CONTROLLER OF DEFENCE ACCOUNTS (PENSION) AND ORS. A
v.
S. BALACHANDRAN NAIR
OCTOBER 21, 2005
[ARIJIT PASA YAT AND DR. AR. LAKSHMANAN, JJ.] B
Service Law:
Army Pension Regulations-Rule 173-Army personnel-Invalidation
of. on account of illness-Disability Pension-Entitlement to-Held: C
Personnel concerned is not entitled to disability pension as illness suffered
by him was not attributable to the military service.
Respondent was selected in Army. He successfully underwent medical
examination and thereafter was posted at various places. He developed certain
medical problems and after prolonged treatment, was found unfit for D
continuing in service. The Medical Board opined that the illness suffered by
respondent was not attributable to military service. Thereafter, he was
discharged from service. He filed claim for disability pension which was
rejected. He successfully moved the High Court. Hence the present appeal.
Allowing the appeal, the Court E
HELD: Under Rule 173 of Pensioa Regulations for the Army, disability
pension would be computed only when disability has occurred due to wound,
injury or disease which is attributable to military service or existed before
or arose during military sen>ice and has been and remains aggravated during F
the military service. If these coaditions are satisfied, necessarily the
incumbent is entitled to the disability pension. The Medical Board's opinion
was clearly to the effect that the illness suffered by the respondent was not
attributable . to the military service. The respondent is not entitled to disability
pension. (437-E; 438-CJ
Union ofIndia and Anr. v. Baljit Singh, (199611 SCC 315 and Union of G
India and Ors. v. Dhir Singh China, Colonel (Retd) (20031 2 SCC 382, relied
on.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1646 of I999.
431 H
432 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A From the Judgment and Order dated 24.9.97 of the Kerala High Court
in W.A. No. 838of1997.
Md. T.M. Youseff, Rudreshwar Singh and Mrs. Anil Katiyar for the
Appellants.
B A. Raghunath for the Respondent.
The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment rendered
by a Division Bench of the Kerala High Court holding that the respondent
C was entitled to disability pension.
Factual background is essentially as follows:
R;spondent joined the Indian Army on 7.2.1972 in the Signal Corps. He
was selected to the regular Army through the selection process prescribed
D by the Army authorities and had undergone a thorough medical examination.
Thereafter, he had undergone miEtary training at 3 M. T.R. Goa for a period
of two years. After completion of training he was posted in the Signal
Company at Jabalpur for a period of three years. Thereafter, he was posted
to the border area in Punjab. However, he was not involved in actual combat
E operations or in combat area. He was working in the office of Radio machine.
He developed certain medical problems and was admitted in the Command
Hospital at Chandigarh o:i 10.8.1977. He was not completely cured and had
some kidney complications and the medical authorities found his illness as
'anxiety neurosis'. He was again admitted in the Chandigarh Military Hospital
in December 1979 and after prolonged treatment ~as boarded out and the
F 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' with effect from 18.3.1980 and was finally discharged from service.
Respondent made an application for disability pension. Same was rejected
by the authorities on the ground that the disability of the respondent was not
G attributable to military service. It was also stated that there was no proof that
the disability had existed before or developed during military service and/or
had aggravated thereby and military disability pension was accordingly denied.
As his various representations did not bring any positive result he filed writ
petition before the Kerala High Court. A learned Single Judge held that the
H respondent had been working in sensitive and turbulent areas and this must
CONTROLLER OF DEFENCE ACCOUNTS (PENSION)'· S. BALACHANDRAN NAIR [PASA YAT. J.) 4JJ
have aggravated his disease and the stress and stains of military service were A
the sole cause of his illness and it was clearly attributable to the stress and
strain of military service. The present appellants were therefore, directed to
disburse disability pension.
Challenging the order passed by learned Single Judge, a Writ Appeal
was filed before the Kerala High Court. The Division Bench by the impugned B
judgment dismissed the Writ Appeal.
The stand of the appellants before the High Court was that the writ
petition was filed belatedly and on account of !aches alone the writ petition
should have been dismissed. The request for disability pension was rejected C
in 1980 and he was told that he could file an appeal within a period of six
months. The appeal was disposed of much before filing of the writ petition.
In addition, it was submitted that the Medical Board itself has found that the
illness suffered by the respondent cannot be attributed to military service and
when an expert body like the Medical Board gave the opinion the authorities
were in fact bound by such decision and the learned Single Judge was not D
justified in his view. The Division Bench dismissed the appeal on the ground
that no psychic disability was noticed when the respondent joined the military
service. The fact that the illness occurred while he was in the border area
clearly established that the ailment was attributable to military service. The
fact that the respondent was working in the border area must have caused
some stress and strain and, therefore, learned Single Judge was right in his E
conclusions.
Learned counsel for the appellants submitted that Regulations for the
Medical Service of Armed Forces, 1983 (in short the 'Regulations') provide
the ailments which are attributable to such service. Specific reference is made F
to Regulation 423. Further, the view of an expert body like the Medical Board
should not have bee~ lightly brushed aside by the High Court. On medical
check up, the opinions recorded in the Medical Board Proceedings are as
follows:
"Part I - Personal Statement
G
Anxiety Neurosis 300 (a) (V 67)
Part II - Statement of case
Anxiety Neurosis 300(a) (V 67)
Opinion of Lt. Col. B.N. Majumdar, AMC classified Specialist H
434 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A (Psychiatry) Command Hospital (CJ Chandigarh dated 11.2. 1980.
A case of Anxiety Neurosis in a young sepoy whose response
to therapy is poor and he shows no desire nor makes any efforts to
overcome his disability. He is unlikely to benefit by further therapy
and make a fit and stable soldier in future. He is therefore considered
B unfit for further military service and is recommended medical category
REE (Psychological)".
