SUKHVINDER SINGH Vs UNION OF INDIA .
Bench: VIKRAMAJIT SEN,SHIVA KIRTI SINGH
Case number: C.A. No.-005605-005605 / 2010
Diary number: 23873 / 2006
Advocates: R. C. KAUSHIK Vs
D. S. MAHRA
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 5605 OF 2010
SUKHVINDER SINGH .…..APPELLANT
Versus
UNION OF INDIA & ORS. …..RESPONDENT
O R D E R
1 This Appeal assails the Order passed by the Division Bench of
the High Court of Delhi at New Delhi dated March 30, 2006 whereby
WP(C) No.3923 of 2005 came to be dismissed. The prayer in the Writ
Petition, inter alia, was for the issuance of a writ directing the
respondents to release (a) disability pension in favour of the Petitioner
if disability is twenty per cent and above, (b) the service element of
pension in favour of the Petitioner and (c) to re-enrol the Petitioner if
his disability is found less than twenty per cent.
2 Succinctly stated, the facts germane for deciding the present
Appeal are that consequent to the Primary Medical Examination for
Recruitment having been conducted vis-a-vis the Appellant/Petitioner
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on 22nd December, 2000, he was enrolled in the Indian Army as a
Combatant Soldier on 15th March, 2001. It bears noting that Rule 5
of the Entitlement Rules for Casualty Pensionary Awards, 1982,
provides that (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.” Even though this provision postulates a ‘casualty’ we find
no logical reason not to extrapolate it to even simple injuries or
disabilities. Therefore, it would be fair to assume that on the date of
his recruitment the Appellant was in a sound health; no hearing
impairment had been detected at that stage, no adverse noting had
been made in the Medical Entry Form viz. AFMSF-2 for existence of
any disease at the time of enrolment. This was after the Appellant
had been examined physically and medically as contemplated by
Regulation 383 which reads thus:-
“383.Responsibility of Recruiting and Medical Officers Recruiting officers are responsible for the measurements, apparent age, intelligence and mental suitability of the candidates selected by him. Medical Officers are responsible for the health, physical fitness for service, likely extent of development and identification marks.”
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3 We are not a little surprised that although the Rules or
Regulations (Chapter VII of the Regulations for the Medical Services
of the Armed Forces, 1983) specifically postulate the formation of
Invalidation Medical Boards, they do not set out the medical
parameters justifying or requiring serviceman/officer to be removed
from service. This feature renders decisions taken by such Boards
pregnable to assaults on the grounds of capriciousness or arbitrariness,
and this is especially so where the extent of the disability is below
twenty per cent. Can the Authorities be permitted to portray that
whilst a person has so minor a disability as to disentitle him for
compensation, yet suffers from a disability that is major or serious
enough to snatch away his employment? This is especially so since
Regulation 132 ordains that the “minimum period of qualifying service
(without weightage) actually rendered and required for earning service
pension shall be 15 years.” Moreover, in the case in hand, it appears
that no efforts were undertaken by the Respondents to consider
whether the Appellant could continue in service in a lower medical
category.
4 According to the Appellant, on 5.8.2001 he was slapped on the
ear by the Instructor in the Training Centre as a consequence of which
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he suffered shooting pain in that ear and was admitted to the Military
Hospital, Kamptee. We have perused the Report of the Medical
Officer (ENT), dated 5.8.2001 which has been filed with the Appeal as
Annexure P-1. It contains a noting to the effect that the Appellant had
stated that he was hit on the ear by a fellow patient in the ward. The
diagnosis was that there was “Substandard hearing RT ear (old) c Tr
perforation LT TM.“ It seems to us that the discrepancy in the noting
as to the manner in which the injury was sustained was because it was
inconceivable for a young recruit to lodge a complaint against his
Instructor. Such a complaint would have had serious implications and
an Inquiry under Regulation 520 of the Regulations of the Army, 1987
would have had to be carried out.
5 On 16.2.2002, the Appellant was presented before the Medical
Board which recommended that the Appellant be invalided out of
service with disability of 6 per cent to 10 per cent on account of
hearing impairment. It will bear repetition that the exercise as to
whether the Appellant could be retained in service in some other
category was not even thought of or considered or undertaken, in the
face of the Pension Regulation for the Army, 1961, Part I, Appendix II
(4) and (9) which postulates that “the claimant shall not be called upon
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to prove the conditions of entitlement. He/she shall receive the benefit
of any reasonable doubt. This benefit shall be given more liberally to
the claimants in field/afloat service cases.” In its letter dated 18th
October, 2004 the respondents have recorded that the Invaliding
Medical Board (IMB) had considered the Appellant’s Invalided
Disability (ID) and had concluded it to be:-
(i) as neither attributable nor aggravated by Military Service; and
(ii) as assessed the degree of disablement of the said disease at 6 to 10 per cent, permanently for life.
Inexplicably, but very significantly, it has also been recorded that the
above disability had existed before entering service, but had remained
undetected by the recruiting Medical Officer. It has further been
conveyed to the Appellant by the said letter that as per Regulation 173
of the Pension Regulations for the Army 1961, Part-I, disability
pension is granted to an individual on his invalidment from service
only when his disability is viewed as attributable or aggravated by
Military Service and is assessed at 20 per cent or above by the
competent Medical Authority, and since neither of these two factors
was present, the Appellant was not entitled to grant of disability
pension in terms of the said Regulation. The said Regulation is
reproduced below for ease of reference:-
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“173. 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. 173-A. Individuals who are placed in a lower medical category (other than ‘E’) permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who are unwilling to accept the alternative employment or who having retained in alternative employment are discharged before completion of their engagement, shall be deemed to have been invalided from service for the purpose of the entitlement rules laid down in Appendix II to these Regulations.
Note: The above provision shall also apply to individuals who are placed in a low medical category while on extended service and discharged on the account before the completion of the period of their extension.
The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II.”
6 We think that it is beyond cavil that a combatant soldier is liable
to be invalided out of service only if his disability is 20 per cent or
above and there is a further finding that he cannot discharge duties
even after being placed in a lower medical category. We are indeed
satisfied to note that Rule 173 Appendix-II (10) postulates and permits
preferment of claims even “where a disease did not actually lead to the
member’s discharge from service but arose within ten years
thereafter.” We, just as every other citizen of India, would be
extremely disturbed if the Authorities are perceived as being
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impervious or unsympathetic towards members of the Armed Forces
who have suffered disabilities, without receiving any form of
recompense or source of sustenance, since these are inextricably
germane to their source of livelihood. Learned Counsel for the
respondents has failed to disclose any provision empowering the
invaliding out of service of any person whose disability is below 20 per
cent. Indeed, this would tantamount to dismissal of a member of the
Armed Forces without recourse to a court-martial which would
automatically entitle him to reinstatement. Regulation 143 envisages
the ‘Re-Enrolment of Ex-Servicemen Medically Boarded Out’, where
the disability is reassessed to be below 20 per cent. It is, therefore,
self contradictory to contend that the invaliding out of service of the
Appellant was justified despite his disability being of trivial
proportions having been adjudged between 6 to 10 per cent only. We
shall presume, albeit fortuitously for the Respondents, that re-
assessment of the Appellant’s disability was not required to be
performed because it was found to be permanent. Otherwise, there
would be a facial non-compliance with Regulation 143, which is
extracted below for ease of reference:-
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“143.Re-Enrolment of Ex-Servicemen Medically Boarded Out._(a)Ex-Servicemen, who are in receipt of disability pension, will not be accepted for re-enrolment in the Army.
(b)Ex-Servicemen, medically boarded out without any disability pension or those whose disability pensions have been stopped because of their disability having been re-assessed below 20% by the Re-Survey Boards, will be eligible for re-enrolment, either in combatant or non-combatant (enrolled) capacity in the Army, provided they are re-medically boarded and declared fit by the medical authorities. If such an ex-serviceman applies for re- enrolment and claims that he is entirely free from the disability for which invalided, he will be medically examined by the Rtg MO and if he considers him fit, the applicant will be advised to apply to officer-in-charge, Records Office concerned, through the recruiting officer for getting himself re-medically boarded. The officer-in-charge, Records Office concerned, on receipt of the application, will arrange for his medical examination at a Military Hospital nearest to his place of residence. The individual concerned will have to pay all his expenses, including that on accommodation and journey to and from the place of medical examination.
