Sepoy Ganesan P (Ex No. 14360800 X) Of ... vs Union Of India
2025 Latest Caselaw 6105 Ker

Kerala High Court

Sepoy Ganesan P (Ex No. 14360800 X) Of ... vs Union Of India on 21 May, 2025

Author: Amit Rawal

Bench: Amit Rawal

                                             1




WP(C) NO.16446 OF 2023
                                                                      2025:KER:35935
                    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. 16446 OF 2023

  AGAINST THE ORDER DATED 5.1.2023 IN OA NO.279 OF 2019 OF THE ARMED

                       FORCES TRIBUNAL, REGIONAL BENCH, KOCHI


PETITIONER:

                SEPOY GANESAN P (EX NO. 14360800 X) OF INDIAN ARMY
                AGED 60 YEARS, S/O LATE. KUTTI RAMAN
                PALAPRA THODIKAYIL NAYAR KUZHY POST VIA R.E.C, KOZHIKODE
                DIST KERALA-673601, PIN - 673601

                BY ADVS.
                RATHEESH B.
                GYOTHISH CHANDRAN
                SETHUMADHAVAN D.
                SREENATH S.


RESPONDENTS:

     1          UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF
                DEFENCE, SOUTH BLOCK, NEW DELHI-110 011.
     2          THE CHIEF OF ARMY STAFF
                INTEGRATED HEAD QUARTERS (ARMY) SOUTH BLOCK, NEW DELHI,
                PIN - 110011

     3          OIC RECORDS ARTILLERY RECORDS, PIN-908802, C/O 56 APO, PIN
                - 908802
     4          PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS)
                OFFICE OF THE PCDA(P) DRAUPATI GARH, ALLAHABAD-211014,

                BY ADV R. Murleekrishnan , CGC

         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.16446 OF 2023
                                                      2025:KER:35935
                         JUDGMENT

Muralee Krishna, J.

This writ petition is filed under Article 226 of the Constitution

of India by the applicant in O.A No.279 of 2019 before the Armed

Forces Tribunal, ('the Tribunal' for short) Regional Bench, Kochi,

against the order dated 05.01.2023 passed by the Tribunal,

rejecting the petitioner's claim for a disability pension, which,

according to him, has to be rounded off to 50%.

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 14.12.1981 and he was invalided on 27.11.1987 due to

disability "Neurosis 300", which was assessed at 20% for 2 years.

According to the petitioner, he suffered the disease 'Neurosis 300'

during his service period and hence entitled to disability pension.

But the Release Medical Board reported that the disability is

neither attributable to nor aggravated by military service. The 1 st

appeal filed by the petitioner was rejected by Annexure A3 letter

dated 20.02.1989. According to him, the Release Medical Board

WP(C) NO.16446 OF 2023 2025:KER:35935 proceedings and Annexure A3 were not supplied to him and hence

he filed an application under the Right to Information Act, but was

informed that a copy of the same was already supplied to him. He

then filed OA No.165 of 2016 before the Tribunal, resultant of

which he was supplied with the Medical Board proceedings and

Annexure A3 order. Thereafter, he again approached the Tribunal

with OA No.283 of 2016, which was withdrawn by him, since the

statutory provisions of appeals were not exhausted. He then

preferred 2nd appeal, which was also rejected by Anexure A7 letter

dated 20.03.2019. Thereafter, he filed the present OA before the

Tribunal, which ended in dismissal.

3. Heard Sri.Ratheesh B, the learned counsel for the

petitioner and Sri. R.Muraleekrishnan, the learned Central

Government Counsel for the respondents.

4. The learned counsel for the petitioner would submit that

stress and strain of military service are considered as one of the

main reasons for neurosis. Without considering the said fact, the

authorities negated the claim of the petitioner. The Tribunal has

committed the very same mistake as the Medical Board by

inferring, without any factual backing or reasoning, that there is

WP(C) NO.16446 OF 2023 2025:KER:35935 the possibility of contracting the illness even prior to joining

service. 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 Central Government

Counsel 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.

