UNION OF INDIA & ORS. Vs. ANGAD SINGH TITARIA
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 11208 of 2011, Judgment Date: Feb 24, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11208 OF 2011
UNION OF INDIA & ORS. ... APPELLANTS
VERSUS
ANGAD SINGH TITARIA ... RESPONDENT
JUDGMENT
N.V. RAMANA, J.
This appeal arises out of the impugned order dated 3rd December, 2010
passed by the Armed Forces Tribunal, Chandigarh, Bench at Chandimandir in
OA No.837/2010 whereby the tribunal allowed the Respondent's application
for grant of disability pension.
2. The undisputed facts of the case are that the respondent herein was
enrolled in Indian Air Force on 13th November, 1971 in the Clerical trade.
At the time of his recruitment, the respondent was medically and physically
examined by the concerned medical officers and was found fit as per
prescribed standards in medical categorization known as SHAPE-I. On 17th
July, 1987, during the period of his service in Indian Air Force, the
respondent was admitted to the Commando Hospital (Air Force), Bangalore
where he was diagnosed for coronary artery disease namely Infero-lateral
Myocardial Infraction (1st disability). The respondent was therefore
placed in Low Medical Classification from September, 1987. As a result of
deterioration of health due to aggravation of ailment, the respondent was
again downgraded and placed in the medical classification A4 G3
(Permanent). While the respondent was discharging his duties at 2228
Squadron, he was also diagnosed for the disease Type-II Diabetes Mellitus
in the year 2006 (2nd disability). Thereafter, on 27th November, 2008 the
respondent was referred to the Release Medical Board. The Medical Board
assessed his 1st disability i.e. coronary artery disease at 60% and 2nd
disability at 15 to 19%. The composite disability was however assessed as
60%. The Medical Board recommended that both the aforementioned
disabilities were found to be constitutional in nature and not attributable
to nor aggravated by service in Air Force. Accordingly, the disability
pension claim preferred by the respondent has been rejected by the
competent Pension Sanctioning Authority i.e. Air Force Record Office by its
order dated 16th April, 2009.
3. Aggrieved thereby, the respondent filed first appeal before the
Appellate Committee. The first appellate authority by its order dated 28th
October, 2009 rejected the same observing that both the disabilities are
neither attributable to nor aggravated by service (NANA) and the 14 days
charter of duties did not reveal any under stress and strain of military
service. At this point of time, the respondent was superannuated from
service on 31.10.2009 after rendering 30 years, 11 months and 18 days of
service. The second appeal before Defence Minister's Appellate Committee
was also rejected. The respondent then filed O.A. No. 837 of 2010 before
the Armed Forces Tribunal ("The Tribunal" for short) which came to be
allowed directing the appellants to assess and release the disability
element of disability pension in favour of the petitioner for 60%
disability from the date of his discharge with interest @ 10% p.a. on the
arrears.
4. The appellants-Union of India, having aggrieved by the decision of
the Tribunal, preferred this appeal. We notice that there is a delay of 234
days in filing the present appeal. We, however, condone the delay for the
reasons stated in the application for condonation of delay.
5. Learned counsel for the appellants submitted that according to
Regulation No. 153 of the Pension Regulations for Indian Air Force, 1961
(Part-I) (for short "the Regulations") the disability should be either
attributable to or aggravated by Air Force Service. Whereas in the present
case the Release Medical Board which is an expert Body, has clearly
expressed its opinion that the disabilities suffered by the respondent were
neither attributable to nor aggravated by service and constitutional in
nature. The Tribunal has committed serious error by ignoring the opinion
dated 27th November, 2008 of the Release Medical Board. The record clearly
shows that the onset of disabilities on the respondent was at peace
locations as the respondent, at the relevant time, was not engaged in duty
in high altitude areas or snow bound remote areas. He was not in war bound
field area or undergoing intensive physical or arms training. The
respondent was neither a prisoner of war nor exposed to adverse climatic
conditions while performing his duties. Throughout his employment, the
respondent has served in peace station. Therefore, there cannot be any
stress or strain caused by the service which could have led to the onset of
the disabilities. The Medical Board has clearly and categorically observed
that the disabilities of the respondent were "not connected with service"
and hence they do not fall under the category of "either attributable to or
aggravated by Air Force Service" which is a prerequisite for granting
disability pension. The adjudicating authority as well as the 1st and 2nd
appellate authorities correctly upheld the recommendations of the Release
Medical Board and rightly denied disability pension to the respondent, but
the Tribunal failed to appreciate the recommendation of the Release Medical
Board and committed grave error in allowing the original application of the
respondent. In support of his contention that the Court while deciding the
case of granting or otherwise of disability pension must give due weight,
value and credence to the opinion of expert body, learned counsel relied
upon this Court's decisions in Ministry of Defence Vs. A.V. Damodaran
(2009) 9 SCC 140, Union of India Vs. Keshar Singh (2007) 12 SCC 675, Union
of India Vs. Baljit Singh (1996) 11 SCC 315 and Controller of Defence
Accounts Vs. S. Balachandran Nair (2005) 13 SCC 128. Learned counsel
finally submitted that the Tribunal has utterly failed to take into account
the settled principle enshrined by the Apex Court in various decisions and
hence this appeal deserves to be allowed setting aside the impugned
judgment.
6. Learned counsel for the respondent, on the other hand, contended that
the declaration of the Release Medical Board that the disease of the
respondent was "neither attributable to nor aggravated by service" was
arbitrary and illegal as the Board had not scrupulously followed the
Regulations and decided the case in clear violation of the rules framed
thereunder. The assessment of disability for attributability is to be
ascertained in accordance with Regulation No. 153 and Rules 5, 14(b), 14(c)
and 15 of Entitlement Rules for Casualty Pensionary Awards, 1982 (for
short" Entitlement Rules") prescribed under Appendix-II further following
the rules specified in Annexure-III to Appendix-II. But the Board flouted
all the relevant rules and regulations and arbitrarily decided the case of
the respondent. The Board ignored the vital fact that the respondent was
enrolled in the Indian Air Force on 13th November, 1971 after medically and
physically found fit by the medical officers at the time of recruitment.
The onset of Disability No. 1 was in the year 1987 which is after rendering
16 years of service. During his service, the respondent was posted at
different places where he had to carry on his duties under lot of stress
and strain. Consequent to the disabilities emerged during the period of
service the respondent was denied promotion to the rank of Warrant Officer
in spite of the fact that the respondent's name was empanelled for
promotion panel 2008-2009 and again in next promotion panel of Airmen in
2009-2010. His name was dropped from the promotion panel for being placed
in medical category A4 G4 (Permanent).
7. Learned counsel further contended that as per Rules 9, 5(b) and 14(b)
of the Entitlement Rules the Board ought to have given specific findings in
its report as to why disability is not deemed to be attributable to
service, particularly when the respondent was not affected with any disease
at the time of his enrolment in the Air Force. In the absence of such
specific findings by the Board, merely furnishing a declaration that the
disability being constitutional in nature was neither attributable to nor
aggravated by service, cannot be accepted and the claim of the respondent
for disability pension cannot be rejected. In support of his contention,
learned counsel has placed reliance on this Court's judgment in Dharamvir
Singh Vs. Union of India & Ors. (2013) 7 SCC 316. He further contended that
although the Release Medical Board is an expert body, the adjudicating
authority has the power and jurisdiction to interfere and decide the
correctness or otherwise of the opinion given by the expert body. The
Court cannot be expected to adhere to the opinion of the expert body.
Moreover, in terms of Regulation 423 (a) of Regulations for medical
Services, Armed Forces, 1983, for the purpose of determining whether the
cause of a disability or death is or is not attributable to service, it is
immaterial whether the cause giving rise to the disability or death
occurred in an area declared to be a field service/active service area or
under normal peace conditions. The Tribunal in the present case came to the
right conclusion only after giving its thoughtful consideration to the
opinion given by the Board in the light of true legal norms and prescribed
rules and regulations and hence the impugned order need not be interfered
with by this Court.
8. Having heard rival contentions on either side, the moot question that
falls for our consideration is whether or not the disabilities caused to
the respondent during the course of his employment are attributable to his
service entitling him to the benefit of disability pension in accordance
with law.
9. Admittedly, at the time of his enrolment into the employment of
Indian Air Force in the year 1971, the respondent was medically and
physically examined and was found fit as per prescribed medical standards.
The material on record shows that the respondent was put under lower
medical classification A4 G4 (permanent) on account of his ailments. The
Medical Board assessed the composite disability of the respondent to be
60%. The Pension Regulations have specified the circumstances under which
disability pension could be granted to a person. Regulation No. 153 is
relevant for the purpose, which reads thus:
153. Primary Condition for grant of disability pension- Unless otherwise
specifically provided, a disability pension may be granted to an individual
who is invalided / discharged from service on account of a disability which
is attributable to or aggravated by Air Force Service and is assessed at
20% or over.
The question whether a disability is attributable to or aggravated by
military service shall be determined under the rule in Appendix-II.
10. Rule 4 of the Entitlement Rules makes it clear that invalidating from
service is a necessary condition for grant of disability pension. An
individual who, at the time of his release under the Release Regulations,
is in a lower medical category than that in which he was recruited will be
treated as "invalidated from service". For the purpose of evaluation of
disabilities, two presumptions are provided under Rule 5. They read thus:
"5. The approach to the question of entitlement to casualty pensionary
awards and evaluation of disabilities shall be based on the following
presumptions:
Prior to and during service
(a) A member is presumed to have been in sound physical and mental
condition upon entering service except as to physical disabilities noted or
recorded at the time of entrance.
