Punjab-Haryana High Court
Union Of India And Ors vs No. 3984467 M Ex. Sep Onkar Singh And Anr on 23 October, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:140787-DB
CWP-5922-2024 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-5922-2024
Reserved on: 25.09.2024
Pronounced on: 23.10.2024
Union of India and Ors. .....Petitioners
Versus
Ex Sep Onkar Singh and Anr. .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Angel Walia, Advocate
for the petitioner.
Mr. Navdeep Singh, Advocate with
Mr. Ajay Sheoran, Advocate and
Mr. Roopam Atwal, Advocate
for the respondent.
****
SURESHWAR THAKUR, J.
1. Through the instant writ petition, the petitioner herein- Union of India, prays for setting aside order dated 07.12.2021 (Annexure P-3), as passed by the learned Armed Forces Tribunal concerned, wherebys the claim of the respondent for the grant of disability pension was allowed.
Factual Background
2. The respondent was enrolled in the Indian Army on 26.10.1983 and was discharged from the rank of Naik on 31.10.2000. After retirement, he got himself enrolled in the Defence Security Corps (DSC) on 29.06.2001 and was discharged from DSC service on 1 of 11 ::: Downloaded on - 28-10-2024 00:31:22 ::: Neutral Citation No:=2024:PHHC:140787-DB CWP-5922-2024 -2- 30.06.2011 after being placed in low medical category in view of his suffering from the disease "PERSISTENT DELUSIONAL DISORDER" @ 20% for life as per the proceedings of the Release Medical Board. However, after retirement from DSC service, the service pension as well as the disability pension was declined to him on the ground that he did not render 15 years qualifying service and the disability he incurred was neither attributable to nor became aggravated by military service.
3. The respondent after a period of eight years submitted representation for grant of disability pension to him. However, the same became rejected by the competent authority vide letter dated 22.11.2019 (Annexure P-1).
4. Feeling aggrieved, the respondent filed O.A., before the learned Armed Forces Tribunal concerned, wherebys he cast a challenge to the above made rejection order. The said O.A., became allowed vide order dated 07.12.2021. The operative part of the said order is extracted hereinafter.
"7. For the reasons stated herein above, that part of the Release Medical Board proceedings which says that the disability incurred by the applicant is neither attributable to nor aggravated by military service is quashed and set aside. The impugned order (Annexure A-3) whereby the claim of the applicant for the grant of disability pension has been declined, is also quashed and set aside. Consequently, we hold the applicant eligible and entitled to the grant of disability pension consisting of service as 2 of 11 ::: Downloaded on - 28-10-2024 00:31:23 ::: Neutral Citation No:=2024:PHHC:140787-DB CWP-5922-2024 -3- well as disability element for the service he rendered in DSC with effect from 01.07.2011 for life at the rate of 50% by rounding off in terms of the judgement of the Apex Court rendered in Union of India and Others Vs Ram Avtar, Civil Appeal No 418 of 2012 decided on 10.12.2014. Respondents are directed to calculate the arrears and release the same to the applicant within 03 months from the date of receipt of the certified copy of this order failing which with interest at the rate of 8% per annum till the realisation of the entire amount......"
5. Feeling aggrieved from the aforesaid order as passed upon the O.A. (supra) by the learned Armed Forces Tribunal concerned, the petitioner-Union of India has filed thereagainst the instant writ petition before this Court.
Inferences of this Court.
6. Before proceeding to make an effective adjudication upon the present writ petition, a useful assistance for determining whether the befallment of any disease vis-à-vis any member of the defence personnel, but post his being enrolled in the army, despite at the initial stage, upon his becoming enlisted, as a member of the combatant defence establishment, rather the same remaining undetected, yet the apposite eruption thus post enlistment hence being construable to be either congenital or being construable to become aggravated or being attributable to military service, thus is acquired, from, the principles set forth in the judgment rendered by the Hon'ble Apex Court, in case titled as Dharamvir Singh Vs. Union of India, reported in (2013) 7 SCC 3 of 11 ::: Downloaded on - 28-10-2024 00:31:23 ::: Neutral Citation No:=2024:PHHC:140787-DB CWP-5922-2024 -4-
316. The relevant paragraphs of the said verdict are extracted hereinafter.
29. A conjoint reading of various provisions, reproduced above, makes it clear that:
(i) Disability pension to be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable or aggravated by military service to be determined under "Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173).
(ii) A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service. [Rule 5 r/w Rule 14(b)].
(iii) Onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally. (Rule 9).
(iv) If a disease is accepted to have been 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. [Rule 14(c)].
