Kerala High Court

Baburaj. M, Ex. Nk-14380437 N vs Union Of India on 21 May, 2025

Author: Amit Rawal

Bench: Amit Rawal

                                            1




WP(C)NO.8074 OF 2023
                                                                     2025:KER:35908
                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                       THE HONOURABLE MR. JUSTICE AMIT RAWAL

                                            &

                  THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.

          WEDNESDAY, THE 21ST DAY OF MAY 2025 / 31ST VAISAKHA, 1947

                              WP(C) NO. 8074 OF 2023

         AGAINST THE ORDER DATED 7.1.2022 IN OA NO.362 OF 2017                AND ORDER

DATED 24.05.2022 IN RA NO.8 OF 2022 OF ARMED FORCES TRIBUNAL,REGIONAL

BENCH,KOCHI


PETITIONER/APPLICANT:

                BABURAJ. M, EX. NK-14380437 N
                AGED 57 YEARS, S/O.NARAYANAN (LATE) DSC RECORDS, KANNUR,
                RESIDING AT PUTHALATH HOUSE, AZHIKODE.P.O, KANNUR PIN -
                670009

                BY ADVS.
                B.HARISH KUMAR
                ANJALY JOSEPH


RESPONDENTS /RESPONDENTS:

     1          UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT
                (DEFENCE), MINISTRY OF DEFENCE, NEW DELHI, PIN - 110011

     2          CHIEF RECORD OFFICER,
                DSC RECORDS, MILL ROAD, KANNUR, KERALA, PIN - 670013

     3          THE DIRECTOR GENERAL,
                CONTROLLER OF DEFENCE ACCOUNTS, (PENSION), ALLAHABAD, U.P,
                PIN - 211014

                BY ADVS.
                S. BIJU (SCGC)
                C.DINESH(CGC)


         THIS   WRIT   PETITION   (CIVIL)       HAVING   COME   UP   FOR   ADMISSION   ON

21.05.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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WP(C)NO.8074 OF 2023
                                                      2025:KER:35908
                         JUDGMENT

Muralee Krishna, J.

The petitioner is the applicant in O.A No.362 of 2017 on the

file of the Armed Forces Tribunal, Kochi Bench ('the Tribunal' for

short). He filed this writ petition under Article 226 of the

Constitution of India, challenging the order dated 07.01.2022 in

the O.A. and the order dated 24.05.2022 in R.A.No.8 of 2022 by

the Tribunal, whereby the Tribunal rejected the claim of the

petitioner for disability pension, which according to him has to be

rounded off to 50% for life.

2. The facts in brief which led to the filing of this writ petition

are as follows: The petitioner was enrolled in the Indian Army as

a Sepoy on 14.02.1984 and after 17 years and 16 days of

qualifying service, he was discharged on 28.02.2001 with pension.

He was re-enrolled under the 2nd respondent on 04.10.2002. As

per the conditions of service, he had to put in ten years of service

at the initial stage, which was completed on 04.10.2012. While

working in Goa during the year January-February 2010, he

contracted the disease 'Immune Surveillance ICD B 20' which was

WP(C)NO.8074 OF 2023 2025:KER:35908 identified during May 2010, and subsequently, he was discharged

from service without sanctioning disability pension. Though the

petitioner took a stand that he contracted the ailment due to the

treatment obtained while in military service, the Release Medical

Board on 26.06.2012 opined that the disability is neither

attributable to nor aggravated by military service. The petitioner

was discharged from service on 31.10.2012, before completion of

normal tenure. As per the Medical Board proceedings, the

petitioner has 20% disability for life. The claim for disability raised

by the petitioner was rejected by the 2nd respondent on

16.03.2013. The 1st appeal preferred by the petitioner was

rejected by the Authority concerned, stating that the above

disease is a viral infection caused by retroviral acquired by sexual

means, blood transfusion and other routes of spread. The 2 nd

appeal filed by the petitioner was also met with rejection, for the

reason that it was filed after a long gap from retirement/discharge.

Being aggrieved, the petitioner approached the Tribunal with the

Original Application mentioned above.

