REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7672 OF 2019 (DIARY NO. 27850 OF 2017)

NO. 14666828M EX CFN NARSINGH YADAV .....APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1) The challenge in the present appeal is to an order passed by the

Armed Forces Tribunal, Lucknow1 on September 23, 2011 whereby,

the claim 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

suffering from Schizophrenia, which disability was assessed at 20%

for  a  period  of  five  years.   The  opinion  of  the  Board  was  that

disability  was neither  attributable  to  nor  aggravated by military

service and consequently, the appellant was discharged from army

service on May 8, 2007.  The claim of the appellant for disability

1  for short, ‘Tribunal’

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pension was rejected departmentally and later by the Tribunal and

still aggrieved, the appellant is before this Court.

3) The appellant was appointed as CFN - Craftsman (Military Rank).  In

Annexure RP1 which includes the signed Personal Statement of the

appellant, he was posted at 3 EME Centre, Bhopal from December

2, 2003 to August 23, 2005 and thereafter at AD Static Workshop

from August 24, 2005 till  the time, he was produced before the

invaliding  Medical  Board.   Both  the  places  of  posting  of  the

appellant  were  the  peace  stations.   In  respect  of  disease,  the

appellant declared that  he was treated,  firstly,  at  INHS,  Nivarini

Chilka on September 7 and 8, 2006, then, at Command Hospital,

Kolkata  from  September  9,  2006  to  December  23,  2006.

Thereafter,  he  was  treated  at  Military  Hospital,  Allahabad  from

January 21, 2007 to February 21, 2007 and finally, at Command

Hospital,  Kolkata  from February  23,  2007  till  the  time,  he  was

examined by the invaliding Medical Board.  In Part I of the Personal

Statement,  the  Question  asked  was  to  “Give  details  of  any

incidents during your service which you think caused or made your

disability worse”. The answer given by the appellant was ‘NIL’.  In

Part II of the Report, the Commanding Officer answered ‘No’ to the

question – “Did the Duties involve Severe/exceptional stress and

strain?”   

4) The  summary  and  opinion  of  the  Specialist  in  Psychiatry  of

Command  Hospital  (Eastern  Command),  Kolkata  dated  April  10,

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2007 read as under:

“Summary

Period of Hospitalization: Sec Hospital, Gopalpur 07 Sep 06 to 07 Sep 06 INHS Kaiyani, Vizag 07 Sep 06 to 15 Sep 06 CH (EC), Kolkata 16 Sep 06 to 23 Dec 06 Sick Leave 24 Dec 06 to 21 Jan 07 MH Allahabad 21 Jan 07 to 22 Feb 07 CH (EC), Kolkata 23 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  and headache  on  06  Sep  06  following  which  he  was noted to be behaving abnormally.

History of Present Illness:

Individual  was  brought  to  psychiatric  attention  in mid Sep at the behest of unit authorities as he was talking  irrelevantly,  laughing  and  crying  for  no apparent  reason,  in  the  background  of  febrile episode.  Apparently functioning well  until  Sep 06 when he was noted to be aloof, lacked interest in his work, not taking self care nor reporting for duty in  time.   Found to be wandering aimlessly in  the unit.  Felt that others were planning to harm him; could hear them talking about him.  Further when onboard  the  train  to  Vizag  felt  he  was  being followed and things happening around him was in reference  to  him.   When  offered  fruits  by  co- passenger felt it had a special meaning often noted to be taking irrelevantly, crying for his mother who had  died  about  12  years  back.   Felt  that  others came  to  know  what  he  was  thinking.   Become violent  when  others  tried  to  stop  him  or  gave instructions to follow.”

“Opinion  

21½ years old EME/Veh Mech with nearly 3½ years service,  no  past  or  family  h/o  psychiatric  illness. Had a psychotic breakdown of schizophrenic nature in Sep 06 Managed as a case of Schizophrenia F 20

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and  treated  with  antipsychotics,  ECT  and  other supportive measures.  Poor response to treatment. Presently asymptomatic, residual negative features persist.

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

5) The  Medical  Board  concluded  that  the  disability  is  neither

attributed  to  army  service  nor  aggravated  by  military  service

though  it  assessed  the  disability  at  20%  for  five  years.   Such

opinion of the Medical Board 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 CFN NS Yadav of  AD State Wk Sp C/o 99 APO to a case of SCHIZOPHRENIA F. 20.0.   

2.  Individual is found fit for civil job.

Date: 20 Apr. 2007 Lt. 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.

2  (2017) 4 SCC 697 3  (2013) 7 SCC 316

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Rajbir Singh4 to contend that since no note was given at the time

of  enrolment  of  the  said  disease  in  the  Army,  therefore,  such

disability is to be attributed to military service.   

7) In Laxmanram Poonia, there was a positive finding that appellant

was  overburdened  with  work  due  to  scarcity  of  staff  and  he

suffered hypertension resulting in lack of sleep and hunger due to

continuous restless duty hours for several days.  This Court allowed

the appeal of the appellant and granted disability pension.   

