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ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI

O.A.No.71 of 2013

Monday, the 17th day of February 2014

THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH (MEMBER - JUDICIAL)

AND THE HONOURABLE LT GEN K. SURENDRA NATH

(MEMBER – ADMINISTRATIVE)

E. Venkatraman, Ex L/Nk/Clk

(Service No.14911296)

S/o Late Esawaraier, aged 51 years R/o New No.29, Kathanna Pillai Street

S.S. Colony Madurai-625 010. … Applicant

By Legal Practitioner:

Ms. Tonifia Miranda

vs.

1. Union of India,

Rep. by its Secretary Ministry of Defence,

New Delhi-11.

2. The Chief of Army Staff

Army Headquarters DHQPO, New Delhi-110 011.

3. The Record Officer

Mechanised Infantry Regiment Centre

11 Mech. Inf. Ahmad Nagar.

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4. The Principal Controller of Defence Accounts

Office of PCDA (Pensions) Allahabad, Uttar Pradesh

Pin-271014. … Respondents

By Mr. B.Shanthakumar, SPC

ORDER

(Order of the Tribunal made by

Hon’ble Justice V. Periya Karuppiah, Member (Judicial)

1. This application has been filed by the applicant for the relief to

grant disability pension from the date of his invalidment on

27.01.1988 with 9% interest per annum towards the arrears and to

order disability of the applicant at 40% pension being rounded off to

50%, in accordance with the letter of Government of India, MOD,

dated 31.01.2001 and to grant Ex-Servicemen status and the

benefits of Ex-Servicemen and also to grant other benefits.

2. The facts as stated in the affidavit would be as follows: The

applicant was recruited in the Indian Army as Lance Naik/Clerk in the

Mechanical Infantry Regiment on 07.12.1983. However, he was

invalided out of service on 27.01.1988. The applicant served with

utmost sincerity and hardwork and his tenure was an unblemished

one. While serving in the army at Ambala Unit, the applicant had a

sudden fall due to the terrible climatic conditions in snow bound area

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and he was admitted in Command Hospital, Chandigarh on

16.07.1987 and was discharged on 25.01.1988. He was diagnosed

to be affected by “Schizophrenia ICD 295.” Thus he was invalided

out of service on 27.01.1988 and was discharged to home with

escorts. He was hale and healthy at the time of enrolment in the

army and he contracted the said disease due to stress in the army

and the environmental factors prevailing in the army. He was placed

in Permanent Low Medical Category “EEE” and was recommended

with 40% of disability element at the time of his examination. Still

the applicant is taking treatment with Dr. C.Ramasubramanian,

Psychiatrist, Madurai. The applicant was not given with any pension,

medical facilities, financial assistance nor provided with any social

rehabilitation programme for his livelihood and sustenance. Since he

is unable to take up any job, he has to depend upon his wife and

daughter. His mental status and condition cannot be predicted. He

being a pious brahmin and closely associated with religious activities,

he was assigned the duty of drawing water for the deities in the

temple of Arulmigu Sree Bhuvaneswari Amman Koil, S.S.Colony,

Madurai. The applicant made several representations to the

authorities to consider the grant of disability pension, but it evoked

no response. Therefore, he preferred an appeal against the rejection

order on 2.1.1989. Subsequently also, he preferred an appeal in the

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year 1991 and no communication has been received regarding the

result of the appeal from the respondents. Since the applicant was

not able to approach the judiciary due to his poverty, he could not

take any action before Court. After the constitution of this Tribunal

only, he could file the present application for the grant of disability

pension. Thus the application may be allowed by setting aside the

order of rejection by the respondents.

