NO. 1466828M EX CFN NARSINGH YADAV versus UNION OF INDIA & ORS. on 3 October 2019

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SUPREME COURT REPORTS

[2019] 13 S.C.R.

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NO. 1466828M EX CFN NARSINGH YADAV

v.

UNION OF INDIA & ORS.

(Civil Appeal No. 7672 Of 2019)

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OCTOBER 03, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Armed Forces: Military service – Disability pension –Appellant was appointed as Craftsman (Military Rank) and wasposted at peace station – Invaliding Medical Board found himCsuffering from Schizophrenia which disability was assessed at 20%for a period of five years and held that the disability was neitherattributed nor aggravated by military service – Consequently, hewas discharged from service – Claim for disability pension – Rejectedby the Armed Forces Tribunal – Plea of appellant that since no noteDwas given at the time of enrolment in the Army, therefore, suchdisability was to be attributed to military service – Held: It is notmechanical application of the principle that any disorder notmentioned at the time of enrolment is presumed to be attributed toor aggravated by military service – The question is as to whetherthe person was posted in harsh and adverse conditions which ledEto mental imbalance – Mere fact that Schizophrenia, a mentaldisorder was not noticed at the time of enrolment would not lead topresumption that the disease was aggravated or attributable tomilitary service – Appellant was a young boy of 18 years at the timeof enrolment – Even if he was suffering from any mental disorderFprior to enrolment, the same could not be detected as there wereintervals of normality – He was posted in peace station as a VehicleMechanic – Neither the nature of job nor the place of posting wassuch which could have caused stress and strain leading to disabilityas attributed to or aggravated by military service – In this case,clause 14(d) of 1982 Rules, as amended in the year 1996 would beGapplicable as entitlement to disability pension shall not be consideredunless it is clearly established that the cause of such disease wasadversely affected due to factors related to conditions of militaryservice – The invaliding Medical Board categorically held that theappellant was not fit for further service and there was no material H

NO. 1466828M EX CFN NARSINGH YADAV v. UNION OF

on record to doubt the correctness of the Report of the invalidingMedical Board – Interference not called for – Guide to MedicalOfficers (Military Pensions), 2002 - “Entitlement: General Principles– Guide to Medical Officers (Military Pensions), 1980 – EntitlementRules for Casualty Pensionary Awards, 1982.

Administrative law: Opinion of Medical Board – Judicialreview of, scope – Held: Though, the opinion of the Medical Boardis subject to judicial review but the Courts are not possessed ofexpertise to dispute such report unless there is strong medicalevidence on record to dispute the opinion of the Medical Boardwhich may warrant the constitution of the Review Medical Board –Armed Forces.

Dismissing the appeal, the Court

HELD: 1. Annexure I to Chapter IV of the Guide to MedicalOfficers (Military Pensions), 2002 — “Entitlement: GeneralPrinciples” points to certain diseases which may be undetectableby physical examination on enrolment including the MentalDisorders; Epilepsy and Relapsing forms of mental disorderswhich have intervals of normality, unless adequate history is givenat the time by the member. The Entitlement Rules itself providethat certain diseases ordinarily escape detection includingEpilepsy and Mental Disorder, therefore, mere fact thatSchizophrenia, a mental disorder was not noticed at the time ofenrolment will not lead to presumption that the disease wasaggravated or attributable to military service. [Para 16][272-C-E]

2. The 1982 Rules classify the diseases which are affectedby climatic conditions, stress and strain and dietary complications.The stress and strain cause the injuries such as Psychosis andPsychoneurosis, Bronchial Asthma, Myocardial infarction, andother forms of IHD and Peptic ulcer.” Therefore, each case hasto be examined whether the duties assigned to the individualmay have led to stress and strain leading to Psychosis andpsychoneurosis. Relapsing forms of mental disorders which haveintervals of normality and Epilepsy are undetectable diseaseswhile carrying out physical examination on enrolment, unlessadequate history is given at the time by the member. [Paras 17,18][272-F-H]