(b) In the event of his subsequently being discharged from service on
medical grounds any deterioration in his health, which has taken place, is
due to service."
11. Rule 9 of the Entitlement Rules mandates upon whom the burden lies to
prove the entitlement conditions. The said rule is quoted below:
9. Onus of proof.-The claimant shall not be called upon to prove the
conditions of entitlements. He/she will receive the benefit of any
reasonable doubt. This benefit will be given more liberally to the
claimants in field/afloat service cases.
12. While considering the aspect of onus of proof, this Court in
Dharamvir Singh (supra) observed:
"The 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".
13. Rule 14 of the Entitlement Rules stipulates how to determine whether
a disease shall be deemed to have arisen in service or not. It reads thus:
14. Diseases - In respect of diseases, the following rule will be observed
-
(a) 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.
(b) A disease which has led to an individual's discharge or death will
ordinarily be deemed to have arisen in service, if no note of it was made
at the time of the individual's acceptance for military service. However,
if medical opinion holds, for reasons to be stated, that the disease could
not have been detected on medical examination prior to acceptance for
service, the disease will not be deemed to have arisen during service.
(c) 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.
14. Thus, a plain reading of sub-rule (b) of Rule 14 makes it abundantly
clear that a disease which has led to an individual's discharge or death
will ordinarily be deemed to have arisen in service, if no note of it was
made at the time of the individual's acceptance for military service.
However, if medical opinion holds that the disease could not have been
detected at the time of enrolment, the disease will not be deemed to have
arisen during service. In that case, it is also important that the medical
opinion must contain valid reasons that the disease is not attributable to
service.
15. Recently, this Court in a similar case (Union of India &Anr. Vs.
Rajbir Singh (Civil Appeal Nos. 2904 of 2011 etc.) decided on 13th
February, 2015) after considering Dharamvir Singh (supra) and upholding the
decision of the Tribunal granting disability pension to the claimants,
observed:
"... The essence of the rules, as seen earlier, is that a member of the
armed forces is presumed to be in sound physical and mental condition at
the time of his entry into service if there is no note or record to
the contrary made at the time of such entry. More importantly, in the
event of his subsequent discharge from service on medical ground, any
deterioration in his health is presumed to be due to military service.
This necessarily implies that no sooner a member of the force is
discharged on medical ground his entitlement to claim disability
pension will arise unless of course the employer is in a position to
rebut the presumption that the disability which he suffered was neither
attributable to nor aggravated by military service. ...
... Last but not the least is the fact that the provision for payment of
disability pension is a beneficial provision which ought to be
interpreted liberally so as to benefit those who have been sent home
with a disability at times even before they completed their tenure
in the armed forces. ...
... There may indeed be cases, where the disease was wholly unrelated
to military service, but, in order that denial of disability pension can
be justified on that ground, it must be affirmatively proved that the
disease had nothing to do with such service. The burden to establish
such a disconnect would lie heavily upon the employer for otherwise
the rules raise a presumption that the deterioration in the health
of the member of the service is on account of military service or
aggravated by it. A soldier cannot be asked to prove that the disease
was contracted by him on account of military service or was aggravated
by the same".
16. Here in the case on hand, the respondent was rendered ineligible for
further promotion and thereby invalidated on the ground of his being in
medical category A4 G4 (Permanent). In the absence of any specific note on
record as to the respondent suffering from any disease prior to his joining
the service, he is presumed to have been in sound physical and mental
condition while entering service as per Rule 5(a) of the Entitlement Rules.
The fact remains that the respondent was denied promotion on medical
grounds and the deterioration in his health shall therefore be presumed to
have been caused due to service in the light of Rule 5(b) of the
Entitlement Rules. Moreover, simply recording a conclusion that the
disability was not attributable to service, without giving a reason as to
why the diseases are not deemed to be attributable to service, clearly
shows lack of proper application of mind by the Medical Board. In such
circumstances, we cannot uphold the view taken by the Medical Board.
17. Considering the facts and circumstances of the case in the light of
above discussed Rules and Regulations as well as settled principles of law
enshrined by this Court in Dharamvir Singh Vs. Union of India &Ors. (supra)
and reiterated in Union of India & Anr. Vs. Rajbir Singh (supra), we are of
the considered opinion that the Tribunal had not committed any error in
awarding disability pension to the respondent for 60% disability from the
date of his discharge along with 10% p.a. interest on the arrears. For all
the reasons stated above, we do not find any merit in this appeal and the
same stands dismissed without any order as to costs.
18. The appellants are directed to release the arrears of disability
pension to the respondent within three months from today together with
interest @ 10% p.a.
.......................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
........................................................J.
(N.V. RAMANA)
NEW DELHI
FEBRUARY 24, 2015
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