Judgment & Order dated 09-12-2024 OA 36/2022 on 9 December 2024

1. This is an application filed under Section 14 of the Armed Forces Tribunal Act, 2007 seeking the following reliefs:- *"(a) to quash and set aside the impugned order dated 10.01.1991 issued vide No. 7(1133)/89/D(Pen-A) by the Under Secretary to the Govt of India rejecting applicant's appeal to grant disability pension to him.*

*(b) to direct the authorities to grant disability pension in commensuration with applicant's degree of composite disability of 50% along with rounding off benefit and arrears from three years prior to the date of filing of this application and/or pass such further orders may deem fit and proper."*

2. Facts of the case of the applicant are that the applicant was enrolled in the Army on 17.11.1977 in SHAPE-1 after thorough medical examination on finding him physically and mentally fit by the duly constituted Medical Board. It is to be noted that neither there was note of existence of any disease suffered by the applicant in the medical sheet maintained at the time of enrolment nor there is history of any hereditary disease in the family of the applicant. During his service period, the applicant served the nation with utmost sincerity, without any blemish to the satisfaction of the authorities.

3. That while serving in 952 Transport Company, Narengi, the applicant was diagnosed with **Schizophrenia (295)** and was placed in Low Medical Category. The Invalidating Medical Board held at 151 Base Hospital on 06.10.1987 assessed percentage of applicant's disability @ 40% for two years opining the same to be neither attributable to nor aggravated by military service and placed him in Low Medical Category EEE and recommended discharge from service but after expiry of two years, the respondents' authority did not constitute a Re-Survey Medical Board to re-assess applicant's disability.

4. It is pertinent to mention herein that the copy of the Invalidating Medical Board was not made available to the applicant. However, in response to his application dated 13.04.2022 under RTI Act, the applicant was provided with the copies of the Invalidating Medical Board.

5. Pursuant to the recommendation of the Invalidating Medical Board for discharge, the applicant was invalided from service under Army Rule 13(3) III (iii) in Low Medical Category w.e.f. 08.11.1987. Thereafter, ASC, Records made communication with the PCDA(P) claiming disability pension for the applicant. But, PCDA(P) vide letter No. G3/88/2618/VIII/ 2752 dated 28.06.1988 rejected the claim of disability pension stating that since applicant's disability is neither attributable to nor aggravated by military service hence the applicant is not entitled to military service.

6. Being not satisfied with the arbitrary decision of the authorities, the applicant filed an appeal before the appellate authority. However, applicant's appeal was rejected vide impugned order dated 10.01.1991 issued vide No.7(1133)/89/D (Pen- A) by the Under Secretary to the Govt. of India on the ground that the applicant's Invaliding Disease is a constitutional disease and there is no evidence of undue physical or mental stress at onset and therefore the same is not connected with service.

7. On rejection of his appeal, the applicant being a naive did not file a Second Appeal before the concerned authority. However, in an ESM Rally the applicant came to learn that he has been illegally and arbitrarily denied disability pension. In the said rally he was advised to submit an application praying for granting disability pension. Thereafter, the applicant on 12.04.2022 submitted an application to the ASC Records (MT) with a prayer to review his case and grant disability pension to him.

8. In response to applicant's representation dated 12.04.2022, the ASC, Records (South) vide their letter dated 09.05.2022 informed the applicant that since his Invaliding disease was assessed to be neither attributable to nor aggravated by the military service by the Medical Board and his claim for disability pension was rejected by the authorities, therefore, the applicant is not entitled to Disability Pension.

9. As per medical science, one of the cause for development of '**Schizophrenia**' in a person is excess stress and strain in the day to day activities as well insufficient sleep.

10. The applicant was physically fit until he was diagnosed with the disease for the first time on 25.03.1987 i.e. after about 9 years from the date of enrolment while posted in 952 Transport Company, Narengi and during this posting applicant was required to drive vehicles continuously upto 18 hours from Guwahati to Tenga and Silchar. The applicant's duty was so stressful that after continuously driving for about 18 hours, he was required to return back the very next day and as such due to excessive stress and strain of military duty as well as insufficient sleep have influenced in development of the disease in the applicant. Considering the above, the authorities ought to have treated applicant's disease to be attributable to military service.

11. The applicant begs to state that as per Rule 5 of the Entitlement Rules for Casualty Pensionary Awards, 1982 a member is presumed to have been in sound physical and mental condition upon entering service except to physical disabilities noted or recorded at the time of entrance and any subsequent deterioration in health is held to be due to service. Further, Rule 9 of the aforesaid Rule provides that the burden to disapprove the correlation of the disability with the service is with the authorities and categorically prescribes that 'benefit of doubt' is to be given to the claimant. Notwithstanding, the authorities have illegally denied disability pension to the applicant.

12. The applicant begs to state that there is inherent stress and strain in military service coupled with the fact that a person stays away from family during most of his/her length of service in a regimented lifestyle under a strict disciplinary code and attributability or aggravation need only be refused in cases of gross negligence, gross misconduct or Intoxication. What may be called a lifestyle disease for a common person on the street may be aggravated by stress and strain in case of military personnel and as such the authorities ought to have considered applicant's disease to be either attributable to or aggravated by military service.

13. The applicant begs to state that the authorities cannot hold applicant's disability as a major one for invaliding him from service and at the same time as a minor one for granting disability element of pension. Such a contradictory stand is not maintainable in the eyes of law. Further, the Hon'ble Apex Court in catena of Judgments had held that once an Armed Forces Personnel is invalided from service due to his low medical category, his service tenure gets short for no fault of his and as such he is entitled to disability pension consisting of service element and disability element.

14. The applicant begs to state that he is entitled for disability element in accordance with the decision delivered on 02.07.2013 by the Hon'ble Supreme Court in Civil Appeal No. 4949 of 2013 **Dharamvir Singh Vs Union of India**. In absence of any evidence on record to show that the appellant was suffering from disease at the time of acceptance of his service, it will be presumed that the appellant was in sound physical and mental condition at the time of entering the service and deterioration in his health has taken place due to service.

15. The applicant begs to state that the authorities by their illegal action have violated the applicant's fundamental rights as guaranteed under part III of the Constitution India as well as the rights granted by the Rules/Regulations holding the field and as such, same needs to be interfered with by this Tribunal for the ends of justice.

16. In reply, learned counsel for the respondents submits that the applicant was enrolled in the Army on 17.11.1977 with terms of engagement of 17 years colour service and 02 years reserve liability and he was invalidated out of service on 09.11.1987 due to placement in low medical category 'EEE' for the disability "**Schizophrenia (ICD-295)**" under Army Rule 13 (3) III (iii) of 1954 after rendering 09 years 11 months and 23 days of service.

17. Accordingly, he was brought before Invaliding Medical Board on 06.10.1987 at 151 Base Hospital. His disability "**Schizophrenia (ICD-295)**" was considered as neither attributable to nor aggravated by military service. Percentage of disability was assessed at 40% for two years and accordingly he was invalided out from of service on 10.11.1987 under Army Rule 13 (3) III (iii) of 1954.

18. As per policy applicable then, case of the applicant was referred to Pension Sanctioning Authority viz. Chief Controller of Defence Accounts (Pensions), Allahabad for adjudication in consultation with Medical Advisor (Pensions) vide ASC Records (South) letter dated 12.03.1988. Claim of the applicant was adjudicated by the competent authority in accordance with the relevant rules and existing medical/administrative provisions and it had been decided that the applicant was not entitled for disability pension being disability neither attributable to nor aggravated by and not related to military service being disability constitutional in nature and rejected the claim vide PCDA (Pensions) Allahabad letter dated 28.06.1988. The applicant was granted a sum of Rs.15750/- on account of Invalid Gratuity and a sum of Rs.787.50/- on account of M.G.C. Rejection of disability pension claim and the same was communicated to the applicant vide ASC Records (South) letter dated 18.07.1988 with an advice to prefer an appeal to the competent authority but not later than 27.12.1988, if desired to do so.

