sugna ram ranoliya vs. uoi - delhi district courts ram ranoliya vs...workshop company which was...
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IN THE HIGH COURT OF DELHI AT NEW DELHIIN THE HIGH COURT OF DELHI AT NEW DELHIIN THE HIGH COURT OF DELHI AT NEW DELHIIN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : SERVICE
W.P. (C) No.3699/2004
Judgment reserved on : July 3, 2006
Judgment delivered on : July 27, 2006
Ex.Cfn Sugna Ram Ranoliya .... Petitioner
Through: Mr. S.M.Dalal, Advocate.
Versus
Union of India and Ors. .... Respondents
Through : Ms. Rekha Palli Advocate
Col.T.Parshad, Dy.JAG
CORAM :
HON'BLE MR. JUSTICE SWATANTER KUMAR
HON'BLE MR. JUSTICE G.S. SISTANI
SWATANTER KUMAR, J.
1. On 28.6.91 the petitioner was enrolled as a member of the Indian Army as Tele
Communication Mechanic (Radio) in Corps of EME. Before his induction into Army, the
petitioner was put to rigorous selection process involving physical tests, written tests and
medical examination. He was found physically and mentally fit in all respects and was
placed in medical category AYE which means completely fit. The petitioner underwent
strenuous training at EME Centre, Secunderabad for a period of more than three years.
During the course of training and at the end of the training in the year 1994, the petitioner
was again subjected to medical examination and was always found medically fit and
placed in medical category AYE. Thereafter, he was posted to 196 (Indep) Field
Workshop Company which was located at Joshimath which is situated at a height of
approximately 6400 ft. and being surrounded by high snow hills. The weather there was
extremely cold . The petitioner developed some physical problems due to extreme cold
climate and arduous working conditions. He was brought to Military Hospital, Bareilly
where he remained under treatment and was placed in low medical category CEE
(temporary) for six months. Classified specialist Lt.Col.S.Chaudhary in Psychiatry
expressed his opinion as ?No feature of psychosis. He has responded satisfactorily to
treatment.....?. The Medical Board had specifically mentioned in its report that petitioner
at that time was unfit for high altitude area posting or posting at extreme cold regions.
Despite these specific directions of the Medical Board, the petitioner was again sent to
the same unit where he remained for a further period of ten months. Instead of showing
improvement the condition of the petitioner worsened.
2. The petitioner was again subjected to Medical Board on 6.10.95 and on repeated
recommendation of the Board, the petitioner was transferred to 604 EME Battalion at
Allahabad in March, 1996. He was posted to 288 Armed Workshop Company located in
field area in Rajasthan. In August, 1999 the petitioner was admitted to MH Bikanair for
review but soon after he was transferred to Base Hospital Delhi Cantt. where he was
downgraded from Medical category BEE to EEE (Permanent). This happened despite the
fact that the condition of the petitioner stabilized during the posting in the peace area
where weather conditions and working conditions were not so strenuous. Due to exposure
to extreme climate coupled with arduous nature of duties that he had to perform, the
disease was aggravated within a short span of 5-6 months as a result of which, he was
permanently downgraded to category EEE (permanent). In terms of Army order 146/77
the petitioner was in BEE medical category and was fit to perform his duties with certain
restrictions but the respondents arbitrarily downgraded the medical category to EEE and
he was invalided out from Army service on 9.11.99.
3. It is the specifically pleaded case of the petitioner that in the afore narrated facts
the disease of the petitioner was attributable to and in any case aggravated by military
service, as such the petitioner was entitled to disability pension. The Invalidated Medical
Board had determined the disability of the petitioner at 40% but the same was said to be
neither attributable to nor aggravated by military service and as such the claim of the
petitioner which was forwarded to PCDA (P) vide their letter dated 5.5.2000 was rejected
on 30.11.2000. Against the order of rejection the petitioner had preferred an appeal
before the Ministry of Defence, Government of India through EME records on 14.2.01
which was kept pending for a considerable time despite various reminders having been
issued by the petitioner. This attitude of the respondents compelled the petitioner to file a
writ petition before this Court which he filed on 4.3.02 being CWP No. 1540/2002 which
was also allowed in terms of the order of the High Court passed in the case of
Ex.Ct.Jasbir Singh vs.Union of India and Others. Vide letter dated 18.5.03 the petitioner
again requested the respondents to comply with the orders of the Court and to release the
disability pension in favour of the petitioner, however, vide letter dated 5.2.04 the
respondents still rejected the claim of the petitioner saying that the petitioner was not
entitled to the grant of disability pension. Compelled by these circumstances, the
petitioner filed a contempt petition being CCP No. 108/2004 for disobeying the orders of
the Court dated 6.3.03 but the same was disposed of permitting the petitioner to challenge
the impugned order dated 5.2.04 by filing a substantive writ petition. This is how the
present writ petition has been filed by the petitioner questioning the correctness of the
order dated 5.2.04 passed by the respondents as well as bringing out the conduct of the
respondents which is stated to be arbitrary and unfair.
4. This writ petition was filed and came up for hearing before the Court for the first
time on 15.3.04 but till date no counter affidavit has been filed on behalf of the
respondents. We have directed the respondents to produce the original records which
were produced and perused by us during the course of hearing.
5. The facts of the case are really not in controversy including the fact that the
petitioner was subjected to regular medical check ups. The main and probably only
submission of the respondents based on the records produced before the Court is that the
petitioner is not entitled to grant of disability pension as the disease Psychoneurosis was
neither attributable to nor aggravated by military service though the disability of the
petitioner was stated to be 40%. On behalf of the petitioner, while referring to various
judgments of the Courts, it is contended that the disease of the petitioner is attributable to
and aggravated by military service particularly in the facts and circumstances that the
petitioner was physically and mentally fit at the time of joining military service. The
recommendation of the Medical Board in Form AFMSF-16 is a mechanical exercise of
power. It neither provides any data or investigations nor it takes into consideration the
opinion of the specified specialist (psychiatry). On the contrary, it is a mechanical
exercise which ex-facie is arbitrary and without any basis.
6. We would proceed to refer and examine the effect of various pronouncements, the
relevant rules and regulations to elucidate the effect and implications of the expression
?Attributable to and aggravated by military service? first and then would revert to the
facts of the present case.
7. In the case of Jarnail Singh vs. Union of India and Ors. (1997)2 PLR 580 where
the Court referred and decided the ambit and scope of expression ?Attributable to and
aggravated by military service? appearing in Para 173 of Pensions and Regulations for
Army, 1961 and after discussing the law, held as under:- ?The provisions of law which
have a bearing on the matter in issue in this writ petition are Paras 173 and 175 of the
Pension Regulation for the Army, 1961, Rule 2 of Appendix II and Para 13 of
Entitlement Rules to Casualty Pensionary Awards to the Armed Forces Personnel, 1982.
It will be appropriate to reproduce these provisions for proper appreciation of the
contentions raised by respective parties :- ?173. Unless otherwise specifically provided a
disability pension consisting of service element and disability element may be granted to
an individual who is invalided out of service on account of a disability which is
attributable to or aggravated by military service in non-battle casualty and is assessed at
20 per cent or over. The question whether a disability is attributable to or aggravated by
military service shall be determined under the rule in Appendix II.? ?175. If the disability
of an individual is wholly or partly due to his serious negligence or misconduct, the
amount of disability pension otherwise admissible may be reduced at the discretion of the
competent authority.? ?Rule 2 in Appendix II reads as follows:- ?Disablement or death
shall be accepted as due to military service provided it is certified that :-
(i)is attributable to military service; or
(ii) existed before or arose during military service and has been and remains aggravated
thereby. XX XX?
