Rajesh 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) Quash the letter dated 12.01.2015 and 01.05.2014.

(b) Further praying for issuance of directions to . the respondents directing dthm to reinstate the applicant in service with his original

service number, seniority along with all consequential benefits or grant disability pension @ 60% (now 75%) w.ef 26.06.2013 along with

interest @ 18% thereon.

(c) Issue such further appropriate order/direction as this Hon'ble Tribunal may be deem fit and proper in facts and circumstances of the

case.

Brief facts of the case are that the applicant was enrolled in the Indian Army on 24.09.2012 and was invalided out of service w.e.f. 25.06.2013 in

low medical category `S5' due to 'Paranoid Schizophrenia (F 20. 0)' having rendered only nine months of service. The IMB of the applicant was held

on 29.04.2013 at Base Hospital, Delhi Cantt which had assessed his disability @ 60% for life neither attributable to nor aggravated by military service

(NANA). Disability pension claim of the applicant was rejected by PCDA (P), Allahabad vide order dated 21.07.2014. Thereafter legal notice issued

by his counsel was replied vide letter dated 12.05.2015 indicating therein reasons for non admissibility of disability pension. 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. He further stressed that the Medical Board has also mentioned onset/origin of the disease during service/training therefore the disability

should be accepted as attributable to military service. 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 20% or over but in the instant case

the disability of the applicant has been assessed at 60% for life and NANA, therefore the applicant is not entitled to disability pension. The Ld.

Counsel for the respondents further submitted that claim for invalid pension has rightly been rejected by the competent authority in view of para 198 of

Pension Regulations for the Army 1961 (Part-I) which categorically states that the minimum period of qualifying service actually rendered and

required for grant of invalid pension is ten years but in the instant case the applicant has put in only 09 months of service. 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 24.09.2012 and the disease had first started

on 12.12.2012 i.e. within three months of joining the service. He was administered treatment at Base Hospital, Delhi Cantt. On admission in the

Hospital the case history of the applicant was endorsed by Lt Col Siddharth Dixit, Classified Specialist (Psy) as under:-

History of present illness. This recruit was apparently well about till last wk of Nov 12 while undergoing recruitment training at Raj Rif (wef

24 Sep 2012 till 12 Dec 12). He was noted to remain aloof socially withdrawn and crying intermittently. He felt people around him are

plotting against him and trying to harm him. He became anxious, fearful, and kept to himself He was heard claiming ""goon walon nai jaal

bichaya hai woh chalnai main rukawat dalate' hain tab main theek say chal nahin paata."" He was seen by his colleagues to muttering and

gesticulating also. He has complained of hearing voices ofp erson commenting in derogatory manner and threatening him (maar doonga

bahar aa sonai nahin doonga). He was worried and tried intermittently. He neglected personal hygiene and food intake. Over another week

he stopped attending to routine duties at training centre and remained awake at the night. Noticing his behavioural abnormalities he was

admitted along with escorts for further management by psychiatrist at BHDC. He h/o fever head injury or substance abuse.

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Management Recommended. In view of genetic loading in first degree relative, poor response to treatment modality and onset of psychotic

breakdown during recruit phase of training he is unlikely to withstand stress and strain of soldiers life. Hence recommended to be invalided

out of service. xxxxxx

In the above scenario, we are of the opinion that since the disease has 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 fade 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 1MB

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. 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 Hon'ble Apex Court in Civil Appeal Dy. No. 30684/2017 and was dismissed on delay as well as on merits.

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 Hontle 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 19 (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 ofgrant of disability pension is a beneficial provision but, mental disorder at the time

ofrecruitment 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 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.

Pronounced in the open court on 2.4 Feb , 2020.