Delhi High Court
Union Of India & Ors vs No.4192313K Ex Nk Kundan Singh on 22 July, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~81
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10427/2025, CM APPL. 43297/2025
UNION OF INDIA & ORS. .....Petitioners
Through: Mr. Satya Ranjan Swain, Sr. PC
with Major Anish Muralidhar Army
versus
NO.4192313K EX NK KUNDAN SINGH .....Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
JUDGMENT (ORAL)
% 22.07.2025
C. HARI SHANKAR, J.
1. This petition assails order dated 29 February 2024 passed by the
Armed Forces Tribunal1 in OA 2094/2019 whereby the respondent's
application for grant of disability pension on the ground that he suffers
from Acute Myocardial Infarction with 30% disability has been
allowed by the AFT.
2. The issue is covered by a recent decision rendered by one of us
(C. Hari Shankar J.) in Ex Sub Gawas Anil Madso.
3. Nonetheless, we have heard Mr. Satya Ranjan Swain, learned
SPC for the petitioners, and have perused the record.
1 "the AFT", hereinafter
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4. The respondent was released in Low Medical Category on his
being found to be suffering from Acute Myocardial Infarction. From
the record, including the proceedings of the Release Medical Board2,
the following facts emerged:
(i) The respondent had served in the Indian Army for over
18 years before he was diagnosed as suffering from Acute
Myocardial Infarction.
(ii) The respondent, in his self-declaration, specifically
declared that he had not been suffering from Acute Myocardial
Infarction prior to joining the Indian Army. The declaration
reads thus:
2. Did the disability exist before entering service?
(Y/N/ could Be): NO
The correctness of this declaration is not doubted either by the
RMB or by the petitioner before the AFT or before this Court.
(iii) The reason regarding the Acute Myocardial Infarction
suffered by the respondent has not been attributable to military
service, as entered by the RMB reads thus:
"Acute Myocardial Infarction: No close time association
with service in Fd/CIOPC/HAA with para 47 of Chapter VI
of GMO (MP) 2008. 14 days charter of duties off."
(iv) We have already held, in our judgment in Gawas Anil
Madso, that where the applicant was not suffering from the
"RMB", hereinafter
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ailment at the time of entry into service, the RMB is required to
positively identify the cause for the ailment, to justify a finding
that it is not attributable to military service. The Commanding
Officer's certificate specifically states that the respondent was
not responsible, owing to any act or omission of his, for the
ailment from which he was suffering. The entry in that regard
reads as under:
5. (a) Was the disability attributable to the individual's
own negligence or misconduct? If yes in what way.
No
(v) Regarding para 47 of the Chapter VI of the GMO 2008,
we have, in our judgment in UOI v EX JWO Dharmendra
Prasad, observed thus:
"10.2 We have seen para 47 of the 2008 Guidelines, which
read as under:--
47. Ischaemic Heart Disease (IHD). IHD is a
spectrum of clinical disorders which includes
asymptomatic IHD, chronic stable angina, unstable
angina, acute myocardial infarction and sudden
cardiac death (SCD) occurring as a result of the
process of atherosclerosis. Plaque fissuring and
rupture is followed by deposition of thrombus on the
atheromatous plaque and a variable degree of
occlusion of the coronary artery. A total occlusion
results in myocardial infarction in the territory of the
artery occluded. Prolonged stress and strain hastens
atherosclerosis by triggering of neurohormonal
mechanism and autonomic storms. It is now well
established that autonomic nervous system
disturbances precipitated by emotions, stress and
strain, through the agency of catecholamines affect
the lipid response, blood pressure, increased platelet
aggregation, heart rate and produce ECG abnormality
and arrhythmias.
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The service in field and high altitude areas apart from
physical hardship imposes considerable mental stress
of solitude and separation from family leaving the
individual tense and anxious as quite often separation
entails running of separate establishment, financial
crisis, disturbance of child education and lack of
security for family. Apart from this, compulsory
group living restricts his freedom of activity. These
factors jointly and severally can become a chronic
source of mental stress and strain precipitating an
attack of IHD. IHD arising in while serving in Field
area/HAA/CI Ops area or during OPS in an indl who
was previously in SHAPE-I will be considered as
attributable to mil service.
