Union of India (UOI) vs Angrez Singh

Y.P. Nargotra, J.—This Letters Patent Appeal is directed against the order dated 05-08-2005 passed in SWP No. 2543/2002 whereby

the respondent has been held entitled to disability pension and consequently respondents have been directed to release the same in his favour.

Facts which are not in dispute are that the respondent was enrolled in the Indian Army on 28th June, 1984 and alter basic military training, he

was posted at different places and stood transferred from Suratgarh to Jalandhar for temporary duty in the beginning of year 1991. While on

temporary duty he became seriously ill and was admitted to Military Hospital, Jalandhar, where he remained admitted for one month and then

referred to Army Hospital, Delhi. After receiving the medical treatment, the respondent was examined by the Medical Board and was placed in

CCC"" (permanent) category, due to the disease 'HORSE SHOE KIDNEY WITH SOLITARY RENAL CALCILUS (LT) with which he was

declared to be suffering. On being placed in low medical category CEE (Temporary) and then CEE (Permanent) w.e.f. 6th Nov. 1993 on account

of HORSE SHOE KIDNEY WITH SOLITARY RENAL CALCILUS (LT) disease with 20% disability, the respondent was invalided out of

service. The opinion of the Release Medical Board in regard to the disability of the respondent was that it is:

(a) Neither attributable to/nor aggravated by military service.

(b) Constitutional in nature and not related to service;

(c) Attributable to/aggravated by military service by assessed at less than 20% for life w.e.f. 01-07-2001.

Admittedly no note of the disease was kept on record at the time of induction of the respondent into army. The respondent claimed dis-ability

pension but the same was rejected by the pension sanctioning authority on the ground that the disease was neither attributable to nor aggravated by

military service and not connected with the service same being constitutional in nature. Respondent there-after filed writ petition SWP No.

2543/2002 in this Court seeking a direction to the respondents to grant and release the disability pension in his favour. Learned writ Court has

allowed the writ petition on finding the petitioner entitled to the dis-ability pension. Hence the present appeal.

We have heard the learned Counsel for the parties and perused the record. The contention of the learned Counsel for the appellant is that since

the medical board has opined that the disability of the petitioner was not attributable to military service nor it was aggravated thereby, therefore, the

respondent is not entitled to disability pension. To the contrary the contention of the learned Counsel for the respondent is that since at the time of

induction of the petitioner into army in his medical examination no such disease was detected on the person of the petitioner, therefore, it is to be

presumed that at that time he was physically fit and was not suffering from any such disease, which has caused the disability. The disease,

according to him with which the petitioner has been found suffering during his service is to be deemed to have resulted from the conditions of

military service or in any case it was aggravated thereby, therefore, the respondent was entitled to disability pension and as such, the learned Single

judge was justified in allowing the writ petition in terms of regulation 173 of Pension Regulations for the Army 1961.

Regulation 173 postulates that 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 disability which is attributable to or aggravated by military service and is

assessed at 20 percent or above.

Regulation 173 reads as follows:

Primary conditions for the grant of disability pension. 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 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 to by military service shall

be determined under the rule in Appendix-II.

Appendix II contains entitlement Rules for Casualty Pensionary Awards 1982 promulgated vide Ministry of Defence letter No. 1 (1) 81/Pen-e

dated 22-11-1983 as amended vide corrigendum No. 1 (1) 81/Pen dated 21st August, 1984 (before which entitlement Rules 1961 were in

operation.

Relevant portion of the above rules is as follows:

The approach to the question of entitlement to casualty pensioner 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;

Disablement or death shall be accepted as due to military service provided it is certified by appropriate medical authority that:

(a) the disablement is due to a wound, injury or disease which-

(i)(a) is attributable to military service, or

(ii) existed before or arose during military service and has been and remains aggravated thereby. This will also include the precipitating/hastening of

the onset of a disability.

(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 would, injury or disease which existed before or arose during military service.

Where there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of

that fact may be accepted.