Para 13 of Entitlement Rules to Casualty Pensionary Awards to the Armed Forces
Personnel 1982 reads as follows:- ?
13. In respect of accidents or injuries, the following rules shall be observed:-
(a) Injuries sustained when the man is 'on duty' so defined shall be deemed to have
resulted from military service, but in cases of injuries due to serious negligence/mis-
conduct the question of reducing the disability pension will be considered.
(b) In cases of self-inflicted injuries whilst on duty, attributability shall not be conceded
unless it is established that service factors were responsible for such action, in cases
where attributability is conceded, the question of grant of disability pension at full or at
reduced rate will be considered.?
Firstly we have to consider, whether the period of casual leave of a person subject to
Army Act can be termed as period on duty or not? Secondly, whether every injury
suffered by such person during the period of his casual leave arising from any kind of act,
omission or commission, would necessarily be attributable to or aggravated by military
service or not?
With regard to first question there could be hardly any controversy as the matter has been
well settled by various pronouncements of the Hon'ble Supreme Court of India as well as
of this Court. In the case of Smt. Charanjit Kaur v. Union of India and others JT 1994(1)
S.C. 131 where the husband of the petitioner who was commissioned as a Lieutenant in
the Indian Army and was subsequently promoted as Major, had died in mysterious
circumstances, the Court while awarding compensation and treating him on duty held as
under:- ?In the aforesaid facts, the conclusion is, therefore, inescapable that the officer
died while in service in mysterious circumstances and his death is attributable to and
aggravated by the military service. The responsibility of his death is prima facie traceable
to the action of criminal omissions and commissions on the part of the concerned
authorities. The petitioner is, therefore, entitled to suitable compensation as well as to the
Special Family Pension and the Children Allowance according to the relevant Rules.?
The Division Bench of this Court in the case of Shri Krishan Dahiya v. Union of India
and another, 1996(4) All Instant Judgments 506, where Hawaldar in the Army Medical
Corps suffered an injury while on casual leave and he was travelling by private vehicle,
was treated to be on duty, after detailed discussion the Court held as under:- ?It is not
disputed on behalf of the respondents that an officer, subject to the Army Act, while he is
on casual leave is considered to be on duty. Moreover, in view of the judgment of the
Apex Court in Joginder Singh v. Union of India, 1996(2) S.L.R. 149, and a Division
Bench judgment of this Court in Chatroo Ram v. Secretary Defence and others, 1991(1)
S.L.R. 678, it cannot be even disputed that an officer subject to the Army Act while on
casual leave is to be treated on duty.?
If a person subject to Army Act is considered to be on duty while on casual leave, it
would not make any difference whether he travels from duty station to leave station on
his own expense or public expense as that cannot be the sine qua non for determining
whether the person is on duty or not. He referred to a judgment of the Delhi High Court
reported as Harbans Singh vs. Union of India through Secretary, Ministry of Defence,
New Delhi, A.I.R. 1971 Delhi 227, wherein the officer in that case was to travel from
Walong in N.E.F.A., his duty station, to Patiala, his leave station. He had travelled from
Walong to Johart and from Johart to Calcutta by air at public expenses. From Calcutta to
Ambala Cantt., he travelled on form D and from there, he travelled on road by his own
scooter to his leave station Patiala. It was while travelling on scooter from Ambala to
Patiala that he met with an accident which resulted in his disability. The High Court held
that though he was travelling at his own expense and by his own conveyance during the
part of his journey from Patiala to Rajpura, he was still to be treated to be on duty and
entitled to disability pension.?
Can it be said that he is not on duty because he was not travelling at public expense. To
our mind the answer has to be that still he would be entitled to be treated as on duty.?
Still in another case of Ex.GNR Gaj Raj vs. Union of India. 1996(4) R.S.J.517, the Court
took the same view and held that the member of armed force while on casual leave can be
considered on duty for the purpose of pensionary benefits and in that case held that it is to
be attributable to military service. Similar view was expressed by Division Bench of this
Court in CWP 2535 of 1995, P.V.Suvaranan v.Union of India and others decided on
11.9.1995 and held as under :- ?Further the petitioner was going to the Railway Station at
the time of accident for the purpose of purchasing return journey ticket to join duty.
Therefore, it cannot be said that the petitioner was not on duty at the time when he met
with an accident. We are, therefore, of the opinion that the petitioner was on duty and the
injury sustained by him in the course of accident was attributable to military service.?
Hon'ble Supreme Court of India in a very recent case of Joginder Singh v. Union of India
and others, 1996(2) S.L.R. 149 wherein the petitioner who was proceeding on casual
leave from his duty station met with an accident while boarding the bus at the railway
station, held as under:- ?The question for our consideration is whether the appellant is
entitled to the disability pension. We agree with the contention of Mr.B.Kanta Rao,
learned counsel for the appellant that the appellant being in regular Army there is no
reason why he should not be treated as on duty when he was on casual leave. No Army
Regulation or Rule has been brought to our notice to show that the appellant is not
entitled to disability pension. It is rather not disputed that an Army personnel on casual
leave is treated to be on duty. We see no justification whatsoever in denying the disability
pension to the appellant.? Thus from the consistent view taken by various Courts
including the Hon'ble Apex Court, it appears to us that the first question has to be
answered against the respondents as it is really no longer res-integra and has been fairly
and elaborately answered in the above pronouncements. Therefore, we have no hesitation
in holding that a person subject to the provisions of the Army Act, even if proceeds on
casual leave, would be treated on duty and would be entitled to the benefits accruing
therefrom in accordance with law. Necessary corollary to our afore-mentioned conclusion
is the second question posed by us above. Whether every injury suffered by a member of
the Armed Forces irrespective of its nature and origin can be termed ?attributable to or
aggravated by military service.? In order to consider this basic question one has to refer
and read the above stated provisions objectively while not losing the sight of their
purpose and object. Certainly regulations 173 and 175 indicate the legislative intention
towards a liberal construction of these provisions. The above regulations and the
provisions read in their correct perspective certainly imply that rule making authority
intended to give very wider scope to the concept of payment of disability pension. Para
173 afore-mentioned is the substantive enabling provision which provides for grant of
disability pension to a member of the force subject to the condition of disability being
more than 20 percent and is attributable to or aggravated by military service. Para 175
must be read in conjunction with para 173 which is the principle regulation controlling
the subject. The scheme of these regulations shows that para 175 is in aid to para 173 and
does not frustrate the basic ingredients of para 173. The case for claim of disability
pension must satisfy the ingredients stated in para 173. It is then alone that par 175 would
become operative. Para 175 only elaborates the application of para 173 by providing that
even negligence or misconduct on the part of a member of the armed forces may not
frustrate the claim by such person under Rule 173. Upon the harmonious construction of
these two provisions meaningful interpretation would be that the remote nexus to the
attributability and aggravation of disability by military service even if accompanied by
the element of negligence or misconduct on the part of the member of the force would not
by itself frustrate the right of the member to raise such a claim. However, the authority in
discretion may apply, cut or reduce the amount of disability pension within the limited
scope of para 175. Clause 9 of Appendix II even does not place onus on the claimant to
prove the condition of entitlement and any benefit of reasonable doubt would accrue in
favour of the applicant and not against him. The member of the armed force being on
duty would have to satisfy only concept of attributability as explained above, but no strict
proof has to be established. Merely some remote nexus to the military service would be
sufficient to sustain such a claim. The afore- mentioned provisions certainly indicate that
liberal construction has to be afforded to this expression, but equally important is that
such liberal construction should be in consonance with the object and purpose sought to
be achieved by these provisions. We are of considered view that the injury suffered by a
member of the armed force must be directly or indirectly attributable to or aggravated by
military service. May be remotely but it must find its origin from the nature and scope of
the duties and discipline of the force. Obviously, a person on casual leave would not be
performing his normal duties but the event which results in infliction of injury to the
member of the force must be ancillary to the recognised sphere of military duty and
discipline. The injury causing disability, therefore, must springs from such event or
circumstance which falls within expected standard of functioning of disciplined members
of the armed forces. The expression attributable to military service has to be understood
in its wide spectrum, but this understanding must find its limit within the principle of
prudence and reasonableness. If the injury suffered by the member of the armed force is
the result of an act alien to the sphere of military service or in no way be connected to his
being on duty as understood in the above sense, it would not be legislative intention nor
to our mind would be permissible approach to generalise the statement that every injury
suffered during such period would necessarily be attributable to or aggravated by military
service. The expression ?attribute? means to ascribe, assign, consider as belonging that
which is inherent in or inseparable from (The Chamber Dictionery 1994 Edition).
