Dinesh Kumar vs Union Of India And Others

Being aggrieved by denial of disability pension, the applicant has filed the present Original Application under Section 14 of the Armed Forces

Tribunal Act, 2007 wherein he has sought the following reliefs:-

(a) Petitioner, hence, prays for grant of disability pension in accordance with the applicable Rules and as held by the Hon'ble Supreme Court vide

Annexures sA-1 to A-5 and The Entitlement Rules, 1982, by setting aside that part of the Medical Board (Impugned Order I) and the consequent

rejection (Impugned Order 2)wherein his disability has been opined to be neither attributable to nor aggravated by military service being not only in

conflict with the Rules but also in direct contravention of a series of decisions of the Hon'ble Supreme Court (as seen supra).

(b) With a further prayer that the Hon'ble Tribunal may be pleased to direct that the disability pension thus awarded may be broad banded by the

respondents in terms of the judgment of the Hon'ble Supreme Court of India in C.A.418/2012 i.e. Ram Avatar vs Union of India.

(c) That the respondents may be directed to release the broad banded disability pension and its arrears with heavy costs and compensation and

interest within a time bound manner.

(d) Any other relief which the Hon'ble Tribunal may deem fit in the interest ofp etitioner.

Brief facts of the case are that the applicant was enrolled in the Indian Army on 18.12.2011 and was invalided out of service w.e.f. 03.08.2012 in

low medical category 'S5' due to 'Depression with Psychotic Symptoms (F-32.3)' having rendered only seven months and seventeen days of service.

The IMB of the applicant was held on 03.07.2012 at Military Hospital, Secunderabad which had assessed his disability @ 40% for life neither

attributable to nor aggravated by military service (NANA). Disability pension claim of the applicant was rejected vide order dated 26.09.2014.

Thereafter First Appeal was forwarded vide letter dated 11.09.2015 which is still pending. It is in this perspective that this O.A. has been filed.

Ld. Counsel for the applicant pleaded that the applicant was enrolled in the Army in medically and physically fit condition. It was further pleaded

that a member is to be presumed in sound physical and mental condition upon entering service if there is no note or record to the contrary at the time

of entry. In the event of his subsequently being invalided out from service on medical grounds, any deterioration in his health is to be presumed due to

service conditions. He pleaded that the applicant was under stress and strains due to rigors of service conditions which may have led to occurrence of

the disability. The Ld. Counsel for the applicant pleaded for disability pension to be granted to the applicant.

On the other hand, Ld. Counsel for the respondents submitted that since the IMB has opined the disability as NANA, the applicant is not entitled to

disability pension. He further accentuated that the applicant is not entitled to disability pension in terms of Rule 173 of Pensions Regulations for the

Army 1961 (Part-I) which stipulates that, ""unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided

out of service on account of a disability which is attributable to or aggravated by military service and is assessed at 200/o or over but in the instant

case the disability of the applicant has been assessed at 40% for life and NANA, therefore the applicant is not entitled to disability pension. He

pleaded the O.A. to be dismissed.

We have heard Ld. Counsel for the parties and perused the material placed on record.

On careful perusal of the medical documents, it has been observed that the applicant was enrolled on 18.12.2011 and the disease had first started

on 11.03.2012 i.e. within three months of joining the service. He was administered treatment at Military Hospital, Secunderabad w.e.f. 11.03.2012 till

his invalidation. On admission in the Hospital the case history of the applicant was endorsed by Lt Col JS Rana, Classified Specialist (Psy) as under:-

History ofp resent illness. Patient was apparently all right till he joined the EME Centre on 20 Dec H. Patient started having problems with

his colleague which got amplified after he was admonished by the CHM. Xxxxxxxx

Commented on by colleagues for offensive odder to rectiA it he first took bath with Dettol but as it did not help consumed Dettol in order to

clean his rotting intestine and stop the offensive odder. Ind! reported as felt uncomfortable hence hospitalized.

xxxx xxxx xxxAFMSF-10 dated 15 Mar 12 is uncomplimentary mentioning abnormal behaviour and reclusive.

XXXXXXXXX

Psychiatrically clean kempt indl having depressive facies. Had perplexity, referential & (sic) delusion, low mood and disturbed Biodrives.

Patient was managed as a case of Depression with Psychatric symptoms with anti depressants and psychotics and other diversional

measures with gradual but satisfactory response. In view of Rect having mental illness require of prolonged treatment and follow up, less

than 02 yrs service and DGAFMSF memorandum 171 he cannot be retained in service.

Recommended

To be invalided out of service in S5.

xxxxxxx

In the above scenario, we are of the opinion that since the disease had started in less than three months of his enrolment, hence by no stretch of

imagination, it can be concluded that it has been caused by stress and strains of military service. Additionally, it is well known that mental disorders

can escape detection at the time of enrolment hence benefit of doubt cannot be given to the applicant merely on the ground that the disease could not

be detected at the time of enrolment. Since there is no causal connection between this disease and military service, hence we are in agreement with

the opinion of the IMB that the disease is NANA. Additionally, a recruit is akin to a probationer and hence prima facie the respondents as an

employer have every right to discharge a recruit who is not meeting the medical requirement of military service and is not likely to become a good

soldier. In view of the foregoing and the fact that the disease manifested in less than three months of enrolment, we are in agreement with the opinion

of IMB that the disease is NANA.

Apart from, in similar factual background a Regional Bench of Armed Forces Tribunal had dismissed T.A. No. 1462/2010 vide order dated

23.05.2011 wherein the applicant was enrolled on 21.01.2000 and was discharged on 27.04.2000 as he was suffering from Schizophrenia with

Psychotic Symptoms. Said disability was assessed @ 80% for two years and it was opined by the Medical Board to be neither attributable to nor

aggravated by military service. The said order was upheld by the Hontle Apex Court in Civil Appeal Dy. No. 30684/2017. Additionally, in Civil Appeal

No 7672 of 2019 in Ex Cfn Narsingh Yadav vs Union of India & Ors it has again been held by the Hon'ble Supreme Court that mental disorders

cannot be detected at the time of recruitment and their subsequent manifestation (in this case after about three years of service) does not entitle a

person for disability pension unless there are very valid reasons and strong medical evidence to dispute the opinion of Medical Board. Relevant part of

the aforesaid judgment is as given below:-

In the present case, clause 14 (d), as amended in the year 1996 and reproduced above, would be applicable as entitlement to disability

pension shall not be considered unless it is clearly established that the cause of such disease was adversely affected due to factors related

to conditions of military service. Though, the provision of grant of disability pension is a beneficial provision but, mental disorder at the

time of recruitment cannot normally be detected when a person behaves normally. Since there is a possibility of non-detection of mental

disorder, therefore, it cannot be said that 'Paranoid Schizophrenia (F 20.0)' is presumed to be attributed to or aggravated by military

service.

Though, the opinion of the Medical Board is subject to judicial review but the courts are not possessed of expertise to dispute such

report unless there is strong medical evidence on record to dispute the opinion of the Medical Board which may warrant the constitution of

the Review Medical Board. The Invaliding Medical Board has categorically held that the appellant is not fit for further service and there is

no material on record to doubt the correctness of the Report of the Invaliding Medical Board.

In view of the above, the O.A. is devoid of merit and deserves to be dismissed.It is accordingly dismissed.

No order as to costs.

Pending applications, if any, are disposed of accordingly.

Pronounced in the open court on 6th March, 2020.