8) In  Dharamvir  Singh,  the  appellant  was  sepoy  in  the  Corps  of

Signals of the Indian Army and was  boarded out of service after

nine years of service when he was suffering from  schizophrenia.

This Court relied upon Guide to Medical Officers (Military Pension),

1980 and the Entitlement Rules for Casualty Pensionary Awards,

19825 to hold that since no note was given at the time of enrolment

of the person, therefore, such disease is presumed to be attributed

to or aggravated by military service.  The Guide to Medical Officers

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

mentioned following diseases in para 27 of the judgment,  which

ordinarily escape detection at the time of 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,

4  (2015) 12 SCC 264 5  for short, ‘1982 Rules’

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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.”  

(Emphasis Supplied)

9) This  Court  also extracted the relevant  provisions from the 1982

Rules in the order, which read 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.

(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.

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

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

(a) 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  courses  of  the  disease  will  fall  for acceptance on the basis of aggravation.

(b)  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 military service.  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.

(c)  If  a  disease  is  accepted  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.”

10) The Rule 14, as reproduced above, was amended vide Government

of India, Ministry of Defence letter No. 1(1)/81/D(Pen-C) dated 20th

June, 1996. The amended Clauses read as follows:

"Rule  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

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time of enrolment could not have 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  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."

11) In Rajbir Singh, this Court held that the respondents having been

discharged from service on account of medical disease/disability,

the disability must be presumed to have been arisen in the course

of service which must, in the absence of any reason recorded by

the Medical Board, be presumed to have been attributable to or

aggravated by military service.  There is initial  presumption that

the respondents were all physically fit and free from any disease

and in sound physical  and mental  condition at the time of their

entry into service.  The Court held as under:

“9.  As regards diseases Rule 14 of the Entitlement Rules stipulates that in the case of a disease which has led to an individual's  discharge or death,  the disease shall be deemed to have arisen in service, if no note of it was made at the time of individual's acceptance  for  military  service,  subject  to  the

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condition that 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  same  will  not  be deemed to have so arisen”. ……  

xx xx  xx

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 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.

xx xx  xx

16.  Applying the above parameters to the cases at hand,  we  are  of  the  view  that  each  one  of  the respondents  having been discharged from service on  account  of  medical  disease/disability,  the disability must be presumed to have been arisen in the course of service which must, in the absence of any  reason  recorded  by  the  Medical  Board,  be presumed  to  have  been  attributable  to  or aggravated by military service. There is admittedly neither  any  note  in  the  service  records  of  the respondents at the time of their entry into service nor have any reasons been recorded by the Medical Board  to  suggest  that  the  disease  which  the member concerned was found to be suffering from could  not  have  been detected  at  the  time of  his entry into service. The initial presumption that the respondents were all physically fit and free from any

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

12) A three Judge Bench of this Court in Veer Pal Singh v. Secretary,

Ministry of Defence6 rejected the opinion of invaliding Medical

Board but  directed the respondents to refer  the case to Review

Medical Board to reassess the medical condition of the appellant

and to find out whether at the time of discharge from service, he

was suffering from disease which made him unfit to continue in

service.  In the said case, the appellant was appointed in the year

1972 and was discharged in view of the opinion of the invaliding

Medical  Board  dated  November  14,  1977.   The  appellant  has

prayed  for  constitution  of  a  fresh  Medical  Board  to  assess  his

disease and disability in a writ petition filed before the Allahabad

High Court.  This Court held as under:

“10.   Although, the courts  are  extremely loath to interfere  with the opinion of  the experts,  there is nothing  like  exclusion  of  judicial  review  of  the decision taken on the basis of such opinion. What needs to be emphasised is that the opinion of the experts deserves respect and not worship and the courts  and  other  judicial/quasi-judicial  forums entrusted  with  the  task  of  deciding  the  disputes relating  to  premature  release/discharge  from  the army  cannot,  in  each  and  every  case,  refuse  to examine  the  record  of  the  Medical  Board  for determining whether or not the conclusion reached by it is legally sustainable.

xx xx xx

6  (2013) 8 SCC 83

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

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

Are the characteristic remissions and relapses expressions of endogenous processes, or are they responses to psychosocial variables, or both? Some  patients  recover,  apparently completely,  when  such  recovery  occurs without treatment we speak of spontaneous remission.  The  term  need  not  imply  an independent endogenous process; it is just as likely  that  the  spontaneous  remission  is  a response  to  non-deliberate  but  nonetheless favourable  psychosocial  stimuli  other  than specific therapeutic activity….” (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 Court referred to Regulations 173 and 423 of the Pension Regulations and held  that  the  definite  opinion  formed by  the Medical  Board  that  the  disease  suffered  by  the respondent  was  constitutional  and  was  not attributable to military service was binding and the High Court was not justified in directing payment of disability pension to the respondent. The same view was  reiterated  in Ministry  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 Medical Board had entirely relied upon an inchoate opinion expressed by the psychiatrist and no effort was made to consider the improvement made in the degree of illness after the treatment.

19.  As a corollary to the above discussion, we hold that the impugned order as also the orders dated 14-7-2011  and  16-9-2011  passed  by  the  Tribunal

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are legally unsustainable. In the result, the appeal is allowed. The orders passed by the Tribunal are set aside and the respondents are directed to refer the case to the Review Medical  Board for reassessing the medical condition of the appellant and find out whether at  the time of discharge from service he was suffering from a disease which made him unfit to  continue  in  service  and  whether  he  would  be entitled to disability pension.”

13) In the aforesaid case, the Court referred the matter to the Review

Medical Board in view of the fact that  Psychiatrist has noted that

the appellant has improved with treatment.  The Court referred to

Merriam Webster Dictionary; Report of National Institute of Mental

Health, USA; Modi's Medical Jurisprudence and Toxicology; and the

book titled ‘The Theory and Practice of Psychiatry’ authored by F.C.

Redlich  and  Daniel  X.  Freedman,  to  hold  that  the  observations

made  by  Psychiatrist  was  substantially  incompatible  with  the

existing literature on the subject.   

14) However, in the present case, we find that there is no such infirmity

in  the  report  of  the  Medical  Board  which  may  warrant

reconsideration  of  the  physical  condition  and  the  extent  of

disability by the Review Medical Board.

15) We find that it is not mechanical application of the principle that

any disorder not mentioned at the time of enrolment is presumed

to be attributed to or aggravated by military service.  The question

is  as  to  whether  the  person  was  posted  in  harsh  and  adverse

conditions which led to mental imbalance.   

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16) Annexure I to Chapter IV of the Guide to Medical Officers (Military

Pensions), 2002 — “Entitlement: General Principles” points out that

certain  diseases  which  may  be  undetectable  by  physical

examination on enrolment including the Mental Disorders; Epilepsy

and Relapsing forms of mental disorders which have intervals of

normality,  unless  adequate  history  is  given  at  the  time  by  the

member.  The Entitlement Rules itself provide that certain diseases

ordinarily escape detection including Epilepsy and Mental Disorder,

therefore,  we  are  unable  to  agree  that  mere  fact  that

Schizophrenia, a mental disorder was not noticed at the time of

enrolment  will  lead  to  presumption  that  the  disease  was

aggravated or attributable to military service.  

17) The 1982 Rules classify the diseases which are affected by climatic

conditions, stress and strain and dietary complications. The stress

and strain cause the following injuries as per the said classification

of diseases:

“(a)   Psychosis and psychoneurosis.

(b)  Bronchial Asthma.

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

(d) Peptic ulcer.”

18) Therefore,  each  case  has  to  be  examined  whether  the  duties

assigned to the individual may have led to stress and strain leading

to  Psychosis  and  psychoneurosis.   Relapsing  forms  of  mental

disorders  which  have  intervals  of  normality  and  Epilepsy  are

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undetectable diseases while carrying out physical examination on

enrolment,  unless  adequate  history  is  given  at  the  time by  the

member.

19) The  appellant  was  a  young  boy  of  18  years  at  the  time  of

enrolment and had been boarded within 3½ years of his service.

Even  if  he  was  suffering  from  any  mental  disorder  prior  to

enrolment, the same could not be detected as there were intervals

of  normality.   The  appellant  was  posted  in  peace  station  as  a

Vehicle  Mechanic.   Neither  the  nature  of  job  nor  the  place  of

posting  was  such  which  could  have  caused  stress  and  strain

leading  to  disability  as  attributed  to  or  aggravated  by  military

service.   

20) In the present case, clause 14(d), as amended in the year 1996 and

reproduced above, would be applicable as entitlement to disability

pension shall not be considered unless it is clearly established that

the cause of such disease was adversely affected due to factors

related to conditions of military service.  Though, the provision of

grant  of  disability  pension  is  a  beneficial  provision  but,  mental

disorder at the time of recruitment cannot normally be detected

when a person behaves normally.  Since there is a possibility of

non-detection of mental disorder, therefore, it cannot be said that

Schizophrenia is  presumed to be attributed to or aggravated by

military service.   

21) Though,  the  opinion  of  the  Medical  Board  is  subject  to  judicial

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review but the Courts are not possessed of expertise to dispute

such report unless there is strong medical evidence on record to

dispute the opinion of the Medical Board which may warrant the

constitution of the Review Medical Board.  The invaliding Medical

Board has categorically held that the appellant is not fit for further

service and there is no material on record to doubt the correctness

of the Report of the invaliding Medical Board.

22) Thus, we do not find any merit in the present appeal, accordingly,

the same is dismissed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; OCTOBER 03, 2019.

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