Entitlement in Ischemic heart disease will be decided
as follows:--
(a) Attributability will be conceded where : A
myocardial infarction arises during service in close
time relationship to a service compulsion involving
severe trauma or exceptional mental, emotional or
physical strain, provided that the interval between the
incident and the development of symptoms is
approximately 24 to 48 hours. IHD arising in while
serving in Field area/HAA/CI Ops area or during OPS
in an indl who was previously in SHAPE-I will be
considered as attributable to mil service.
Attributability will also be conceded when the
underlying disease is either embolus or thrombus
arising out of trauma in case of boxers and surgery,
infectious diseases. E.g. Infective endocarditis,
exposure to HAA, extreme heat.
(b) Aggravation will be conceded in cases in which
there is evidence of:--
IHD occurring in a setting of hypertension, diabetes
and vasculitis, entitlement can be judged on its own
merits and only aggravation will be conceded in these
cases. Also aggravation may be conceded in persons
having been diagnosed as IHD are required to perform
duties in high altitude areas, field areas, counter
insurgency areas, ships and submarines due to service
compulsions.
There would be cases where neither immediate nor
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prolonged exceptional stress and strain of service is
evident. In such cases the disease may be assumed to
be the result of biological factors, heredity and way of
life such as indulging in risk factors e.g. smoking.
Neither attributability nor aggravation can be
conceded in such cases."
(vi) The RMB has certified the respondent as suffering from
30% disability on account of Acute Myocardial Infarction,
lifelong.
5. In such circumstances, we have held in our decision in Ex Sub
Gawas Anil Madso that the respondent would be entitled to disability
pension.
6. We do not deem it necessary to reproduce our findings in the
said decision, so as not to burden this judgment.
7. Mr. Satya Ranjan Swain, learned Senior Panel Counsel for the
petitioners has pointed out to us that, in the finding of the Medical
Specialist, it is noted thus:
"Disability: Acute Myocardial Infarction
Clinical Profile: Smoker with no modifiable coronary risk
factors or significant past medical/family
history sustained STEAMI on 20 Jan 2015
& was thrombo-lysed in civil hospital
followed by evaluation in AH(R&R) where
echo was normal & coronary angiography
on 26 Jun 2015 revealed recanalized LAD
He was placed in LMC P2 [P] wef 03 Feb
2016 & has now been referred for for RMB.
Present Status: Functional status NYHA-I
Pulse-76/min, regular, equal, BP-110/70 mm
Hg RUL.
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General & Systemic Exam = NAD
Haematologic-Metabolic Profile, Urinalysis
& CXR= WNL ECGTIII; TMT = Negative
for [email protected] Mets
Opinion: Recommended release in LMC P 2 [P];
Advice: Tab Ecosprin 150 mg once daily at night
after food
Tab Atorvastatin20 mg once daily at night
Tab Metoprolol XL 25 mg once daily at
night
Therapeutic lifestyle changes as explained
Monthly review by AMA"
8. Though the report refers to the petitioner as a smoker, it does
not, even impliedly, opine that the Acute Myocardial Infarction from
which the petitioner was found to suffer was because of smoking.
Given the law laid down by the Supreme Court in Dharamvir Singh v
UOI3 and Bijender Singh v UOI4, by this Bench in UOI v Ex Sub
Gawas Anil Madso5 and a few of further orders and the Coordinate
Bench in UOI v Captain Sanjay Kumar6, UOI v MWO Jahangeer
Alam7, UOI V EX JWO SK Srivastava8 etc., where the officer was
not found to be suffering from the ailment at the time of entry into
service and was found to suffer after several years, the onus which on
the RMB or the medical specialist to positively identify another cause
for the ailment, other than military service.
