court in a catena of judgments

has held that a person who joined the defence forces in a fit medical conditions, who thereafter retires from service in a low medical category is

required to be compensated by the way of disability element of pension. Accordingly, the applicant is entitled for disability element of pension @ 90%

after granting that his medical disability was the result of stress and strain of military service, and broad banding/rounding off to 100% for life in terms

of GOI, MoD letter No. 1(2)/97/ D(Pen-C) dated 31.01.2001 and the law settled by Hon'ble Supreme Court in Civil Appeal No. 418/2012 titled U01&

Ors v. Ram Avtar vide judgement dated 10.12.2014.

Further, counsel contends that, despite the disease/disability, the applicant continued to serve diligently and even participated in an anti-terror

operation in Punjab on 28.12.1991 for which he was awarded the gallantry award `Shaurya Chakra'.

Reliance has been placed on the Order of AFT(RB) Chandigarh dated 20.12.2013 in the matter of Darshan Singh Vs. Union of India and another

(TA 258/2011 arising out of WP(C) 952/1994) as also Judgment dated 02.07.2013 in the matter of Dharamvir Singh Vs. Union of India and Others

(Civil Appeal No. 4949 of 2013) and Judgment dated 13.02.2015 in the matter of Union of India and Anr. Vs. Rajbir Singh (Civil Appeal No. 2904 of

2011) in support of the applicant's case.

I Counsel makes reference to Chapter II Guide to Medical Officers (Military Pensions) where under heading 'Entitlement General Principles', 2002,

it is provided as under: -

According to CHAPTER -II Guide to Medical Officers (Military Pensions), under heading 'Entitlement General Principles' it is provided

as under:

1.

“2. Medical Boards should examine cases in the light of the aetiology of the particular disease and after considering all the relevant

particulars of a case, record their conclusions with reasons in support, in clear terms and in a language which the pension sanctioning

authority, a lay body, would be able to appreciate fully in determining the question of entitlement according to the rules. In expressing their

opinion medical officers should comment on the evidence both for and against the concession of entitlement. In this connection, it is as well

to remember that a bare medical opinion without reasons in support will be of no value to the Pension Sanctioning Authority.

“3. If it is established on evidence that the disease u.,as brought about by service conditions, then attributability is clearly indicted. If on

the other hand, a disease not attributable to service having been of pre-enrolment origin or having its origin in other than service

conditions, has been influenced in its subsequent course by conditions of service, the claim would stand for acceptance on the basis of

aggravation.

“4. Opinion on entitlement must be impartially given in accordance with the evidence, the benefit of any reasonable doubt being given to

tie claimant.

Under heading 'CANCER' in the same CHAPTER-II, it is provided as under:

Cancer is one of the diseases regarded as usually unaffected by ordinary conditions of service . While its precise cause is still unknown

and entitlement is not normally conceded, there is adequate material both of scientific and statistical nature which brings into light the

causative factors and the connection between service related factors and carcinogenesis. Post World War 11 research highlighted the

interaction of nuclear explosion and occurrences of cancers. American Armed Forces Committed to enemy action in Vietnam also studied

the occurrence of cancers in troops in action.

The recognized causative agents for carcinogenesis are:

(b) Radiation from nuclear sources

(c) Ultra violets rays

(d) Chemicals

(e) Acquired chromosomal abnormalities

(I) Congenital chromosomal abnormalities

(g) Diet, exercise, life styles

The service related conditions in relation to carcinogenesis are as under:

(a) TERRAIN:-Exposure to UV rays in high altitude areas, high back ground irradiation and pollution are etiological factors now

recognized in initiating carcinogenesis. Service personnel are forced to stay long in certain terrains, can get exposed to noxious factors.

(b) Occupational hazards: All ranks working in nuclear powered submarines, doctors and paramedics working with electro-magnetic

equipment, personnel working with radars, communication equipment, microwave and also those handling mineral oils such as petrol and

diesel are exposed despite stringent safety measures.

(c) Infection:- as a cause of cancer has been documented in certain malignancies. Though identification of an organism may not be possible

due to lack of facility but there is gross evidence clinically to suspect infection.

5 (d) Diet:- The ration issued in services may not contain adequate amount of fibre, fresh vegetables and fruits which are cancer preventing

agents. The personnel may not be able to procure and supplement the diet due to remote location, non-availability of the material.

(e) Exercise:- Physical exercise is known to protect against cancer like that of colon. Postings at high altitude, uncongenial weather

conditions, insurgency affected areas, interfere with exercise programmes.

(i) Stress and strain:- Stress and strain of services is something unique and has now been documented in initiating certain cancers in

humanbeings.The question of relationship between a malignant condition and an accepted injury is different to establish. The vast majority

of traumatic lesions however severe, show no tendency to be followed by cancer either immediately or remotely.

Malignancies considered attributable to service.