Attributability/aggravation shall be conceded if casual connection between death/disablement and military service is certified by appropriate

medical authority.

ONUS OF PROOF:

The claimant shall not be called upon to prove the conditions of entitlement. He/she will receive the benefit of any reasonable doubt. This benefit

will be given more liberally to the claimants in field/afloat service cases.

Therefore, if a person contracts a disease during his military service under the above rule position his disablement, is to be accepted as due to

military service if it is certified by the appropriate medical authority that it is attributable to or aggravated by military service. Where Medical Board

in respect of an individual invalided out on being placed in requisite medical category has not certified that the disease causing the disability was due

to the conditions of military service, such individual would not be entitled to disability pension, the reason being that an individual while in military

service on account of reasons other than the reason of his being in military service can also contract a disease. In such cases the opinion of the

Medical Board being an expert in the field shall be final.

In exercise of power vested u/s 192 of Army Act the Central Government has framed Regulations. Regulation 423 is relevant which reads:

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 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 taken into account and benefit of reasonable doubts, if any, will be given to the individual. The evidence to be accepted as

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 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 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 would or injury, will be regarded as attributable to service if the wound/injury was 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) 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 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 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 regard its 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 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;

(a) To assist the medical officer who signs the death certificate or the medical board in the case of an invalid, the CO Unit will furnish a report on:

(i)

AFMS F-81 in all cases other than those due to injuries;

(ii)

IAFY-2006 in all cases of injuries other than battle injuries.

(b) 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 except in case of station 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 from and countersigned by the

ADMS (Army)/DMS (Navy)/DMS (Air).

From the bare reading of Clause (c) of the above rule, also it is manifest that disability resulting from a disease will be regarded as attributable to

service when it is established that the disease arose during service and conditions and circumstances of duty determined and contributed to the on

set of the disease and in case the conditions of service did not determine or contribute to the on set of the disease but influenced the subsequent

course, it will be regarded as aggravated by service. Thus, if the disease which arose during service was not the result of service conditions even

then it is to be regarded as aggravated if those service conditions influenced its future course i.e. leading to the disability on account of which the

individual is invalided out. It is therefore, clear that if a person is invalided out on account of a disability arising out of a disease which arose during

service, for becoming eligible to disability pension either of the two following conditions must be satisfied:

(a) that the conditions of service determined and contributed to the onset of the disease during service resulting into the disability, or

(b) the conditions of service if did not determine or contribute to the onset of the disease but influenced its future course leading to the disability, so

as the same could be regarded as aggravated by service.

In case Union of India (UOI) and Another Vs. Baljit Singh, the medical board found that there was absence of injury having been sustained due

to military service or being attributable thereto, the High Court's direction to the Government to pay the disability pension was held to be not

correct. Their Lordships observed:

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 173 disability pension would be computed only when disability ha occurred due to a wound, injury or disease

which is attributable to military service or existed before or arose during military service and 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 amply clear from Clauses [a] to

[d] of paragraph 7 which contemplates that in respect of a disease the Rules enumerated there-under require to be observed. Clause [c] provides

that if a disease is accepted as having arisen in service, it must also be established or contributed the onset of the disease and that the conditions

were due to the circumstances of duty in military service. Unless these conditions are satisfied, it cannot be said that the sustenance of injury 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 and made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was to military

service or was aggravated which contributed to invalidation for the military service.

This view was again reiterated in Union of India (UOI) and Others Vs. Dhir Singh China, Colonel (Retd.), . In para 7 it was observed as

follows:

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 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 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 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 be accepted

In Controller of Defence Accounts (Pension) and Ors. v. Section Balachandran Nair AIR 2005 SCW 5296 their Lordships of the Supreme

Court after noticing the provision contained in Regulation 173 and rules in Appendix-II, accepted the view expressed in the cases of Baljit Singh

and Dhir Singh (Supra) and held as follows:

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

conclusion. The respondent is not entitled to disability pension.