3. The objections raised by the respondents in the reply-statement

would be as follows: The factual aspects regarding the enrolment of

the applicant and the discharge of the applicant on his invalidation

under Army Rule 13 (3) (III) (iii) for psychological disease

“Schizophrenia” are admitted. The invaliding was primarily done by

the Invaliding Medical Board on 28.12.1987 which found the

“Schizophrenia” sustained by the applicant was not attributable to

nor aggravated by military service and therefore, disability pension

was not granted to the applicant. The appeal preferred by him

against the rejection of the disability pension was also dismissed and

the appeal preferred before the Government of India, Ministry of

Defence was also dismissed through its letter dated 17.02.1992 and

the copy was also addressed to the applicant. The present claim has

been raised after a lapse of 9245 days and the disease

“Schizophrenia” was not at all connected with military service but

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was a constitutional disorder of the applicant. Accordingly, the

application may be dismissed.

4. On the above pleadings, the following points are framed for

consideration:

(1) Whether the impugned order of the respondents rejecting the

claim of the applicant for disability pension is liable to be set aside?

(2) Whether the applicant is entitled for the disability pension for

the disease “Schizophrenia” as claimed by him?

(3) If so, whether the disability of the applicant at 40% be rounded

off to 50% as per the letter of Government of India dated

31.01.2001?

(4) To what relief, the applicant is entitled?

5. Heard Ms. Tonifia Miranda, learned counsel for the applicant

and Mr. B.Shanthakumar, learned Senior Panel Counsel assisted by

Captain Vaibhav Kumar, learned Assistant JAG Officer appearing for

the respondents.

6. After reiterating the submissions made in the pleadings of the

applicant, the learned counsel for the applicant would insist upon the

failure of the respondents in not applying the rules and regulations in

vogue at the time of invaliding the applicant from service. She would

also submit that the applicant was hale and healthy at the time of

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entry to Indian Army which was not disputed in any of the Medical

Board Proceedings nor the applicant was having the disease prior to

the enrolment in service. She would further submit that the medical

authorities have not explained that the disease “Schizophrenia” could

not be found at the time of enrolment nor any reason has been

mentioned in the Medical Board Proceedings to the effect that the

said disease could not be detected at the time of enrolment. She

would rely upon the provisions of Para-5 of the Entitlement Rules for

Casualty Pensionary Awards 1982 in support of her arguments and

would request us to presume that the deterioration in his health was

due to the military service. She would also insist in her arguments

that the absence of any opinion by the medical authorities would be a

failure on the part of the respondents in rebutting the presumption

drawn against them under Para-9 of Entitlement Rules for Casualty

Pensionary Awards, 1982. She would also draw our attention to

Para-423 of Regulations for Medical Regulations 1983 and would

request us to determine the cause of disability of the applicant in the

prevailing circumstances as attributable to military service. She

would also lay emphasis on the opinion of the Medical Board that

there is no past history of mental illness nor any family history of

mental illness of the applicant. According to the learned counsel for

the applicant, the said opinion would stand directly against the

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opinion that the disability of the applicant was not attributable to or

aggravated by military service. She would also rely upon the

judgment of the Hon’ble Apex Court reported in Dharamvir Singh

vs. Union of India & Others (Civil Appeal No.4949 of 2013) in

support of her arguments. She would further submit that the

applicant is under medication due to disability and if at all the

respondents wanted to examine the prevailing medical disability, he

might be referred to Review Medical Board. She would also submit

that the respondents did not conduct any Review Medical Board all

these years and therefore, the two years’ duration as opined by the

Medical Board in respect of the disability should have been

considered as existing till the opinion of any Medical Board

Proceedings if any to be ordered by this Tribunal. Therefore, she

would request us to pass an order of disability pension as per the

quantum opined in the Medical Board Proceedings as broad-banded

by virtue of the Government of India letter dated 31.01.2001 based

upon the recommendations of the V Central Pay Commission. She

would therefore request us to allow the application.