9. That link is lacking in the present case. The mere reference to
the respondent as a smoker in our view is insufficient. We find no
3 (2013) 7 SCC 316
4 2025 SCC OnLine SC 895
5 2025 SCC OnLine Del 2018
2025 SCC OnLine Del 4487
2025 SCC OnLine Del 2434
2025 SCC OnLine Del 4909
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reason to differ with the earlier view we have taken.
10. We have also been conscious of the fact that we are exercising
certiorari jurisdiction over the decision of the AFT and are not sitting
in appeal over the said decision.
11. The parameters of certiorari jurisdiction are delineated in the
following passages of Syed Yakoob v K.S. Radhakrishnan9:
"7. The question about the limits of the jurisdiction of High
Courts in issuing a writ of certiorari under Article 226 has been
frequently considered by this Court and the true legal position in
that behalf is no longer in doubt. A writ of certiorari can be issued
for correcting errors of jurisdiction committed by inferior courts or
tribunals: these are cases where orders are passed by inferior
courts or tribunals without jurisdiction, or is in excess of it, or as a
result of failure to exercise jurisdiction. A writ can similarly be
issued where in exercise of jurisdiction conferred on it, the Court
or Tribunal acts illegally or properly, as for instance, it decides a
question without giving an opportunity, be heard to the party
affected by the order, or where the procedure adopted in dealing
with the dispute is opposed to principles of natural justice. There
is, however, no doubt that the jurisdiction to issue a writ of
certiorari is a supervisory jurisdiction and the Court exercising it
is not entitled to act as an appellate Court. This limitation
necessarily means that findings of fact reached by the inferior
Court or Tribunal as result of the appreciation of evidence cannot
be reopened or questioned in writ proceedings. An error of law
which is apparent on the face of the record can be corrected by a
writ, but not an error of fact, however grave it may appear to be.
In regard to a finding of fact recorded by the Tribunal, a writ of
certiorari can be issued if it is shown that in recording the said
finding, the Tribunal had erroneously refused to admit admissible
and material evidence, or had erroneously admitted inadmissible
evidence which has influenced the impugned finding. Similarly, if a
finding of fact is based on no evidence, that would be regarded as
an error of law which can be corrected by a writ of certiorari. In
dealing with this category of cases, however, we must always bear
in mind that a finding of fact recorded by the Tribunal cannot be
challenged in proceedings for a writ of certiorari on the ground
9 AIR 1964 SC 477
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that the relevant and material evidence adduced before the
Tribunal was insufficient or inadequate to sustain the impugned
finding. The adequacy or sufficiency of evidence led on a point and
the inference of fact to be drawn from the said finding are within
the exclusive jurisdiction of the Tribunal, and the said points
cannot be agitated before a writ Court. It is within these limits that
the jurisdiction conferred on the High Courts under Article 226 to
issue a writ of certiorari can be legitimately exercised (vide Hari
Vishnu Kamath v Syed Ahmad Ishaque10, Nagandra Nath Bora v
Commissioner of Hills Division and Appeals Assam11
and Kaushalya Devi v Bachittar Singh12.
8. It is, of course, not easy to define or adequately describe
what an error of law apparent on the face of the record means.
What can be corrected by a writ has to be an error of law; hut it
must be such an error of law as can be regarded as one which is
apparent on the face of the record. Where it is manifest or clear
that the conclusion of law recorded by an inferior Court or
Tribunal is based on an obvious mis-interpretation of the relevant
statutory provision, or sometimes in ignorance of it, or may be,
even in disregard of it, or is expressly founded on reasons which
are wrong in law, the said conclusion can be corrected by a writ of
certiorari. In all these cases, the impugned conclusion should be so
plainly inconsistent with the relevant statutory provision that no
difficulty is experienced by the High Court in holding that the said
error of law is apparent on the face of the record. It may also be
that in some cases, the impugned error of law may not be obvious
or patent on the face of the record as such and the Court may need
an argument to discover the said error; but there can be no doubt
that what can be corrected by a writ of certiorari is an error of law
and the said error must, on the whole, be of such a character as
would satisfy the test that it is an error of law apparent on the face
of the record. If a statutory provision is reasonably capable of two
constructions and one construction has been adopted by the inferior
Court or Tribunal, its conclusion may not necessarily or always be
open to correction by a writ of certiorari. In our opinion, it is
neither possible nor desirable to attempt either to define or to
describe adequately all cases of errors which can be appropriately
described as errors of law apparent on the face of the record.