(a) Due to occupational hazards

(i) Any cancer in those personnel working or exposed to radiation source in any forms:-

(aa) Acute leukaemia

(rib) Chronic Lymphatic leukaemia

(ac) Astrocytoma

(ad) Skin Cancers

(U) Any cancer in those exposed to chemical especially petroleum products or other chemicals:-

(aa) Carcinoma bladder

OW Renal Cell Carcinoma

It is clear from the above discussion that the petitioner had served in Ladakh prior to detection of cancer and it was detected after he had taken

part in the training as described above, during the course of which he had sustained injury. It is also clear from the above that cancer can be due to

many reasons as detailed above and it can occur due to stress and strain, absence of adequate amount of fibre, fresh vegetables and fruits which arc

cancer preventive agents. It can also 'be due to terrain, occupational hazards etc. These questions have been considered by the Courts in various

judgments relied upon by the learned counsel for the petitioner.

Further, Para 22 of Chapter IV 'Entitlement Rules for Casualty Pensionary Awards, 1982 deals with cases of Unknown Aetiology, which is

reproduced as under:-

Conditions of Unknown Aetiology : There are a number of medical conditions which are of unknown aetiology. In dealing with such

conditions, the following guiding principles are laid down:-

(a) If nothing at all is known about the cause of the disease, and the presumption of the entitlement in favour of the claimant is not rebutted,

attributability should be conceded.

(b) If the disease is one which arises and progresses independently of service environmental factors then the claim may be rejected.

Learned counsel for the respondents, on the other hand, controverts the arguments made on behalf of the applicapt. Counsel submits that the

applicant was a NANA case as attributability/aggravation to military service was not established by the Medical Board. In such cases, the opinion of

the Medical Board is sacrosanct and thus it was correctly decided that the applicant cannot be granted disability element of pension. Consequent

thereto, the applicant also cannot be granted services of a constant attendant.

Consideration:

We have given careful consideration to the arguments from both sides and find that the primary issue before us is whbther the applicant,who was

detected with cancer (Chondro Sarcoma Humerus Rt) after 3 years of service and operated thereto, resulting in amputation of his right hand, and

subsequently, in removal of a portion of his right lung, should be granted attributability/aggravation due to military service, and consequent disability

element of pension @ 100%, after broadbanding, along with constant attendant allowance.

We find that the applicant, prior to being commissioned into the Army, was found medically fit in all respects by the Medical Board. Rule 423 at of

Chapter VIII of General Rules of Guide to Medical Officers (Military Pensions) 2002, quoted at Paras 24 and 25 of Judgment in the Dharamvir case

(supra), which is relevant to this case, is reproduced as under: -

The Rules to be followed by Medical Board in disposal of special cases have been shown under Chapter VIII of the""General Rules of

Guide to Medical Officers (Military Pensions) 2002. Rule 423 deals with 'Attributability to service"" relevant of which reads as follows:

423(a)For the purpose of determining 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.

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 givento 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/her 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 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.

(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.

(d).The question, whether a disability or death resulting from disease 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 Officers, 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 accepted as attributable to/ aggravated by service for the purpose of pensionary benefits will, however,

be decided by the pension sanctioning authority.

Therefore, as per Rule 423 following procedures to be followed by the Medical Board:

(i) Evidence both direct and circumstantial to be taken into account by the Board and benefit of reasonable doubt, if any would go to the

individual;

(ii) a disease which has led to an individual's discharge or death will ordinarily be treated to have been arisen in service, if no note of it

was made at the time of individual's acceptance for service in Armed Forces.

(iii) If the medical opinion holds that the disease could not have been detected on medical examination prior to acceptance for service and

the disease will not be deemed to have been arisen during military service the Board is required to state the reason for the same.'

We find that the applicant was detected with the' disease Chondro Sarcoma Humerus Rt. (a form of cancer) in 1975 while he was serving in a

field (high altitude) area. The applicant continued to serve with distinction for the next 20 years despite his medical disability, as evident from the fact

that he personally led a successful anti-terrorist operation in Punjab in 1991 for which he was awarded the gallantry award (Shaurya Chakra'. The

RMB has assessed that his disability is of unknown aetiology and thus is neither attributable nor aggravated by military service. However, we find that

the Guide to Medical Officers 2002 clearly directs that 1 in cases of diseases of unknown aetiology, while determining atatributability, the benefit of

doubt should go to the claimant.Further, Para 423(a) of the Entitlement Rules states that the benefit of doubt could be given more liberally in field

service areas.

In the result, the OA is found to bear merit and is allowed. The applicant is granted disability element of pension @ 90% for life, broad-

banded/rounded off to 100%. Further, in keeping with existing policy, the applicant is also authorized Constant Attendant Allowance. However,

arrears are limited to a period of 3 years prior to the date of filing of this application, i.e. w.e.f. 03.07.2014. Fresh PPO to be issued and arrears to be

paid within four months, otherwise it will attract interest @ 8% per annum. No order as to costs. Pronounced in open court on the a day of September

2019.