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CIVIL APPEAL NO.2633 OF 2017

REPORTABLE      IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2633 OF 2017             EX. GNR. LAXMANRAM POONIA (DEAD)  THROUGH LRS.                     ….Appellant   

                                                Versus

UNION OF INDIA AND ORS.                                         …Respondents

J U D G M E N T

R. BANUMATHI J.  

This appeal arises out of the order dated 21.03.2014 passed by

the Armed Forces Tribunal, Regional Bench, Jaipur, Rajasthan in O.A.

No. 200 of 2010, thereby declining award of disability pension to the

appellant.   The Tribunal  vide  order dated 23.02.2016 also dismissed

M.A. No. 390 of  2015 filed by the appellant  seeking leave to appeal

under Section 31 of the Armed Forces Tribunal Act.   

2. The facts relevant for disposal of this appeal are as follows:- The

appellant  was enrolled in the Indian Army on 14.09.2005.   His basic

military training was convened at Army Air Defence Centre Nasik Road

Camp, commencing from 16.09.2005 and after completion of training,

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he was posted at 27 AD Regiment for further service. It is the case of

the appellant that on the eve of Diwali Festival in November, 2007, he

was overburdened with work due to scarcity of staff.   Due to continuous

restless duty hours for several days, he suffered hypertension resulting

in lack of sleep and hunger.   Ultimately, he requested the Commanding

Officer of his Unit to sanction him leave considering his critical condition.

However, instead of granting leave, the Commanding Officer got  him

admitted  in  174  Military  Hospital  on  11.11.2007,  acknowledging  the

critical condition of the appellant.   The Doctor diagnosed the appellant

to be suffering from acute schizophrenia like psychotic disorder. The

appellant  was  discharged  from 174  Military  Hospital  on  14.03.2008.

Thereafter, he was shifted to Military Hospital  Chandimandir  and was

admitted  to  psychiatric  ward  on  28.08.2008.  He  was  subjected  to  a

Military Board held at 174 Military Hospital for his recategorisation.  After

some time, he was granted sick leave for a few days.  However, he was

again admitted to 174 Military Hospital  on 15.02.2009, and was also

subjected to a Medical Board and thereafter, he was discharged from

the hospital and was sent to his Unit.

3. As per the appellant, he was again entrusted with hard duty on

02.05.2009 and was also compelled to work at night hours, because of

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which the disease so detected again aggravated.    Ultimately, he had to

be admitted to Command Hospital  Chandimandir on 05.05.2009, from

where he got discharged on 12.06.2009.  He was again admitted to

Command Hospital  Chandimandir on 10.07.2009, from where he was

discharged on 06.10.2009.  He was brought before a duly constituted

Invaliding  Medical  Board  on  09.09.2009  to  assess  the  cause  and

degree of disablement.  The Invaliding Medical Board opined that he

was  suffering  from ‘acute  Schizophrenia  like  psychotic  disorder’.

Medical Board further opined that the disability being constitutional in

nature  is  not  connected  with  Military  Service.  His  disability  was

assessed at 60% for life but was viewed as neither attributable to nor

aggravated  by  Military  Service.   Ultimately,  he  was  invalided  out  of

service with effect  from 07.10.2009 under Rule 13(3)(iii)  of  the Army

Rules, 1954.   His claim for grant of disability pension was forwarded to

the Principal Controller of Defence Accounts (Pension) Allahabad, which

was  rejected  vide  order  dated  02.07.2010  on  the  ground  that  the

disability  suffered  by  the  applicant  is  neither  attributable  to  nor

aggravated by Military Service.

4. The appellant challenged the order dated 02.07.2010 by filing an

application before the Tribunal seeking disability pension. The Tribunal

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dismissed the application filed by the appellant holding that the disability

being ‘constitutional’ in nature is not connected with Military Service.