3. Heard Sri.Harish Kumar, the learned counsel for the

petitioner, and Sri. S. Biju, the learned Senior Central Government

WP(C)NO.8074 OF 2023 2025:KER:35908 Counsel for the respondents.

4. The learned counsel for the petitioner would submit that

the disease suffered by the petitioner could be contracted in

various ways. It can be by sexual means, or blood transfusion or

in some cases even through unknown means. The petitioner,

during his entire period of service, obtained treatment from the

Army Hospital alone, and this fact was stated in his claim before

the authorities for disability pension. But without a proper analysis

of the facts and circumstances, the employer and later the

appellate authorities rejected the claim of the petitioner. The very

same mistake was committed by the Tribunal also. The learned

counsel for the petitioner relied on the judgment of the Apex Court

in Dharamvir Singh v. Union of India and Others [(2013) 7

SCC 316], Sukhvinder Singh v. Union of India & Ors [(2014)

14 SCC 364] and Union of India and another v. Rajbir Singh

[(2015) 12 SCC 264] in support of his arguments.

5. On the other hand, the learned SCGC would submit that

the Medical Board assessed the disease as neither attributable to

nor aggravated by military service, and hence, no interference is

needed to the impugned order of the Tribunal.

WP(C)NO.8074 OF 2023 2025:KER:35908

6. It is worth to extract Regulations 423(a) and (c) of

Chapter VIII of Regulations for Medical Services 1983 to

appreciate the findings of fact and law arrived at by the Tribunal.

The said Regulations read thus:

"(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 doubt, 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 carries a 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

WP(C)NO.8074 OF 2023 2025:KER:35908 benefit of the doubt could be given more liberally to the individual, in cases occurring in Field Service/Active Service areas.

(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".

7. In Dharamvir Singh [(2013) 7 SCC 316], wherein

a similar controversy arose, it was held by the Apex Court that a

member of Armed Forces is presumed to be in sound physical and

mental condition upon entering service, if there is no note or entry

to the contrary in his records. In the event, he is subsequently

discharged from service on medical grounds, the onus of proof

WP(C)NO.8074 OF 2023 2025:KER:35908 that the deterioration in his health was not due to service

conditions lies on the employer. At paragraph 33 of the said

judgment the Apex Court held thus:

"33. As per Rule 423(a) of General Rules for the purpose of determining a question whether the cause of a disability or death resulting from disease 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. "Classification of diseases" have been prescribed at Chapter IV of Annexure I; under paragraph 4 post traumatic epilepsy and other mental changes resulting from head injuries have been shown as one of the diseases affected by training, marching, prolonged standing etc. Therefore, the presumption would be that the disability of the appellant bore a casual connection with the service conditions."

This view is reiterated in Rajbir Singh [(2015) 12 SCC 264],

wherein it was further held that provision for payment for disability

pension is a beneficial provision which ought to be interpreted

liberally so as to benefit those who have been sent home with

disability at times even before they completed their tenure in the

Armed Forces.

8. It is trite that the opinion of the Medical Board, if found

WP(C)NO.8074 OF 2023 2025:KER:35908 erroneous due to non-appreciation of facts and circumstances, the

court exercising power of judicial review under Article 226 of the

Constitution of India can very well interfere with the same and

correct the error. In Veer Pal Singh v. Secretary, Ministry of

Defence [(2013) 8 SCC 83] the Apex Court held that although,

the Courts are extremely loath to interfere with the opinion of the

experts, there is nothing like exclusion of judicial review of the

decision taken on the basis of such opinion. What needs to be

emphasized is that the opinion of the experts deserves respect

and not worship and the Courts and other judicial/quasi-judicial

forums entrusted with the task of deciding the disputes relating to

premature release/discharge from the Army cannot, in each and

every case, refuse to examine the record of the Medical Board for

determining whether or not the conclusion reached by it is legally

sustainable.