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A3. The appellant was posted in peace station as a VehicleMechanic. Clause 14(d), as amended in the year 1996 would beapplicable in his case as entitlement to disability pension shallnot be considered unless it is clearly established that the causeof such disease was adversely affected due to factors related toconditions of military service. Since there is a possibility of non-Bdetection of mental disorder, therefore, it cannot be said thatSchizophrenia is presumed to be attributed to or aggravated bymilitary service. Though, the opinion of the Medical Board issubject to judicial review but the Courts are not possessed ofexpertise to dispute such report unless there is strong medicalCevidence on record to dispute the opinion of the Medical Boardwhich may warrant the constitution of the Review Medical Board.[Paras 19, 20, 21][272-B, D-E]

Ex. Gnr. Laxmanram Poonia (Dead) through LegalRepresentatives v. Union of India & Ors. (2017) 4 SCC697 : [2017] 2 SCR 220; Dharamvir Singh v. Union ofDIndia & Ors. (2013) 7 SCC 316 : [2013] SCR 1119;Union of India & Anr. v. Rajbir Singh (2015) 12 SCC264 : [2015] 2 SCR 183; Veer Pal Singh v. Secretary,Ministry of Defence (2013) 8 SCC 83 : [2013] 10 SCR579 – referred to E

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7672of 2019.

From the Judgment and Order dated 23.09.2011 of the ArmedGForces Tribunal, Regional Bench at Lucknow in OA No. 235 of 2010/Order dated 28.04.2017 in MA Nos. 720 & 721 of 2017 in OA No.235of 2010.

Ms. Aishwarya Bhati, Sr. Adv., Ms. Chitrangda Rastravara, NitinP., Ms. Celesty Agarwal, Ms. Kirti Khangarot, Dinesh Bhati andMs. Archana Pathak Dave, Advs. for the Appellant.H

Ms. Madhavi Divan, ASG, Vivek Narayan Sharma, Amit Verma,Ms. Manjula Gupta, A. K. Sharma and Mukesh Kumar Maroria, Advs.for the Respondents.

The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by theArmed Forces Tribunal, Lucknow[1] on September 23, 2011 whereby, theclaim of the appellant for grant of disability pension was not accepted.

2. The appellant was enrolled in the Indian Army on December 2,2003. The invaliding Medical Board found the appellant to be sufferingfrom Schizophrenia, which disability was assessed at 20% for a periodof five years. The opinion of the Board was that disability was neitherattributable to nor aggravated by military service and consequently, theappellant was discharged from army service on May 8, 2007. The claimof the appellant for disability pension was rejected departmentally andlater by the Tribunal and still aggrieved, the appellant is before this Court.

3. The appellant was appointed as CFN - Craftsman (MilitaryRank). In Annexure RP1 which includes the signed Personal Statementof the appellant, he was posted at 3 EME Centre, Bhopal from December2, 2003 to August 23, 2005 and thereafter at AD Static Workshop fromAugust 24, 2005 till the time, he was produced before the invalidingMedical Board. Both the places of posting of the appellant were thepeace stations. In respect of disease, the appellant declared that he wastreated, firstly, at INHS, Nivarini Chilka on September 7 and 8, 2006,then, at Command Hospital, Kolkata from September 9, 2006 toDecember 23, 2006. Thereafter, he was treated at Military Hospital,Allahabad from January 21, 2007 to February 21, 2007 and finally, atCommand Hospital, Kolkata from February 23, 2007 till the time, hewas examined by the invaliding Medical Board. In Part I of the PersonalStatement, the Question asked was to “Give details of any incidentsduring your service which you think caused or made your disabilityworse”. The answer given by the appellant was ‘NIL’. In Part II of theReport, the Commanding Officer answered ‘No’ to the question – “Didthe Duties involve Severe/exceptional stress and strain?”

1 for short, ‘Tribunal’

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4. The summary and opinion of the Specialist in Psychiatry ofCommand Hospital (Eastern Command), Kolkata dated April 10, 2007read as under:

“Summary

Period of Hospitalization:Sec Hospital, GopalpurINHS Kaiyani, VizagCH (EC), KolkataSick LeaveMH AllahabadCH (EC), Kolkata 07 Sep 06 to 07 Sep 0607 Sep 06 to 15 Sep 0616 Sep 06 to 23 Dec 0624 Dec 06 to 21 Jan 0721 Jan 07 to 22 Feb 0723 Feb 07 onwards till date AFMSF-10 dated 07 Sep 06 mentions “punctual, disciplines,dedicated, social drinker, above average competence, cheerful,active and outgoing, retention recommended, developed fever andheadache on 06 Sep 06 following which he was noted to bebehaving abnormally.

History of Present Illness:

Individual was brought to psychiatric attention in mid Sep at thebehest of unit authorities as he was talking irrelevantly, laughingand crying for no apparent reason, in the background of febrileepisode. Apparently functioning well until Sep 06 when he wasnoted to be aloof, lacked interest in his work, not taking self carenor reporting for duty in time. Found to be wandering aimlessly inthe unit. Felt that others were planning to harm him; could hearthem talking about him. Further when onboard the train to Vizagfelt he was being followed and things happening around him wasin reference to him. When offered fruits by co-passenger felt ithad a special meaning often noted to be taking irrelevantly, cryingfor his mother who had died about 12 years back. Felt that otherscame to know what he was thinking. Become violent when otherstried to stop him or gave instructions to follow.”

“Opinion

21½ years old EME/Veh Mech with nearly 3½ years service, nopast or family h/o psychiatric illness. Had a psychotic breakdownof schizophrenic nature in Sep 06 Managed as a case ofSchizophrenia F 20 and treated with antipsychotics, ECT and other supportive measures. Poor response to treatment. Presentlyasymptomatic, residual negative features persist.

In view of the above, onset of his psychotic breakdown at thestart of the career, and persistence of residual negative features,he is unlikely to be a fit soldier for further service. Hencerecommend to be invalided from service in category S5 of SHAPEclassification as a case of Schizophrenia F20.”

5. The Medical Board concluded that the disability is neitherattributed to army service nor aggravated by military service though itassessed the disability at 20% for five years. Such opinion of the MedicalBoard dated April 20, 2007 is the basis of the discharge of the appellant.The opinion of the Medical Board is as under:

“CERTIFICATE

1. Certified that the IMB held in respect of No.14666828m CFNNS Yadav of AD State Wk Sp C/o 99 APO to a case ofSCHIZOPHRENIA F. 20.0.

2. Individual is found fit for civil job.

Date: 20 Apr. 2007Lt. Col.

(Rajiv Kamra)”

6. The appellant relies upon an order passed by this Court in Ex.Gnr. Laxmanram Poonia (Dead) through Legal Representatives v.Union of India & Ors.[2] as also the judgments in Dharamvir Singh v.Union of India & Ors.[3] and Union of India & Anr. v. Rajbir Singh[4]tocontend that since no note was given at the time of enrolment of the saiddisease in the Army, therefore, such disability is to be attributed to militaryservice.

7. In Laxmanram Poonia, there was a positive finding thatappellant was overburdened with work due to scarcity of staff and hesuffered hypertension resulting in lack of sleep and hunger due tocontinuous restless duty hours for several days. This Court allowed theappeal of the appellant and granted disability pension.

2 (2017) 4 SCC 697

3 (2013) 7 SCC 316

4 (2015) 12 SCC 264

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A8. In Dharamvir Singh, the appellant was sepoy in the Corps ofSignals of the Indian Army and was boarded out of service after nineyears of service when he was suffering from schizophrenia. This Courtrelied upon Guide to Medical Officers (Military Pension), 1980 and theEntitlement Rules for Casualty Pensionary Awards, 1982[5] to hold thatBsince no note was given at the time of enrolment of the person, therefore,such disease is presumed to be attributed to or aggravated by militaryservice. The Guide to Medical Officers (Military Pensions), 2002 —“Entitlement: General Principles” has mentioned following diseases inpara 27 of the judgment, which ordinarily escape detection at the time ofenrolment:C“(a) Certain congenital abnormalities which are latent and onlydiscoverable on full investigations e.g. Congenital Defect of Spine,Spina bifida, Sacralisation, (b) Certain familial and hereditary diseases e.g. Haemophilia,DCongential Syphilis, Haemoglobinopathy.(c) Certain diseases of the heart and blood vessels e.g. CoronaryAtherosclerosis, Rheumatic Fever.