Attributability means attribution to its principle source. It may not be possible to
precisely define the expression 'attributable' which could apply as a matter of principle to
the cases of the present kind. But this expression has now been well understood and
explained in various pronouncements even in English Law. It may be appropriate to refer
to the meaning described in the Butterwords ?Words and Phrases Legally Defined,
Volume 1: A-C which is as follows:- ? These words have been considered in a number of
cases and I do not wish to add to the explanations and definitions which have been given.
Counsel for Mr.Walsh submits that it is a wider concept than ?directly caused by?, or
?caused by or resulting from?, but he accepts that it involves some nexus between the
effect and the alleged cause. He suggest that ?owing to? or ?a material contributory
cause? or ?a material cause in some way contributing to the effect? may be synonymous.
Lord Reid in Central Asbestos Co.v. Dodd (1972) 2 ALL ER 1135, said: ?............
?attributable?. That means capable of being attributed. 'Attribute' has a number of
cognate meanings; you can attribute a quality to a person or thing, you can attribute a
product to a source or author, you can attribute an effect to a cause. The essential element
is connection of some kind. ?Suffice it to say that these are plain English words involving
some casual connection between the loss of employment and that to which the loss is said
to be attributable. However, this connection need not be that of a sole, dominant, direct or
proximate cause and effect. A contributory casual connection is quite sufficient. Walsh
vs. Rother District Council (1978) I ER 510 at 514, per Donaldson J.? The act, omission
or commission which results in injury to the member of the force and consequential
disability must relate to military service in some manner or the other. In other words, the
act must flow as a matter of necessity from military service. As noticed in the aforesaid
case a member of the force who proceeds on casual leave or returns from casual leave or
while on casual leave goes to get a ticket or warrant for his return etc. suffers an injury
which ultimately results in invalidating out from Army, of the member of the force, that
could be termed as an injury or disability attributable to military service. While on the
other hand a person who may be doing some act at home which even remotely does not
fall within the scope of his duties or functions as a member of the force nor is remotely
connected with the function of the military service and expected standard and way of
living of such member of the force cannot be termed as an injury or disability attributable
to military service. For example a person who gets drunk while on casual leave fights
with his neighbours, inflict injuries or suffer injuries, resulting in some disability to him
as a result of which he is invalided out of Army with some extent of disability, to our
mind cannot be said to be a disability attributable to or aggravated by military
service.Aggravation of a disease in the provisions of Section 29 of the Compensation
(Commonwealth Government Employees) Act, 1971 has been explained in the case of
Commonwealth vs. Johnston (1980) 31 AIR 445 in the following manner:- ?Although it
may be possible to attribute a meaning of growing worse to the term ?aggravation? in the
abstract, it is not possible to construe aggravation of a disease in s.29 as meaning a
growing worse of a disease to which nothing but the natural progress of the disease has
contributed. Something else must contribute an increased gravity to the employee's
disease, a gravity over and beyond what the natural progress of the disease produces.?
The expression ?attributable to or aggravated by military service? must be read ejus dem
generis with rule 2 in Appendix II and opening line of regulation 173. It must be read in
conjunction with the scheme of these provisions and has to be given purposeful meaning.
To understand this phrase better it may be appropriate to make reference to the phrase
?arising out of and in the course of his employment.? This expression occurs in the
provisions of the Employee State Insurance Act, 1948. The Supreme Court in the case of
Regional Director, ESI Corporation and another v. Francis De Costa and another, (1996)
6 SCC 1 observed as under:- ?The injury suffered by the respondent in the instant case
did not arise in any way out of his employment. Unless it can be said that his employment
begin as soon as he set out for the factory from his home, it cannot be said that the injury
was caused by an accident ?arising out of ......... his employment.? A road accident may
happen anywhere at any time. But such accident cannot be said to have arisen out of
employment, unless it can be shown that the employee was doing something incidental to
his employment. By Using the words ?arising out of... .. his employment, the legislature
gave a restrictive meaning to ?employment injury?. The injury must be of such an extent
as can be attributed to an accident or an occupational disease arising out of his
employment. ?Out of?, in this context, must meancaused by employment.? ?In order to
succeed, it has to be proved by the employee that (1) there was an accident, (2) the
accident had a casual connection with the employment, and (3) the accident was suffered
in the course of employment. In the instant case the employee was unable to prove that
the accident had any casual connection with the work he was going at the factory and in
any event, it was not suffered in the course of employment.?
The injury or disability must be incidental to military service. The Hon'ble Supreme
Court in the case of Union of India and Another vs. Baljit Singh, 1997(1) S.L.R. 98 while
declining to interfere with the judgment of the High Court held as under :- ?
In each case, when a disability pension is sought for and made a claim, it must be
affirmatively established, as a fact, as to whether the injury sustained was due to military
service or was aggravated which contributed to invalidation for the military service.
Accordingly, we are of the view that the High Court was not totally correct in reaching
that conclusion. However, having regard to the facts and circumstances of this case, we
do not think that it is an appropriate case for interference.?'
On proper analysis of the above discussion the position that emerges is that an accident or
injury suffered by a member of the armed forces must have some casual connection to the
aggravation or attributability to military service and at least should arise from such
activity of the member of the force as he is expected to maintain or do in his day-to-day
life as a member of the force. The nexus between the two is not apparently one so as to
cover every injury or accident. The hazards of Army service cannot be stretched to the
Extent of unlawful and entirely unconnected acts or omissions on the part of the member
of the force even when he is on leave. The fine line of distinction has to be drawn
between the matters connected, aggravated or attributable to military service and the
matters entirely alien to such service. What falls ex- facie in the domain of an entirely
private act which may even extend to the sphere of undesirable and unlawful activity of
such member, cannot be treated as legitimate basis for claiming the relief under these
provisions. At best, the member of the force can claim disability pension if he suffers
disability from an injury while on casual leave even if it arises from some negligence or
mis- conduct on the part of the member of the force, so far it has some connection and
nexus to the nature of duty and expected standard of living from such member of the
force. At least remote attributabilitiy to service and expected standards of behavior and
living, of the member of the force appears to be the condition precedent to claim under
Rule 173. The act of omission and commission on the part of the member of the force
must satisfy the test of prudence, reasonableness and expected standards of behavior. We
may elucidate the above principle by giving a very simple example that if a person on
casual leave and subject to this act goes to canteen to buy things or takes his children for
treatment to hospital and on the way meets with an accident, may be arising out of his
negligence or contributory negligence, suffers injuries causing permanent disability, in
our view, would be entitled to claim the benefit under Rule 173. Similarly a person who
joins army is not found to be suffering from any disease, but subsequently suffers from a
disease which renders him liable for being invalidated out of army on such ill- health,
such a disease would be attributable and/or aggravated by military service and would
entitle him to take benefit of these regulations.?