However if a disease is constitutional in nature that is it was always existing then there can be no question of its having arisen during service or its

being aggravated due to the conditions of military service. The medical opinion in this behalf rendered by Medical Board in terms of Clause (d) of

the above rule shall be final and the individual suffering from such disease would not be entitled to pension as a general rule. However, to this rule

there is an exception which has been carved out by Clause (c) of Rule 423 itself.

In terms of Clause (c) of the above rule a disease which led to an individual's discharge will ordinarily be deemed to have arisen during service

if no note of it was made at the time of the individual's induction into the military service, But in such a case if medical opinion holds for reasons to b

recorded that the disease could not have been detected on medical examinatio prior to acceptance for service such disease would not be deemed

to have arise during service. Thus even if the release Medical Board has opined that the disease is constitutional, therefore, could not have arisen

during military service, still it shall in view of Clause (c) which creates a statutory presumption b deemed to have arisen during military service, if no

note of it was made at th time of the induction of the individual into army and there is no medical opinion, available for holding that it could not have

been detected on medics examination prior to his acceptance into the army. Clause (c) read with Rule & 8 of Entitlement Rules makes the position

further clear that for such a discos which is to be accepted as having arisen in service it must also be established that the conditions of military

service determined or contributed to the aggravation thereof and that aggravation shall be conceded if casual connection between the disablement

and military service is certified by appropriate medical authority. Thus, even in regard to a constitutional disease, if presumption of its having arisen

during service is available if medical authority certifies the it bears a casual connection with the military duty then its aggravation b service conditions

is to be accepted.

But where medical authority has not certified in a case that disablement bears a casual connection with the military service, even then in view of

the provision made in Clause (d) it is open for the Pension Sanctioning Authority to hold that the service conditions of an individual bore a casual

connection t> the aggravation of the disease while deciding the question of entitlement to the pension. The Pension Sanctioning Authority while

determining the question c aggravation of a disease has to be guided by the provisions of Annexure-III to Appendix-II of Pension Regulations For

the Army 1961, in which diseases have been classified which are affected by the factors indicated therein and the diseases not normally affected by

service.

Annexure-III to Appendix-II reads:

A. Diseases Affected by Climatic Conditions:

Pulmonary Tuberculosis.

Pulmonary Oedema.

Pulmonary Tuberculosis with pleural effusion.

Tuberculosis-Non-Pulmonary.

Bronchitis.

Pleurisy empyema, lung abscess and Bronchiectasis.

Lohar pneumonia.

Nephritis (acute and chromic) Arthritis

Rheumatism (acute and chronic) Arthritis

Mylegia

Lumbago

Local effects of severe cold climate i.e. frost bite, tench foot and chiblains.

Effects of hot climate i.e. heat stroke and heat exhaustion.

B. Diseases Affected by stress and strain.

Psychosis and Psychoneurosis.

Hypertension (BP)

Pulmonary Tuberculosis.

Pulmo nary Tuberculosis with pleural effusion.

Tuberculosis (Non-pulmonary).

Mitral stenosis.

Pericarditis and adherent pericardium.

Endocarditis.

Sub-acute bacterial endo-carditis, including infective en3ocard-itis.

Myocarditis (acute and chronic)

Valvular disease.

Myocardial infarctionm and other forms of IHD.

Cerebral haemorrhage an dcerehral infarction.

Pepic ulcer.

C. Diseases Affected by Dietary Compulsions:

Infective hepatitis (jaundice).

Diseases of stomach and duodenum.

Worm infestation and particularly guinea worm and round worm infections.

Gastritis

Food Poisoning, especially due to tinned food.

Gastric Ulcer.

Duodenal Ulcer.

Nutritional Disorders.

A. Diseases Affected by Training Marching Prolonged Standing etc.

Tenanus, erysipelas, septicaemia and pyaemia etc resulting from injuries.

Ankylosis and acquired deformities resulting from injuries.

Post traumatic epilepsy and other mental changed resulting from head injuries.