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

WP(C) NO.16446 OF 2023 2025:KER:35935 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 not determine or contribute to the onset of the disease but

WP(C) NO.16446 OF 2023 2025:KER:35935 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

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

WP(C) NO.16446 OF 2023 2025:KER:35935 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

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

WP(C) NO.16446 OF 2023 2025:KER:35935 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

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

WP(C) NO.16446 OF 2023 2025:KER:35935 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

14.12.1981 and was invalided out on 27.11.1987, being placed in

medical category lower than 'AYE' and not up to the prescribed

military standard item III(V) of the table annexed to Rule 13 (3)

of Army Rule 1954. On 21.09.1987, the Release Medical Board

opined that the disability of the petitioner is neither attributable

to nor aggravated by military service and not connected with

military service being a constitutional disease. The degree of

disability was assessed at 20% for two years. The Tribunal found

that the petitioner had a short service totalling about 6 years, and

the onset of Neurosis 300 was after 20 months of his entering

service and during the said short period of service, no abnormal

and serious factor which could have a bearing on the medical

WP(C) NO.16446 OF 2023 2025:KER:35935 condition of the petitioner.

11. However, the respondents have not produced any

material before the Tribunal to say that the petitioner was

suffering from any disease, much less Neurosis, at the time of his

entering service. It was merely based on a history reported as

stated by the petitioner that he had a fainting attack while

studying in school prior to enrolment, the Tribunal endorsed the

finding of the Release Medical Board that the disease caused to

the petitioner is not attributable to his military service. Therefore,

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

treated as one connected with his service. The degree of disability

was assessed at 20% for two years. It is worth to note that in the

judgment dated 28.11.2019 in Civil Appeal No.5970 of 2019 in the

matter of Commander Rakesh Pande v. Union of India and

others, the Apex Court by noting paragraph 7 of the letter dated

07.02.2001 of Government of India which dealt with the

modalities for implementation of the recommendations of the 5th

Central Pay Commission which recommends that no periodical

review by the Resurvey Medical Board shall be held for

reassessment of disabilities, held that in the case of disablities

WP(C) NO.16446 OF 2023 2025:KER:35935 adjudicated as being of permanent nature, the decision once

arrived at will be for life unless the individual himself requests for

a review. In that case, the Apex Court took the disability of

diabetes mellitus (NIDDM) and hyperlipidaemia as a disability of

20% for 5 years assessed by the Release Medical Board as one for

life.

12. 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 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

WP(C) NO.16446 OF 2023 2025:KER:35935 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]

13. 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.

14. In view of the discussion made above, we find that the

petitioner is entitled for disability element of pension, which would

WP(C) NO.16446 OF 2023 2025:KER:35935 be rounded off to 50% for life.

In the result, the writ petition is allowed and respondents are

directed to issue a corrigendum PPO granting disability element of

pension 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

WP(C) NO.16446 OF 2023 2025:KER:35935 APPENDIX OF WP(C) 16446/2023

PETITIONER ANNEXURES

Exhibit P-1 TRUE COPY OF O.A. 279 OF 2019 ALONG WITH ANNEXURES

Exhibit P-2 TRUE COPY OF THE REPLY STATEMENT ALONG WITH ANNEXURE R-1

Exhibit P-3 TRUE COPY OF THE ORDER DATED 05.01.2023 IN OA NO.279 OF 2019 PASSED BY THE ARMED FORCES TRIBUNAL, REGIONAL BENCH KOCHI

Exhibit P-4 TRUE COPY OF ENTITLEMENT RULES FOR CASUALTY PENSIONARY AWARDS, 1982

Exhibit P-5 TRUE COPY OF JUDGMENT DATED 02.07.2013 IN DHARAMVIR SINGH VS UOI & ORS [2013 (7) SCC 316 DOWNLOADED FROM INTERNET

Exhibit P-6 TRUE COPY OF JUDGMENT DATED 13.02.2015 IN CIVIL APPEAL NO.2904 OF 2011 UOI & ANR VS RAJBIR SINGH [2015(1) KLT (SN) 121] DOWNLOADED FROM INTERNET

Exhibit P-7 TRUE COPY OF AFT REGIONAL BENCH KOCHI ORDER DATED 23.03.2022 IN OA NO.144 OF 2018 DOWNLOADED FROM INTERNET

Exhibit P-8 TRUE COPY OF AFT CHANDIGARH ORDER DATED 18.07.2022 IN OA NO. 15 OF 2022 DOWNLOADED FROM INTERNET