8. In the case of Jagmel Singh, Ex.Sep. vs. Union of India and Ors. (2000) 2 PLR
646, the Court also discussed the impact of Instruction No. 27 issued by the respondents
relating to functions and responsibilities of the medical authorities and held as under :-
?Learned counsel appearing for the Union of India contended that the disability pension
could be denied to the petitioner by CCDA (P), if found the disability to be less than
20%. He relied upon paras 17 and 27-C of the Revised Entitlement Rules, 1982 to
contend that CCDA(P) was competent authority to do so. I have already noticed that the
facts in the present case are hardly in issue and as far as the question of law is concerned
that stood answered by the Division Bench of this Court in the case of Amar Nath v.
Union of India and others. (1998-1) 1 18 P.L.R. 847, where the Court, after discussing
the law in detail, held as under :- ?Once this certificate was issued in favour of the
appellant entitling him to receive the disability pension, this benefit could not have been
withdrawn by the Controller of Defence Accounts (P), Allahabad on his own without
holding appellate medical board in accordance with law. Exhibit D.3 while rejecting the
claim of the appellant referred to period of 10 years previous of 25.6.1988 and disability
being less than 20%. This was never put to the appellant prior to the passing of the order.
If the appellant was entitled to the benefit in accordance with the rules on the strength of
the disability certificate. Ex.P.1 the appellant could not be divested of the same without
following due process of law and after giving proper opportunity tot he appellant which
admittedly has not been done in the present case. The corollary to this main issue is as to
whether the Controller of Defence Accounts (P), Allahabad at all was justified in
assuming the jurisdiction which is not vested in it under the rules. Under the relevant
rules and instructions, the respondents have the authority to constitute an Appellate Board
and disturb the findings arrived at by the first medical board which again was not done. It
would not be permissible to disturb the findings without taking recourse to the relevant
rules and instructions governing the subject. In this regard, reference can be made to the
judgment of a Division Bench of this Court rendered in C.W.P. No. 17688 of 1996 Ex-
Sepoy, Ujagar Singh v. Union of India and others, decided on 9.10.1997 : 1997 (4) R.S.T.
587 where this Court in somewhat similar circumstances, after discussing in detail the
matter governing the subject held as under :- ?We ar e unable to see as to how the
accounts branch dealing with the pension can sit over the judgment of the experts in the
medical line and comment upon the extent of disability without making any reference to a
detailed or higher medical board which can be constituted under the relevant instructions
and rules by the Director General of Army Medical Core.?
Somewhat similar defence was raised on behalf of the Union of India before the Hon'ble
Apex Court in the case of Ex-Sepoy Mohinder Singh v. Union of India, Civil Appeal No.
164 of 1993 decided on 14th January, 1993, where the Court held as under :- ?We have
examined the relevant materials and we do n t feel satisfied with the plea taken in the
counter affidavit. No detail of the consultation has been disclosed by the respondent nor it
is claimed that the appellant has been re-examined by any higher medical authority. We
are not prepared to sit on the vague allegations in the counter affidavit referred to above.
In view of all the relevant circumstances of the case we are of the opinion that the
Disability Pension assessed at the rate of 40% by the Medical Board which had examined
the appellant, should be respected until fresh Medical Board examined the appellant gain
and reached different conclusion.? An identical stand was taken by the Union of India in
the case of Mam Raj v. Union of India, C.W.P No. 2302 of 1997 decided on 10.9.1997 by
this Court where this Court held as under :- ?Instruction No.27 under the head of
?functions and responsibilities? Of Appendix-II of these instructions at best empowers
the Medical Authority so constituted to give its view about assessment of disablement
restricted to the medical issues. The Medical Board(s) views and findings could be
subjected to an appellate view by the Director General, Armed Forces Medical Services
whose view would be final. Nothing has been brought on record before us which would
show that subsequent to the Medical Board, as a result of which the petitioner was
discharged from Army, was held by the competent authority and that gave any findings
contrary to the view expressed by the earlier Medical Board.? Reference can also be
made to the decision rendered in L.P.A. No. 82 of 1997 titled as Union of India and
others vs. Ex.Captain Harbhajan Singh, decided on 25.4.1997. In the present writ
petition, no details have stated in the counter affidavit filed on behalf of the Union of
India nor any documents has been produced before us which could satisfy the above
enunciated principles. It has also been held that pension and likewise the disability
pension is recurring cause of action and mere delay will not frustrate the claim of the
petitioner.? Learned counsel for the appellant has also relied upon the case if Ram Singh
Jaggi v. Union of India and others. 1995 (4) R.S.J. 807, where a Division Bench of the
Himachal Pradesh High Court took the same view. From the above settled principles of
law, I have not hesitation in coming to the conclusion that the learned Courts below have
fallen in error in coming to the conclusion that the Controller of Defence Accounts (P)
Allahabad can disturb the findings of the medical board in the present manner.
Admittedly, no evidence has been brought on record much less an expert evidence
recorded by the medical offer to show that the finding recorded by the medical board
were incorrect factually or otherwise.?
9. There are certain provisions or instructions which have not been specifically
discussed by the Court in the above cited cases but at the same time they have a bearing
on the matter in issue before us. The obligation on the member of a force as well as upon
the various authorities in the hierarchy of medical core are well explained in these
regulations or in instructions. In fact, the regulations deal with the health of a soldier
from the stage when he is declared fit to be enrolled in the Indian Army till the time he
superannuates or is invalided for medical reasons whichever be the case. Regulation 173
of the Pension Regulations gives entitlement to a member to claim disability pension
subject to satisfaction of the conditions mentioned therein. Appendix-II to regulations 48,
173 and 185 states the conditions of entitlement under the head ?Entitlement Rules for
Casualty Pensionary Awards, 1982?. Rule 12 of 1982 Rules states that a person subject to
disciplinary code of the Armed Forces is on ?duty? :-
(a) When performing an official task or a task, failure to do which would constitute an
offence triable under the disciplinary code applicable to him.
(b) When moving from one place of duty to another place of duty irrespective of the
mode of movement.
(c ) During the period of participation in recreation and other unit activities organised or
permitted by Service Authorities and during the period of travelling in a body or singly
by a prescribed or organised route. (see judgments in the book also)
NOTE: 1
(a) Personnel of the Armed Forces participating in
(i)local/national/International sports tournaments as member of service teams, or
(ii)mountaineering expeditions/gliding organised by service authorities, with the approval
of Service Hqrs., will be deemed to be ?on duty? for purposes of these rules.
(b) Personnel of the Armed Forces participating in the above named sports tournaments
or in privately organised mountaineering expeditions or indulging in gliding as a hobby
in their individual capacity, will not be deemed to be 'on duty' for purposes of these rules,
even though prior permission of the competent service authorities may have been
obtained by them.
(c ) Injuries sustained by the personnel of the Armed Forces in impromptu games and
sports outside parade hours, which are organised by, or with the approval of, the local
service authority, and death or disability arising from such injuries, will continue to be
regarded as having occurred while 'on duty' for purposes of these rules.
NOTE: 2
The personnel of the Armed Forces deputed for training at courses conducted by the
Himalayan Mountaineering Institute, darjeeling shall be treated on par with personnel
attending other authorised professional courses or exercises for the Defence Services for
the purpose of the grant of disability/family pension on account of disability/death
sustained during the courses.
(d) When proceeding from his leave station or returning to duty from his leave station,
provided entitled to travel at public expenses i.e. on railway warrants, on concessional
voucher, on cash TA (irrespective of whether railway warrant/cash TA is admitted for the
whole journey or for a portion only), in government transport or when road mileage is
paid/payable for the journey.
(e) When journeying by a reasonable route from one's quarter to and back from the
appointed place of duty, under organised arrangements or by a private conveyance when
a person is entitled to use service transport but that transport is not available.
