Malkit Singh vs Union of India

S.S. Saron, J.—The petitioner Malkit Singh by way of present petition seeks quashing of the order dated 27.11.2012 (Annexure P-4) passed by the Armed Forces Tribunal Regional Bench, Chandigarh at Chandimandir (Tribunal for short) whereby his original application No. 725 of 2011 claiming disability pension has been declined. The petitioner was an employee of the Indian Posts and Telegraph Department. He was sent on deputation to the Army Postal Services (APS-for short) from 03.12.2005. According to the petitioner at the time of joining APS, he was required to undergo complete medical check up as per the standards laid down by the Army for the category of such appointments. He was thoroughly examined and checked up by the Medical authorities. He was found fit in all respects and was assessed and declared in medical category, "Shape/1; Aye". The petitioner served in APS for a period of four years and eleven months. He was posted in a Unit situated in hard field areas and it is alleged he worked under great stress and strain due to overload of work during his service. During his service, the petitioner developed disease known as '' Osteosarcoma (RT) Iliac'' which is a kind of disease affecting the backbones-cancerous in nature. His disability on account of the said disease was assessed to the extent of 60 per cent for life by the Medical Board held at Military Hospital, Jodhpur on 05.10.2010. The grievance of the petitioner is that he was not granted or considered for disability element or disability pension by the Army which has resulted in discrimination to him by the respondents.

Learned counsel for the petitioner has submitted that the learned Tribunal gravely erred in dismissing the claim of the petitioner for grant of disability pension specially when the disability of the petitioner has been assessed at 60% and he has been invalided out of service.

We have given our thoughtful consideration to the contentions of the learned counsel for the petitioner and with his assistance perused the record. As already noticed the petitioner joined the APS from the Indian Posts and Telegraph Department on deputation on 03.12.2005 and he was invalided out of service as during the service he suffered disease of ''Osteosarcoma (RT) Iliac bone. His disability was assessed to the extent of 60% for life by the Medical Board held at Military Hospital, Jodhpur on 05.10.2010. Copy of the Medical Board proceedings which was appended as Annexure P-5 before the Tribunal has been submitted by the learned counsel for the petitioner during the course of hearing. The same has been taken on record. A perusal of the said Medical Board proceedings show that the illness of the petitioner first started in December, 2009 at Ferozepur. The approximate dates for which he was treated is from May, 2010 to 16.08.2010 and from August, 2010 at the Army Hospital. Against the columns relating to the disability being attributable to service and being aggravated by service respectively, it is mentioned as no''. In the column against ''reason/cause/specific conditions and period in service'' it is written; ''disability of endogenous origin not connected with service''. The disability was assessed at 60 per cent.

According to the petitioner, the disability having been suffered during military service, the petitioner was entitled to benefit of disability pension in accordance with Regulation 173 of the Pension Regulations for the Army, 1961 and there is a presumption that the disability that the petitioner suffered was due to military service and was aggravated by military service especially when he was in a fit condition when he joined APS.

It may be noticed, the learned Tribunal observed that the invaliding board proceedings showed that the petitioner first incurred the disease in 2009. He sought treatment from Rajiv Gandhi Cancer Centre, Delhi on his own where he had undergone surgery on 19.09.2010. Thereafter he reported at the Military Hospital on 28.09.2010 where he was thoroughly investigated. The Medical Board assessed his disability at 60 per cent for life and the disability qualifying for disability pension to be NIL. The disease was stated to be endogenous origin not connected with service''. There was no casual connection of the disease with Military Service. It was found by the learned Tribunal that in view of the detailed Specialist''s opinion and circumstances of acquiring the disability, there was no reason to interfere with the findings of the invaliding Medical Board. Reliance was placed on the Supreme Court Judgment in the case of Secretary, Ministry of Defence and Others Vs. Damodaran A.V. (Dead) through LRs. and Others, . It was also observed that Regulation 423 of Regulations for the Medical Services, 1983 and Rules 5 and 9 of Entitlement Rules for Casualty Pensionary Awards 1982 though provide that the disease when incurred while in service is to be taken to have arisen in service. However, that alone it was observed, does not confer attributable ability as the provisions of Rule 14 of the Entitlement Rules for Casualty Pensionary Awards, 1982 were also to be taken into account. The said Rule 14 reads as under:--

Rule 14. DISEASE - In respect of diseases, the following rule will be observed:--

(a) Cases in which it is established that conditions of Military Service did not determine or contribute to the onset of the disease but influenced the subsequent courses of the disease will fall for acceptance on the basis of aggravation.

(b) A disease which has led to an individuals 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 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.

(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.

On the basis of the above nothing was found to show that the conditions of the 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. It was also held that question of presumption of the disease having arisen in service was not relevant as the aspect of the disease having arisen in service by itself was not in dispute.

It is appropriate to note that in terms of the Entitlement Rules for Casualty Pensionary Awards, 1982 in case a disease is suffered in military service a presumption is to be drawn that the member of the service was in sound physical and mental condition upon entering his service except as to physical disabilities noted or recorded at the time of entrance. However, in the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service. Therefore, it is to be normally presumed that the deterioration in health that had taken place of a member of the service while in service was due to service. However, with respect to disability due to disease, Rule 14 as referred to above is applicable. As per clause (b) of the above Rule 14, a disease which has led an individual''s discharge or death is ordinarily to be deemed to have arisen in service, if no note of it was made at the time of the acceptance for military service by the individual. However, as per clause (c) of Rule 14, if a disease is accepted as having arisen in service, it is also required to 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. Therefore, the petitioner was liable to show that the conditions of his service were such that these determined or contributed to the onset of the disease. The petitioner has not shown or placed any material on record that he served in any high altitude difficult area or that his condition of service were arduous in nature. He has merely made a bald assertion that during the service period, he was posted in units located in hard field areas. He has failed to mention the location of the areas and how were these hard. For this an adverse inference is liable to be drawn against him. Besides, he was in the Postal services and the nature of job is mostly sitting on the chair and is a desk job, which is civil in nature. He has not placed on record any material to show that the service entailed any kind of stress and strain or that he carried out any extraordinary work of long durations which can be said to have contributed to the onset of the disease and that the conditions were due to the circumstances of duty in Military Service. Therefore, the Tribunal having reached the conclusion and there being nothing on record to dislodge the same, we find no reason to interfere with the reasonings recorded by the Tribunal. Consequently, there is no merit in the petition and the same is accordingly dismissed.