(v) If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led to an individual's discharge or death will be deemed to have arisen in service. [14(b)].
(vi) If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for 4 of 11 ::: Downloaded on - 28-10-2024 00:31:23 ::: Neutral Citation No:=2024:PHHC:140787-DB CWP-5922-2024 -5- service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons. [14(b)];
and
(vii) It is mandatory for the Medical Board to follow the guidelines laid down in Chapter-II of the "Guide to Medical (Military Pension), 2002 - "Entitlement : General Principles", including paragraph 7,8 and 9 as referred to above.
30. We, accordingly, answer both the questions in affirmative in favour of the appellant and against the respondents.
7. An incisive reading(s) of the above extracted principles, though pointedly declare, that when a disability becomes entailed upon any member of the combatant defence establishment, and which is to the extent of 20 % or over, thereupon, though any such disabled member is required to be invalided from the Army, but yet he is required to be assigned the benefit of disability pension.
8. Nonetheless, the assignment of disability pension to any member of the combatant defence establishment, who becomes entailed with a disability in a quantum of 20 % or more, but imperatively requires a declaration from the Medical Board, rather candidly pronouncing that the said attained disability being attributable to or becoming aggravated by military service. The said declaration becomes enjoined by the "Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173).
9. Furthermore, though thereins a presumption is assigned vis-à-vis the sound physical and mental health of any member of the defence establishment concerned, especially when at the stage of his becoming enrolled, there is no note or record about his becoming beset 5 of 11 ::: Downloaded on - 28-10-2024 00:31:23 ::: Neutral Citation No:=2024:PHHC:140787-DB CWP-5922-2024 -6- with any disease. Moreover, though thereins there is also a further presumption, that when any deterioration theretos, thus occurs subsequently, therebys the said happening of deterioration(s) or onsettings of any disease, rather is to be presumed to be a sequel of his rendering service as a member of the defence establishment. Imperatively, the onus for proving the non endowments qua benefits (supra) vis-à-vis the concerned, but is rested on the employer, and in case, the said onus remains un-discharged, thereupon, the claimant becomes entitled to receive disability pension. Moreover, all the facts and circumstances attendant to the rendition of service by the concerned, are to be closely scrutinized, thus for declaring whether the onset of any disease vis-à-vis the concerned, is a sequel qua renditions of military service and/or the same being aggravated by or being attributable to military service.
10. Be that as it may, thereins becomes also set forth a further principle(s) that yet there can be denial of disability pension to the concerned, but only upon :
a) At the time of acceptance of the concerned in military service, some notings becoming recorded by the Medical Board vis-a-vis his being beset with a disease which however, becomes concluded to be yet not rendering him unfit to become enlisted.
b) Any further deterioration thereofs, may also subsequently become concluded by the Medical Board, to 6 of 11 ::: Downloaded on - 28-10-2024 00:31:23 ::: Neutral Citation No:=2024:PHHC:140787-DB CWP-5922-2024 -7- not arise from rendition of military service nor being attributable to military service, rather the same being a congenital disease.
11. Further, if the medical opinion holds that the disease could not have been detected on medical examination of the concerned being made, thus prior to his becoming enlisted in service, thereupons, the same will not be deemed to have arisen during service, yet in the situation (supra), the Medical Board is required to state the reasons for so concluding.
12. Moreover, it is also declared in supra, that it is mandatory for the Medical Board to follow the guidelines laid down in Chapter-II of the "Guide to Medical (Military Pension), 2002 - "Entitlement :
General Principles".
13. Therefore, it has to be now determined whether in terms of the above principles, whether at the time of enlistment of the present respondent in the Army, thus after a preliminary medical examination being made vis-a-vis his health, thus a note became recorded about some disease besetting him and/or whether some note became appended that the said disease was in a dormant stage. Moreover, it is also required to be determined, from the facts at hand, whether there is a causal nexus inter-se the eruption of the disease, and/or the onsettings thereofs, on to his person, thus post the enrollment of the present respondent taking place, vis-a-vis the active renditions by him of military service, wherebys, this Court may conclude that the onset of 7 of 11 ::: Downloaded on - 28-10-2024 00:31:23 ::: Neutral Citation No:=2024:PHHC:140787-DB CWP-5922-2024 -8- the disease but rather was a sequel of his rendering service in the Army and as such was attributable or became aggravated by his rendering military service.