(f) An accident which occurs when a man is not strictly on duty as defined may also be
attributable to service provided that it involved risk which was definitely enhanced in
kind or degree by the nature, conditions, obligations or incidents of his service and that
the same was not a risk common to human existence in modem conditions in India. Thus
for instance, where a person; is killed or injured by another party by reason of belonging
to the Armed Forces, he shall be deemed 'on duty' at the relevant time. This benefit will
be given more liberally to the claimant in cases occurring on active service as defined
in the Army/Navy/Air Force Act.
10. Rule 13 relates to accidents or injuries which are suffered when the man is ?on
duty? as defined and shall be deemed to have resulted from military service. However,
Rule 14 deals with diseases and states that cases in which it is established that conditions
of military service did not determine or contribute to the onset of the disease but
influenced the subsequent courses of the disease will fall for acceptance on the basis of
aggravation. Sub-Rule 3 of the same Rule clearly indicates that a disease which has led to
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 military service. Clause (c) of Rule 14
state that if a disease is accepted 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.
11. Under Regulation 135 of the Defence Service Regulations for Army Volume 1, it
is obligatory on the part of the authorities that all recruits will prior to enrollment or
engagement, subjected to a medical examination in the prescribed manner. Whenever a
Recruiting Medical Officer is in doubt as to the nature of a disability, he may refer the
recruit to a Specialist for examination and opinion as to his suitability for enrollment in
the Army. This will be done only when the recruit is fit in all other respects, and a
reasonable doubt exists regarding the disability or the disabilities in question. Even under
Clause 8 of the Regulations for Medical Services of the Armed Forces, 1962 as amended
under Defence Service Regulations, the general duties of a Medical Officer is to assess
the physical fitness of the candidate for commissions in the Armed Forces, of recruits,
and of others, prior to entering the Armed Forces. It is thus obvious that person intending
to join Army has to undergo physical and medical tests adhering to the prescribed norms.
It is obligatory on the part of the authorities to properly examine an individual before
permitting him to be enrolled as a member of the Armed Forces and in the event there is a
doubt, the matter has to be referred to a Specialist to remove that doubt in regard to
physical fitness of an individual. The purpose of powers and obligations given to a
Medical Officer and strict adherence to prescribed medical standards in case of
recruitment is to achieve undisputed object that no person suffering from any ailment is
inducted into Army.
12. After the individual suffers from any injury and/or disease and is required to be
invalided out of service as per same Regulation 421, a Medical Board will be arranged
and held at once. The Medical Board is required to expeditiously conclude and more
particularly in cases of Pulmonary Tuberculosis, Epilepsy, Amputation and Psychosis.
Regulation 422 further casts an obligation on the Medical Board to answer the various
questions i the prescribed form upon due application of mind while taking note of the
detailed directives contained in Regulations 422 and 423 in that regard. The Specialist's
report should be reproduced in the statement of the case. As per Regulation 422(d) the
Invaliding Medical Board is expected to make its own assessment, reasoning and
conclusions without being influenced by the proceedings of the previous Medical Boards.
This obviously indicates the intent of the rule making authority that the Invaliding
Medical Board has to discharge its functions and duties with clear independence and in a
manner which would be acceptable to the prescribed medical standards. Mere 'Yes' and
'No' may not serve the object of such intent. It is in the modern times where means of
investigations amply and possibly tend to touch perfection. Mere impression of doctors
would not serve the purpose and discharge the obligations placed upon the authorities
under these provisions. Under Regulation 423(a), the Board is expected to take into
consideration the evidence both direct and circumstantial. The authorities medical and
administrative are required to weigh the evidence while deciding the question of
attributability or aggravation. The opinion of the Medical Board under Clause 423(d)
DSR-Medical is final unless it is questioned before the Medical Board or is patently
perverse.
13. The cumulative effect of the above enunciated principles of law and various rules,
regulations and instructions is that the authorities are expected to act with great caution
while invaliding a person from military service. A person who has been inducted into
military service after rigorous medical examination and has been found consistently fit in
all respects, suddenly suffers from a sickness as a result of his sufficiently long service in
Army at different places of high altitude with difficult duties of the Army, it may not be
fair for the authorities to say that the disease is neither attributable to nor aggravated by
military service particularly in absence of any medical diagnosis or data being discussed
or placed on record. It would be unjust and unfair to permit writing of 'No' and/or 'Yes'
simplicitor, despite the medical records showing that the patient/Army personnel, was not
suffering from any disease earlier or the same was not organically attributable to his
constitution.
14. Once the Medical Board finds a disease as 'attributable to and aggravated by'
military service and his disability is more than 20% then it has to forward AFMSF-16 to
the pension authorities in terms of Rule 12 of the Pension Regulations. Regulation 12
requires communication of sanction to the Accounts Officer. The language of this
Regulation shows that the pension is sanctioned by the concerned authorities after
completion of the proceedings of Medical Board and then it is communicated for
arranging its payment. Assumption by Accounts Officer of the pension authorities to sit
over the judgment of the Medical Board is apparently without jurisdiction and, in fact, is
impermissible under Regulation 423(d). In this regard reference can also be made to a
very recent Division Bench judgment of this Court in the case of JC 264149M Ex. Naib
Sub Marut Sharan Tiwari vs. Union of India and Ors. being CWP No. 23320/05 decided
on 13.7.06.
15. Various Benches of this Court as well as all other High Courts have taken the
view that the diseases like Schizophrenia, Neurosis and Epilepsy etc. are the diseases
which are normally attributable to and/or aggravated by Army Service unless there was
definite medical evidence on record to show that the onset of such diseases was prior to
the joining of Army and was constitutional in the sense that their cause was not known
and in all probable possibilities they could relate back to the period prior to the
enrollment of the individual in the Armed Forces. A Division Bench of this Court in the
case of Satpal Singh (Mr.) Vs. Union of India and Ors. 1999 IV AD (Delhi) 321 held as
under:- ?What sort of Schizophrenia from which the petitioner suffered has also not been
indicated by the Medical Board. Hallucination from which such patient suffers are of
three types namely; (i) Auditory, (ii) Visual or (iii) Somatosensory. Auditory
Schizophrenia occurs when a person imagines that somebody is talking against him.
Visual Schizophrenia is when he imagines something like seeking ghosts etc. Nothing
has been said by the respondent as to from which category of schizophrenia the petitioner
suffered. From whatever category of ?Schizophrenia? the petitioner suffered it would
have been apparent when he was medically examined in June, 1982 or at any time
thereafter. But none of the Medical Boards prior to October, 1990 declared that the
petitioner was suffering from ?Schizophrenia? or any mental disorder. Therefore, it
would not be correct on the part of respondent to say that petitioner suffered from
constitutional disorder. Constitutional disorder would have in some form or the other
must have manifested itself. But it did not till October, 1990. Therefore, the rejection on
the ground of constitutional disorder cannot be appreciated. Mr.S.M.Hooda's contention
has a force when he urged that in the year 1990 there was insurgency in the State of
Jammu and Kashmir. The petitioner being posted in the forward area of that State due to
anxiety might have suffered from ?Schizophrenia?. Since he had already suffered from
Neurosis earlier and being posted in the forward area anxiety got aggravated and became
a case of schizophrenic. For this argument of Mr.Hooda, counsel for the respondent had
no answer. He could not deny the fact that the petitioner was posted during the relevant
time in the forwarding area of the State of Jammu and Kashmir. He also could not
contradict the fact that it was while posted in the field area that the petitioner suffered
from Neurosis. Therefore, it cannot be ruled out that schizophrenia from which the
petitioner suffered was a consequence of Neurosis. As per respondent's own showing
petitioner developed psychiatric break down in June, 1990 when he started feeling of
sadness, fear from unknown, lack of concentration, loss of interest in work etc. He
showed depressive features while posted in the field area of the State of Jammu and
Kashmir. This ultimately led him to schizophrenic. Therefore, it wold not be correct to
say that the disease on account of which petitioner was invalided out of service was not
attributable to service nor aggravated because of his service. In fact the presumption
ought to have been drawn as per Sub-Rule (b) of Rule 7 by the respondent. On account of
his service presumption can be drawn that the petitioner suffered from this disease on
account of his military service and it aggravated by military service. Instead of raising the
presumption as is required to be raised under sub-rule (b) of Rule 7, the Controller of
Defence Accounts rejected the disability pension without any reason and without
appreciating the facts of this case. Admittedly, the onset of the disease was during the
course of service. There was no reason for Controller of Defence Accounts not to accept
the recommendation of the Commanding Officer, which in this case was made to enable
the petitioner to get the disability pension. The Commanding Officer of the petitioner
sanctioned the disability pension w.e.f 6th July, 1991. Duly sanctioned case was
forwarded to the respondent No.2 i.e. Controller of Defence Accounts (Pension) Dropdi
Ghaat, Allahabad which was in consonance with the presumption which is to be raised
under Sub-Rule (b) of Rule 7, which the respondent No.2 failed to do without any
reason.?