19. Aggrieved by the decision of the competent authority, the applicant preferred an appeal through Govt. of Manipur, Office of the Secretary, Zila Sainik Board, Churachandpur vide their letter dated 25.01.1989. Accordingly, the case was taken up with Office of the CDA (P) Allahabad for review of disability, pension claim/onward transmission to Ministry of Defence vide their office letter dated 06.06.1989. Office of the CDA (P) Allahabad submitted the appeal along with their audit report to Govt. of India, Ministry of Defence for their further action. However, the case of the applicant was rejected by Government of India, Ministry of Defence, New Delhi vide letter dated 10.01.1991.

20. As per Regulation 173 of Pension Regulations for the Army, 1961, Part I, the primary condition for grant of disability pension is "unless otherwise specifically provided a disability pension may be granted to an individual who is invalided out from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20% or over". In the Instant case, disability of the applicant was held as neither attributable to nor aggravated by military service and the same was also adjudicated by competent authority, the applicant is not eligible for grant of disability pension as stipulated in above mentioned Pension Regulation. Hence, the instant OA becomes infructuous, lack of merit and substance and liable to be dismissed by the Tribunal in very first hearing.

21. Moreover applicant remained satisfied with the decision of Government of India, Ministry of Defence till Jan 2022 i.e. after a delay of 30 years and submitted a petition dated 12.04.2022 for grant of disability through pension dated 01.05.2022 which was suitably replied by ASC Records (South) vide letter dated 09.05.2022 intimating the factual position of the case.

22. Thereafter, the applicant forwarded a RTI application dated 13.04.2022 received on 05.05.2022, seeking copy of Invaliding Medical Board, PPO vide which disability element granted/rejected and PPO under which service element has been sanctioned and revised from time to time. The same was provided to the applicant vide ASC Records (South) letter dated 26.05.2022.

23. The applicant has now filed the instant Original Application before the Tribunal to quash and set aside Government of India, Ministry of Defence, New Delhi letter dated 10.01.1991 and to issue directions to the respondents to release the disability pension after rounding off to 50% and arrears from three years prior to the date of filing of this application.

24. As per Regulation 173 of Pension Regulations for the Army, 1961, Part I, the primary condition for grant of disability pension is that unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided out from service on account of disability which is either attributable to or aggravated by military service and is assessed at 20% or over. In terms of this regulation, the applicant is not entitled to disability pension as his disability "**Schizophrenia (ICD-295)**" has been considered as neither attributable to nor aggravated by military service by medical authority vide constituted Invaliding Medical Board and adjudication authority at Chief Controller of Defence Accounts (Pension), Allahabad.

25. As per para 7.2 of Government of India, Ministry of Defence letter dated 31.01.2001, the benefits of rounding off percentage of disability is applicable only to those individuals who have been invalided out of service/discharged from service on medical grounds before completion of terms and conditions of service. In other words, only those individuals, whose service was cut short due to their disability, are entitled for rounding off their percentage of disability. Consequent to implementation of 7^th Central Pay Commission, policy for grant of rounding of disability element has been revised vide Govt. of India, Ministry of Defence letter dated 05.09.2017. As per this letter, all pre 01.01.2016 retirees, who were invalided out of service on account of disability/war injury accepted as attributable to or aggravated by military service irrespective of clause of discharge and if their disability is accepted at 20% and more are eligible for broad banding of disability element w.e.f. 01.01.2016. In the instant case, the applicant was invalidated out from the service under Army Rule 13 (3) III (iii) of 1954 and his disability has been considered as neither attributable to nor aggravated by and not connected with military service by competent Invaliding Medical Board Proceedings and Adjudication Authority. Since he is not entitled to the disability pension in terms of Para 173 of Pension Regulations for Army, 1961, Part-I, the question of rounding off disability pension does not arise in this case.

