Punjab-Haryana High Court
Union Of India And Others vs Ex Naik Shamsher Singh And Another on 7 January, 2025
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2025:PHHC:000903-DB
CWP-34926-2024 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-34926-2024
Reserved on:20.12.2024
Pronounced on: 07.01.2025
UNION OF INDIA AND ORS. .....Petitioners
Versus
EX NAIK SHAMSHER SINGH AND ANOTHER .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Promila Nain, 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 04.08.2021
(Annexure P-1), as passed by the learned Armed Forces Tribunal
concerned, wherebys the claim of respondent No. 1 for the grant of
disability pension was allowed.
Factual Background
2. The respondent joined Army on 19.04.1979 in a fit state of
health and discharged from service after completion of his service on
30.04.2001. Thereafter, he was re-enrolled in DSC service w.e.f.
23.11.2001. During the course of his service, he incurred disabilities of
'(I) ECTOPIC ATRIAL TACHTYCARDIA, ICD NO. 48.0 and (II)
CAD-CORONARY ECTASIA LAD,ICD NO. I 25.9'. He was
discharged from DSC service on 31.10.2017. At the time of his release,
his disabilites were respectively assessed @ 50% (composite) for life.
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3. The disability element claim of the respondent was
rejected by the Competent Authority vide order dated 09.12.2013, thus
on the ground that the supra disabilities were neither attributable to nor
being aggravated by rendition of military service.
4. Respondent No. 1 preferred first appeal dated 15.03.2014,
the same was rejected by the appellate committee vide letter dated
30.04.2015. Thereafter, respondent No.1 preferred second appeal on
12.02.2016 and which was rejected by the second appellate committee
on pensions vide latter dated 22.12.2016. Feeling aggrieved, he filed an
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 04.08.2021. The operative part of the
said order is extracted hereinafter.
"9. Considering the law laid down by the Hon'ble
Supreme Court and also the attending circumstances, the
rejection of the claim of the applicant is set aside and the
applicant is thus held entitled to disability pension from
the next day of discharge @75% as against 50% for life
after being rounded off as per judgment of the Supreme
Court in Civil Appeal No. 418/2012 titled Union of India
Vs. Ram Avtar decided on 10.12.2014 subject to
verification and the arrears are directed to be released by
the respondents within a period of three months from the
date of receipt of certified copy of this order by counsel for
the Respondents / OIC Legal Cell, failing which the
arrears shall carry an interest @8% from date of this
order".
5. Feeling aggrieved, from the aforesaid order as passed upon
the O.A. (supra), by the learned Armed Forces Tribunal concerned, the
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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
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).
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(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
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
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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.
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.
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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".
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
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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
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 relevant is extracted
hereinafter :-
Disability Attributable to Aggravated by Not Reason/ Cause/Specific
service service connected Condition and period of
with service
service
(I) ECTOPIC N N Y AS PER PARA 28
CHAPTER VI OF GMO
ATRIAL 2008(MIL)
INHERENT CARDIAC
TACHTYCARDIA, CONDITION AND NOT
RELATED TO SERVICE
REASONS AND
ICD NO. 48.0 CONDITIONS OF
STRESS AND STRAIN
(II) CAD- N N Y AS PER PARA 47
CHAPTER VI OF GMO
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CORONARY 2008(MIL***)
NOT ATTRIBUTTED OR
ECTASIA LAD, ICD AGGRAVATED
DUE*********
NO. I 25.9
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
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.
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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
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. 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.
19. 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.
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20. 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.
Final Order of this Court.
21. In aftermath, this Court finds no merit in the writ petition
and with observations above, the same is dismissed.
22. The impugned order, as passed by the learned Tribunal
concerned, is maintained and affirmed.
23. Disposed of alongwith all pending application(s), if any.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
07.01.2025 JUDGE
mahima
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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