Kerala High Court
Union Of India vs Ex Sgt Sunil Kumar Velappan Nair on 29 May, 2025
Author: Amit Rawal
Bench: Amit Rawal
1
WP(C)No.4688 of 2025
2025:KER:37847
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
THURSDAY, THE 29TH DAY OF MAY 2025 / 8TH JYAISHTA, 1947
WP(C) NO. 4688 OF 2025
PETITIONER/S:
1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY
OF DEFENCE, SOUTH BLOCK, NEW DELHI, PIN - 110011
2 THE CHIEF OF THE AIR STAFF,AIR HEAD QUARTERS (VAYU
BHAVAN), RAFI MARG, NEW DELHI, PIN - 110011
3 PRINCIPAL DIRECTOR,DIRECTORATE OF AIR VETERANS, AIR
HQ, SUBROTO PARK, NEW DELHI, PIN - 110010
4 THE JT. C.D.A. (AIR FORCE)
(AIR FORCE), SUBROTO PARK, NEW DELHI, PIN - 110010
BY ADV SRI.C.DINESH
RESPONDENT/S:
EX SGT SUNIL KUMAR VELAPPAN NAIR,AGED 48 YEARS
S/O SHRI VELAPPAN NAIR, LALITHA MANDIRAM, KADAMANCODE
P.O, YERROR (VIA), KOLLAM,DISTRICT, KERALA, PIN -
691312
BY ADVS.
SRI.T.R.JAGADEESH
SRI.V.A.VINOD
SHRI.ADI NARAYANAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.05.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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WP(C)No.4688 of 2025
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JUDGMENT
Muralee Krishna, J.
This writ petition is filed under Article 226 of the Constitution
of India by the respondents in O.A.No.134 of 2021 before the
Armed Forces Tribunal, Regional Bench, Kochi ('the Tribunal' for
short), challenging the order dated 06.07.2023 passed by the
Tribunal, whereby the claim set up by the respondent/applicant
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 was enrolled in the Indian Air Force on 03.08.1993
in a medically fit condition. After rendering 23 years and 29 days
of regular service, he was discharged on 31.08.2016 in low
medical category A4G2(P). The Release Medical Board assessed
the disability 'primary hypertension' at 30% for life. The claim for
disability element of pension raised by the respondent was
rejected by the authority concerned. He then preferred 1st appeal.
Since there was delay in finalising the appeal, he approached the
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Tribunal and vide Anexure A6 order dated 08.10.2018 in O.A.
No.300 of 2018, the Tribunal directed the petitioners to consider
and dispose of the 1st appeal on merits. Pursuant to the said
order, the 1st appeal was considered and was rejected by the
Appellate Authority. The second appeal preferred by the
respondent was also ended in rejection. Therefore, the
respondent approached the Tribunal with the above O.A. filed
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
'Primary Hypertension' 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.C.Dinesh, learned Central Government
Counsel (CGC) for the petitioners and Sri.T.R Jagadeesh, the
learned counsel for the respondent.
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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
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.
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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
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
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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
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
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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
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 of 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.
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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
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
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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:
Percentage of disability as Percentage to be reckoned
assessed by invaliding for computing of disability
medical board element
Between 76 and 100 100"
11. Admittedly, the respondent was recruited in the Indian
Air Force on 03.08.1993 and was discharged from service on
31.08.2016 in low medical category. The petitioners have no case
that while entering service in the Air Force the respondent was
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diagnosed with any disability or illness. It was after a long period
of service in the Air Force, the respondent was diagnosed with
disability of primary hypertension. 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.
12. The learned CGC appearing for the petitioners at this
juncture submitted that the Apex Court by an interim order
interfered with the judgment dated 05.11.2024 in C.W.P.No.18161
of 2024 rendered by the High Court of Punjab and Haryana in
Union of India v. Ex.Sep Hargopind Singh and Another
wherein the competent authority rejected the claim for grant of
disability pension relying on the opinion of the Medical Board that
the disability was not related or aggravated on account of the
service rendered in the Army and it was reversed by the High
Court. But we are of the view that each and every case is based
upon the facts and cannot be treated as order in rem for
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adjudication of the dispute, in view of the judgment dated
24.06.2024 in WP(C) No.43207 of 2023 and connected cases
passed by this Court. In view of the matter, 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
sks
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APPENDIX OF WP(C) 4688/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE O.A. NO. 134 OF 2021,
DATED 15.07.2021 ALONG WITH ANNEXURES FILED
BEFORE THE ARMED FORCES TRIBUNAL, REGIONAL
BENCH, KOCHI BY THE RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPLY STATEMENT IN O.A.
NO.134 OF 2021, DATED 09.03.2022 ALONG WITH
ANNEXURES FILED BEFORE THE ARMED FORCES
TRIBUNAL, REGIONAL BENCH, KOCHI BY THE
PETITIONERS
Exhibit P3 TRUE COPY OF THE ORDER DATED 06.07.2023
Exhibit P4 A TRUE COPY OF THE RA NO. 05 OF 2024 IN O.A.
NO. 134 OF 2021, DATED 30.112023 FILED BEFORE
THE ARMED FORCES TRIBUNAL, REGIONAL BENCH,
KOCHI BY THE PETITIONERS
Exhibit P5 A TRUE COPY OF THE ORDER DATED 23.02.2024 IN
R.A. NO. 05 OF 2024 PASSED BY THE ARMED FORCES
TRIBUNAL, REGIONAL BENCH, KOCHI