26. In view of the above, the Original Application becomes infructuous and the same is liable to be dismissed.

27. We have heard both the learned counsel at length and perused the documents placed on record. The main questions for consideration are –

1. (1) Whether the disability of the applicant was attributable to or aggravated by military service?

2. (2) Whether the applicant is entitled to disability pension?

28. **Regarding Q. No.(1) :-** The applicant was enrolled on 17.11.1977 in SHAPE-1, however, was diagnosed with Schizophrenia on 25.03.1987. The applicant submits that his posting in 952 Transport Company, Narengi required him to drive vehicles continuously upto 18 hours from Guwahati to Tenga and Silchar and his duties were so stressful that after continuous driving for 18 hours, he was required to return back the very next day and as such due to excessive stress and strain of military duty as well as insufficient sleep have influenced in the development of the disease.

29. The respondents have however stated that the Invaliding Medical Board in its opinion dated 06.10.1987 has held that the disability of Schizophrenia is neither attributable to nor aggravated by military service and his disability was assessed at 40% for 02 years and was invalidated out from service on 10.11.1982 under Army Rule 13 (3) III (iii) of 1954. The respondents submit that the claim of the applicant was adjudicated by the Competent Authority in accordance with the relevant rules and existing medical/administrative provisions and that his disability is constitutional in nature which is not attributable to nor aggravated by military service. Hence, he is not entitled for disability pension.

30. The learned counsel for the applicant has submitted that the disability had surfaced 09 years after joining service and it was due to extreme working conditions resulting in stress and strain. He has referred to the citations of **Ex. Gnr Laxmanram Poonia (Dead) through legal representatives Vs. Union of India and Ors [(2017) 4 SCC 697].**

31. In the aforesaid case, the applicant was enrolled in Indian Army on 14.09.2005. He suffered from 'Acute Schizophrenia like Psychotic Disorder' in November 2007. The applicant has stated that he was overburdened with work due to scarcity of staff and he suffered hypertension resulting in lack of sleep and hunger due to continuous restless duty hours for several days. He requested Commanding Officer of his unit to sanction his leave. However, instead of granting leave, he was admitted in Military Hospital where the aforesaid diagnosis of Schizophrenia was revealed. The Medical Board held that the disability was constitutional in nature and is not connected with military service. The Hon'ble Supreme Court held that the Medical Board has not given any reason in support of its opinion particularly in reference to the fact that there was no note of such disease at the time of entering in military service. It was held that the opinion of the Medical Board cannot be read in isolation but in consonance with the Entitlement Rules for Casualty Pensionary Awards, 1982 and General Rules of Guide to Medical Officers (Military Pensions), 1982. The Medical Board should have recorded its conclusion with reasons so as to enable the Pension Sanctioning Authority to examine the question of entitlement of pension as per rules.

32. Applying the principles enshrined in the case of **Dharamvir Singh Vs. Union of India; (2013) 7 SCC 316** and **Union of India Vs. Rajbir Singh; [(2015) 12 SCC 264]** a presumption was drawn that the disability bore a causal connection with the service conditions and applicant was held entitled for disability pension. The aforesaid judgment by two Judge Bench shall have to be seen side by side with another relevant citation of an Apex Court pronounced in the case of **Ex Cfn Narsingh Yadav Vs. Union of India & Ors; [(2019) 9 SCC 667]**. As per the facts of this case, the applicant was enrolled in Indian Army on 02.12.2003. He was posted at 3 EME Centre, Bhopal and suffered from Schizophrenia on 23.08.2005. The question was whether he was entitled to disability pension or not. The judgment of **Ex. Gnr Laxmanram Poonia** (supra) was also referred to in the above case. The Apex Court held that there was a positive finding in **Ex. Gnr Laxmanram Poonia** (supra) case, that the appellant was overburdened with work due to scarcity of staff resulting in lack of sleep and hunger due to continuous restless duty hours for several days. The Apex Court stressed upon the fact that mental disease with such disability which ordinarily escaped detection at the time of enrolment. Reference was made to the case of **Dharamvir Singh** (supra) in which the Hon'ble Apex Court had referred to **GMO (Military Pensions). 2002** as per which mental disorder is one such disease which may be undetectable by physical examination on enrolment, unless adequate history is given at the time by the member. Further, the Apex Court based its decision on Rule 14(d) of Entitlement Rules, 1982 which is as under:- ***"Rule 14(d) - In case of congenital, hereditary, degenerative and constitutional diseases which are detected after the individual has joined service, entitlement to disability pension shall not be conceded unless it is clearly established that the course of such disease was adversely affected due to factors related to conditions of military services."***

33. It was held in that in **Narsingh Yadav** (supra), it was clearly established that the cause of such disease was not adversely affected due to factors related to conditions of military service, unless there is a strong medical opinion to dispute the opinion of the medical record which may warrant the constitution of Review Medical Board. The opinion cannot be disregarded.

34. Thus, it can be seen that while in **Ex Cfn Narsingh Yadav** (supra), the Hon'ble Apex Court stressed upon the provision of clause 14(d) whereby in the case of **Laxmanram Poonia** (supra) went by presumption in favour of the applicant as per which the appellant ought to have been presumed to be in sound physical and mental condition at the time of entering in military service and deterioration in health is taken place due to military service and a causal connection was held to have been established.

35. The present matter needs to be decided in the light of the principles enshrined in above two judgments. The basic reason as to why the applicant was granted disability pension in the case of **Laxmanram Poonia** (supra) and not in the case of **Narsingh Yadav** (supra) was that in the former it was not contested that applicant suffered from strenuous working conditions resulting in hypertension, lack of sleep and hunger etc due to excessive workload. Whereas in the later, the disability occurred in peace area and there was no specific adverse service condition which precipitated in the disability.

36. However as far as the present case is concerned, the applicant was enrolled on 17.11.1977 and for almost 10 years thereafter there was no sign of any disability. While he was posted in 952 Transport Company, Narengi, (Guwahati), the applicant suffered from disability. He states that during this posting he was required to drive military vehicle upto 18 hours from Guwahati to Tenga and Silchar. His duty was so stressful that after continuously driving for about 18 hours, he was required to return the very next day and excessive stress and strain of military duty as well insufficient sleep, influenced the development of the disease. The factum of his appointment at Narengi during the period is contained in the Release Medical Board which is placed on record.

37. The above averment has not been contested by the respondents. The Medical Board has simply termed the disability as constitutional disorder. Entitlement Rules, 1982 described Psychosis and Psychoneurosis as one such disability which may be affected by stress and strain. Thus in the present case, in absence of any rebuttal by the respondents, it is clearly established that the applicant suffered from Schizophrenia due to conditions of military service and thus the contentions prescribed in Rule 14(d) of the aforesaid rules is met with. The opinion of the Medical Board shows that the extent of disability was 40% for 02 years. In view of the mental condition of the applicant, it could not have been expected from him to appear before the Medical Board after 02 years. The respondents ought to have initiated action of holding Re-Survey Medical Board after 02 years and ought to have summoned the applicant which they refrained from doing so. Hence, it cannot be stated that the disability was limited only for a period of 02 years. No case have been witnessed where a Schizophrenia patient may have been cured totally. At the most, such disability may be in remission with the help of medications but is likely to resurface again in stressful situations or in unfavourable conditions. Consequently, the applicant is found to be entitled to disability pension. The Original Application stands **allowed** in following terms:-

1. (1) The disability of Schizophrenia diagnosed in applicant was attributable to conditions of military service.

2. (2) The applicant is entitled to disability pension of 40% (rounded off to 50%).

3. (3) The arrears of disability pension shall be restricted to three years from the date of filing of this OA. The OA was filed on 09.11.2022.

4. (c) This order shall be complied with within a period of 4 months from the date of receipt of copy of this order, failing which interest of 8% shall be charged.

38. No order as to costs.

(Lt Gen P. Gopālākrishna Menon) Member (A)

Date - 09.12.2024

Amk/- NJV/-

(Justice Shailendra Shukla) Member (J)