Hon'ble Mahendra Dayal, J.
The instant appeal arises out of the judgment and order dated 12.4.2007 passed in Writ Petition No. 50 (SS) of 1999: Anil Kumar Singh Vs. Union of India and others, whereby the learned Single Judge, while allowing the writ petition, quashed the order for refusing to grant disability certificate to the respondent dated 2.4.1998 and directed the appellants to award disability pension to the respondent from the date of discharge and further pay all arrears to the respondent.
Heard Mr. K.D. Nag, counsel for the appellants and Mr. R.K. Upadhyay, counsel for the respondent.
In short the facts of the case are that respondent-Anil Kumar Singh was enrolled in the Army on 17.1.1989. After completion of his basic military training from the Artillery Centre, Nasik Road Camp, the respondent was given posting at Punch field area. On completion of his field area posting, he was posted in the peace area located in State of Rajasthan, where he was declared medically unfit and was discharged from the Army on 15.10.1994. Thereafter, he was kept in hospital for a period of five months, where his medical category was down graded. Subsequently, respondent preferred a representation for grant of disability pension, which was rejected vide order dated 2.4.1998.
Feeling aggrieved by the refusal order for grant of disability pension dated 2.4.1998,the respondent approached this Court under Article 226 of the Constitution of India by filing writ petition No. 50 (S/S) of 1999. Learned Single Judge, after hearing the parties and perusing the records, allowed the writ petition, as stated hereinabove, inter alia on the grounds that appellants herein have failed to place any evidence, which may go to indicate that at the time of respondent's acceptance for military service, the respondent was suffering from the aforesaid disease or that there were any symptoms of the said disease.
Hence the instant special appeal has been filed by the Union of India and others.
Learned Counsel for the appellants has contended that the learned Single Judge while allowing the writ petition has travelled beyond the jurisdiction available to him, by holding that the disability of the respondent occurred during peace posting may be the result of his services rendered earlier during field posting. Further the findings recorded by the learned Single Judge are contrary to the view taken by the Hon'ble Supreme Court in Union of India vs. Dir Singh China, Colonel Retd.;(2003) 2 SCC 382.
Clarifying the position, learned Counsel for the appellant submitted that the "Medical Board" consisting of several medical doctors examined the respondent for assessing the disability. After thorough examination and keeping in view the Psychiatrist's report dated 17.7.1994, the members of the "Medical Board" unanimously recommended for respondent's discharge from service vide Medical Board's opinion dated 25.7.1994.
In the backdrop of the aforesaid reasons, learned Counsel for the appellants contended that the findings arrived at by the learned Single Judge are erroneous and the impugned judgment is liable to be set-aside.
In contrast, learned Counsel for the respondent-petitioner argued that the findings recorded by the learned Single Judge are not only based on cogent reasons but are supported by the decisions of the Apex Court and as such the instant appeal is liable to be dismissed with exemplary costs upon the appellants. It was also stated that while serving with 163-Field Regiment, respondent was observed as abnormal-physically as well as mentally both.
In Dharmvir Singh vs. Union of India and others [Civil Appeal No. 4949 of 213 decided on 2.7.2013], appellant was enrolled as Sepoy in the Corps of Signals of the Indian Army, who was boarded out of the service on the ground of suffering from "Generalised Seizure" [Epilepsy]. The Medical Board of Army opined that the "disability is not related to military service". On the basis of disability report, no disability pension was granted to him. The appellant approached the High Court of Himanchal Pradesh seeking a direction to the respondents to grant disability pension. Learned Single Judge allowed the writ petition and directed the respondents to grant disability pension to the appellant. The Union of India challenged the decision of the learned Single Judge before the Division Bench in Letter Patent Appeal and the learned Division Bench set aside the judgment of learned Single Judge. Aggrieved by the judgment of the Division Bench, the appellant approached the Supreme Court. The Apex Court by its judgment dated 2nd July, 2013 set-aside the order passed by the Division Bench and uphold the decision of the learned Single Judge dated 20th May, 2004. The Hon'ble Apex Court while allowing the appeal, considered various provisions of Entitlement Rules for Casualty Pensionary Awards and earlier decisions and thereafter laid down the principles which would apply to a case as the present one for award of disability pension to an army personnel in the following terms:-
"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).
(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."
In the present case, it is undisputed that no note of any disease has been recorded at the time of appellant's acceptance for military service. In absence of any note in the service record at the time of acceptance of joining of appellant, it was incumbent on the part of the Medical Board to call for records and look into the same before coming to an opinion that the disease could not have been detected on medical examination prior to the acceptance of military service, but nothing is on record to suggest that any such record was called for by the Medical Board or looked into it and no reasons have been recorded in writing to come to the conclusion that the disability is not due to military service. The learned Single Judge, in this context, has observed as under:-
" The medical opinion, which has been placed on record, goes to indicate that the petitioner had repeated spells of giddiness and blackout since he joined the service. This endorsement has been made in the summary of the case of the petitioner, but neither any document pertaining to the petitioner's medical examination at the time of entering into the service has been placed on record to prove the same. Whether any endorsement or entry was made at the time of entering into the service of the petitioner suspecting the likelihood of the disease as it has expressed in the summary of the case is not clear nor has been placed on record. The petitioner was posted in the field area after completion of his training from 20.11.1990. In the field area posting out of stress and rigorous duty, he developed some disease, but the said disease could not be brought to the notice of the authorities as it did not aggravate then. However, the disease aggravate, when the petitioner was posted in the peace area. The disease thus, cannot be said that it is not attributable to the military service or that it did not aggravate during the course of military service. There may be certain area where out of stressful duty in peace area as well a person may develop some disease."
In our considered view, the Medical Board had considered the respondent's case cursorily and without following the rules and regulations applicable for payment of disability pension. The Medical Board was bound to consider the Entitlement Rules before pension was refused to the respondent. The present case also requires a presumption to be drawn with regard to fitness of the jawan at the time of his original enrollment and the consequential benefits to the respondent upon the presumption in his favour. There is no record at all to show that the respondent-Jawan had any kind of medical ailment at the time of entering into the service.
Since the respondent was hail and hearty and found medically fit when he joined military service in the year 1989, it is obvious that any medical problem which arose after the respondent joined service would be attributable or aggravated by service with the appellants. Therefore, the learned Single Judge rightly held that a disease which has led to an individual's discharge or death will ordinary be deemed to be have arisen in service, if no note of it was appended at the time of individual's acceptance for service in the Armed Forces.
We may note that the facts and circumstances of Dharamvir Singh (Supra) were similar to the present case inasmuch as even in Dharamvir's case no disease was recorded in his service record at the time of his acceptance for military service. There was no record of any treatment being administered to Dharamvir Singh or any heredity ailment was found. Therefore, the case laws relied upon by the appellants are of no avail to him.
Consequently, in view of the observations made here-in-above, the Special Appeal is dismissed. The judgement of the learned Single Judge is upheld. The appellants shall abide the directions issued by the learned Single Judge and pay the benefit in terms of the order of the learned Single Judge within a maximum period of three months.
Costs easy.
Date:12 November, 2014 [Mahendra Dayal, J.] [Rajiv Sharma,J.] HM/