(d) Diseases which may be undetectable by physical examinationon enrolment, unless adequate history is given at the time by theEmember e.g. Gastric and Duodenal Ulcers, Epilepsy, MentalDisorders, HIV Infections.

(e) Relapsing forms of mental disorders which have intervalsof normality.

F(f) Diseases which have periodic attacks e.g. Bronchial Asthma,Epilepsy, Csom, etc.”

(Emphasis Supplied)

9. This Court also extracted the relevant provisions from the 1982Rules in the order, which read as under:-G“5. The approach to the question of entitlement to casualtypensionary awards and evaluation of disabilities shall be based onthe following presumptions:

Prior to and during service

(a) A member is presumed to have been in sound physical andmental condition upon entering service except as to physicaldisabilities noted or recorded at the time of entrance.

(b) In the event of his subsequently being discharged from serviceon medical grounds any deterioration in his health, which has takenplace, is due to service.

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9. Onus of proof.—The claimant shall not be called upon to provethe conditions of entitlements. He/She will receive the benefit ofany reasonable doubt. This benefit will be given more liberally tothe claimants in field/afloat service cases.

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14. Diseases.—In respect of diseases, the following rules will beobserved—

(a) Cases in which it is established that conditions of militaryservice did not determine or contribute to the onset of the diseasebut influenced the subsequent courses of the disease will fall foracceptance on the basis of aggravation.

(b) A disease which has led to an individual’s discharge or deathwill ordinarily be deemed to have arisen in service, if no note of itwas made at the time of the individual’s acceptance for militaryservice. However, if medical opinion holds, for reasons to be stated,that the disease could not have been detected on medicalexamination prior to acceptance for service, the disease will notbe deemed to have arisen during service.

(c) If a disease is accepted as having arisen in service, it mustalso be established that the conditions of military servicedetermined or contributed to the onset of the disease and that theconditions were due to the circumstances of duty in militaryservice.”

10. The Rule 14, as reproduced above, was amended videGovernment of India, Ministry of Defence letter No. 1(1)/81/D(Pen-C)dated 20th June, 1996. The amended Clauses read as follows:

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“Rule 14 (a)- For acceptance of a disease as attributable to militaryservice, the following two conditions must be satisfiedsimultaneously:

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(ii) That the disease has been caused by the conditions ofemployment in military service.

(b) If medical authority holds, for reasons to be stated, that thedisease although present at the time of enrolment could not havebeen detected on medical examination prior to acceptance forservice, the disease, will not be deemed to have arisen duringservice. In case where it is established that the military servicedid not contribute to the onset or adversely affect the coursedisease, entitlement for casualty pensionary award will not beconceded even if the disease has arisen during service.

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(c) Cases in which it is established that conditions of military servicedid not determine or contribute to the onset of the disease but,influenced the subsequent course of the disease, will fall foracceptance on the basis of aggravation.

(d) In case of congenital, hereditary, degenerative andconstitutional diseases which are detected after the individual hasjoined service, entitlement to disability pension shall not beconceded unless it is clearly established that the course of suchdisease was adversely affected due to factors related to conditionsof military services.”

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F11. In Rajbir Singh, this Court held that the respondents havingbeen discharged from service on account of medical disease/disability,the disability must be presumed to have been arisen in the course ofservice which must, in the absence of any reason recorded by the MedicalBoard, be presumed to have been attributable to or aggravated by militaryservice. There is initial presumption that the respondents were allGphysically fit and free from any disease and in sound physical and mentalcondition at the time of their entry into service. The Court held as under:

“9. As regards diseases Rule 14 of the Entitlement Rules stipulatesthat in the case of a disease which has led to an individual’sdischarge or death, the disease shall be deemed to have arisen in H

service, if no note of it was made at the time of individual’sacceptance for military service, subject to the condition that ifmedical opinion holds for reasons to be stated that the “diseasecould not have been detected on medical examination priorto acceptance for service, the same will not be deemed tohave so arisen”. ……