16. Still in another case titled as Ex.Sub.Major Ram Kishan vs. UOI and Ors. being
CWP No. 2221/2005 decided on 14.3.06 where the petitioner was suffering from
Achalasia Cardia (Optd) and Essential Hypertension disease was invalided from military
service by the Medical Board, though the Court partially allowed the writ petition
directing the respondents to hold Review Medical Board for the petitioner but after
discussing the case law and relevant rules held as under:- ?When an individual is found
suffering from any disease or has sustained injury, he is examined by the medical experts
who would not only examine him but also ascertain the nature of disease/injury and also
record a decision as to whether the said personnel is to be placed in a medical category
which is lower than `AYE' (fit category) and whether temporarily or permanently. They
also give a medical assessment and advice as to whether the individual is to be brought
before the release/invaliding medical board. The said release/invaliding medical board
generally consists of three doctors and they, keeping in view the clinical profile, the date
and place of onset of invaliding disease/disability and service conditions, draws a
conclusion as to whether the disease/injury has a causal connection with military service
or not. On the basis of the same they recommend (a) attributability, or (b) aggravation, or
(c) whether connected with service. The second aspect which is also examined is the
extent to which the functional capacity of the individual is impaired. The same is
adjudged and an assessment is made of the percentage of the disability suffered by the
said personnel which is recorded so that the case of the personnel could be considered for
grant of disability element of pension. Another aspect which is taken notice of at this
stage is the duration for which the disability is likely to continue. The same is
assessed/recommended in view of the disease being capable of being improved. All the
aforesaid aspects are recorded and recommended in the form AFMSF-16. The Invaliding
Medical Board forms its opinion/recommendation on the basis of the medical report,
injury report, court of enquiry proceedings, if any, charter of duties relating to peace or
field area and of course, the physical examination of the individual.
XXXXXXXXXXXXXX
It was also held that the opinion given by the doctors of the Medical Board shall be given
due weightage and primacy in the matter for ascertaining as towhether or not the
injury/illness sustained was due to or was aggravated by the military service which
contributed to invalidation from the military service. At this stage we may also take up
the plea raised by the petitioner that the disease from which the petitioner had suffered
cannot be said to be constitutional in nature. This submission is sought to be supported by
this court in Satpal Singh v. Union of India and Ors. (supra). In that regard suffice is to
say that the ratio of the decision in Satpal Singh's case (supra) is now stood impliedly
repealed by the decision of the Supreme Court in the case of Controller of Defence
Accounts (Pension) and others v. S. Balachandran Nair reported as AIR 2005 SC 4391.
In the said decision, the Supreme Court after considering the various provisions and the
decisions on the subject including the case of Union of India and another v. Baljit Singh
reported as 1996 (11) SCC 315 held that Medical Board's opinion to the effect that illness
and disability suffered by the respondent therein was not attributable to military service
cannot be substituted by the court in order to arrive at a contrary finding. It was also held
that where a medical board found that there was absence of proof of the injury/illness
having been sustained due to military service or being attributable thereto, the High
Court's direction to the Government to pay disability pension was not correct. The
Supreme Court also dealt with the contention that the fact that the employee was posted
at sensitive border area and, therefore, his illness is fully attributable to military service
was negatived by the Supreme Court in the said decision. We may also refer to the
decision of the Division Bench of this court in Md. Tanwir Alam v. Union of India and
others (supra). In the said case also the petitioner was enrolled as Nursing Assistant and
while undergoing training he developed the said disease within a short period when the
aforesaid disease was diagnosed. Despite the said fact the Division Bench has held that
the decision of the appropriate medical authority coming to the conclusion that the
disease of the employee was not related to the military service cannot be interfered with.
We may also refer to the decision of Shri Bhagwan (supra). In paragraphs 185, 186 and
187 reference was made to other decisions of the Single Judges of this court. The
Division Bench of this court overruled the Single Judge's decision holding that when the
medical board has given a categorical opinion that the petitioner's ailment was
constitutional and even the CCDA had opined that the petitioner was not suffering from
any ailment which could be attributed to or aggravated by military service and that it did
not exist before or during military service, such opinion could not be set aside merely
because it was felt that that the word ?constitutional? is not an adequate reason for
denying disability pension. In our considered opinion, the law is, therefore, crystal clear
on the subject needs no further reiteration. In the backdrop of the aforesaid legal position
which is made clear by several decisions of this court as also by the Supreme Court the
facts of the present case are required to be considered. Here is also a case where the
Release Medical Board has given its definite opinion that the disease from which the
petitioner is suffering is constitutional in nature and that the said disease and disability is
neither attributable to nor aggravated by the military service. The said report of the
medical board will have definite primacy, but in the facts of the present case we also find
that there was a medical board earlier constituted which examined the petitioner
medically and found that there was HYPERTENSION from which the petitioner was
suffering. It was held by the said Medical Board that the disease was aggravated by
military service. Therefore, there is a conflict of opinion between the two medical boards,
one gave its opinion in 1974 whereas the other medical board has given its opinion in
1983. It is true that the despite the opinion given by the medical board in 1974 the
petitioner worked with the respondents for 10 more years and he stood discharged from
service after completing his tenure. But it is apparent on the records of the case that the
petitioner was still suffering in 1983 from the same disease i.e. HYPERTENSION and
there was an additional disease, namely, ACHALASIA CARDIA (Optd) from which he
was found to be suffering from.?
17. The Madhya Pradesh High Court in the case of Sub-Lieutenant Chaman Azhar vs.
Union of India and Others (2003) 4 SLR 183 held in favour of the petitioner that
Psychiatric disorder was attributable or aggravated by military service. In this case the
Court held as under :- ?In Price's Text Book of the Practice of Medicine, learned author
Price has discussed the aetiology of ?Schizophrenia? as under:- ?The role of genetics is
undoubtedly important, but recent observations suggested that although genetic factors
may be necessary they are not always sufficient for the occurrence of schizophrenic
illness; environmental influences can also pay their part in the casual chain. Recent
mental stress may sometimes be the starting point of an attack, but in a considerable
proportion of these cases the reported overwork, disappointment in love or other painful
experience, is found to have been a product of the already existing illness, or the last of a
long series of disturbing events. No recent or remote experience is ever sufficient to
account for the illness without regard to intrinsic causes. No matter how searchingly the
patient's life be resurrected and analysed, it is scarcely ever possible to discover that
anything happened to him with which would have led to his adopting a schizophrenic
way of shunning daily life unless he had been somehow disposed to it from the
beginning; although, of course, much may have happened to him that has strengthened
and fostered the disposition.? In Text Book of Medicine by Rustom Jal Vakil disease
?Schizophrenia? has been discussed as under:- ?Aetiology; heredity is considered an
important factor in the aetiology of the disease. Specialist in genetics have discovered
significant difference in the incidence of the illness in monozygotic an dizygotic twins.
