Punjab-Haryana High Court
Union Of India And Ors vs Ex Sep Basant Singh Ghawana And Anr on 12 November, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-18575-2024 (O & M)
Reserved on: 25.09.2024
Pronounced on: 12.11.2024
UNION OF INDIA AND ORS. .....Petitioners
Versus
No. 14270916M EX SEP BASANT SINGH GHAWANA AND ANR.
.....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Ashish Chaudhary, Senior Panel Counsel
for the petitioners/UOI.
****
SURESHWAR THAKUR, J.
1. Through the instant writ petition, the petitioner herein-
Union of India, prays for the setting aside of the order dated 15.02.2019
(Annexure P-1), as passed by the learned Armed Forces Tribunal
concerned (hereinafter for short called as the Tribunal), wherebys the
claim of respondent No. 1 for the grant of disability pension was
allowed.
Factual Background
2. Respondent No. 1 joined Army on 10.09.1979 and
discharged w.e.f. 01.11.2000 post rendering 21 years, one month and 22
days of service for which he was granted service pension for life.
1 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -2-
Thereafter, respondent No. 1 was enrolled into Defence Service Corps
on 31.07.2004 for a term of 10 years. On completion of his terms of
engagement of 10 years, he was discharged from DSC w.e.f. 31.07.2014
for which he was paid service gratuity and death-cum-retirement
gratuity. At the time of discharge from service, respondent No. 1 was
placed in low medical category P2 (Permanent) owing to his disabilities
'PRIMARY HYPERTENSION, IGT AND DYSLIPIDEMIA'. The
degree of the said disabilities were assessed @ 40% (Composite) for
life by the Release Medical Board.
3. The disability element claim of the respondent was rejected
by the Competent Authority, thus on the ground that the supra
disability(ies) were neither attributable to nor being aggravated by
rendition of military service.
4. Feeling aggrieved, respondent No.1 filed O.A., before the
learned Armed Forces Tribunal concerned, wherebys he cast a
challenge to the afore said rejection order. The said O.A., became
allowed vide order dated 15.02.2019. The operative part of the said
order is extracted hereinafter.
"Considering the law laid down by the Hon'ble Supreme
Court and also the attendant circumstances, the rejection
of the claim of the Applicant is set aside and the
Applicant is thus held entitled to disability pension
@50% as against 40% from the date of release from
service after being rounded off as per judgment of the
Hon'ble Supreme Court in Civil Appeal 418/2012 Union of
India Vs Ram Avtar decided on 10-12-2014 ...."
2 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -3-
5. Feeling aggrieved from the aforesaid order as passed upon
the O.A. (supra), by the learned Armed Forces Tribunal concerned, the
petitioner-Union of India has filed thereagainst the instant writ petition
before this Court.
Inferences of this Court.
6. Before proceeding to make an effective adjudication upon
the present writ petition, a useful assistance for determining whether
the befallment of any disease vis-à-vis any member of the defence
personnel, but post his being enrolled in the army, despite at the initial
stage, upon his becoming enlisted, as a member of the combatant
defence establishment, rather the same remaining undetected, yet the
apposite eruption, thus post enlistment hence being construable to be
either congenital or being construable to become aggravated or being
attributable to military service, thus is acquired, from, the principles set
forth in the judgment rendered by the Hon'ble Apex Court, in case titled
as Dharamvir Singh Vs. Union of India, reported in (2013) 7 SCC
316. The relevant paragraphs of the said verdict are extracted
hereinafter.
29. A conjoint reading of various provisions, reproduced
above, makes it clear that:
(i) Disability pension to be granted to an individual who is
invalidated from service on account of a disability which is attributable
to or aggravated by military service in non-battle casualty and is
assessed at 20% or over. The question whether a disability is
attributable or aggravated by military service to be determined under
"Entitlement Rules for Casualty Pensionary Awards, 1982" of
Appendix-II (Regulation 173).
