Kerala High Court

Union Of India vs Narayanan C.K. (Service No. 2568965L Ex ... on 21 May, 2025

Author: Amit Rawal

Bench: Amit Rawal

                                     1




WP(C)No.32002 of 2024
                                                       2025:KER:35934
              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. 32002 OF 2024

         AGAINST THE ORDER DATED 30.05.2023 IN OA NO.59 OF 2021 OF

ARMED FORCES TRIBUNAL,REGIONAL BENCH,KOCHI


PETITIONERS/RESPONDENTS:

     1       UNION OF INDIA,
             REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE,
             SOUTH BLOCK, NEW DELHI, PIN - 110011

     2       OFFICER-IN-CHARGE
             DEFENCE SECURITY CORPS RECORDS, C/O 56 APO, PIN -
             901277

     3       ACCOUNTS OFFICER
             PCDA (PENSION), ALLAHABAD, PIN - 211014

             BY ADV M.V.S.NAMPOOTHIRY


RESPONDENT/APPLICANT:

             NARAYANAN C.K. (SERVICE NO. 2568965L EX HAVILDHAR)
             S/O. GOVINDAN, NERIKUNI VYAAL HOUSE, ELATHUR P.O. VIA
             PERUMTHURUTHY, KOZHIKODE, PIN - 673303

             BY ADVS.
              V N RAMESAN NAMBISAN
             A.VISWANATHAN(V-219)


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.05.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                  2




WP(C)No.32002 of 2024
                                                    2025:KER:35934

                           JUDGMENT

Muralee Krishna, J.

Aggrieved by the order dated 30.05.2023 passed by the

Armed Forces Tribunal, Regional Bench, Kochi ("the Tribunal" in

short), whereby the claim of the respondent herein for disability

pension was allowed by rounding it off to 50% for life, the

respondents in O.A.No.59 of 2021 filed this writ petition under

Article 226 of the Constitution of India.

2. The respondent was a Havildar who was enrolled in the

Indian Army on 03.08.1971 and was discharged from regular

Army service on 31.01.1990 after having completed 18 years of

service. Thereafter, he was enrolled in the Defence Security Corps

(DSC) on 15.12.1991 and was discharged from service on

31.05.2008 after having completed 17 years of service. At the

time of discharge from DSC, the Release Medical Board examined

him and assessed his disabilities, 'primary hypertension' at 30%

and 'diabetes mellitus' at 15 to 19 % and composite disability at

30% for life. The Medical Board further opined that the disabilities

were neither attributable to nor aggravated by military service.

2025:KER:35934 The respondent then preferred an appeal before the Appellate

Committee, which was rejected, stating the very same reason.

3. Though, before the Tribunal, the writ

petitioners/respondents raised various contentions to justify the

denial of the disability pension on the ground that the disabilities

'Primary Hypertension' and 'Diabetes Mellitus' were neither

attributable to nor aggravated by military service, the Tribunal

after a detailed analysis of the contentions of both sides, by relying

on the relevant provisions and regulations binding the field and

also the judgments of the Apex Court ruled in favour of the

respondent as said above.

4. Heard Sri.M.V.S Nampoothiry, the learned Central

Government Counsel (CGC) for the petitioners and Sri.V.N

Ramesan Nambisan, the learned counsel for the respondent.

5. The learned CGC submitted that the Department was

justified in rejecting the claim of the disability pension raised by

the respondent on the basis of the report of the Release Medical

Board which is a final authority and the findings cannot be tinkered

in a judicial proceedings, as it is in the domain of the Medical

Expert. The Court cannot assume the role of an expert and sit in

2025:KER:35934 the armchair of the Appellate Authority to differ with the same.

Therefore, the order of the Tribunal is liable to be reversed.

6. On the other hand the learned counsel for the

respondent/applicant supported the order of the Tribunal by

relying on the judgments 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]. The learned counsel submitted that the authorities

concerned were not justified in rejecting the claim of the

respondent for disability pension by ignoring the applicability of

the aforementioned judgments and the Regulations for Medical

Services, 1983, relied on by the Tribunal.

7. 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

2025:KER:35934 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 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

2025:KER:35934 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".

8. 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

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

2025:KER:35934 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.

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

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

2025:KER:35934 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.

10. 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

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

2025:KER:35934 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"

11. Admittedly, the respondent was recruited in the DSC

on 15.12.1991 and discharged from service on 31.05.2008 in low

medical category. Before joining DSC, he served in the territorial

Army from 03.08.1971 to 31.01.1990. The petitioners have no

case that while entering service, either in the Army or in DSC the

respondent was diagnosed with any disability or illness. It was

after a long period of service in DSC, the respondent was

diagnosed with disability of primary hypertension and diabetes

mellitus. When analysing the materials on record in the light of

the provisions and judgments quoted supra, we find no sufficient

ground to reach a different conclusion than that arrived at by the

Tribunal. Therefore, we concur with the finding of the Tribunal that