The nature of genetic transmission is however not clear. Individuals with asthenic builds,
thin, tall and wiry frames and with a tendency to be shy, reserved and withdrawn are
particularly prone schizophrenia. The vast majority of individuals with such constitutions
are usually well adjusted, but if they prove incapable of standing up; to the stresses and
strains of life, they tend to develop a schizophrenic type of psychosis. A tendency to
withdraw from social and emotional contacts with people and an increasing tendency to
withdraw from one's environment are often present long before the actual onset of the
illness. Intensive biochemical studies have revealed numerous abnormalities, including
disturbances of protein carbohydrate metabolisms, enzyme reactions, abnormalities or
urine and cerebrospinal fluid and the presence of so-called serum toxins (teraxin). The
exact aetiological significance of such charges has however not been elucidated so far.
Some consider schizophrenia as an auto immune disorder. This too remains unproved.?
18. Similar view in regard to Schizophrenia was taken by the Punjab and Haryana
High Court in the case of Ram Niwas Goswami vs. Union of India (1999) 7 SLR 458.
19. In view of the above medical and legal explanations in regard to this disease, it is
quite possible that a person may suffer Schizophrenia or other Psychiatric diseases as a
result of stress and strain, which an individual may be incapable of standing up to at a
given point of time. More than often it may not be contributable or result of a
constitutional disease or constitutional disorder. We have attempted to explain the
constitutional disorder/disease as is understood in medical terms or even in common
parlance. The need for a precise medical examination and clear remarks supported by
investigative or clinical data is the essence of a medical report which would have primacy
particularly in proceedings before the court. A valuable right in relation to grant of
pension of an individual is affected, thus, the authorities are expected to act with greater
caution while making recommendations and administrative authorities while granting or
declining such relief to the person.
20. In the case of Ex-Signalman Shri Bhagwan vs. Union of India and Ors. 103
(2003) DLT 269 (DB) the Court had discussed the law in detail with reference to various
provisions of the Army Act, Rules, Regulations etc. The proposition of Law stated
therein are not a matter of dispute before us. But we must notice that certain provisions,
instructions and judgments of different courts were not brought to the notice of the
Division Bench. We have to look into the stated principles, keeping in view the amended
Regulations as well as the various other judgments of this Court and other Courts, which
have been pronounced subsequent to the judgment. The Division Bench after detailed
discussion remanded the connected matters to the CDA (P)/ CCDA (P) Allahabad, to
reconsider them in light of the conclusions and directions given in the said judgment. The
primacy of medical opinion expressed by the Medical Board constituted in light of the
above principles can hardly be disputed. The respondents have heavily relied upon the
judgment of the Supreme Court in the case of Controller of Defence Accounts (Pension)
and others v. S.Balachandran Nair AIR 2005 SC 4391 to contend that the opinion of the
Medical Board is final and cannot be questioned before the Court. The principle of law
enunciated by the Supreme court in this case is not a matter of controversy and in any
case is binding on the Courts. Their Lordships have clearly indicated that the view
expressed by the Medical Board has primacy and would be respected by the Courts.
There can be no doubt to the proposition that for the opinion of the Medical Board to
attain its primacy as afore-referred, it must be in conformity with the statutory provisions
framed by the competent authorities. If a report is ex-facie not in conformity with the
various regulations, is not supported by any investigative or diagnostic evidence and is
arbitrary or ex-facie perverse then it cannot be permitted to have the same value as
indicated in the various judgments of the High Courts as well as the Supreme Court.
21. We have already discussed at great length that the rules and regulations postulate
proper application of mind by the Medical Board to arrive at conclusions which would be
supported by proper reason or documentation. It is so, primarily for the reason that a
member of the force could be invalided from service and there should exist a cause and
such cause must have nexus to his discharge in conformity with rules and regulations. It
is a settled principle of law that when rules require something to be done then that thing
must be done in that manner alone or not. Adherence to the provided procedure is
essential and the authorities cannot act contrary to a procedure which they themselves
provided for in accordance with their Rules. Once reports are prepared contrary to the
procedure provided by the Statute, Rules, Regulations and Instructions, it is bound to
cause prejudice to the affected party. From the words of the law there should be no
departure nor should they be given a meaning which would not further the cause of the
Rule. We may refer to the case of Dr. Sudha Suri vs. Union of India (Pb.and Hry.) and
Ors. 2002 (1) SLR 665 where the Court held as under:- ?It is a settled principle of law
that once methodology for doing a particular act is provided under the statute, rules or
regulations, then such act must be done in the manner and way prescribed alone and in no
other way. Reference can usefully be made to a recent Division Bench Judgment of this
Court in the case of K.G. Nanchahal and another Versus State of Punjab and others, CWP
No. 8810 of 2001 decided on 11.10.2001, where the Court held as under:- ?It is a settled
principle of law that the act must be done in the prescribed manner and no other way. The
conditions of a rule and prescribed procedure must be satisfied and there must be
application of mind. Reference in that regard can be made to the judgments of Hon'ble
Supreme Court in the cases of State of Uttar Pradesh Versus Singhara Singh and others,
AIR 1964 Supreme Court 358; Hukam Chand Shyam Lal Versus Union of India and
others, AIR 1976 SupremeCourt 789 and Chandra Kishore Jha Versus Mahavir Prasad
and others, JT 1999 (7) S.C. 256.? The purpose of such principle is so very obvious that
the prescribed authority alone should exercise the power given to it. But for the
prescribed authority, no other authority can assume such power merely for the reason that
it consider it appropriate to do so and is vested with the some other power under the
relevant ru es/provisions.?
22. In order to examine this aspect in some depth we may refer to certain hypothetical
illustrations. A person who joined Army after satisfying all theprescribed standards and
rigours of physical and medical tests, after having rendered service for number of years in
Army, without suffering any illness and then is suddenly taken ill, normally such an
illness would be attributable to or aggravated by military service unless in the opinion of
the Medical Board there was clinical or investigative evidence to show to the contrary. It
is possible that an individual may join the Army in a fit condition and despite normal
medical examinations it was not possible to diagnose a disease at the time of his entry
into service, however, such a disease surfaces after his joining the Army and upon
investigations it could safely be stated that the disease was existing even prior to his
joining the Army Service. It could also be found and medically demonstrated that the
disease was 'Constitutional' though it appeared or aggravated after the individual had
joined the Army Service.
23. The present case is one of the case out of a bunch of writ petitions which were
heard by us. When we were hearing the bunch of these writ petitions, a writ petition
bearing W.P.(C) No. 3843/1994 titled as Ex. Hav. Maman Singh vs. Union of India
decided on 20.7.2006, was also heard. In that case, the petitioner was suffering from
'HEMSPLEGIA (left)' and was invalidated from Army Service but the Medical Board
had conducted investigation upon the patient and it was found that the said disease was
existing in his brain even prior to his joining the Army, however, it surfaced at a much
subsequent stage. It was also recorded in the Medical Board proceedings that further
investigations were necessary and the same was advised to the patient by the Medical
Board. In that case, further investigation and treatment was refused by the petitioner
which, in fact, could have given the exact time of the onset of the disease and whether it
surfaced or aggravated during the Army Services. The said writ petition, on production of
Records, was withdrawn by the learned counsel appearing for the petitioner. This would
be an example where a person had entered into army service with pre-existing disease
and, thus, could not be entitled to the benefits of disability pension on the ground of
attribution to military service.
