Kerala High Court

Union Of India vs Ic-33676H Col A K Diwakar (Retd) on 23 May, 2025

Author: Amit Rawal

Bench: Amit Rawal

WP(C) NO. 9148 OF 2025               1             2025:KER:35905



              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                THE HONOURABLE MR. JUSTICE AMIT RAWAL

                                     &

            THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.

        FRIDAY, THE 23
                         RD DAY OF MAY 2025 / 2ND JYAISHTA, 1947


                          WP(C) NO. 9148 OF 2025

        AGAINST THE ORDER DATED 13.04.2022 IN OA NO.141 OF 2021 OF

ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

PETITIONERS/RESPONDENTS IN OA:

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

    2       THE CHIEF OF THE ARMY STAFF,
            INTEGRATED HQ OF MOD (ARMY), SOUTH BLOCK, NEW DELHI-,
            PIN - 110011.

    3       ADDL. DTE GEN OF MANPOWER (P&P) MP-5(B)
            ADJUTANT GENERAL'S BRANCH IHQ OF MOD (ARMY) WING NO. 3
            GROUND FLOOR WEST BLOCK III, RK PURAM, NEW DELHI -,
            PIN - 110066

    4       PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS)
            DRAUPADI GHAT, ALLAHABAD, UTTAR PRADESH, PIN - 211014.


            BY ADVS.
            SHRI.K.S.PRENJITH KUMAR, CGC
            O. M. SHALINA, DSG OF INDIA



RESPONDENTS/APPLICANT IN OA:

            IC-33676H COL A K DIWAKAR (RETD),
            S/O A ANNAMALAI MUDLAIAR APARTMENT # 7041, TOWER 7,
            PRESTIGE SHANTINIKETAN, ITPL MAIN ROAD MAHADEVPURA,
            BENGALURU, PIN - 560048.
 WP(C) NO. 9148 OF 2025         2         2025:KER:35905




OTHER PRESENT:

          SRI T V VINU CGC

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 9148 OF 2025            3            2025:KER:35905



                           JUDGMENT

Muralee Krishna, J.

This writ petition is filed under Article 226 of the Constitution

of India by the respondents in O.A.No.141 of 2021 before the

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

short), challenging the order dated 13.04.2022 passed by the

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

pension was allowed, by rounding it off to 50% for three years

from the date of his discharge from service.

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

petition are as follows:

The respondent joined Corps of Signals on 08.01.1973 and was

discharged from service at his own request on medical grounds on

01.08.2000, after serving 27½ years. Though he was sanctioned

with service pension and other retiral benefits, his claim for

disability element of pension, on the basis of assessment of

disability of 20% for three years by the Release Medical Board,

being diagnosed with Type II Diabetes Mellitus, was disallowed.

His disease was categorised as Non-Insulin Dependent Diabetes

Mellitus ID (NIDDM). The appeals preferred by the respondent WP(C) NO. 9148 OF 2025 4 2025:KER:35905

were also ended in rejection. Hence the respondent approached

the Tribunal by filing the OA 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 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.K.S.Prenjith Kumar, learned Central

Government Counsel (CGC) for the petitioners and 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 WP(C) NO. 9148 OF 2025 5 2025:KER:35905

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:

"(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. 9148 OF 2025 6 2025:KER:35905

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 Influenced the subsequent course of the disease, will be WP(C) NO. 9148 OF 2025 7 2025:KER:35905

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 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 WP(C) NO. 9148 OF 2025 8 2025:KER:35905

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

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

decision taken on the basis of such opinion. What needs to be WP(C) NO. 9148 OF 2025 9 2025:KER:35905

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 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:

 WP(C) NO. 9148 OF 2025              10            2025:KER:35905




      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 joined the Corps of Signals on

08.01.1973 and was discharged on 01.08.2000 in Low Medical

Category. The petitioners have no case that, while entering service,

the respondent was diagnosed with any disability or illness. It was after

a long period of service he was diagnosed with disability of Type II

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.

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 WP(C) NO. 9148 OF 2025 11 2025:KER:35905

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. 9148 OF 2025          12          2025:KER:35905



                   APPENDIX OF WP(C) 9148/2025

PETITIONERS' EXHIBITS

Exhibit P1          A TRUE COPY OF THE ORIGINAL APPLICATION
                    DATED 21.07.2021 FILED BY THE RESPONDENT

HEREIN, NUMBERED AS O.A.NO.141 OF 2021, ON THE FILES OF THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI.

Exhibit P2 A TRUE COPY OF M.A.NO.153 OF 2021 IN O.A.NO.141 OF 2021 FILED BY THE RESPONDENT HEREIN.

Exhibit P3 A TRUE COPY OF THE ORDER DATED 08.12.2021 IN M.A.NO.153 OF 2021 IN O.A.NO.141 OF 2021 ISSUED BY THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI.