Kerala High Court

Union Of India vs Ex Sub Suresh M (Jc 842359) on 22 May, 2025

Author: Amit Rawal

Bench: Amit Rawal

WP(C) NO. 24793 OF 2024                1      2025:KER:36703

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR. JUSTICE AMIT RAWAL

                                   &

            THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.

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


                        WP(C) NO. 24793 OF 2024

        AGAINST THE ORDER DATED 10.06.2022 IN OA NO.320 OF 2018 OF

ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

PETITIONERS:

    1      UNION OF INDIA
           REPRESENTED BY ITS SECRETARY MINISTRY TO (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, UP, PIN - 211014


           BY ADV SHRI.T.C.KRISHNA, SCGC

RESPONDENT:

           EX SUB SURESH M (JC 842359)
           AGED 52 YEARS
           S/O VASUDEVAN NAMBIAR (LATE), DSC RECORDS, KANNUR,
           RESIDING AT 'SREE SAILAM', AMMASAM VEEDU, ATHALUR
           P.O., THAVANUR, MALAPPURAM, KERALA, PIN - 679573.

           BY ADV.SRI. B. HARISH KUMAR


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 24793 OF 2024               2        2025:KER:36703

                              JUDGMENT

Muralee Krishna, J.

This writ petition is filed under Article 226 of the

Constitution of India by the respondents in O.A.No.320 of 2018

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

Tribunal' for short), challenging the order dated 10.06.2022

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 Indian Army on 29.07.1985 as a Sepoy

and was discharged from service on 31.07.2000 after rendering

15 years and 2 days of qualifying service. He was sanctioned

service pension from the Army. Thereafter, he was recruited in

the Defence Security Corps (DSC) as Havildar/Clerk on

30.06.2001 and was discharged from service on 30.06.2016,

before attaining the age of superannuation, being placed in Low

Medical Category P2 permanent. According to the respondent,

while working in Bhathinda, Punjab, a modified field area, he

contracted the ailment of Type II Diabetes Mellitus. The Release WP(C) NO. 24793 OF 2024 3 2025:KER:36703

Medical Board assessed his disability at 30% for life. However,

his claim for disability pension was rejected by the 2nd appellant

stating that the disability was not related to military service and

that the onset of the disease was in peace area and due to

lifestyle disorder/poor diet control and lack of exercise. The

statutory appeals preferred by the respondent were also ended in

rejection. Hence, the respondent approached the Tribunal with

the O.A. filed under Section 14 of the Armed Forces 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 disability

Diabetes Mellitus was 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 Sri.T.C.Krishna, learned Senior Central

Government Counsel (SCGC) for the petitioners and the learned

counsel for the respondent.

5. The learned SCGC submitted that the Department was

justified in rejecting the claim of the disability pension raised WP(C) NO. 24793 OF 2024 4 2025:KER:36703

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 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 WP(C) NO. 24793 OF 2024 5 2025:KER:36703

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 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. 24793 OF 2024 6 2025:KER:36703

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. 24793 OF 2024 7 2025:KER:36703

"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 correct the error. In Veer Pal Singh WP(C) NO. 24793 OF 2024 8 2025:KER:36703

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 benefit of rounding off. Paragraph 7.2 in the said

notification is extracted herein below for clarity:

WP(C) NO. 24793 OF 2024 9 2025:KER:36703

"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 for assessed by invaliding computing of disability element medical board

Between 76 and 100 100"

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

30.06.2001 and was discharged from service on 30.06.2016 in Low

Medical Category. Before joining DSC, he served the Army from

29.07.1985 till 31.07.2000. 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, he was diagnosed with disability of 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 the disability suffered by the

respondent has to be treated as one connected with his service.

 WP(C) NO. 24793 OF 2024             10          2025:KER:36703

        Having considered the pleadings and     materials on record

and the submissions made at the Bar,           in    the light of the

provisions binding the field and the judgments referred to above,

we are of the view that findings of fact and law arrived at by the

Tribunal do not require any interference by this Court exercising

the power of judicial review under Article 226 of the Constitution

of India.

Accordingly, the writ petition stands dismissed.

Sd/-

AMIT RAWAL, JUDGE

Sd/-

MURALEE KRISHNA S., JUDGE

DSV/-

 WP(C) NO. 24793 OF 2024          11         2025:KER:36703

                  APPENDIX OF WP(C) 24793/2024

PETITIONER'S EXHIBITS

Exhibit P1          TRUE COPY OF THE O.A. 320/2018 FILED BY THE