(ii) A member is to be presumed in sound physical and
mental condition upon entering service if there is no note or record at
the time of entrance. In the event of his subsequently being discharged
3 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -4-
from service on medical grounds any deterioration in his health is to be
presumed due to service. [Rule 5 r/w Rule 14(b)].
(iii) Onus of proof is not on the claimant (employee), the
corollary is that onus of proof that the condition for non-entitlement is
with the employer. A claimant has a right to derive benefit of any
reasonable doubt and is entitled for pensionary benefit more liberally.
(Rule 9).
(iv) If a disease is accepted to have been as having arisen
in service, it must also be established that the conditions of military
service determined or contributed to the onset of the disease and that
the conditions were due to the circumstances of duty in military service.
[Rule 14(c)].
(v) If no note of any disability or disease was made at the
time of individual's acceptance for military service, a disease which
has led to an individual's discharge or death will be deemed to have
arisen in service. [14(b)].
(vi) If medical opinion holds that the disease could not
have been detected on medical examination prior to the acceptance for
service and that disease will not be deemed to have arisen during
service, the Medical Board is required to state the reasons. [14(b)];
and
(vii) It is mandatory for the Medical Board to follow the
guidelines laid down in Chapter-II of the "Guide to Medical (Military
Pension), 2002 - "Entitlement : General Principles", including
paragraph 7,8 and 9 as referred to above.
30. We, accordingly, answer both the questions in
affirmative in favour of the appellant and against the respondents.
7. An incisive reading(s) of the above extracted principles,
though pointedly declare, that when a disability becomes entailed upon
any member of the combatant defence establishment, and which is to
the extent of 20 % or over, thereupon, though any such disabled
member is required to be invalided from the Army, but yet he is
required to be assigned the benefit of disability pension.
8. Nonetheless, the assignment of disability pension to any
member of the combatant defence establishment, who becomes entailed
with a disability in a quantum of 20 % or more, but imperatively
requires a declaration from the Medical Board, rather candidly
4 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -5-
pronouncing that the said attained disability being attributable to or
becoming aggravated by military service. The said declaration becomes
enjoined by the "Entitlement Rules for Casualty Pensionary Awards,
1982" of Appendix-II (Regulation 173).
9. Furthermore, though thereins a presumption is assigned
vis-à-vis the sound physical and mental health of any member of the
defence establishment concerned, especially when at the stage of his
becoming enrolled, there is no note or record about his becoming beset
with any disease. Moreover, though thereins there is also a further
presumption, that when any deterioration theretos, thus occurs
subsequently, therebys the said happening of deterioration(s) or
onsettings of any disease, rather is to be presumed to be a sequel of his
rendering service as a member of the defence establishment.
Imperatively, the onus for proving the non endowments qua benefits
(supra) vis-à-vis the concerned, but is rested on the employer, and in
case, the said onus remains un-discharged, thereupon, the claimant
becomes entitled to receive disability pension. Moreover, all the facts
and circumstances attendant to the rendition of service by the
concerned, are to be closely scrutinized, thus for declaring whether the
onset of any disease vis-à-vis the concerned, is a sequel qua renditions
of military service and/or the same being aggravated by or being
attributable to military service.
5 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -6-
10. Be that as it may, thereins becomes also set forth a further
principle(s) that yet there can be denial of disability pension to the
concerned, but only upon :
a) At the time of acceptance of the concerned in military
service, some notings becoming recorded by the Medical
Board vis-a-vis his being beset with a disease which
however, becomes concluded to be yet not rendering him
unfit to become enlisted.
b) Any further deterioration thereofs, may also
subsequently become concluded by the Medical Board, to
not arise from rendition of military service nor being
attributable to military service, rather the same being a
congenital disease.
11. Further, if the medical opinion holds that the disease could
not have been detected on medical examination of the concerned being
made, thus prior to his becoming enlisted in service, thereupons, the
same will not be deemed to have arisen during service, yet in the
situation (supra), the Medical Board is required to state the reasons for
so concluding.
12. Moreover, it is also declared in supra, that it is mandatory
for the Medical Board to follow the guidelines laid down in Chapter-II
of the "Guide to Medical (Military Pension), 2002 - "Entitlement :
General Principles".
6 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -7-
13. Therefore, it has to be now determined whether in terms of
the above principles, whether at the time of enlistment of the present
respondent in the Army, thus after a preliminary medical examination
being made vis-a-vis his health, thus a note became recorded about
some disease besetting him and/or whether some note became appended
that the said disease was in a dormant stage. Moreover, it is also
required to be determined, from the facts at hand, whether there is a
causal nexus inter-se the eruption of the disease, and/or the onsettings
thereofs, on to his person, thus post the enrollment of the present
respondent taking place, vis-a-vis the active renditions by him of
military service, wherebys, this Court may conclude that the onset of
the disease but rather was a sequel of his rendering service in the Army
and as such was attributable or became aggravated by his rendering
military service.
14. In addition, it is also required to be gathered from the
records, whether the Medical Board, did initially proceed to make a
detailed incisive antecedental check, particularly appertaining to the
advent of the disease, through employments of State of Art medical
techniques, thus unveiling the block chain genetic connection,
wherefroms, rather the disease became sourced. Moreover, if the said
employment fails. Resultantly, therebys it may become concluded qua
eruptions thereof, thus subsequent to the apposite enlistment taking
place, rather was not congenital but owed its origin to rendition of
military service besides it being attributable to or becoming aggravated
7 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -8-
by performance of military service. Contrarily, if the supra employed
techniques at the stage of apposite enlistment taking place, thus by the
Medical Board concerned, leads to a conclusion, that there are rather
dormant incidences of any disease, but yet the said dormant disease not
prohibiting the enlistment of any personnel in the army, navy or air
force. Resultantly the subsequent active detection/eruption thereofs,
during the course of rendition of military service, but would naturally
lead to a well conclusion by the Medical Board, that its active eruption
but became sourced from an effective causal genetic connection
wherebys there would be denial of disability pension.
15. However, now in the said endeavour, this Court is required
to be extracting the contents of the opinion, as became recorded by the
release medical board. In the said regard, the reasons recorded by the
First Appellate Committee are extracted hereinafter.
Sr. No. Disabilities Attributable to Aggravated by Not connected Reason
service service with service
(a) PRIMARY NO NO YES Onset in peace
HYPERTENSION area. Hence
NANA
(b) IGT NO NO YES
(c) DYSLIPIDEMIA NO NO YES No causal
relation to
military
service.
16. A reading of the records reveals that at the time of the
apposite enlistment taking place rather no note became made in terms
of the principles (supra) declared by the Hon'ble Apex Court in case
titled as Dharamvir Singh Vs. Union of India (supra) by the Medical
Board, that some disease which however, did not forbid the present
respondent, to become enlisted in the Army, did make its preliminary
8 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -9-
onsettings. If so, the declaration of law in judgment (supra) that
therebys there is a presumption that the incurring of the said disease
was a sequel of rendition of service, is required to be favourably
endowed vis-a-vis the respondent. Though the said presumption is
rebuttable but the onus to lead evidence to rebut the said presumption
became cast upon the petitioner. However, the said cast evidence
adducing discharging onus vis-a-vis the respondent, rather for cogently
rebutting the said presumption, but naturally also did cast an onerous
duty also upon the Medical Board, to engage itself in the endeavour of
unearthing, through employments of the State of Art block chain
genetic causal connection technique(s), wherebys it may became
unraveled that the onsetting of the disease onto the army personnel,
became sourced from antecedental genetic family history. Moreover,
therebys it was also required to be stated in the medical opinion, that
the disease but for a well formed reason rather was a congenital disease
and became neither aggravated by nor became attributable to military
service.
17. However, a reading of opinion (supra), discloses that it has
been recorded in a stereo typed form and no reasons have been recorded
to the extent (supra). Reiteratedly, since no evidence to rebut the
presumption (supra) has been led by the petitioner, therebys, this Court
is constrained to give no weightage to the opinion of the medical board,
as extracted (supra). Conspicuously, therebys no credence can be
assigned to the supra ill informed reason, besides therebys the onsetting
9 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -10-
of the disease cannot be said to be a sequel of antecedental genetic
family history. Contrarily, it is required to be declared to arise from
rendition of military service. In addition, it is required to be declared to
be attributable or becoming aggravated by rendition of military service
by the present respondent.
18. Moreover, though it is stated thereins that the disease(s)
occurred while service became performed by the defence personnel
rather in a peace area, but since there is no express mandate in the
relevant regulations, which makes the onsettings of the disease(s) in a
peace area, to not beget a further sequel that as such, it's onsettings did
not arise from the rendition of military service nor it became aggravated
by rendition of the military service. In consequence, the lack of the said
express mandate in the regulations, does constrain this Court to
conclude, that even if the onsettings of the said disease(s) upon the
present respondent thus occurred in a peace area, thereby, the said
onsettings are to be declared to become aggravated by or being
attributable to rendition of military service.
19. Further, since in terms of the judgment rendered by the
Apex Court, in case titled as 'Union of India Vs. Ram Avtar', reported
in 2014 SCC Online 1761, whereins, a declaration is made to the
extent, that the benefit of rounding off, rather has to become endowed
to the concerned. Resultantly also thereunders an indefeasible right
became vested in the present respondent for his seeking qua the
apposite roundings off being made in his favour.
10 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -11-
20. Even otherwise since the declaration of law made in
verdict (supra) makes the said declaration to be an expostulation of law
in rem, therebys, the expostulation of law in rem, as made in verdict
(supra) also makes the thereunders conferred benefits vis-a-vis the
defence personnel concerned, to, prima facie, also entitle the
concerned, thus to at any time seek the granting of the endowments as
made thereunders, and that too, in the fullest complement, as spelt
thereunders, besides irrespective of the bar, if any, of delay and laches.
21. Therefore, the granting of the benefit of the apposite
roundings off, in terms of the verdict (supra) rendered by the Tribunal
concerned, also does not suffer from any illegality and is required to be
upheld.
22. Further, the learned Tribunal in the last paragraphs of the
said O.A., held as under :-
"The mere fact that the applicant was in receipt of
pension of the first spell of the Army service cannot be a
ground to refuse him the disability pension for the second
spell in the DSC service. Our views find support from the
judgment of this Tribunal rendered in OA No. 146 of 2010
titled as Parbu Ram Vs. U.O.I and others decided on
23.04.2010.
The Original Application is, accordingly, allowed
and applicant is held entitled for service element of DSC
service and disability element @ 50% against 40%
disability w.e.f. 01.08.2014 for life. The respondents are
directed to calculate the arrears accordingly and to pay
the same to the applicant within a period of three months
from the date of receipt of a certified copy of this order by
the learned counsel for the respondents/OIC, Legal Cell,
failing which the arrears shall carry an interest @ 8%
p.a. from the date of this order.."
11 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -12-
23. The learned counsel for the petitioner submits that the
learned Tribunal has failed to harmoniously interpret the relevant
pension regulations as the same are only applicable to calculate pension
in case of personnel who are invalided out and not to those who are
discharged on completion of terms of engagement and does not
mandate payment of both disability and service element, as both are
independent of each other and are separately granted on completion of
respective conditions necessary to earn the same.