Internal derangement of knee joint.

Deformities of feet.

Osteoertbeitis of spine and lower limb joints.

burns sustained through petrol, fire, kerosene oil etc, leading to scars and various deformities and disabilities.

Hernia.

Varicose veins.

B. Environmental Diseases:

Diseases contracted in the course of official duty of attending to a Venereal or septicaemic patient or while conducting a postmortem

examination.

Diseases contracted on account of handling infections material, poisonous chemicals and radioacative substance.

C. Diseases Affected by Altitude.

High altitude pulmonary oedema and pulmonary hypertension.

Acute mounation sickness.

Psychosis, Psychoneurosis, suicide.

Thrombosis.

D. Diseases Affected by Service in Submarines and in Diving.

Acoustic trauma resulting from continuous noise and vibrations.

Effects of exposure to high levels or toxic gases.

Droplet infections.

Neurosis and psychosomatic disorders.

Effects of barotraumas.

Decompression sickness.

Dysbaric osteo-necrosis.

E. Diseases Affected by Service in Plying Duties;

Otitic barotraumas.

Altitude decompression sickness.

Hypoxia.

Explosive decompression.

Long duration G.

F. Diseases not Normally Affected by Service:

Malignant diseases (Cancer and Carcinoma).

coma (except in cases of Sarcoma of bone with a history of injury due to service, on the site of development of the growth.

Epithelioma.

Rodent Ulcer.

Lymphosarcoma.

Lymphosarcoma, except of viral acticlogy.

Leukaemia (except radiation effect).

Pernicious anemia (Addision's disease).

Osteritis deformans (Paget's disease).

Gout.

Acromegaly.

Cirrhosis of the liver-if alchoholic.

EYES:

Errors of refraction.

Hypennetropia.

Myopia

Astiomatism

Preshyopia

Glaucoma-acute or chronic, unless there is a history of in jury due to service or of disease of the eye one to service.

Thus any such disease which under Clause (c) is to be presumed to have arisen during service if falls in any of the categories of the diseases

indicated in Annexure-III, it may be presumed to have aggravated by the factors indicated against such disease in Annexure-III. For instance in B

Category of Annexure-III diseases have been indicated which are affected by stress and strain. Thus if an individual is found to suffer from

psychosis with disability of 20% or more during service and such disease even if constitutional in nature, is to be deemed to have arisen during

service in terms of Clause (c), and that it was aggravated by stress and strain. As in terms of Rule 9 of Appendix-II the claimant is not required to

prove his entitlement, therefore, if there is no material before the Pension Sanctioning Authority that stress and strain was not involved in discharge

of the military duty, it would have no option but to concede the aggravation by accepting that stress and strain was caused by the military duty.

In Union of India and Ors. v. Keshar Singh AIR 2007 SCW 2760, their Lordships of the Supreme Court held as under:

A bare reading of the aforesaid provision makes it clear that ordinarily if a disease has led to the discharge of individual it shall ordinarily be

deemed to have arisen in service if no note on it was made at the time of individual's acceptance for military service. An exception, however, is

carved out, i.e. if medical opinion holds for reasons to be stated that the disease could not have been detected by Medical Examination Board

prior to acceptance for service, the disease would not be deemed to have arisen during service. Similarly, Clause (c) of Rule 7 makes the position

clear 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 are due to the circumstances of duty in military service. There is no material placed

by the respondent in this regard.

In the instant case the disease of the respondent though constitutional in nature and yet to be deemed to have arisen during service on the basis

of presumption under Clause (c) of Regulation 423 cannot be accepted to have aggravated due to the military service in view of the fact that it

does not fall in any of the categories of the diseases mentioned in Annexure-III to Appendix-II. The disease being constitutional in nature could not

have aggravated by the conditions of service. The respondent therefore, is held not entitled to disability pension. For the above reasons, We allow

the appeal, set aside the impugned judgment and dismiss the writ petition. Connected CMP shall also stand disposed of.