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14. The legal position as stated in Dharamvir Singh case[Dharamvir Singh v. Union of India, (2013) 7 SCC 316 : (2013)2 SCC (L&S) 706] is, in our opinion, in tune with the PensionRegulations, the Entitlement Rules and the Guidelines issued tothe Medical Officers. The essence of the rules, as seen earlier, isthat a member of the armed forces is presumed to be in soundphysical and mental condition at the time of his entry into serviceif there is no note or record to the contrary made at the time ofsuch entry. More importantly, in the event of his subsequentdischarge from service on medical ground, any deterioration inhis health is presumed to be due to military service. This necessarilyimplies that no sooner a member of the force is discharged onmedical ground his entitlement to claim disability pension will ariseunless of course the employer is in a position to rebut thepresumption that the disability which he suffered was neitherattributable to nor aggravated by military service.

16. Applying the above parameters to the cases at hand, we areof the view that each one of the respondents having beendischarged from service on account of medical disease/disability,the disability must be presumed to have been arisen in the courseof service which must, in the absence of any reason recorded bythe Medical Board, be presumed to have been attributable to oraggravated by military service. There is admittedly neither anynote in the service records of the respondents at the time of theirentry into service nor have any reasons been recorded by theMedical Board to suggest that the disease which the memberconcerned was found to be suffering from could not have beendetected at the time of his entry into service. The initial presumptionthat the respondents were all physically fit and free from any A

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270SUPREME COURT REPORTS

Adisease and in sound physical and mental condition at the time oftheir entry into service thus remains unrebutted. Since the disabilityhas in each case been assessed at more than 20%, their claim todisability pension could not have been repudiated by the appellants.”

12. A three Judge Bench of this Court in Veer Pal Singh v.BSecretary, Ministry of Defence[6] rejected the opinion of invalidingMedical Board but directed the respondents to refer the case to ReviewMedical Board to reassess the medical condition of the appellant and tofind out whether at the time of discharge from service, he was sufferingfrom disease which made him unfit to continue in service. In the saidcase, the appellant was appointed in the year 1972 and was dischargedCin view of the opinion of the invaliding Medical Board dated November14, 1977. The appellant has prayed for constitution of a fresh MedicalBoard to assess his disease and disability in a writ petition filed beforethe Allahabad High Court. This Court held as under:

“10. Although, the courts are extremely loath to interfere with theDopinion of the experts, there is nothing like exclusion of judicialreview of the decision taken on the basis of such opinion. Whatneeds to be emphasised is that the opinion of the experts deservesrespect and not worship and the courts and other judicial/quasi-judicial forums entrusted with the task of deciding the disputesErelating to premature release/discharge from the army cannot, ineach and every case, refuse to examine the record of the MedicalBoard for determining whether or not the conclusion reached byit is legally sustainable.

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F16. F.C. Redlich and Daniel X. Freedman in their book titled TheTheory and Practice of Psychiatry (1966 Edn.) observed:

“Some schizophrenic reactions, which we call psychoses, maybe relatively mild and transient; others may not interfere tooseriously with many aspects of everyday living…. (p. 252)

GAre the characteristic remissions and relapses expressions ofendogenous processes, or are they responses to psychosocialvariables, or both? Some patients recover, apparently completely,when such recovery occurs without treatment we speak of spontaneous remission. The term need not imply an independentendogenous process; it is just as likely that the spontaneousremission is a response to non-deliberate but nonethelessfavourable psychosocial stimuli other than specific therapeuticactivity….” (p. 465)

(emphasis supplied)

18. In Controller of Defence Accounts (Pension) v. S.Balachandran Nair [(2005) 13 SCC 128 : 2006 SCC (L&S)734] on which reliance has been placed by the Tribunal, this Courtreferred to Regulations 173 and 423 of the Pension Regulationsand held that the definite opinion formed by the Medical Boardthat the disease suffered by the respondent was constitutionaland was not attributable to military service was binding and theHigh Court was not justified in directing payment of disabilitypension to the respondent. The same view was reiterated inMinistry of Defence v. A.V. Damodaran [(2009) 9 SCC 140:(2009) 2 SCC (L&S) 586]. However, in neither of those cases,this Court was called upon to consider a situation where the MedicalBoard had entirely relied upon an inchoate opinion expressed bythe psychiatrist and no effort was made to consider theimprovement made in the degree of illness after the treatment.

