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Judgment
Johnson John, J.
The order of the Armed Forces Tribunal, Regional Bench, Kochi dated 06.04.2023 in O.A. No. 148 of 2020 is under challenge in this writ petition filed by the Union of India.
As per the impugned order, the Tribunal directed the 3rd and 4th respondents in the OA to issue a corrigendum PPO granting disability element of pension to the applicant at 30% which would stand rounded off to 50% from the date of retirement and pay the arrears at the earliest, at any rate within a period of four months from the date of receipt of a copy of the order, failing which it was directed that the unpaid amount would carry interest at 9% per annum. It was also ordered that considering the delay in filing the OA, the arrears shall be limited to a period of three years prior to the filing of the OA.
The respondent applicant was recruited on 31.01.1970 and superannuated on 08.11.2005. The Release Medical Board assessed the disability ‘Primary Hypertension at 30% for life’, aggravated by military service due to stress and strain. However, the adjudicating and appellate authorities rejected the opinion of the Release Medical Board and denied the disability element of pension on the ground that it is neither attributable to nor aggravated by service.
Heard Smt. S. Krishna, the learned Central Government Counsel appearing for the petitioners and Smt. S. Parvathi, the learned counsel for the respondent.
The learned Central Government Counsel appearing for the petitioners argued that the Tribunal was not justified in ignoring the findings of the adjudicating authority and the appellate authority that the disability is neither attributable to nor aggravated by military service. But, the learned counsel for the respondent argued that in view of Regulation 423 of the Regulation for Medical Services for Armed Forces, 1983 (‘Regulations, 1983’ for short) and as per the decisions of the Honourable Supreme Court in Sukhvinder Singh v. Union of India [(2014) 14 SCC 364], Bijender Singh v. Union of India and Ors. [2025 SCC OnLine SC 895] and Dharamvir Singh v. Union of India [(2013) 7 SCC 316], 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 and 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 and that the onus of proof is not on the employee and that it is for the employer to prove that the disability is not attributable to or aggravated by military service.
It is not in dispute that the Release Medical Board assessed the disability ‘Primary Hypertension at 30% for life’ and found that the same is aggravated by military service due to stress and strain. The Honourable Supreme Court, in Sukhvinder Singh (supra), held that any disability not recorded at the time of recruitment must be presumed to have been caused subsequently and unless proved to the contrary to be a consequence of military service and held thus in paragraph 11:
“11.We are of the persuasion, therefore, that firstly, any disability not recorded at the time of recruitment must be presumed to have been caused subsequently and unless proved to the contrary to be a consequence of military service. The benefit of doubt is rightly extended in favour of the member of the armed forces; any other conclusion would tantamount to granting a premium to the Recruitment Medical Board for their own negligence. Secondly, the morale of the armed forces requires absolute and undiluted protection and if an injury leads to loss of service without any recompense, this morale would be severely undermined. Thirdly, there appear to be no provisions authorising the discharge or invaliding out of service where the disability is below twenty per cent and seems to us to be logically so. Fourthly, wherever a member of the armed forces is invalided out of service, it perforce has to be assumed that his disability was found to be above twenty per cent. Fifthly, as per the extant Rules/Regulations, a disability leading to invaliding out of service would attract the grant of fifty per cent disability pension. ”
The Honourable Supreme Court, in Dharamvir Singh (supra), after referring to relevant provisions of the Regulations and the Rules, summed up the principles in the following manner:
“29.A conjoint reading of various provisions, reproduced above, makes it clear that:
29.1.Disability pension to be granted to an individual who is invalided 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 to or aggravated by military service to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II (Regulation 173).
29.2.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 read with Rule 14(b)].
29.3.The 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).
29.4.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)].
29.5.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 to an individual's discharge or death will be deemed to have arisen in service [Rule 14(b)].
29.6.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 [Rule 14(b)]; and
29.7.It is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions), 2002 — “Entitlement: General Principles”, including Paras 7, 8 and 9 as referred to above (para 27).”
In Rajumon T.M. v. Union of India and others [2025 SCC OnLine SC 1064], the Honourable Supreme Court held that if the opinion of the medical board is devoid of reasons, the act of the authority based on mere opinion sans reasons can certainly be questioned and that mere fact that at the time of onset of the disease, military service was being rendered in peace locations or that the disease is a lifestyle disorder would not by itself be a sufficient reason to deny the attributability of the disease to military service.
In the present case, there is no dispute that no note of any disease has been recorded at the time when the respondent enrolled for military service and therefore, in the absence of any medical opinion or records to indicate that the disease could not have been detected on medical examination prior to acceptance for service, the respondent is entitled for the benefit of the statutory presumptions, especially in view of sub clause (c) of Regulation 423 of the Regulations, 1983.
As noticed earlier, in the present case, the Release Medical Board assessed the disability ‘Primary Hypertension at 30% for life and as aggravated by military service due to stress and strain and in the absence of any other medical opinion, contrary to the opinion of the Release Medical Board, the adjudicating authority and the appellate authority are not justified in arriving at a different conclusion ignoring the statutory presumptions in favour of the applicant and therefore, we find no reason to interfere with the impugned order of the Tribunal granting disability element of pension to the applicant.
It is also pertinent to note that this writ petition is filed by the Union of India only on 14.01.2024 to challenge the order of the Armed Forces Tribunal dated 06.04.2023. As per Section 30 of the Armed Forces Tribunal Act, 2007, the time fixed for preferring the statutory appeal is 90 days from the date of the decision or order and therefore, in view of the decision of the Honourable Supreme Court in A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and another [AIR 1961 SC 1506 = 1961 KLT OnLine 1276 (SC)], Rikhab Chand Jain v. Union of India [2025 (6) KLT 562 (SC)] and Assistant Commissioner (CT) LTU v. Glaxo Smith Kline Consumer Health Care Ltd. (2020 (3) KLT OnLine 1120 (SC) and the decisions of this Court in Lt Col K. C. Chandra Bhanu v. Union of India [2026 KHC OnLine 572] and Assistant Commissioner of Central Excise v. Krishna Poduval [2006 (1) S.T.R. 185 (Ker.), we find that the jurisdiction of the High Court under Article 226 of the Constitution of India is not so wide as to resurrect a cause of action which has become unenforceable on account of law of limitation and that this writ petition is devoid of merit and is liable to be dismissed.
In the result, this writ petition is dismissed.