If the individual is found fit and re-enrolled on regular engagement, he will be enlisted for the full period of combined colour and reserve service, subject to the following conditions:-
(i) If he had not previously completed the minimum period of colour service after which he could be transferred to the reserve, he will rejoin the colours and his previous colour service will count towards the minimum service required for transfer to the reserve.
(ii) If he had previously completed the minimum period of colour service required for transfer to the reserve and is fully trained and suitable in all other respects, he may be re-enrolled, provided a vacancy in the reserve exists, and be immediately transferred to the reserve.
(c) The counting of former service for pension or gratuity is governed by the provisions of Pension Regulations.”
7 The next submission on behalf of the respondents is that the
injury/disability sustained by the Appellant is neither attributable nor
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aggravated by Military Service, thereby disentitling him for grant of
disability pension. We must draw an adverse presumption against the
respondents, inasmuch as no impairment in the Appellant’s hearing
had been detected at the time when he was enrolled on 15.3.2001,
pursuant to a complete physical check up. In fact, an adverse
presumption is postulated in Appendix II (supra). In our opinion, the
version of the Appellant that injury was sustained by him as a result of
his having been slapped by his Instructor, or for that matter by any
other Combatant, has credibility. We had already adverted to the
Confidential Medical Report dated 5th August, 2001 which specifically
contains a mention of the Appellant having been assaulted. In the
circumstances, we cannot but conclude that the injury was ‘either
attributable or aggravated by Military Service’. Having undergone a
thorough medical examination only one year prior to the incident, had
the injury or disability been congenital or been in existence at the time
of recruitment, it would have been duly discovered. Therefore, on
both counts viz. disability to the extent of less than 20 per cent, as well
as it having been occurred in the course of Military Service, the
findings have to be in favour of the Appellant.
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8 Paragraph 183 of the Pension Regulations for the Army 1961,
(Part-I) stipulates as under:-
“183. The disability pension consists of two elements viz. Service element and disability element which shall be assessed as under: (1) Service element ….. (2) Disability element ….. …………………….. In case where an individual is invalidated out of service before completion of his prescribed engagement/service limit on account of disability which is attributable to or aggravated by military service and is assessed below 20 percent, he will be granted an award equal to service element of disability pension determined in the manner given in Regulation 183 Pension Regulations for the Army Part-I(1961). ”
9. We are of the persuasion, therefore, that firstly, any disability
not recorded at the time of recruitment must be presumed to have been
caused subsequently and unless proved to the contrary to be a
consequence of military service. The benefit of doubt is rightly
extended in favour of the member of the Armed Forces; any other
conclusion would be tantamount to granting a premium to the
Recruitment Medical Board for their own negligence. Secondly, the
morale of the Armed Forces requires absolute and undiluted protection
and if an injury leads to loss of service without any recompense, this
morale would be severely undermined. Thirdly, there appears to be no
provisions authorising the discharge or invaliding out of service where
the disability is below twenty per cent and seems to us to be logically
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so. Fourthly, wherever a member of the Armed Forces is invalided
out of service, it perforce has to be assumed that his disability was
found to be above twenty per cent. Fifthly, as per the extant
Rules/Regulations, a disability leading to invaliding out of service
would attract the grant of fifty per cent disability pension.
10. In view of our analysis, the Appellant would be entitled to the
Disability Pension. The Appeal is, accordingly, accepted in the above
terms. The pension along with the arrears be disbursed to the
Appellant within three months from today.
11. As there is no representation on behalf of the Appellant, a copy
of this Order be dispatched to the Appellant at the given address.
There will be no order as to costs.
............................................J. [VIKRAMAJIT SEN]
............................................J.
[SHIVA KIRTI SINGH] New Delhi June 25, 2014.
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