Kerala High Court

Union Of India vs Wilson D on 22 May, 2025

Author: Amit Rawal

Bench: Amit Rawal

                                  1




WP(C)NO.9839 OF 2025
                                                    2025:KER:35925
               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE AMIT RAWAL

                                  &

             THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.

     THURSDAY, THE 22ND DAY OF MAY 2025 / 1ST JYAISHTA, 1947

                        WP(C) NO. 9839 OF 2025

         AGAINST THE ORDER DATED 17.01.2023 IN OA NO.236 OF 2019 OF

ARMED FORCES TRIBUNAL,REGIONAL BENCH,KOCHI


PETITIONERS/RESPONDENTS:

     1       UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEFENCE
             SECURITY CORPS RECORDS, KANNUR, PIN - 670013

     2       THE ADDITIONAL DIRECTOR GENERAL (PERSONNEL)
             AG'S BRANCH PS-4 (IMP-II), INTEGRATED HEAD QUARTERS OF
             MOD (ARMY), DHQ P.O, NEW DELHI, PIN - 110011

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

     4       THE DIRECTOR GENERAL, CONTROLLER OF DEFENCE ACCOUNTS
             (PENSION), ALLAHABAD, UP, PIN - 211014

             BY ADV SMT.M.SHAJNA, CGC

RESPONDENT/PETITIONER:

             WILSON D ,AGED 54 YEARS,S/O LATE S.DANIEL, DSC
             RECORDS, KANNUR, KERALA, RESIDING AT PADUR VILLAGE
             &POST THIRUVALLUR DISTRICT, TAMIL NADU, PIN - 631203

             BY ADVS.
             HARISH KUMAR B, KRISHNAPRIYA C.R.(K/001147/2025)


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.05.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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WP(C)NO.9839 OF 2025
                                                        2025:KER:35925
                            JUDGMENT

Muralee Krishna, J.

This writ petition is filed under Article 226 of the Constitution

of India by the respondents in O.A.No.236 of 2019 before the

Armed Forces Tribunal, Regional Bench, Kochi ('the Tribunal' for

short), challenging the order dated 17.01.2023 passed by the

Tribunal, whereby the claim set up by the respondent for disability

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

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

petition are as follows:

The respondent joined the Indian Army as a Sepoy on 18.03.1983

and was discharged from service at his own request on

31.01.1999. Thereafter, he joined the service of Defence

Security Corps (DSC) on 30.09.2001 and was discharged from

service on 30.09.2016 in low medical category after rendering

service in DSC for 14 years, 11 months and 17 days. The Release

Medical Board assessed his disability, Diabetes Mellitus at 20%

and Hypertension at 30% with a composite disability of 40% for

life. The Release Medical Board opined that the disability was

WP(C)NO.9839 OF 2025 2025:KER:35925 neither attributable to nor aggravated by military service. Hence,

the respondent was not granted disability element of the pension.

Though the respondent preferred a statutory appeal before the

authority concerned, it ended in rejection. Hence, he approached

the Tribunal with the original application under Section 14 of the

Armed Forces Tribunal Act, 2007.

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

'Diabetics Mellitus and Hypertension 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.

4. Heard Smt.Shajna, learned Central Government

Counsel (CGC) for the petitioners and Sri.B Harish Kumar, 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

WP(C)NO.9839 OF 2025 2025:KER:35925 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

the armchair of an 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:

WP(C)NO.9839 OF 2025 2025:KER:35925 "(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 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

WP(C)NO.9839 OF 2025 2025:KER:35925 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".

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:

WP(C)NO.9839 OF 2025 2025:KER:35925 "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.

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

WP(C)NO.9839 OF 2025 2025:KER:35925 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.

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

WP(C)NO.9839 OF 2025 2025:KER:35925 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"

11. Admittedly, the respondent was recruited in the DSC on

30.09.2001 and discharged from service on 30.09.2016 in low medical

category. Before joining DSC, he served in the Army from 18.3.1983

till 31.01.1999. 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 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

WP(C)NO.9839 OF 2025 2025:KER:35925 reach a different conclusion than that arrived at by the Tribunal.

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

suffered by the respondent has to be treated as one connected with his