7. However, the learned Senior Panel Counsel would dispute the

arguments advanced by the learned counsel for the applicant by

saying that the opinion of the medical board is final and the applicant

did not challenge the rejection of disability pension from 1992

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onwards. Therefore, the claim of the applicant would be barred by

delay and laches. He would also submit that the disease,

“Schizophrenia” sustained by the applicant was purely a

constitutional disorder and it was also clearly opined by the Medical

Board in the year 1988 that the duration of the disability was given

only for two years and therefore, there is no reason for the grant of

disability pension after the period of duration, even if it is attributable

to or aggravated by military service in favour of the applicant. He

would also submit that the Medical Board Proceedings’ opinion has

not been challenged by the applicant and therefore, the opinion of

the Medical Board has become final and therefore not liable to be

challenged. The said principles laid down by the Hon’ble Apex Court

in A.V. Damodharan’s case regarding primacy, weight and credence

of the opinion of the Medical Boards cannot be doubted and it will

squarely be applicable to the present case and therefore, the

applicant is not entitled to any relief sought for in the application.

He would also submit that even if the applicant is entitled for

disability pension at 40% as mentioned in the Medical Board

Proceedings, it cannot be broad-banded since the applicant was a

pre-1.1.2006 retiree and the proceedings of the said letter dated

31.01.2001 would not be applicable to the applicant. Therefore, he

would pray for dismissal of the application.

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8. Point Nos.1 and 2: The indisputable facts are that the

applicant was enrolled in the army as Lance Naik on 7.12.1983 and

he was invalided out of service for the disease “Schizophrenia ICD

295” on 25.01.1988. Invaliding Medical Board was constituted and

on that basis only, he was discharged from service on invalidation. It

is not further disputed that the applicant was placed under

Permanent Low Medical Category “EEE” and the disability was

assessed at 40%.

9. The Medical Invaliding Board Proceedings was produced as

Annexure-III along with Counter filed in M.A.No.67 of 2013. In the

said Medical Report, we could find that the applicant was found

affected by “Schizophrenia” on 4.7.1987 and was treated in

Command Hospital, Western Command, Chandimandir and was found

not fit to serve in the army. In the opinion given by the specialists in

Psychiatry, we find that the applicant was recommended to be

invalided out of service in medical category “EEE” Psychological. The

case history (summary) of the case would show that there is no past

history of mental illness for the applicant. Similarly, there is no

family history of mental illness of the applicant. In the background

of such opinion, the learned counsel for the applicant would rely upon

the guidelines laid by the Hon’ble Apex Court decided in Dharamvir

Singh vs. Union of India and others (Civil Appeal No.4949 of

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2013, dated 02.07.2013). The relevant passage would run as

follows:

“ 28. A conjoint reading of various provisions, reproduced above,

makes it clear that:

(i) Disability pension to be granted to an individual who is

invalidated from service on account of a disability which is attributable

to or aggravated by military service in non-battle casualty and is

assessed at 20% or over. The question whether a disability is

attributable or aggravated by military service to be determined under

“Entitlement Rules for Casualty Pensionary Awards, 1982” of

Appendix-II (Regulation 173).

(ii) A member is to be presumed in sound physical and mental

condition upon entering service if there is no note or record at the time

of entrance. In the event of his subsequently being discharged from

service on medical grounds any deterioration in his health is to be

presumed due to service [(Rule 5 r/w Rule 14 (b)].

(iii) Onus of proof is not on the claimant (employee), the

corollary is that onus of proof that the condition for non-entitlement is

with the employer. A claimant has a right to derive benefit of any

reasonable doubt and is entitled for pensionary benefit more liberally.

(Rule 9).

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(iv) if a disease is accepted to have been as having arisen in

service, it must also be established that the conditions of military

service determined or contributed to the onset of the disease and that

the conditions were due to the circumstances of duty in military

service. [Rule 14 (c) ].

(v) If no note of any disability or disease was made at the

time of individual’s acceptance for military service, a disease which has

led to an individual’s discharge or death will be deemed to have arisen

in service. [14 )b)].

(vi) If medical opinion holds that the disease could not have

been detected on medical examination prior to the acceptance for

service and that disease will not be deemed to have arisen during

service, the Medical Board is required to state the reasons. [14 (b)];

and

(vii) It is mandatory for the Medical Board to follow the

guidelines laid down in Chapter-II of the “Guide to Medical (Military

Pension), 2002-“Entitlement : General Principles”, including paragraph

7,8 and 9 as referred to above. “

10. The Hon’ble Apex court had extracted various provisions

culled out from Entitlement Rules for Casualty Pensionary Awards,

1982 and the Guidelines laid down in para-2 of the Guide to Medical

Officers (Military pensions) 2002. In the light of the said provisions

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when we approach the present case, we could see from the

Invaliding Medical Board’s report that there was no mention about

any reason for not noting the disease, ”Schizophrenia” at the time of

applicant’s acceptance for military service. No service record of the

applicant has been produced by the respondents to show that the

said disease “Schizophrenia” was found noted at the time of his

enrolment in the military service. Per contra, we could find from the

Medical Board Proceedings that there was no past history of

“Schizophrenia” nor any family history of the applicant. It was also

opined that the disability was not due to the individual’s own

negligence or misconduct. In the said circumstances, we could find

that Rule 423 of Regulations for the Medical Services 1983 would

squarely apply. According to the said Rule, the applicant’s disability

“Schizophrenia” should have been treated as having causal

connection to the service of the applicant since no note of it was

made at the time of the applicant’s entry in the army. The medical

opinion regarding that the disease could not have been detected on

medical examination prior to acceptance for service in the case of the

applicant and therefore it has to be construed that the disease

“Schizophrenia” would have been arisen only in service.

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11. At this stage, whether the opinion of the Medical Board given

as not attributable or aggravated by Military Service must be given

primacy, value, weightage and credence is a question. According to

Paras-5 and 9 of Entitlement Rules for Casualty Pensionary Awards,

1982, the onus is on the respondents to prove that the disease

“Schizophrenia” sustained by the applicant was not attributable to

nor aggravated by military service. The applicant shall not be called

upon to prove the conditions of the entitlement of disability pension

arisen out of the disease, “Schizophrenia”. The opinion given by the

Medical Board was to the effect that the disease “Schizophrenia”

sustained by the applicant was to the extent of 40% and duration

would be for two years and the same was not attributable to or

aggravated by military service. As we discussed earlier, the

respondents did not produce any record to show that the said

disease, “Schizophrenia” was detected at the time of his enrolment

and was noted by the Medical Team or Board. No reason has been

forthcoming in the Invaliding Medical Board report to the effect for

such omission of noting the disease at the time of his enrolment.

The extracts of Paras-5 and 9 of Entitlement Rules for Casualty

Pensionary Awards, 1982 would be helpful in deciding the case at this

stage. It reads:

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“ “ 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. “

………

Onus of proof

9. The claimant shall not be called upon to prove the conditions of

entitlement. 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. According to Para-5(a), the applicant shall be presumed to

have sound physical and mental condition since his disabilities were

not recorded at the time of entrance. As per Para 5(b), presumption

of charge of the applicant would be that it was due to the medical

grounds caused by the deterioration of the disease, “Schizophrenia”.

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However, the opinion of the Medical Board would say that it is not

attributable to or aggravated by military service. Since there is no

reason given by the Medical Board towards rebuttal of the

presumption under Para-5 of the Entitlement Rules, the mere opinion

given without substance, that this is a constitutional disorder and not

attributable to or aggravated by military service would not be

adquate. This would not form a rebuttal to the presumption drawn

under Para-5 of the Entitlement Rules. This is explained in the

following passage (Para-27) of the judgment in the case between

Dharamvir Singh vs. Union of India and others (Civil Appeal

No.4949 of 2013, dated 02.07.2013).

“….Further, we find that the question as raised in the present case

that in case no note of disease or disability was made at the time

of individual’s acceptance for military service, the Medical Board is

required to give reasons in writing for coming to the finding that

the disease could not have been detected on a medical

examination prior to the acceptance for service was neither raised

nor answered by this Court in those cases. Those were the cases

which were decided on the facts of the individual case based on

the opinion of the Medical Board.”

