UNION OF INDIA & ORS. versus EX. SEP. R. MUNUSAMY on 19 July 2022

[2022] 7 S.C.R. 473

UNION OF INDIA & ORS.

v.

EX. SEP. R. MUNUSAMY

(Civil Appeal No. 6536 of 2021)

JULY 19, 2022

[INDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.]

Army Rules, 1954 – r. 13(3) III(v) – Discharge under – ArmyPension Regulation, 1961 – Entitlement Rules for CasualtyPensionary Awards, 1982 – r.14 – Armed Forces Tribunal held thatrespondent was entitled to disability pension by allowing theapplication filed by him after 20 years – Held: Tribunal patentlyerred in law in proceeding on the basis of a misconceived notionthat any ailment or disability of a soldier, not noted at the time ofrecruitment but detected or diagnosed at the time of his dischargeor earlier, would entitle the soldier to disability pension on thepresumption that the disability was attributable to military service,whether or not the disability led to his discharge, and the onus wason the employer to prove otherwise, which the appellants in thiscase had failed to do – In the instant case, since the discharge wason administrative grounds and not medical grounds, there was nooccasion for the Release Medical Board or for that matter, theResurvey Medical Board to give any opinion as to cause and natureof the ailment of the Respondent of “Right Partial Seizure withSecondary Generalisation 345” as diagnosed, whether suchdisability/ailment could reasonably have gone undetected at thetime of appointment of the Respondent, in terms of Rule 14(b) of theEntitlement Rules – Also, claim of the respondent for disabilitypension should not have been entertained and that too, 20 yearsafter its discharge.

Allowing the appeal, the Court

HELD: 1. The Resurvey Medical Board did not opine thatthe disability, if any, of the Respondent was either caused oraggravated by military service. Even otherwise, the question ofentitlement of soldier to disability pension cannot be determinedon the basis of medical examination conducted 20 years after hisdischarge. The Tribunal does not sit in appeal over the expert

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Aopinion of a Medical Board holding that the disability suffered bya soldier was not attributable to or aggravated by military service.There was no reason for the Tribunal not to accept the opinionof the Release Medical Board held on 30[th] January 1997 and noreasons have been disclosed. In the absence of any finding ofinfirmity in the decision making process adopted by the ReleaseBMedical Board, there could be no reason to direct the constitutionof a Resurvey Medical Board, and in any case, not after twodecades from the date of discharge. [Paras 15 & 16][479-D-F]

2. As provided in Rule 14(c) of the Entitlement Rules, if adisease were accepted as having arisen in service, it must alsoCbe established that the conditions of military service determinedor contributed to the onset of the disease and that the conditionswere due to the circumstances of duty in military service. Eventhough, the Tribunal accepted that there might be cases, wherean ailment/disease could be wholly unrelated to military serviceDand the denial of disability pension could be justified on thatground, the Tribunal overlooked the mandate of Rule 14(c) ofthe Entitlement Rules. From the Report of the Resurvey MedicalBoard, as extracted in the impugned judgment and order, it doesnot appear that the Review Medical Board gave any opinion ascontemplated in Rule 14(b) or 14(c) of the Entitlement Rules.EThere were no materials before the Tribunal, on the basis of whichthe Tribunal could have been satisfied that, the conditions ofservice of the Respondent contributed to his disability and/orailment. The Review Medical Board only assessed the extent ofthe disability of the Respondent and the approximate durationFof the disability, but not the cause thereof. [Paras 23 & 24][481-F-H; 482-A-B]

3. What exactly is the reason for a disability or ailment maynot be possible for anyone to establish. Many ailments may notbe detectable at the time of medical check-up, particularly whereGsymptoms occur at intervals. Reliance would necessarily have tobe placed on expert medical opinion based on an in depth studyof the cause and nature of an ailment/disability including thesymptoms thereof, the conditions of service to which the soldierwas exposed and the connection between the cause/aggravation H

of the ailment/disability and the conditions and/or requirementsof service. The Tribunal patently erred in law in proceeding onthe basis of a misconceived notion that any ailment or disabilityof a soldier, not noted at the time of recruitment but detected ordiagnosed at the time of his discharge or earlier, would entitlethe soldier to disability pension on the presumption that thedisability was attributable to military service, whether or not thedisability led to his discharge, and the onus was on the employerto prove otherwise, which the Appellants in this case had failedto do. In this case, since the discharge was on administrativegrounds and not medical grounds, there was no occasion for theRelease Medical Board or for that matter, the Resurvey MedicalBoard to give any opinion as to cause and nature of the ailmentof the Respondent of “Right Partial Seizure with SecondaryGeneralisation 345” as diagnosed, whether such disability/ailmentcould reasonably have gone undetected at the time of appointmentof the Respondent, in terms of Rule 14(b) of the EntitlementRules. The Appellants did not get the opportunity to show thatthe ailment was not caused or aggravated by military service interms of Rule 14(b) and 14(c) of the Entitlement Rules referredto above. The claim of the Respondent for disability pensionshould not have been entertained and that too, 20 years after hisdischarge. [Paras 25 & 26][482-B-G]

Union of India v. Rajbir Singh (2015) 12 SCC 264 :[2015] 2 SCR 183 17 - held inapplicable.