24. Still there could be other cases where opinion of the Medical Board is not
supported by a reasoning or comments upon clinical examination and investigations
conducted on the concerned person and, in fact, on the face of it they may even appear to
be perverse. For example, a person, during the course of his service suffers a fracture
while on duty and the same as a result of defective surgery results in disability to him,
resulting in his invalidation out of service but with a declaration that it was neither
attributable to nor aggravated by service. In some cases, onset of a disease may be the
most elevant factor to be determined or answered by a Medical Board while in others the
emphasis may be on progression of the disease. Such a progression or onset is
attributable to or aggravated by military service or not is again a matter on which the
medical as well as the administrative authorities are expected to make record-based
conclusions or sanctions. But once these two ingredients of Regulation 173 of the
Pension and Regulations for the Army, 1961 are satisfied and the authorities sanction the
pension, the PCDA has hardly any jurisdiction to sit over the finality of these views given
by the competent authorities under these provisions.
25. An Officer or the persons other than the Officers, under Regulation 48a and 173
could claim disability pension, which consists of Service element and Disability element.
Regulations 48, 173 and 185 of the Pension Regulations provide for the complete scheme
and entitlement for grant of such relief, which of course, is subject to change, again as per
Rules and particularly in the cases where the Re Survey Medical Board finds that the
disability no longer exists or has been reduced . The above principles of law are well-
settled and well-explained with hardly any scope for variation. Undue reliance upon
opinion of a Medical Board which patently violates the Regulations and Instructions of
the Army and gives no historical, diagnostic details of the treatment and the basis for
concluding non-attributability or non-aggravation to military service could result in
travesty of justice and frustration of the very object of the relevant rules.
26. In light of all these principles, now we would revert back to the facts of the
present case. The petitioner had joined military service in the year 1991 and he went
through stringent physical and medical tests on periodical basis by the appropriate
Medical Boards. He was never found to be sick or showed any sign or symptoms of any
mental disease or disorder. He served the Army without any complaint and to the
satisfaction of all concerned, right from the year 1991 till the year 1997, when for the first
time he showed symptoms of sickness and was finally invalidated from military service
in the year 1999. There is no dispute to the fact that the petitioner was invalidated from
military service with 40% disability with the disease of 'Neurosis' (Neuro- psychotic
disorder). However, as per the opinion of the Medical Board, the same was neither
attributable to nor aggravated by military service. The relevant part of AFMSF-16 reads
as under:- ?SUMMARY AND OPINION OF LT. COL. RC DAS, CLASSIFIED
SPECIALIST (PSYCHIATRY), BASE HOSPITAL DELHI CANTT-10 DATED : 24
SEP 99 25 years old cfn/EME with just 8 yrs of service is a case of Neurosis (300, V 67)
in low med cat (CEE (Psy) 6/12 + 6/12 and EEE (Psy) 6/12 + 6/12 yrs. BEE (Psy) permt
wef Jan 98) since Mar 95 and is now reported with a relapse. He was last renewed at MH
Jabalpur in Feb 99. Onset of his neurotic illness was in Jan-Feb 95, manifested with bouts
of anxiety, noctural enwers, pre-mature ejaculation, errotic behaviour (touches wall while
he is walking) and idiosyncatic belief. Initial evaluation by Sr. Adv (Med) ruled out
contributory organic cause. After intensive treatment, with anxiolytics, thyroleptic, he
had improved marginally and was observed in low med category. Since then, he is being
periodically reviewed number of times and even after adequate treatment, he was found
to be symptomatic. During present review, he presented with headache, weakness,
innuberable somatic complaints, foregetfulness. He has some schizotypical personality
traits. He was adequately, treated with ECT (3), neuroleptics, thyroleptic and other
supportive measures without any appreciable improvement. Indl. Has been treated and
observed in low medical category for last five years, without any appreciable clinical
condition. He still shows residual symptoms like anergia, forgetfulness, somatic concern.
He is unfit to continue in further service. Rec to be invalided out of service in med cat
EEE (Psy). Adv Tab Trifluperazine 5 mg HS under med supervision? 27. It was recorded
in the Medical Board proceedings that the findings are recommendatory in nature and are
subject to approval/review/revision by the competent authority. Along with the medical
report, opinion of Lt. Col. RC Das, Classified Specialist (Psychiatry) was also enclosed.
In that report, it has been specifically recorded that the onset of his neurotic illness was in
Jan-Feb 1995. According to the Specialist, when initial evaluation of the patient was done
by Senior Medical Advisor, contributory organic cause was ruled out. Since then, he had
been under the treatment of the authorities. Having found that the condition of the patient
had worsened and disease had aggravated, on 8.10.1999 the patient was recommended to
the Invaliding Board as a result of which he was invalidated out of service.
28. Another very pertinent aspect of the present case is that when the disease of the
petitioner had manifested and he was examined by the Specialist on 19.1.1995, it was
specifically recommended by the said Specialist as under:- ?Unfit for HAA extreme cold
regions?
29. Despite such recommendations of the Specialist Medical Officer, the petitioner
was posted to high altitude, in fact, at the same place where he was posted prior to the
onset of his disease. Thereafter he was posted to Rajasthan i.e. in extreme hot climatic
conditions. Both these situations had apparently aggravated the disease of the petitioner
which, as per the medical records, worsened from the year 1997 to the year 1999 and
which necessitated invalidating out of the petitioner from the service in the year 1999.
30. In light of the above medical records and opinion of the Specialist doctors of the
Army, the Medical Board has violated all norms and has acted in complete violation of
and disrespect to the Rules and Regulations of the Army and has expressed nothing in the
entire proceedings except noting a word 'Yes' and/or 'No'.
31. The report does not contain any reason or expression of a medically oriented
opinion to satisfy the requirements of the aforestated provisions of law. There is
sufficient record before the Court in the form of opinion of the Classified Specialist and
Medical Specialist of the Medical Corps of Army, which can safely be relied upon by the
Court for granting the requisite relief to the petitioner. In fact, the opinion of the Medical
Board, as already noticed, is 'Recommendatory' (Refer to Rule 18 of the Pension
Regulation) and are to be considered by the administrative authorities before issuing the
sanction order. The authorities concerned, vide their letter dated May 2000 had forwarded
the case to CCDA (P) Allahabad with a clear indication that if there is any delay in
finalisation of disability element, at least necessary PPO for service element should be
issued to avoid any financial distress to the individual. This in no way weighed with the
authorities concerned and the CCDA (P) Allahabad rejected the entire pensionary claim
of the petitioner without even observing as to what it had to say about the opinion of the
Specialist which was part of the Medical Board Proceedings. Once the claim of the
petitioner was sanctioned and forwarded for disbursement to the pension authorities, they
could not have rejected the same arbitrarily, without any basis and without subjecting the
petitioner to an appellate medical board as contemplated under the Rules.
32. In view of the above circumstances, normally, the disability of the petitioner
would be attributable to army service and in any case the same is aggravated by
conditions of service. In this case, in fact there is contributory negligence of the
respondent authorities in denying aggravation of the disease during the course of his
normal service.
33. In view of our detailed discussion above, we find merit in this writ petition. The
same is allowed and the respondents are hereby directed to consider and grant disability
pension to the petitioner as he fully satisfies the ingredients of Regulation 173, within a
period of three months from the date of passing of this order.
34. However, in the facts and circumstances of the case, the parties are left to bear
their own costs.
Sd./-
SWATANTER KUMAR
Sd./-
G.S. SISTANI