9. The rounding off is also not a matter res integra in view

of the ratio culled out in Sukhvinder Singh [(2014) 14 SCC

364], wherein it has been stated that wherever a member of

Armed Force is invalided out of the service, it has to be assumed

that his disability was found to be above 20%. Admittedly, the

WP(C)NO.8074 OF 2023 2025:KER:35908 Government itself had come out with a notification dated

31.01.2001 prescribing that any disability below 20% shall be

liable to be reckoned as 50% for the purpose of granting the

benefit of rounding off. Paragraph 7.2 in the said notification is

extracted herein below for clarity:

"7.2 Where an Armed Forces Personnel is invalided out under circumstances mentioned in Para 4.1 above, the extent of disability or functional incapacity shall be determined in the following manner for the purposes of computing the disability element:

Percentage of disability as Percentage to be reckoned assessed by invaliding for computing of medical board disability element

Between 76 and 100 100"

10. The petitioner herein entered the military service on

14.02.1984 and later re-enrolled in the Defence Security Force on

04.10.2002 as a Sepoy after his discharge from the Indian Army

on 28.02.2001. The respondents have no case that at the time of

entering the service, the petitioner was suffering from any medical

disability. It was only in May 2010, the petitioner was identified

WP(C)NO.8074 OF 2023 2025:KER:35908 as suffering from 'Immune Surveillance ICD B 20'. The petitioner

took a specific stand that he contracted the said disease during

treatment in a military hospital. When there are various reasons

for contracting the disease other than exposure to commercial sex

workers, a finding to that effect arrived at by the Medical Board

without any factual backing cannot be accepted. Therefore, we

hold that the disability suffered by the petitioner has to be treated

as one connected with his service. In view of the discussion made

above, we find that the petitioner is entitled for disability element

of pension, which would be rounded off to 50%.

11. As far as payment of arrears of pension is concerned,

in Union of India v. Tarsem Singh [(2008) 8 SCC 648] the

Apex Court held thus:

"To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing

WP(C)NO.8074 OF 2023 2025:KER:35908 source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition".

[Emphasis supplied]

12. The dictum in Tarsem Singh [(2008) 8 SCC 648] is

reiterated by the Apex Court in the order dated 06.08.2024 in Civil

Appeal Nos. 1320-1321 of 2019 in the matter of

Ex.CPL.Ranganathan Nair v. Union of India & Ors and in the

judgment dated 07.05.2025 in Civil Appeal No.998 of 2025 in the

matter of Rajumon T.M v. Union of India & Ors.

13. On analysing the submissions made at the Bar and the

WP(C)NO.8074 OF 2023 2025:KER:35908 materials placed on record in the light of the Judgments and

provisions referred supra, we find that the petitioner has made out

sufficient ground to allow the writ petition.

In the result, the writ petition is allowed and the competent

among the respondents are directed to issue a corrigendum PPO

granting disability element of pension also to the petitioner at 50%

for life with arrears for a period of three years prior to the filing of

the original application before the Tribunal, at the earliest, at any

rate, within a period of three months from the date of receipt of a

copy of this judgment, failing which the unpaid arrears would carry

interest at 7% per annum. The parties are directed to bear their

respective costs.

sd/-

AMIT RAWAL, JUDGE

sd/-

MURALEE KRISHNA S., JUDGE

sks

PETITIONER ANNEXURES

Exhibit P1 A TRUE COPY OF THE ORIGINAL APPLICATION NO.362/2017 WITH ANNEXURES A1 TO A5 DATED 17-10-17 FILED BEFORE THE ARMED FORCES TRIBUNAL, KOCHI ALONG WITH DELAY PETITION

Exhibit P2 A TRUE COPY OF THE REPLY STATEMENT DATED 11/6/2018 WITH ANNEXURE R1 TO R4 FILED BY THE RESPONDENTS

ExhibitP3 A TRUE COPY OF THE ORDER DATED 07/01/2022 IN O.A. NO. 362/2017 PASSED BY THE ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI

Exhibit P4 THE TRUE COPY OF THE REVIEW APPLICATION NO.8/2022 DATED 28-02-2022 WITH ANNEXURE RA1 TO RA5 FILED BY THE ARMED FORCES TRIBUNAL, KOCHI

Exhibit P5 A TRUE COPY OF THE ORDER DATED 24/05/2022 R.A. NO. 8/2022 IN OA. NO. 362/2017 PASSED BY THE ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI