Rohtash vs Union of India and Others

A.K. Sikri, C.J.—The petitioner herein who was boarded out of Army Service on medical ground claims that he is entitled to disability pension. He had submitted a representation in this behalf to the Army Authorities which was rejected. He challenged that order by filing a civil suit in the Court of Civil Judge (Senior Division), Bhiwani (Haryana). On the constitution of the Armed Forces Tribunal, this suit was transferred to the Armed Forces Tribunal and has been decided vide judgment dated 23.12.2011 whereby his suit has been dismissed being devoid of merits. The facts which are not in dispute are that the petitioner was reenrolled in army on 19.10.1977 and was discharged on 31.10.2005. Thus, by the time he had rendered 28 years of service and on that basis he is getting normal pension. The reason for discharge of the petitioner from army service was that he was suffering from "Bilateral Obstructive Uropathy and Sub-acute Cutaneous Lupus Erythematosis" and as per the medical report this put him in medical category P2 and P-3 with 60 percent composite disability. On that basis, the Release Medical Board opined that the said disease was neither attributable nor aggravated by military service and petitioner had been boarded out of army service.

The contention of the petitioner was that when he entered the army service in October, 1977, he was hale and hearty and was not suffering from any disease. Therefore, this disease is attributed to military service or at least aggravated by the military service. Respondents, however, maintained that the petitioner was downgraded to low medical category S1 H1 A1 P3 E1 w.e.f. 27.12.2004 for "Sub acute cutaneous lupus erythematosis". After the medical examination, the Release Medical Board had opined that the aforesaid disease was neither attributable to nor aggravated to the military service. The justification given by the Medical Board for coming to this conclusion was that (a) it was constitutional disease and (b) it was not related to military service, meaning thereby the functions which were performed by the petitioner could not have led to the aforesaid disease. It is not in dispute that to earn disability pension it needs to be specified that the disease from which the army official suffered and which led to his discharge from the military service was either attributable or aggravated by the military service. The respondents have also framed requisite rules in this behalf and the primary conditions for grant of disability pension are given in Pension Regulation for the Army, 1961. Under Regulation 173, it is provided that if a person is disabled 20% or above and invalided out of service on account of a disability which is attributable to or aggravated by military service, the disability is attributable to or aggravated shall be determined under the rule in Appendix-II. Under Regulation 173-A, the persons who are placed in a lower medical category (other than "E") permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who are unwilling to accept the alternative employment or who has been retained in alternative appointment, are discharged before completion of their engagement, shall be deemed to have been invalided from service for the purpose of entitlement rules laid down in Appendix-II to these Regulations. Regulations 173 and 173-A are reproduced herein below:-

Unless otherwise specifically provided a disability pension consisting of service element and disability element 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 in non-battle casualty and is assessed at 20 per cent or over.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II. 173-A. Individuals who are placed in a lower medical category (other than ''E'') permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who are unwilling to accept the alternative employment or who having retained in alternative appointment are discharged before completion of their engagement, shall be deemed to have been invalided from service for the purpose of the entitlement rules laid down in Appendix II to these Regulations.

It is clear from the above that there is a presumption that at the time of entering into service, the very employee was not suffering from a disease and the same was attributed to him thereafter during service and it would be treated as attributable or aggravated by the military service. However, exception to this Rule would be if it is proved that the nature of disease is such that it cannot be attributed to service or the duties performed by the officer would not aggravate such disease. This presumption would be dislodged if it can be proved that the disease was constitutional in nature or could not have been detected at the time of entering into service.

Keeping in view the aforesaid parameters we have to examine the disease from which the petitioner is suffering. The Tribunal has noted that "Pelvic Lipomatosis" is a disease of unknown cause characterized by overgrowth of mature non-malignant fat cells in the pelvic region, especially in the perivesical and perirectal spaces. It is a rare disease and has been linked to obesity.

The petitioner was diagnosed of the aforesaid disease sometime in the year 2002 while he was serving in Akhnoor (Jammu & Kashmir). On 04.12.2002 his treatment for this disease commenced. On completion of this treatment, the Medical Categorization Board held at MH Bareilly on 01.04.2003 placed the petitioner in category S1 H1 A1 P3 (T-24) E1 Medical category. Likewise, the petitioner was treated for "Sub-acute cutaneous lupus erythematosis" at MH Jaipur from 6th February, 2004 and was placed in low medical category S1 H1 A1 P3 (T-24) E1 with effect from 27th December, 2004. At that time, the Medical Board opined that it was neither attributed nor aggravated by the military service.

Going by the aforesaid nature of disease as well as the treatment given to him including opinions of the Medical Boards, the Tribunal came to the conclusion that the disability could not have any casual connection with the military service and dismissed the suit.

Learned counsel for the appellant argued that the Tribunal did not appreciate Regulations 173 and 173-A of the Pension Regulations in correct perspective. He further submitted that Appendix-II also contains Entitlement Rules for Casualty Pensionary Awards, 1982 and under these Rules the petitioner was entitled for disability pension.

Learned counsel for the appellant referred to Rules 5, 14, 15, 19 and 20 of these Entitlement Rules which read as under:-

The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions:

PRIOR TO AND DURING SERVICE

(a) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance.

(b) 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.

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 tall for acceptance on the basis of aggravation.

(b) 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 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.

The onset and progress of some diseases are affected by environmental factors related to service conditions, dietic compulsions, exposure to noise, physical and mental stress and strain. Disease due, to infection arising in service, will merit an entitlement of attributability. Nevertheless, attention must be given to the possibility of pre-service history of such conditions, which, if approved, could rule out entitlement of attributability but would require consideration regarding aggravation. For clinical description of common diseases reference shall be made to the Guide to Medical Officers (Military Pensions) 1980, as amended from time to time. The classification of diseases affected by environmental factors in service is given in Annexure-III to these rules.

AGGRAVATION: If it is established that the disability was not caused by service, attributability shall not be conceded. However, aggravation by service is to be accepted unless any worsening in his condition was not due to his service or worsening did not persist on the date of discharge/claim.

CONDITIONS OF UNKNOWN AETIOLOGY:

There are a number of medical conditions, which are unknown, aetiology. In dealing with such conditions, the following guiding principles are laid down:-

(a) If nothing at all is known about the cause of the disease, and the presumption of the entitlement in favour of the claimant is not rebutted, attributability should be conceded.

(b) If the disease is one which arises and progresses independently of service/environmental factors than the claim may be rejected.

A conjoint reading of the aforesaid provision would disclose that the following parameters are to be taken into consideration while deciding as to whether the disability is attributed to the military service or even if it is not attributed to, it has been aggravated by the military service:-

i) Since at the time of entering into the military service, there is an intensive medical check up. If at that time physical disability is not noted or recorded, it is to be presumed that the entrant joined the service with sound physical and mental condition. In that case, if he is discharged on medical ground, then it is to be presumed that the medical condition was due to service. Even in a particular case when it is established that the conditions of military service did not determine or contribute to its onset but it is influenced by subsequent course of the disease, it will be presumed that that it was aggravated during military service. In that case, it is to be established that the conditions of military service were such that it determined or contributed to the onset of the disease and that the conditions were due to circumstances of duty in military service. Here it needs to be examined as to whether onset or progress of the disease was due to environmental factors related to service conditions, dietic compulsions, exposure to noise, physical and mental stress and strain etc.

ii) In those type of medical conditions which are unknown i.e. aetiology, the presumption in favour of the concerned official would apply unless it is shown that the disease is one which arises and progresses independently of service/environmental factor.

From the aforesaid, it is clear that unless it is established that the disease is one which arises and progresses independently of service/environmental factor, the presumption is to be drawn in favour of the employee, who entered the service in robust health and without any disease, that the disease subsequently contracted by him is either attributable to or aggravated by the military service.

Applying this principle to the facts of the present case we find that the petitioner herein contracted Pelvic Lipomatosis. He was also treated for "Sub-acute cutaneous lupus erythematosis" at MH Jaipur on 06.02.2004. Having regard to the medical literacy on this nature of disease, namely, Pelvic Lipomatosis, it is difficult to relate the same to the military service. The nature of duties performed by the petitioner while in military service would not have caused such a disease. It also cannot be said that onset or progress of the disease was due to environmental factors relating to service conditions, dietic compulsions, exposure to noise, physical and mental stress and strain etc. as it is not related to any of these causes. Further, it could not have been aggravated by service because no activities in the military can aggravate such conditions. This disease and complications thereof would be regardless of his military service and it will have natural progression. Having regard to this, the opinion of the Medical Categorization Board, as noted in para No. 6 above, needs to be accepted in the facts of this case.

We are, therefore, of the opinion that the order of the Tribunal does not call for any interference. Dismissed.