19. As a corollary to the above discussion, we hold that the impugnedorder as also the orders dated 14-7-2011 and 16-9-2011 passedby the Tribunal are legally unsustainable. In the result, the appealis allowed. The orders passed by the Tribunal are set aside andthe respondents are directed to refer the case to the ReviewMedical Board for reassessing the medical condition of theappellant and find out whether at the time of discharge from servicehe was suffering from a disease which made him unfit to continuein service and whether he would be entitled to disability pension.”

13. In the aforesaid case, the Court referred the matter to theReview Medical Board in view of the fact that Psychiatrist has notedthat the appellant has improved with treatment. The Court referred toMerriam Webster Dictionary;Report of National Institute of MentalHealth, USA; Modi’s Medical Jurisprudence and Toxicology; andthe booktitled ‘The Theory and Practice of Psychiatry’ authored byF.C. Redlich and Daniel X. Freedman, to hold that the observations made A

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Aby Psychiatrist was substantially incompatible with the existing literatureon the subject.

14. However, in the present case, we find that there is no suchinfirmity in the report of the Medical Board which may warrantreconsideration of the physical condition and the extent of disability byBthe Review Medical Board.

15. We find that it is not mechanical application of the principlethat any disorder not mentioned at the time of enrolment is presumed tobe attributed to or aggravated by military service. The question is as towhether the person was posted in harsh and adverse conditions whichCled to mental imbalance.

16. Annexure I to Chapter IV of the Guide to Medical Officers(Military Pensions), 2002 — “Entitlement: General Principles” pointsout that certain diseases which may be undetectable by physicalexamination on enrolment including the Mental Disorders; Epilepsy andDRelapsing forms of mental disorders which have intervals of normality,unless adequate history is given at the time by the member. TheEntitlement Rules itself provide that certain diseases ordinarily escapedetection including Epilepsy and Mental Disorder, therefore, we are unableto agree that mere fact that Schizophrenia, a mental disorder was notnoticed at the time of enrolment will lead to presumption that the diseaseEwas aggravated or attributable to military service.

17. The 1982 Rules classify the diseases which are affected byclimatic conditions, stress and strain and dietary complications. The stressand strain cause the following injuries as per the said classification ofdiseases:F

“ (a) Psychosis and psychoneurosis.

(b) Bronchial Asthma.

(c) Myocardial infarction, and other forms of IHD.

(d) Peptic ulcer.”

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18. Therefore, each case has to be examined whether the dutiesassigned to the individual may have led to stress and strain leading toPsychosis and psychoneurosis. Relapsing forms of mental disorders whichhave intervals of normality and Epilepsy are undetectable diseases whilecarrying out physical examination on enrolment, unless adequate historyHis given at the time by the member.

19. The appellant was a young boy of 18 years at the time ofenrolment and had been boarded within 3½ years of his service. Even ifhe was suffering from any mental disorder prior to enrolment, the samecould not be detected as there were intervals of normality. The appellantwas posted in peace station as a Vehicle Mechanic. Neither the natureof job nor the place of posting was such which could have caused stressand strain leading to disability as attributed to or aggravated by militaryservice.

20. In the present case, clause 14(d), as amended in the year1996 and reproduced above, would be applicable as entitlement todisability pension shall not be considered unless it is clearly establishedthat the cause of such disease was adversely affected due to factorsrelated to conditions of military service. Though, the provision of grantof disability pension is a beneficial provision but, mental disorder at thetime of recruitment cannot normally be detected when a person behavesnormally. Since there is a possibility of non-detection of mental disorder,therefore, it cannot be said that Schizophrenia is presumed to be attributedto or aggravated by military service.

21. Though, the opinion of the Medical Board is subject to judicialreview but the Courts are not possessed of expertise to dispute suchreport unless there is strong medical evidence on record to dispute theopinion of the Medical Board which may warrant the constitution of theReview Medical Board. The invaliding Medical Board has categoricallyheld that the appellant is not fit for further service and there is no materialon record to doubt the correctness of the Report of the invaliding MedicalBoard.

22. Thus, we do not find any merit in the present appeal,accordingly, the same is dismissed.

Devika Gujral

Appeal dismissed.

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