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13. In the said circumstances, we find that the respondents have

failed to notice that the Medical Board had not given any reason in

support of its opinion, particularly when there is no note of such

disease, viz., “Schizophrenia” available in the service record of the

applicant at the time of acceptance of military service. After going

through the said opinion of Medical Board, the pension sanctioning

authority passed an order of rejection which is not correct.

14. Apart from that, when we consider the Rule 423 (a) in the

light of Dharamvir Singh case, the cause of disability resulting the

disease “Schizophrenia” as attributable to service, it is immaterial for

an area declared to be field service/active service area or an area

under normal peace conditions. Therefore, the presumption would

be that the disability of the applicant bore a causal connection with

the service conditions. However, in the opinion given by the Medical

Board, the duration of the disability was mentioned for two years

from 28.12.1987. The said duration would be over by 27.12.1989.

During the said period, the appeals preferred by the applicant were

pending and according to the respondents, the appeal before

Appellate Committee was disposed of on 17.02.1992 only. The said

duration of two years as opined by the Medical Board was not

considered in the said appeals and if they were considered, the First

Appellate Authority or the Second Appellate Committee would have

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ordered for Review Medical Board for considering the further

continuance of the disability. It was not done so. In the said

circumstances, the applicant cannot be an affected party for the

default of the respondents. Therefore, it is further presumed that the

disability is still continuing. It is for the respondents to constitute a

Review Medical Board to assess the duration of disability so as to

continue or discontinue the future disability pension payable.

15. For the reasons discussed above, we are of the considered

opinion that the applicant is entitled for disability pension for the

disability, “Schizophrenia” at 40% from the date of his discharge.

But the applicant did not take up the matter before the appropriate

authority against the order of rejection passed by the Appellate

Authorities. Therefore his claim could be allowed only for three years

prior to the date of filing of this application as per the principles laid

down in Tarsem Singh Case. However, the respondents are at

liberty to constitute a Review Medical Board to ascertain future

percentage of disability and duration of the disability for payment of

disability pension in favour of the applicant. With the foregoing

findings, both the points are decided in favour of the applicant.

16. Point No.3: As regards the broad-banding of the disability of

the applicant from 40% to 50% in accordance with the Government

of India MOD letter dated 31.01.2001, it has become necessary for

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us to peruse the provisions of the said letter. Paragraph 2.1, 2.2 and

7.2 of the letter runs as follows:

“ Part I – Date of effect and Definitions

2.1 The provisions of this letter shall apply to the Armed Forces personnel

who were in service on 1.1.1996 or joined/join service thereafter unless

otherwise specified in this letter.

2.2. Where pension has already been sanctioned provisionally or otherwise

in cases occurring on or after 1.1.1996 the same would be revised in terms

of these orders. In cases where pension has been finally sanctioned under

the pre-revised orders and if it happens to be more beneficial than the

pension becoming due under, these orders, the pension already sanctioned

shall not be revised to the disadvantage of the pensioners.”

7.2. Where Armed Force personnel is invalided out under circumstances

mentioned in para 4.1 above, the extent of disability or functional incapacity

shall be determined in the following manner for the purposes of computing

the disability element:-

Percentage of disability as assessed by invaliding medical board

Percentage to be reckoned for computing of disability element.