Whether or not an impugned error is an error of law and an error of
law which is apparent on the face of the record, must always
depend upon the facts and circumstances of each case and upon the
nature and scope of the legal provision which is alleged to have
been misconstrued or contravened."
(Emphasis supplied)
10 (1955) 1 SCR 1104
11 (1958) SCR 1240
12 AIR 1960 SC 1168
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12. Within the limited parameters of the certiorari jurisdiction and
keeping in view the facts of the case outlined hereinabove, we find no
cause to interfere with the impugned judgment of the AFT, which is
affirmed in its entirety.
13. In addition, we find that our view stands fortified by paras 45.1,
46 and 47 of the judgment of the Supreme Court, rendered on 23 April
2025 in Bijender Singh, which may be reproduced thus:
"45.1. Thus, this Court held that essence of the Rules is that a
member of the armed forces is presumed to be in sound physical
and mental condition at the time of his entry into the service if
there is no note or record to the contrary made at the time of such
entry. In the event of subsequent discharge from service on medical
ground, any deterioration in health would be presumed to be due to
military service. The burden would be on the employer to rebut the
presumption that the disability suffered by the member was neither
attributable to nor aggravated by military service. If the Medical
Board is of the opinion that the disease suffered by the member
could not have been detected at the time of entry into service, the
Medical Board has to give reasons for saying so. This Court
highlighted that the provision for payment of disability pension is a
beneficial one which ought to be interpreted liberally. A soldier
cannot be asked to prove that the disease was contracted by him on
account of military service or was aggravated by the same. The
very fact that upon proper physical and other tests, the member was
found fit to serve in the army would give rise to a presumption that
he was disease free at the time of his entry into service. For the
employer to say that such a disease was neither attributable to nor
aggravated by military service, the least that is required to be done
is to furnish reasons for taking such a view.
46. Referring back to the impugned order dated 26.02.2016, we
find that the Tribunal simply went by the remarks of the Invaliding
Medical Board and Re-Survey Medical Boards to hold that since
the disability of the appellant was less than 20%, he would not be
entitled to the disability element of the disability pension. Tribunal
did not examine the issue as to whether the disability was
attributable to or aggravated by military service. In the instant case
neither has it been mentioned by the Invaliding Medical Board nor
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by the Re-Survey Medical Boards that the disease for which the
appellant was invalided out of service could not be detected at the
time of entry into military service. As a matter of fact, the
Invaliding Medical Board was quite categorical that no disability of
the appellant existed before entering service. As would be evident
from the aforesaid decisions of this Court, the law has by now
crystalized that if there is no note or report of the Medical Board at
the time of entry into service that the member suffered from any
particular disease, the presumption would be that the member got
afflicted by the said disease because of military service. Therefore
the burden of proving that the disease is not attributable to or
aggravated by military service rest entirely on the employer.
Further, any disease or disability for which a member of the armed
forces is invalided out of service would have to be assumed to be
above 20% and attract grant of 50% disability pension.
47. Thus having regard to the discussions made above, we are
of the considered view that the impugned orders of the Tribunal are
wholly unsustainable in law. That being the position, impugned
orders dated 22.01.2018 and 26.02.2016 are hereby set aside.
Consequently, respondents are directed to grant the disability
element of disability pension to the appellant at the rate of 50%
with effect from 01.01.1996 onwards for life. The arrears shall
carry interest at the rate of 6% per annum till payment. The above
directions shall be carried out by the respondents within three
months from today."
14. The present petition is, accordingly, dismissed in limine.
15. Compliance with the impugned judgement of the AFT, if not
already ensured, be ensured within a period of four weeks from today.
C. HARI SHANKAR, J.
OM PRAKASH SHUKLA, J.
JULY 22, 2025/aky
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