24. In the said regard, it is relevant to refer to a verdict
rendered by the learned Tribunal concerned in case O.A. No. 324 of
2016 titled as Om Parkash Guleria Vs. Union of India & Ors,
decided on 10.08.2018, whereins a similar question was put forth
before the Tribunal concerned, that 'whether the applicant who was in
receipt of army pension at the time of his re-enrollment in the DSC,
is entitled to the disability pension in the DSC service also ?' The
learned Tribunal concerned after considering the relevant regulations
observed that in terms of Regulation 179 of the Pension Regulations for
the Army, 1961, the applicant was entitled to disability pension
consisting of service element as well as disability element. Further, the
Tribunal also observed that the mere fact that the applicant was in
receipt of pension of his first spell of Army service does not disentitle
him to became an able recipient of the component of disability pension
thus for the second spell of service in the DSC. The said verdict was
challenged by the Union of India before the Hon'ble Supreme Court and
12 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -13-
the same was upheld by the Apex Court in its verdict rendered in case
titled as Union Of India & Ors. Vs. Om Prakash Guleria, decided on
on 27 August, 2021, to which Civil Appeal No. (Diary No. 9476 of
2021) became assigned. The relevant paragraphs, as occur in the said
verdict are extracted hereinafter.
"2. Besides the delay of 515 days in filing the appeal,
which has not been satisfactorily explained, even on merits, we find no
error in the judgment dated 10 August 2021 of the Armed Forces
Tribunal. The Tribunal has correctly construed the provisions of the
pension regulations and the ultimate conclusion, entitling the
respondent to the service element of the disability pension and the
benefit of rounding off, does not suffer from any error.
3. The Civil Appeal is, therefore, dismissed on the ground
of delay as well as on merits. "
25. Moreover, in the DSC service, a minimum service of 15
years was required rather to earn service pension, whereas, respondent
No. 1 after completion of his term of 10 years was discharged from the
DSC service being in Low Medical Category.
26. However, yet the said non rendition of the supra qualifying
period of service in the DSC but would not dis-entitle the present
respondent, to become an able recipient of the component of disability
pension, thus consisting of both service element of DSC service as well
as of the disability element. The reason being that, though the present
respondent for his service in the DSC, thus being construed to be the
apposite qualifying service, thereupon, though he was required to be
completing the requisite period of 15 years, rather for his becoming
entitled for service pension. However, when during the period of his
serving in the DSC, he acquired a disability which has been stated to
arise from rendition of military service or the same being attributable to
13 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -14-
military service, therebys the said entailment of a disability, thus during
the spell of the present respondent serving in the DSC, whereafter he
became debarred to become granted any further extension in the DSC
service, rather when he was required to be invalided by the DSC, as
aptly done in the instant case.
27. If so, since the above impediment, did well estop the
present respondent, rather to earn the requisite period of qualifying
service, for therebys his becoming entitled for the apposite service
pension. As such, when his service neither became extended nor when
he become discharged on ground of some proven mis-conduct.
Contrarily, when merely on account of disability (supra), as became
entailed upon him, that too, evidently during the phase of his rendering
military service, that he became precluded to complete the supra
qualifying period, rather for his therebys earning service pension, for
his rendering service in the DSC. Resultantly, the inability of the
present respondent to complete the qualifying period of service in the
DSC, thus cannot stand in the way of his becoming endowed the benefit
of service pension, hence even for the term of 10 years of service
rendered in the DSC, reiteratedly merely on the premise that he had not
completed the apposite 15 years of qualifying service in the DSC.
28. Therefore, in terms of the expostulations of law (supra)
rendered by the Hon'ble Apex Court in case titled as Union Of India
vs Om Prakash Guleria, respondent No. 1 was entitled for service
14 of 15
Neutral Citation No:=2024:PHHC:148421-DB
CWP-18575-2024 (O & M) -15-
element of DSC service besides of the disability element thereof, as
aptly done by the Tribunal concerned.
29. Moreover, the benefit of roundings off granted to the
present respondent falls in alignment to the expostulations of law, as
rendered by the Apex Court in case titled as 'Union of India Vs. Ram
Avtar'.
Final Order of this Court.
30. In aftermath, this Court finds no merit in the writ petition
and with observations above, the same is dismissed.
31. The impugned order, as passed by the learned Tribunal
concerned, is maintained and affirmed.
32. Disposed of alongwith all pending application(s), if any.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
12.11.2024 JUDGE
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
15 of 15