Less than 50 50

Between 50 and 75

75

Between 76 and 100

100

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17. According to para 7.2, the entitlement of broad-banding

below 50% shall be rounded off to 50%. However in Part-1 of the

letter, application of such benefits would be accrued only to the

retirees who retired on and after 1.1.1996. The learned counsel for

the applicant drew our attention to a judgment rendered by the

Hon’ble Apex Court in the case between K.J.S. Buttar vs. Union of

India and another (2011) 2 Supreme Court Cases (L&S)

224870 and argued that even though the applicant retired prior to

1.1.1996, he would get the benefit of the said letter as conferred to

the appellant in the said case by the Hon’ble Apex Court. The

relevant paras read as follows:

“ 15. As per Para 6 of these Instructions/Letter dated

16.05.2001, any person, who is in receipt of disability pension as

on 1.1.1996 is entitled to the same benefit as given in Letter dated

31.1.2001. Further as per Para 7 of this letter w.e.f. 1.1.1996, the

rates of war injury element shall be the rates indicated in the

letter dated 31.1.2001. Thus, in our opinion in view of the

Instructions dated 31.1.2001 read with (sic the Instructions) dated

16.5.2001, the appellant was entitled to the war injury pension. It

is pertinent to state that reading of Paras 6,7 and 8 of the

Notifications/Circular dated 16.5.2001 makes it absolutely clear

that the said benefits were available to pre-1996 retirees also but

the rates were revised on 31.1.2001 and the revised rates were

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made applicable to post-1996 retirees only. But subsequently by

means of the Notification dated 16.5.2001 the revised rates were

extended to pre-1996 retirees also.

16. At any event, we have held that there will be violation of

Article 14 of the Constitution if those who retired/were invalided

before 1.1.1996 are denied the same benefits as given to those

who retired after that date. “

18. In the light of the aforesaid judgment of the Hon’ble Apex

Court, we find that there is no distinction between pre-1.1.1996 and

post-1.1.1996 retirees towards the grant of the benefit of the said

letter dated 31.1.2001. We have already found in the previous

paragraphs that the applicant was entitled to 40% disability for the

disease “Schizophrenia” sustained by him during military service.

The said percentage of disability at 40% would be rounded off to

50% as per para 7.2 of the letter of Government of India, MOD dated

31.1.2001. Accordingly, the applicant is entitled to the relief of

broad-banding from 40% to 50% as claimed in the application. This

point is also decided in favour of the applicant.

19. Point No.4: In view of the discussions held by us in the

earlier paragraphs and the findings reached therein, we are of the

considered view that the application filed, seeking for the grant of

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disability pension at 50%, is allowable. However, the applicant is

entitled to such disability pension payable from 10.06.2010 onwards,

namely, three years prior to the date of filing of this application.

Accordingly, the respondents are directed to pay the disability

pension payable to the applicant at 50% from 10.06.2010 and also to

issue PPO to that effect within a period of three months from today.

In default to comply, the arrears shall be paid with 9% interest from

today till the date of realization. The application is thus allowed as

indicated above. No order as to costs.

Sd/ Sd/ LT GEN K. SURENDRA NATH JUSTICE V.PERIYA KARUPPIAH

MEMBER (ADMINISTRATIVE) MEMBER (JUDICIAL)

17.02.2014

(True copy)

Member (J) – Index : Yes/No Internet : Yes/No Member (A) – Index : Yes/No Internet : Yes/No

VS

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To:

1. The Secretary

Ministry of Defence, New Delhi-11.

2. The Chief of Army Staff

Army Headquarters DHQPO, New Delhi-110 011.

3. The Record Officer

Mechanised Infantry Regiment Centre

11 Mech. Inf. Ahmad Nagar.

4. The Principal Controller of Defence Accounts

Office of PCDA (Pensions) Allahabad, Uttar Pradesh

Pin-271014.

5. Ms. Tonifia Miranda Counsel for applicant.

6. Mr. B. Shanthakumar, SPC

Counsel for respondents.

7. OIC, Legal Cell, ATNK & K Area, Chennai.

8. Library, AFT, Chennai.

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HON’BLE MR.JUSTICE V. PERIYA KARUPPIAH

MEMBER (JUDICIAL)

AND

HON’BLE LT GEN K. SURENDRA NATH

MEMBER (ADMINISTRATIVE)

O.A.No.71 of 2013

Dt: 17.02.2014