His disability was assessed at 60% for life; but was viewed as neither

attributable  to  nor  aggravated  by  Military  Service.  The  Tribunal

specifically held that though the Invaliding Medical Board categorically

opined  that  he  was  suffering  from  ‘Acute  Schizophrenia  like

psychotic disorder’, the disability of the applicant being constitutional

in nature cannot be considered to be connected with Military Service.

Thus, holding that there was no casual connection between disablement

and the Military Service for attributability or aggravation to be conceded,

the Tribunal dismissed the application.

5.  The Appellant  Laxman Ram Poonia expired on 01.06.2015 at

Maulsar.  The  wife  of  the  appellant  filed  application  being  M.A.  No.

390/2015 under Section 31 of Armed Forces Tribunal Act, 2007 before

the Tribunal seeking leave to file appeal before this Court against the

final order dated 21.03.2014 passed by Armed Forces Tribunal in O.A.

No. 200/2010 and the same was dismissed by the Tribunal  vide order

dated 23.02.2016.  Challenging the order passed by the Tribunal, wife of

Laxman Ram Poonia has filed the present Civil Appeal under Section 30

of the Armed Forces Tribunal Act, 2007.  

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6. Learned counsel for the appellant submitted that the Tribunal was

not justified in dismissing the application filed by the appellant ignoring

the settled position of law that if the disability for which a personnel was

invalided out of service was not there at the time of recruitment, as per

the  decision  in  Dharamvir  Singh  v.  Union  of  India  and  Ors.

(2013) 7 SCC 316, then it must be presumed that the disability occurred

due to Military Service. The counsel contended that relying solely on the

opinion of Medical Board, it could not have been said that the disability

was  neither  attributable  to  nor  aggravated  by  the  Military  Service.

Drawing our attention to Rule 14 of the Entitlement Rules for Casualty

Pensionary  Awards,  1982,  the  appellant  contended that  the  Tribunal

ought to have held that Laxman Ram Poonia developed Schizophrenia

due to Military Service and the conditions for awarding disability pension

are satisfied and Tribunal should have awarded the disability pension.

7.  Learned Additional Solicitor General contended that the opinion

of the Medical Board that the disease is held neither attributable to nor

aggravated by Military Service is unimpeachable so far, and thus, the

appellant was rightly denied disability pension.  It was further contended

that  psychiatric  disorder  of  the  person  cannot  be  detected  by  the

Medical Board conducting medical examination at the time of enrollment

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in service, in the absence of previous history or overt manifestation and

it was on the appellant to specifically prove that he was not suffering

from ‘Acute Schizophrenia like psychotic disorder’ at the time of his

enrollment,  which  he  failed  to  so.  The  Additional  Solicitor  General

contended  that  application  filed  by  the  appellant  seeking  disability

pension was rightly dismissed by the Tribunal and no reason warranting

interference.

8.  We have heard the parties before us and have also perused the

impugned order and materials available on record.

9. When  the  appellant  was  enrolled  in  the  Indian  Army  on

14.09.2005,  nothing was  recorded in  his  service  record  that  he was

suffering  from any  disease  or  disability.   Likewise,  during  the  entire

period of  training and while he was performing his service at  27 AD

Regiment  till  2007,  there was no sign of  any abnormal  behaviour or

disability.   For the first time, in or about 2007, the appellant is alleged to

have shown his agitated behaviour.  It is the case of the respondent that

on  the  expiry  of  his  sick  leave  on  11.12.2008,  the  appellant  was

admitted  to  Command  Hospital  (Western  Command)  Chandimandir

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where he was downgraded to medical category S3(T-24) H1A1P1E1 for

six  months  with  effect  from  13.03.2008.   The  appellant  was  again

admitted to the Military Hospital on 10.02.2009 for review of his medical

category where his medical categorization was upgraded to S2 (T-24)

HIAIPIEI  with  effect  from  11.02.2009  and  was  discharged  from  the

hospital  on  18.02.2009.   The  appellant  was  again  admitted  to  the

Command  Hospital  Chandimandir on  05.05.2009  and  he  was  finally

discharged from the service  on 26.06.2009.   Considering  appellant’s

disability  and  percentage  of  disability,  as  assessed  by  the  Medical

Board,  the  respondents  found  it  apposite  to  invalidate  appellant’s

service under the provisions of Rule 13(3)(iii) of the Army Rules, 1954.

10. The point falling for consideration is whether the  schizophrenia

like  psychotic  disorder  disability of  the  appellant  Laxman  Ram

Poonia  was  attributable  or  aggravated  due  to  Military  Service  and

whether the appellant is entitled to disability pension.

11. Regulation  173  of  Pension  Regulations  for  the  Army,  1961

specifically deals with the primary conditions for the grant of disability

pension. It reads as under:-

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“173. Primary conditions for the grant of disability pension.— Unless  otherwise  specifically  provided  a  disability  pension consisting of service element and disability element may be granted to an individual  who is  invalided out  of  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  to  or  aggravated  by military service shall be determined under the rule in Appendix II.”

By a bare perusal of the aforesaid Regulation, it is clear that disability

pension in normal course is granted to an individual: (i) who is invalided

out  of  service  on  account  of  a  disability  which  is  attributable  to  or

aggravated by Military Service, and (ii) who is assessed at 20% or over

disability, unless specifically provided otherwise.

12. A disability “attributable to or aggravated by military service” is

determined  as  per  the  Entitlement  Rules  for  Casualty  Pensionary

Awards, 1982, as shown in Appendix II.   Rule 5 of the said Rules relates

to approach to be adopted while considering the question of entitlement

to  casualty  pension  award.  It  lays  down certain  presumptions  to  be

made while evaluating the disabilities.  Rule 5 reads as under:-

“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.

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(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.”

From Rule 5 we find that a general presumption is to be drawn that 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.  If  a person is  discharged from

service on medical  ground for  deterioration  in  his  health  it  is  to  be

presumed that the deterioration in the health has taken place due to

service.

13. Other relevant provisions for our purposes are Rules 14(a), 14(b),

14(c)  and  14(d)  of  Entitlement  Rules  for  Casualty  Pensionary

Awards,  1982  as  amended  vide Government  of  India,  Ministry  of

Defence  Letter  No.1(1)/81/D(Pen-C)  dated 20-6-1996,  and  the  same

read as follows:-

Diseases:

14. (a) For acceptance of a disease as attributable to military service, the following two conditions must be satisfied simultaneously:

(i) That the disease has arisen during the period of military service, and

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

(b) If  medical  authority  holds,  for  reasons to  be stated,  that  the disease although present at the time of enrolment could not have

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been  detected  on  medical  examination  prior  to  acceptance  for service,  the  disease,  will  not  be  deemed  to  have  arisen  during service. In case where it is established that the military service did not contribute to the onset or adversely affect the course (sic of the) disease,  entitlement  for  casualty  pensionary  award  will  not  be conceded even if the disease has arisen during service.

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

(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.”

14. After  referring to the above amended Rules 14(a),  14(b),  14(c)

and 14(d) of Entitlement Rules for Casualty Pensionary Awards, 1982, in

Dharamvir Singh v. Union of India and Ors. (2013) 7 SCC 316, this Court

clarified the law on the point in the following words:-

“21.1. As per Rule 14(a) we notice that for acceptance of a disease as attributable  to  military  service,  conditions  are  to  be  satisfied  that  the disease has been arisen during the military service, and caused by the conditions of employment in military service which is similar to Rule 14(c) of the printed version as relied on by the appellant. Rule 14(b) cited by the respondents is also similar to the published Rule 14.

21.2. Rule 14(c) cited by the respondents relates to the cases in which it is established  that  conditions  of  military  service  did  not  determine  or contribute  to  the  onset  of  the  disease  but,  influenced  the  subsequent course of the disease, will fall for acceptance on the basis of aggravation.

21.3. Rule 14(d) cited by the respondents relates to diseases which are detected after the individual has joined the service, which entails disability pension but it is to be established that the course of such disease was adversely  affected  due  to  factors  related  to  the  conditions  of  military service.

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22. If  the amended version of  Rule 14 as cited by the respondents is accepted to be the Rule applicable in the present case, even then the onus of proof shall lie on the respondent employers in terms of Rule 9 and not the claimant and in case of any reasonable doubt the benefit will go more liberally to the claimants.”

15. Further, referring to the  Pension Regulations for the Army, 1961

and  the  General  Rules  of  Guide  to  Medical  Officers  (Military

Pensions) 2002 and observing that whether deterioration of disability

was due to Military Service or not will vary according to the nature of

disease/disability, in paras (23) to (26) of  Dharamvir (supra), this Court

held as under:-

“23. The Rules to be followed by the Medical Board in disposal of special cases have been shown under Chapter VIII of the General Rules of Guide to  Medical  Officers  (Military  Pensions),  2002.  Rule  423  deals  with “Attributability to service” relevant portion of which reads as follows:

“423. (a) For the purpose of determining whether the cause of a disability or death resulting from disease is or is not attributable to service,  it  is  immaterial  whether  the  cause  giving  rise  to  the disability  or  death  occurred  in  an  area  declared  to  be  a  field service/active service area or under normal peace conditions. It is however, essential to establish whether the disability or death bore a causal connection with the service conditions. All evidence both direct and circumstantial will be taken into account and benefit of reasonable  doubt,  if  any,  will  be  given  to  the  individual.  The evidence to be accepted as reasonable doubt for the purpose of these instructions should be of a degree of cogency, which though not  reaching  certainty,  nevertheless  carries  a  high  degree  of probability.  In  this  connection,  it  will  be  remembered  that  proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his/her favour, which can be dismissed with  the  sentence  ‘of  course  it  is  possible  but  not  in  the  least probable’ the case is proved beyond reasonable doubt. If  on the other  hand,  the  evidence  be  so  evenly  balanced  as  to  render impracticable a determinate conclusion one way or the other, then the case would be one in which the benefit of the doubt could be

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given more  liberally  to  the  individual,  in  cases occurring  in  field service/active service areas.

* * * (c) The cause of a disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of  duty  in  the  Armed Forces  determined  and  contributed  to  the onset of the disease. Cases, in which it is established that service conditions  did  not  determine  or  contribute  to  the  onset  of  the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which has led to an individual’s discharge or death will  ordinarily be deemed to have arisen in service if no note of it was made at the time of the individual’s acceptance for service in the Armed Forces. However, if medical opinion holds, for reasons to be stated that the disease could  not  have  been  detected  on  medical  examination  prior  to acceptance for  service,  the disease will  not  be deemed to  have arisen during service.

(d) The  question,  whether  a  disability  or  death  resulting  from disease is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a Medical Board or by the medical  officer who signs the Death Certificate.  The Medical Board/Medical Officer will specify reasons for their/his opinion. The opinion of the Medical Board/Medical Officers, insofar as it relates to the actual cause of the disability or death and the circumstances in  which  it  originated  will  be  regarded  as  final.  The  question whether  the  cause  and  the  attendant  circumstances  can  be accepted as attributable to/aggravated by service for the purpose of pensionary  benefits  will,  however,  be  decided  by  the  pension sanctioning authority.”

24. Therefore, as per Rule 423 the following procedures are to be followed by the Medical Board:

24.1. Evidence both direct and circumstantial to be taken into account by the  Board  and  benefit  of  reasonable  doubt,  if  any  would  go  to  the individual;

24.2. A disease which has led to an individual’s discharge or death will ordinarily be treated to have been arisen in service, if no note of it was made at the time of the individual’s acceptance for service in the Armed Forces.

24.3. If the medical opinion holds that the disease could not have been detected on medical examination prior to acceptance for service and the

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disease will not be deemed to have been arisen during military service the Board is required to state the reason for the same.

25. Chapter II of the Guide to Medical Officers (Military Pensions), 2002 relates to “Entitlement:  General Principles”. In the opening Para 1, it  is made clear that the Medical Board should examine cases in the light of the etiology of the particular disease and after considering all the relevant particulars of a case, record their conclusions with reasons in support, in clear terms and in a language which the Pension Sanctioning Authority would be able to appreciate fully in determining the question of entitlement according to the Rules. Medical officers should comment on the evidence both  for  and  against  the  concession  of  entitlement;  the  aforesaid paragraph reads as follows:

“1.  Although  the  certificate  of  a  properly  constituted  medical authority vis-à-vis the invaliding disability, or death, forms the basis of compensation payable by the Government, the decision to admit or refuse entitlement is not solely a matter which can be determined finally  by  the  medical  authorities  alone.  It  may  require  also  the consideration of other circumstances e.g. service conditions, pre- and  post-service  history,  verification  of  wound  or  injury, corroboration of statements, collecting and weighing the value of evidence,  and  in  some  instances,  matters  of  military  law  and discipline.  Accordingly, Medical  Boards should  examine cases in the  light  of  the  etiology  of  the  particular  disease  and  after considering  all  the  relevant  particulars  of  a  case,  record  their conclusions  with  reasons  in  support,  in  clear  terms  and  in  a language  which  the  Pension  Sanctioning  Authority,  a  lay  body, would be able to  appreciate  fully  in  determining the  question of entitlement  according  to  the  Rules.  In  expressing  their  opinion Medical  Officers  should  comment  on  the  evidence  both  for  and against the concession of entitlement. In this connection, it  is as well to remember that a bare medical opinion without reasons in support will be of no value to the Pension Sanctioning Authority.”

26. Para 6 suggests the procedure to be followed by service authorities if there is no note, or adequate note, in the service records on which the claim is based.”

16. We  have  extensively  quoted  the  judgment  from  Dharamvir

Singh’s case as it  has referred and quoted almost all  the governing

regulations and rules like Pension Regulations for the Army, 1961, the

Entitlement Rules for Casualty Pensionary Awards, 1982 and General

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Rules  of  Guide  to  Medical  Officers  (Military  Pensions)  2002.  After

referring  to  the  above  Regulations  and  Rules  in Dharamvir  Singh

(supra) in para (29), this Court summarized the legal position as under:-  

“29. A conjoint reading of various provisions, reproduced above, makes it clear that:

29.1. Disability pension to be granted to an individual  who is invalided 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  to  or aggravated by  military  service  to  be  determined under  the  Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II (Regulation 173).

29.2. 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 read with Rule 14(b)].

29.3. The 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).

29.4. 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)].

29.5. 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 [Rule 14(b)].

29.6. 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 [Rule 14(b)]; and

29.7. It is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions), 2002 — “Entitlement: General Principles”, including Paras 7, 8 and 9 as referred to above (para 27).”

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17. The  law  laid  down  in  Dharamvir  (supra)  was  re-affirmed  in

Union of India and Anr. v. Rajbir Singh (2015) 12 SCC 264, where this

Court observed that the legal position laid down in  Dharamvir Singh’s

case is in tune with the Pension Regulations, the Entitlement Rules and

Guidelines issued to the Medical  Officers.  Relevant  excerpt  from the

said judgment is contained in paras (14) and (15), which read as under:-

“14. The legal position as stated in  Dharamvir Singh case (2013) 7 SCC 316 is,  in  our  opinion,  in  tune  with  the  Pension  Regulations,  the Entitlement Rules and the Guidelines issued to the Medical Officers. The essence of the rules, as seen earlier, is that a member of the armed forces is presumed to be in sound physical and mental condition at the time of his entry into service if there is no note or record to the contrary made at the time of such entry. More importantly, in the event of his subsequent discharge from service on medical ground, any deterioration in his health is presumed to be due to military service. This necessarily implies that no sooner  a  member  of  the  force  is  discharged  on  medical  ground  his entitlement  to  claim  disability  pension  will  arise  unless  of  course  the employer is in a position to rebut the presumption that the disability which he suffered was neither attributable to nor aggravated by military service.

15. From Rule 14(b) of the Entitlement Rules it is further clear that if the medical opinion were to hold that the disease suffered by the member of the armed forces could not have been detected prior to acceptance for service, the Medical Board must state the reasons for saying so. Last but not the least is the fact that the provision for payment of disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit  those who have been sent home with a disability at times even before they completed their tenure in the armed forces. There may indeed be cases, where the disease was wholly unrelated to military service, but, in order that denial of disability pension can be justified on that ground, it must be affirmatively proved that the disease had nothing to do with such service. The burden to establish such a disconnect would lie heavily upon the  employer  for  otherwise  the  rules  raise  a  presumption  that  the deterioration in the health of the member of the service is on account of military service or aggravated by it. A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same. The very fact that he was upon proper physical and other tests found fit to serve in the army should rise as indeed the

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rules do provide for a presumption that he was disease-free at the time of his entry into service. That presumption continues till it is proved by the employer that the disease was neither attributable to nor aggravated by military service. For the employer to say so, the least that is required is a statement  of  reasons  supporting  that  view.  That  we  feel  is  the  true essence of the rules which ought to be kept in view all  the time while dealing with cases of disability pension.”  

18. In  the  present  case,  as  per  the opinion  of  the  Medical  Board,

disability attending the appellant is acute schizophrenia like psychotic

disorder and assessed percentage of the disablement is 60% for life.

The Medical Board in its report dated 09.09.2009 has also opined that

the disability is neither attributable to nor aggravated by Military Service.

The relevant portion of Medical Board’s opinion is as under:-

“1.  Though the disablement has been mentioned in percentage in para 6 of  Part  V, this does not  mean eligibility  for  disability  pension since the Disability/Disabilities  is/are  neither  attributable  to  nor  aggravated  by service”

2.  Opinion of assessment by the Board is recommendatory in nature and is subject to acceptance by Pension Sanctioning Authority.

Or  1. Individual is not entitled for disability pension for the disability/disabilities since the same is/are not attributable to/aggravated by service.

2.  Opinion of assessment by the Board is recommendatory in nature and is subject to acceptance by Pension Sanctioning Authority.”

Notably, 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 or disability available in the service record of the appellant

at the time of entering Military Service.

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19. Learned  Additional  Solicitor  General  appearing  for

respondent-Union of India has submitted that when the Medical Board

recorded a specific finding that the disability was neither attributable to

nor aggravated by the Military Service,  the same must be given due

weight and credence.   In support of his contention, the learned counsel

placed reliance on dictum of this Court in  Union of India v. Ravinder

Kumar (2015) 12 SCC 291, wherein it was held as under:-

“4.  This  Court  recently  decided an identical  case in  Union of  India v. Jujhar Singh (2011) 7 SCC 735 and after reconsidering a large number of earlier judgments including Ministry of Defence v. A.V. Damodaran (2009) 9 SCC 140,  Union of India v. Baljit Singh (1996) 11 SCC 315   and  ESI Corpn. v. Francis De Costa (1996) 6 SCC 1, came to the conclusion that in view of  Regulation 179,  a  discharged person can be granted disability pension only if  the disability is attributable to or aggravated by Military Service  and  such  a  finding  has  been  recorded  by  Service  Medical Authorities. In case the Medical Authorities record the specific finding to the effect that disability was neither attributable to nor aggravated by the Military Service, the court should not ignore such a finding for the reason that Medical Board is specialised authority composed of expert medical doctors and it is a final authority to give opinion regarding attributability and  aggravation  of  the  disability  due  to  the  Military  Service  and  the conditions  of  service  resulting  in  the  disablement  of  the  individual.  A person claiming disability  pension must  be able to  show a  reasonable nexus  between  the  act,  omission  or  commission  resulting  in  an injury/ailment to the person and the normal expected standard of duties and  way  of  life  expected  from such  person.  [See  also  Govt.  of  India (Ministry of Defence) v. Ajit Singh (2009) 7 SCC 328.]”

20. There  is  no  gainsaying that  the  opinion  of  the  Medical  Board,

which is an expert body has to be given due weight and credence.  But

the opinion of the Medical Board cannot be read in isolation; it has to be

read in consonance with the Entitlement Rules for Casualty Pensionary

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Awards, 1982 and  General Rules of Guide to Medical Officers (Military

Pensions)  1982.   As per  Chapter  II  of  the Guide to Medical  Officers

(Military  Pensions),  2002,  which  relates  to  “Entitlement:  General

Principles”,  it  is  made clear  that  the  Medical  Board  should  examine

cases in the light of the etiology of the particular disease and only after

considering  all  the  relevant  particulars  of  a  case,  the  board  should

record  its  conclusions  with  reasons  so  as  to  enable  the  Pension

Sanctioning Authority to examine the question of entitlement of pension

as per Rules.

21. As referred to above, in Dharamvir Singh’s case, it was observed

that it is mandatory for the Medical Board to follow the guidelines laid

down in Chapter II of the  General Rules of Guide to Medical Officers

(Military  Pensions),  2002    “Entitlement:  General  Principles”,  relevant

extract in this behalf reads as under:-

“27. Para 7 talks of evidentiary value attached to the record of a member’s condition at the commencement of service e.g. pre-enrolment history of an injury, or disease like epilepsy, mental  disorder, etc.  Further, guidelines have been laid down at Paras 8 and 9, as quoted below:

“7.  Evidentiary  value  is  attached  to  the  record  of  a  member’s condition at the commencement of service, and such record has, therefore, to be accepted unless any different conclusion has been reached due to the inaccuracy of the record in a particular case or otherwise.  Accordingly,  if  the  disease  leading  to  member’s invalidation out of service or death while in service, was not noted in a medical report at the commencement of service, the inference would be that  the disease arose during the period  of  member’s

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Military Service. It may be that the inaccuracy or incompleteness of service record on entry in service was due to a non-disclosure of the essential facts by the member e.g. pre-enrolment history of an injury or disease like epilepsy, mental disorder, etc. It may also be that  owing  to  latency  or  obscurity  of  the  symptoms,  a  disability escaped  detection  on  enrolment.  Such  lack  of  recognition  may affect  the  medical  categorisation  of  the  member  on  enrolment and/or cause him to perform duties harmful to his condition. Again, there may occasionally be direct evidence of the contraction of a disability, otherwise than by service. In all such cases, though the disease cannot be considered to have been caused by service, the question of aggravation by subsequent service conditions will need examination.

The following are some of  the diseases which ordinarily  escape detection on enrolment:

(a) Certain congenital abnormalities which are latent and  only  discoverable  on  full  investigations  e.g. Congenital  Defect  of  Spine,  Spina  bifida, Sacralisation, (b)  Certain  familial  and  hereditary  diseases  e.g. Haemophilia,  Congential  Syphilis, Haemoglobinopathy. (c) Certain diseases of the heart and blood vessels e.g. Coronary Atherosclerosis, Rheumatic Fever. (d) Diseases which may be undetectable by physical examination on enrolment, unless adequate history is given  at  the  time  by  the  member  e.g.  Gastric  and Duodenal  Ulcers,  Epilepsy,  Mental  Disorders,  HIV Infections. (e) Relapsing forms of mental disorders which have intervals of normality. (f)  Diseases  which  have  periodic  attacks  e.g. Bronchial Asthma, Epilepsy, Csom, etc.

8. The question whether the invalidation or death of a member has resulted from service conditions, has to be judged in the light of the record of the member’s condition on enrolment as noted in service documents  and  of  all  other  available  evidence  both  direct  and indirect.

In addition to any documentary evidence relative to the member’s condition to entering the service and during service, the member must  be  carefully  and  closely  questioned  on  the  circumstances which  led  to  the  advent  of  his  disease,  the  duration,  the  family history, his pre-service history, etc. so that all evidence in support or

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against  the  claim  is  elucidated.  Presidents  of  Medical  Boards should  make  this  their  personal  responsibility  and  ensure  that opinions on attributability, aggravation or otherwise are supported by cogent reasons; the approving authority should also be satisfied that this question has been dealt with in such a way as to leave no reasonable doubt.

9.  On  the  question  whether  any  persisting  deterioration  has occurred, it is to be remembered that invalidation from service does not  necessarily  imply  that  the  member’s  health  has deteriorated during service. The disability may have been discovered soon after joining and the member discharged in his own interest in order to prevent deterioration. In such cases, there may even have been a temporary  worsening  during  service,  but  if  the  treatment  given before  discharge  was  on  grounds  of  expediency  to  prevent  a recurrence, no lasting damage was inflicted by service and there would be no ground for admitting entitlement. Again a member may have been invalided from service because he is  found so weak mentally that it is impossible to make him an efficient soldier. This would not mean that his condition has worsened during service, but only that it is worse than was realised on enrolment in the army. To sum  up,  in  each  case  the  question  whether  any  persisting deterioration on the available evidence which will vary according to the type of the disability, the consensus of medical opinion relating to the particular condition and the clinical history.”

22. In the present case, it  is undisputed that the appellant was not

suffering from any disease/disability at the time of entering into Military

Service.   It  was  on  the  respondent  to  show  that  the  appellant  was

suffering  from  schizophrenia  at  the  time  of  entering  into  service  by

producing any document viz. medical prescription etc.  In the absence

of any note in the service record in this regard at the time of joining the

Military Service, the Medical Board should have called for the service

records and looked into the same; but nothing is on record to suggest

that any such record was called for by the Medical Board to arrive at the

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conclusion  that  the  disability  was  not  due  to  Military  Service.   The

Medical Board simply stated that the disability is neither attributable to

nor  aggravated  by  Military  Service.   The  relevant  portion  reads  as

under:

“1. Though the disablement has been mentioned in percentage in para 6 of  Part  V, this does not  mean eligibility  for  disability  pension since the Disability/Disabilities  is/are  neither  attributable  to  nor  aggravated  by service”

2. Opinion of assessment by the Board is recommendatory in nature and is subject to acceptance by Pension Sanctioning Authority.”  

In the absence of any evidence on record to show that the appellant

was suffering from any such disease like  schizophrenia at the time of

entering into the Military Service, it will be presumed that the appellant

was in a sound mental condition at the time of entering into the Military

Service and the deterioration of health has taken place due to Military

Service.

23. Based on the above discussion, we hold that the Tribunal did not

examine the case at hand in the light of the Army Pension Regulations,

1961, the Entitlement Rules for Casualty Pensionary Awards, 1982 and

General  Rules of  Guide to  Medical  Officers  (Military  Pensions)  2002

and, therefore, the impugned order cannot be sustained.   Applying the

principles of  Dharamvir Singh’s case and Rajbir Singh’s case, it has to

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be  presumed  that  the  disability  of  the  appellant  bore  a  casual

connection with the service conditions.  The appellant was diagnosed to

be suffering from medical disability at 60% for life on 09.09.2009 and he

was discharged from service on 7.10.2009.  After invalidation from the

service,  the  appellant  passed  away  on  01.06.2015.  By  order  dated

13.02.2017 in I.A. No. 3/2016, the legal heirs have been ordered to be

substituted.  Hence wife of the appellant and other legal heirs shall be

entitled to disability pension as per the Rules.

24. In the result, the impugned order is set aside and the appeal is

allowed.  The respondents are directed to pay the disability pension to

the wife and other substituted legal heirs of Laxmanram Poonia as per

the Rules  and  the  same shall  be  complied  within  eight  weeks  from

today.  No costs.

     …….…………...………J. [DIPAK MISRA]

…………….……………J. [R. BANUMATHI]

New Delhi; February 22, 2017

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