Case Law Reference

[2015] 2 SCR 183held inapplicablePara 17

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6536of 2021.

From the Judgment and Order dated 18.02.2020 of the ArmedForces Tribunal, Regional Bench, Chennai in O.A. No. 53 of 2018.

Jayant K. Sud, ASG, Nachiketa Joshi, Neela Kedar Gokale, SanjayKumar Tyagi, Rajan Kumar Chourasia, Arvind Kumar Sharma, Advs.for the Appellants.

B. Karunakaran, E. Sudarsanan, K. Balambihai, S. Gowthaman,Advs. for the Respondent.

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476SUPREME COURT REPORTS

AThe Judgment of the Court was delivered byINDIRA BANERJEE, J.

1. This appeal is against a judgment and order dated 18[th] February2020 passed by the Chennai Regional Bench of the Armed Forces Tribunalallowing the application being O.A. No. 53 of 2018 filed by the RespondentBabout 20 years after he was discharged from the Indian Army, and holdingthat the Respondent was entitled to disability pension. The arrears wererestricted to a period of three years prior to the date of application beforethe Tribunal.

2. The Respondent was enrolled in the Army on 26[th] March 1987.CBy an order dated 5[th] April 1997, the Respondent was discharged fromservice on administrative grounds, as an undesirable Soldier under Rule13(3) III(v) of the Army Rules, 1954. The Respondent had renderedservice for nine years seven months and one day excluding 161 days ofnon-qualifying service. Annexed to the appeal is a copy of the Order/DCertificate of the Commandant dated 12[th] October 1996 regarding theproposal to discharge the Respondent. As per the certificate of theCommandant, service of the Respondent was no longer required. Thecause of discharge was shown in paragraph 20 as “Undesirable Soldierunder Rule 13 III(V) of Army Rules, 1954”.

E3. At the time of discharge, the Respondent was in low medicalcategory. A meeting of the Release Medical Board held on 30[th] January1997 found “Right Partial Seizure with Secondary Generalization 345”neither attributable to nor aggravated (NANA) by military service. Thedisability was assessed @ 20% for two years.

F4. The Respondent did not challenge his discharge under Rule13(3) III(v) of the Army Rules, 1954 as an undesirable soldier. TheRespondent, however, made an application claiming disability pension.By order No. G-3/85/318/11-97 dated 19[th] May 1998, the Office of theChief CDA(P), Allahabad rejected the claim of the Respondent fordisability pension. Relevant part of the said order reads as under :-G

“3. Accordingly, for clauses (i) & (ii) of Para 1 above, nodisability pension is admissible under the existing rules. Theabove decision may pl. be communicated to the individualunder registered post alongwith MA(P)’s findings, and a clausemay also be added therein that he may appeal against theHdecision not later than six months from the date of issue of this letter, on such grounds as he may deem fit to put forth, ifdesired by him.

4. A sum of Rs.10450 on account of invalid gratuity and asum of Rs.15711 on account of dcrg has been admitted. Incase, the individual dies before receiving dcrg amount itshould not be paid to his heirs & the matter referred to g-4section of this office.”

5. On 6[th] October 1998, the Respondent filed an appeal againstthe rejection of disability pension. The Appellate Authority rejected theappeal. By a communication dated 11[th] January 2000, the Respondentwas informed that his appeal against rejection of disability pension hadbeen rejected by the first Appellate Authority.

6. On 25[th] August 2017 i.e. almost 20 years after his dischargeand over seventeen and a half years after the dismissal of his appealagainst the rejection of disability pension, the Respondent sent a legalnotice claiming disability pension on the ground of parity with oneDharamvir Singh and one Rajbir Singh.

7. The case of the Respondent appears to be distinguishable sincethe Respondent was not discharged on medical grounds, unlike RajbirSingh or Dharamvir Singh. It appears that in course of his career, theRespondent had earned red ink entries in his service records on sevenoccasions, as per the particulars given hereinbelow :- AB

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8. The Appellants contend that the Respondent was a habitualoffender who kept breaching military discipline, notwithstanding repeatedcounseling and advice given by his superiors. He proved to be aninefficient soldier. Be that as it may, the fact remains that, for 20 years,the Respondent did not question his discharge.

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9. By a communication dated 27[th] October 2017, the AppellantNo. 3 replied to the said notice stating:- B

“You have been discharged under Army Rule 13(3) III (v)being undesirable soldier and not invalidated out from serviceas mentioned in your above legal notice. Hence, disabilityCpension is not admissible as per existing rules in force”

10. Being aggrieved, the Respondent filed O.A. No. 53 of 2018before the Tribunal claiming disability pension and benefits underRegulation 183 of the Army Pension Regulation, 1961. The applicationhas been allowed by the judgment and order impugned.

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11. At the cost of repetition, it is reiterated that the Respondentwas discharged under Rule 13(3) III(v) of the Army Rules, 1954 onadministrative grounds as an undesirable soldier and not on the groundof medical disability. Any opinion of the Release Medical Board held on30[th] January 1997 with regard to the ailment of the Respondent does notEentitle the Respondent to disability pension, as the ailment did not lead tohis discharge. In any case, even as per the opinion of the Release MedicalBoard, the disability, if any, of the Respondent was not attributable tomilitary service. The Tribunal recorded that the Release Medical Boardhad in Paragraph 3(d) stated “Disability constitutional in origin, unrelatedto service”.

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12. For over 20 years from the date of the discharge, theRespondent did not challenge his discharge on the administrative groundof being an undesirable soldier. His discharge on administrative groundscould not have been challenged after two decades.

13. In the considered opinion of this Court, the Tribunal fell inGerror in passing its order dated 2[nd] November 2018 directing the Appellantsto convene a Resurvey/Review Medical Board at the Military Hospital,Chennai or a designated hospital for the purpose of examining theapplicant and assessing the degree of disability due to “Right PartialSeizure with Secondary Generalisation 345” and the probable durationHof disability. The tenor of the order itself shows that even the Tribunal realized that accurate medical opinion could not have been obtained afterlapse of 30 years from the date of recruitment of the Respondent andafter 20 years from the date of his discharge. The Tribunal, therefore,sought assessment of ‘probable duration of disability’.

14. Be that as it may, the Appellants, in compliance of the order ofthe Tribunal, convened a Review Medical Board as directed and submitteda report. The Tribunal noted :- “7. From the Resurvey Medical Board dated 11.4.2019 heldpursuant to our order dated 02.11.2018 placed before us, itis seen that the applicant’s disease “Right Partial Seizure withSecondary Generalisation 345” has now been considered as‘Remained Static’ and the degree of the disability has beenassessed @ 20% for life with effect from 08.04.2019. TheBoard also assessed the degree of disability for the interveningperiod from 27.03.1989 and 25.03.1989 @ 20%. Theapplicant has prayed for grant of disability pension.”

15. Significantly, even the Resurvey Medical Board did not opinethat the disability, if any, of the Respondent was either caused oraggravated by military service. Even otherwise, the question of entitlementof soldier to disability pension cannot be determined on the basis ofmedical examination conducted 20 years after his discharge.

16. The Tribunal does not sit in appeal over the expert opinion ofa Medical Board holding that the disability suffered by a soldier was notattributable to or aggravated by military service. There was no reasonfor the Tribunal not to accept the opinion of the Release Medical Boardheld on 30[th] January 1997 and no reasons have been disclosed. In theabsence of any finding of infirmity in the decision making process adoptedby the Release Medical Board, there could be no reason to direct theconstitution of a Resurvey Medical Board, and in any case, not aftertwo decades from the date of discharge.

17. The Tribunal relied on the judgment of this Court dated13[th] February 2015 in Civil Appeal No.2904 of 2011 (Union of India v.Rajbir Singh[1]) heard and disposed of along with 23 other appeals. Inthe aforesaid case, this Court dismissed appeals arising out of orderspassed by the Armed Forces Tribunal and upheld directions for grant ofdisability pension to the concerned ex-soldiers.

1 (2015) 12 SCC 264

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A18. In Rajbir Singh (supra), it was not in dispute that theRespondents in all the appeals had been invalidated out of service onaccount of medical disability as shown in the chart set out in the judgment.The judgment in Rajbir Singh (supra) was rendered in the context ofinvalidation from service on medical grounds, having regard to theprovisions of the Entitlement Rules for Casualty Pensionary Awards,B1982, hereinafter referred to as “the Entitlement Rules”.

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19. Rule 14 of the Entitlement Rules, referred to in Rajbir Singh(supra) is extracted hereinbelow for convenience: - “14. Diseases.- In respect of diseases, the following rule willbe observed –C

(a) Cases in which it is established that conditions of militaryservice did not determine or contribute to the onset of thedisease but influenced the subsequent courses of the diseasewill fall for acceptance on the basis of aggravation.

D(b) A disease which has led to an individual’s discharge ordeath will ordinarily be deemed to have arisen in service, ifno note of it was made at the time of the individual’sacceptance for military service. However, if medical opinionholds, for reasons to be stated, that the disease could nothave been detected on medical examination prior toEacceptance for service, the disease will not be deemed to havearisen during service.

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(c) If a disease is accepted as having arisen in service, itmust also be established that the conditions of military servicedetermined or contributed to the onset of the disease andFthat the conditions were due to the circumstances of duty inmilitary service.

(emphasis supplied)”

20. Rule 14(b) of the Entitlement Rules relied upon in Rajbir Singh(supra) is not attracted in this case, because the Respondent was notGdischarged on account of any disease, ailment or disability, but foradministrative reasons. The Rule is only attracted when a disease leadsto an individual’s discharge or death. Such disease is ordinarily to bedeemed to have arisen in service, if no note of it was made at the time ofthe individual’s acceptance for military service, but not always. In anycase, the presumption under Rule 14(b) of the Entitlement Rules isH

rebuttable. If medical opinion holds, for reasons to be stated, that thedisease could not have been detected on medical examination prior toacceptance for service, the disease will not be deemed to have arisenduring service. There was no direction on the Review Medical Board togive any opinion as to the question of whether the ailment of theRespondent could or could not have been detected at the time of hisrecruitment. Furthermore, the mere fact that an ailment or disease mayhave arisen in service does not mean that the ailment or disease isattributable to service conditions.

21. In the instant case, as observed above, the discharge of theRespondent was not on account of any disability or disease but onadministrative grounds and such discharge was not questioned for twodecades. The judgment in Rajbir Singh (supra) or the judgments reliedupon in Rajbir Singh (supra) have no application in the facts andcircumstances of this case. The learned Tribunal noted red ink entries inthe service records of the Respondent on the ground of unauthorizedabsence, but arrived at the purported finding in effect that the absenceof the Respondent was only on account of his ailment/disability. Suchfinding is patently conjectural, and not based on any materials on record.

22. Moreover, even in the case of discharge on account of anydisability or disease, the authorities might dispute that such disability ordisease was caused or aggravated by military service. The Medical Boardmight, for reasons to be stated, give an opinion that the disease could nothave been detected on medical examination prior to appointment, in whichcase the disease/disability would not be deemed to have arisen duringservice.

23. Moreover, as provided in Rule 14(c) of the Entitlement Rules,if a disease were accepted as having arisen in service, it must also beestablished that the conditions of military service determined orcontributed to the onset of the disease and that the conditions were dueto the circumstances of duty in military service.

24. Even though, the Tribunal accepted that there might be cases,where an ailment/disease could be wholly unrelated to military serviceand the denial of disability pension could be justified on that ground, theTribunal overlooked the mandate of Rule 14(c) of the Entitlement Rules.From the Report of the Resurvey Medical Board, as extracted in theimpugned judgment and order, it does not appear that the Review MedicalBoard gave any opinion as contemplated in Rule 14(b) or 14(c) of the AB

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AEntitlement Rules. There were no materials before the Tribunal, on thebasis of which the Tribunal could have been satisfied that, the conditionsof service of the Respondent contributed to his disability and/or ailment.The Review Medical Board only assessed the extent of the disability ofthe Respondent and the approximate duration of the disability, but notthe cause thereof.B

25. What exactly is the reason for a disability or ailment may notbe possible for anyone to establish. Many ailments may not be detectableat the time of medical check-up, particularly where symptoms occur atintervals. Reliance would necessarily have to be placed on expert medicalopinion based on an in depth study of the cause and nature of an ailment/Cdisability including the symptoms thereof, the conditions of service towhich the soldier was exposed and the connection between the cause/aggravation of the ailment/disability and the conditions and/or requirementsof service. The Tribunal patently erred in law in proceeding on the basisof a misconceived notion that any ailment or disability of a soldier, notDnoted at the time of recruitment but detected or diagnosed at the time ofhis discharge or earlier, would entitle the soldier to disability pension onthe presumption that the disability was attributable to military service,whether or not the disability led to his discharge, and the onus was onthe employer to prove otherwise, which the Appellants in this case hadfailed to do.E

26. In this case, since the discharge was on administrative groundsand not medical grounds, there was no occasion for the Release MedicalBoard or for that matter, the Resurvey Medical Board to give any opinionas to cause and nature of the ailment of the Respondent of “Right PartialSeizure with Secondary Generalisation 345” as diagnosed, whether suchFdisability/ailment could reasonably have gone undetected at the time ofappointment of the Respondent, in terms of Rule 14(b) of the EntitlementRules. The Appellants did not get the opportunity to show that the ailmentwas not caused or aggravated by military service in terms of Rule 14(b)and 14(c) of the Entitlement Rules referred to above. The claim of theRespondent for disability pension should not have been entertained andGthat too, 20 years after his discharge.

27. The appeal is, therefore, allowed. The impugned judgmentand order is set aside. There shall be no order as to costs.

Ankit GyanH(Assisted by : Rahul Rathi, LCRA)

Appeal allowed.