14. In addition, it is also required to be gathered from the records, whether the Medical Board, did initially proceed to make a detailed incisive antecedental check, particularly appertaining to the advent of the disease, through employments of State of Art medical techniques, thus unveiling the block chain genetic connection, wherefroms, rather the disease became sourced. Moreover, if the said employment fails. Resultantly, therebys it may become concluded qua eruptions thereof, thus subsequent to the apposite enlistment taking place, rather was not congenital but owed its origin to rendition of military service besides it being attributable to or becoming aggravated by performance of military service. Contrarily, if the supra employed techniques at the stage of the apposite enlistment taking place, thus by the Medical Board concerned, leads to a conclusion, that there are rather dormant incidences of any disease, but yet the said dormant disease not prohibiting the enlistment of any personnel in the army, navy or air force. Resultantly the subsequent active detection/eruption thereofs, during the course of rendition of military service, but would naturally lead to a well conclusion by the Medical Board, that its active eruption but became sourced from an effective causal genetic connection wherebys there would be denial of disability pension.
8 of 11 ::: Downloaded on - 28-10-2024 00:31:23 ::: Neutral Citation No:=2024:PHHC:140787-DB CWP-5922-2024 -9-
15. However, now in the said endeavour, this Court is required to be extracting the contents of the opinion, as became recorded by the release medical board. In the said regard, paras No. 4 and 5 of the impugned order are extracted hereinafter.
4. On hearing learned counsel representing the applicant and the learned Sr PC at length and analysing the given facts and circumstances and also the law applicable, it cannot be said by any stretch of imagination that the disability incurred by the applicant is not attributable to military service for the reason that the Release Medical Board has not given any reason there for in its proceedings(Annexure A-2) as to how the ailment/disability of the applicant is neither attributable to or aggravated by military service.
5. On the other hand, under the column "attributable to /aggravated by military service", the only remark 'No' has been recorded. Therefore, without any cogent and reliable reasons given by the Release Medical Board, it cannot be held that the disability incurred by the applicant is neither attributable to nor aggravated by military service.
16. A reading of the records reveals that at the time of the apposite enlistment taking place rather no note became made in terms of the principles (supra) declared by the Hon'ble Apex Court in case titled as Dharamvir Singh Vs. Union of India (supra) by the Medical Board, that some disease which however, did not forbid the present respondent No. 1, to become enlisted in the Army, did make its preliminary onsettings. If so, the declaration of law in judgment (supra) that therebys there is a presumption that the incurring of the said disease was a sequel of rendition of service, is required to be favourably endowed vis-a-vis the respondent. Though the said presumption is 9 of 11 ::: Downloaded on - 28-10-2024 00:31:23 ::: Neutral Citation No:=2024:PHHC:140787-DB CWP-5922-2024 -10- rebuttable but the onus to lead evidence to rebut the said presumption became cast upon the petitioner. However, the said cast evidence adducing discharging onus vis-a-vis the respondent, rather for cogently rebutting the said presumption, but naturally also did cast an onerous duty also upon the Medical Board, to engage itself in the endeavour of unearthing, through employments of the State of Art block chain genetic causal connection technique(s), wherebys it may became unraveled that the onsetting of the disease onto the army personnel, became sourced from antecedental genetic family history. Moreover, therebys it was also required to be stated in the medical opinion, that the disease but for a well formed reason rather was a congenital disease and became neither aggravated by nor became attributable to military service.
17. However, a reading of opinion (supra), discloses that it has been recorded in a stereo typed form and no reasons have been recorded to the extent (supra). Reiteratedly, since no evidence to rebut the presumption (supra) has been led by the petitioner, therebys, this Court is constrained to give no weightage to the opinion of the medical board, as extracted (supra). Conspicuously, no credence can be assigned to the supra ill informed reason, besides therebys the onsetting of the disease cannot be said to be a sequel of antecedental genetic family history. Contrarily, it is required to be declared to arise from rendition of military service. In addition, it is required to be declared to be 10 of 11 ::: Downloaded on - 28-10-2024 00:31:23 ::: Neutral Citation No:=2024:PHHC:140787-DB CWP-5922-2024 -11- attributable or becoming aggravated by rendition of military service by the present respondent.
Final Order of this Court.
18. In aftermath, this Court finds no merit in the writ petition and with observations above, the same is dismissed.
19. The impugned order, as passed by the learned Tribunal concerned, is maintained and affirmed.
20. Disposed of alongwith all pending application(s), if any.
(SURESHWAR THAKUR) JUDGE (SUDEEPTI SHARMA) 23.10.2024 JUDGE kavneet singh Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 11 of 11 ::: Downloaded on - 28-10-2024 00:31:23 :::