Confidential
"A constitutional disease in nature unconnected with service
C condition."
Reference was also made to Pension Regulations for the Army (in short
the 'Pension Regulations'). Rule 173 of such Regulations read as follows:
Primary conditions for the grant of disability pension:
D "173. Unless otherwise specifically provided a disability pension may
be granted to an individual who is invalided from service on account
of a disability which is attributable to or aggravated by military service
and is assessed at 20 percent or above.
The question whether a disability is attributable to or aggravated
E by military service shall be determined under rule in Appendix II.
Relevant portion in Appendix II reads as follows:
"2. Disablement or death shall be accepted as due to military
service provided it is certified that -
F (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;
G
(b) the death was due to or hastened by-
(i) a wound, injury or disease which was attributable to military
service, or
(ii) the aggravation by military service of a wound, injury or
H
CONTROLLER OF DEFENCE ACCOUNTS (PENSION) v. S. BALACHANDRAN NAIR [PASA VAT, l.) 43 5
di_sease which existed before or arose during military service. A
Note: The Rule also covers cases of death after discharge/
invaliding from service.
3. There must be a casual connection between disablement or death
and military service for attributability or aggravation to be conceded.
B
4. 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. Thjs benefit will be
given more liberally to the claimant in field service case."
Learned counsel for the respondent on the other hand submitted that C
the learned Single Judge and the Division Bench have clearly taken note of
the ground realities that in view of the fact that the respondent was posted
at sensitive border area, his illness is clearly attributable to military service.
In order to appreciate rival submissions Regulation 423 needs to be
extracted. The same reads as follows: D
"423. Attributability to Service:
(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 E
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
tllken into account and benefit of reasonable doubt, if any, will
be given to the individual. The evidence to be accepted as F
reasonable doubt, for the purpose of these instructions, should
be of a degree of cogency, which though not reaching certainty,
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 G
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 H
436 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A 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 a disability or death resulting from wound or injury,
will be regarded as attributable to service if the wound/injury was
B 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 (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
D 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
E 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 is attributable to or
aggravated by service or not, will be decided as regards its
F
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
G 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 C.O. unit-will furnish
H a report on:-
CONTROLLER OF DEFENCE ACCOUNTS(PENSION) '· S. BALACHANDRAN NAIR [PASAYAT, J.] 43 7
(i) AFMS F-81 in all cases other than those due to injuries. A
(i) IAFY-2006 in all cases of injuries other than battle injuries.
(f) In cases where award of disability pension or reassessment of
disabilities is concerned, a medical board is always necessary
and the certificate of a single medical officer will not be accepted B
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 latter case will be furnished on
a medical board form and countersigned by the ADMS (Army)/
OMS (Navy)/DMS (Air).
In Union of India and Anr. v. Bal} it Singh, [ 1996] I 1 SCC 3 I 5 this Court C
had taken note of Rule I 73 of the Pension Regulations. It was observed that
where the 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's direction to the Government to pay disability pension
was not correct. It was inter alia observed as follows: D
"6 ............. It is seen that various criteria have been prescribed in the
guidelines under the Rules as to when the disease or injury is
attributable to the military service. It is seen that under Rule I 73
disability pension would be computed only when disability has occurred
due to wound, injury or disease which is attributable to military E
service or existed before or arose during military service arid has been
and remains aggravated during the military service. If these conditions
are satisfied, necessarily the incumbent is entitled to the disability
pension. This is made ample clear from clause (a) to (d) of para 7
which contemplates that in respect of a disease the Rules enumerated F
thereunder 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 satisfied, it cannot be said that the sustenance of injury G
per se is on account of military service. In view of the report of the
Medical Board of Doctors, it is not due to military service. The
conclusion may not have been satisfactorily reached that the injury
though sustained while in service, it was not on account of military
service. In each case, when a disability pension is sought for made
H
438 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A a claim, it must be affirmatively established, as a fact, as to whether
the injury sustained was due to military service or was aggravated
which contributed to invalidation for the military service".
The position was again re-iterated in Union of India and Ors. v. Dhir
Singh China, Colonel (Retd.) [2003) 2 SCC 382. In para 7 it was observed
B as follows:
"7. That leaves for consideration Regulation 53. The said Regulation
provides that on an officer being compulsorily retired on account of
age or on completion of tenure, if suffering on retirement from a
disability attributable to or aggravated by military service and recorded
c by service medical authority, he may be granted, in addition to retiring
pension, a disability element as if he had been retired on account of
disability. It is not in dispute that the respondent was compulsorily
retired on attaining the age of superannuation. The question, therefore,
which arises for consideration is whether he was suffering, on
retirement, from a disability attributable to or aggravated by military
D service and recorded by service medical authority. We have already
referred to the opinion of the Medical Board which found that the two
disabilities from which the respondent was suffering were not
attributable to or aggravated by military service. Clearly therefore, the
opinion of the Medical Board ruled out the applicability of Regulation
E 53 to the case of the respondent. The diseases from which he was
suffering were not found to be attributable to or aggravated by military
service, and were in the nature of constitutional diseases. Such being
the opinion of the Medical Board, in our view the respondent can
derive no benefit from Regulation 53. The opinion of the Medical
Board has not been assailed in this proceeding and, therefore, must
F be accepted."
In view of the legal position referred to above and the fact that the
Medical Board's opinion was clearly to the effect that the illness suffered by
the respondent was not attributable to the military service, both the learned
Single Judge and the Division Bench were not justified in their respective
G conclusion. The respondent is not entitled to disability pension. However, on
the facts and circumstances of the case, payment already made to the
respondent made by way of disability pension shall not be recovered from
him. The appeal is allowed but in the circumstances without any order as to -
costs.
H D.G. Appeal allowed.