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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 11208 OF 2011

UNION OF INDIA & ORS. ... APPELLANTS

VERSUS

ANGAD SINGH TITARIA ... RESPONDENT

JUDGMENT

N.V. RAMANA, J.

This appeal arises out of the impugned order dated 3 rd December, 2010  

passed by the Armed Forces Tribunal, Chandigarh, Bench at Chandimandir in  

OA No.837/2010 whereby the tribunal allowed the Respondent’s application for  

grant of disability pension.

2. The undisputed facts of  the case are that  the respondent herein was  

enrolled in Indian Air Force on 13th November, 1971 in the Clerical trade. At the  

time of his recruitment, the respondent was medically and physically examined  

by  the  concerned  medical  officers  and  was  found  fit  as  per  prescribed  

standards in medical categorization known as SHAPE-I. On 17 th July, 1987,  

during  the  period  of  his  service  in  Indian  Air  Force,  the  respondent  was  

admitted  to  the  Commando Hospital  (Air  Force),  Bangalore  where  he  was  

diagnosed  for  coronary  artery  disease  namely  Infero-lateral  Myocardial

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Infraction (1st disability).  The respondent was therefore placed in Low Medical  

Classification from September, 1987.  As a result of deterioration of health due  

to aggravation of ailment, the respondent was again downgraded and placed in  

the  medical  classification  A4  G3  (Permanent).   While  the  respondent  was  

discharging  his  duties  at  2228  Squadron,  he  was  also  diagnosed  for  the  

disease Type-II Diabetes Mellitus in the year 2006 (2nd disability).  Thereafter,  

on 27th November, 2008 the respondent was referred to the Release Medical  

Board.  The  Medical  Board  assessed  his  1st disability  i.e.  coronary  artery  

disease at 60% and 2nd disability at 15 to 19%. The composite disability was  

however assessed as 60%. The Medical Board recommended that both the  

aforementioned disabilities were found to be constitutional in nature and not  

attributable to nor aggravated by service in Air Force. Accordingly, the disability  

pension claim preferred by the respondent has been rejected by the competent  

Pension Sanctioning Authority i.e. Air Force Record Office by its order dated  

16th April, 2009.

3. Aggrieved thereby, the respondent filed first appeal before the Appellate  

Committee. The first appellate authority by its order dated 28 th October, 2009  

rejected the same observing that both the disabilities are neither attributable to  

nor aggravated by service (NANA) and the 14 days charter of duties did not  

reveal any under stress and strain of military service. At this point of time, the  

respondent was superannuated from service on 31.10.2009 after rendering 30

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years, 11 months and 18 days of service. The second appeal before Defence  

Minister’s Appellate Committee was also rejected. The respondent then filed  

O.A. No. 837 of 2010 before the Armed Forces Tribunal (“The Tribunal” for  

short) which came to be allowed directing the appellants to assess and release  

the disability element of disability pension in favour of the petitioner for 60%  

disability  from  the  date  of  his  discharge  with  interest  @ 10%  p.a.  on  the  

arrears.

4. The appellants—Union of India, having aggrieved by the decision of the  

Tribunal, preferred this appeal. We notice that there is a delay of 234 days in   

filing the present  appeal.  We,  however,  condone the delay for  the reasons  

stated in the application for condonation of delay.  

5. Learned  counsel  for  the  appellants  submitted  that  according  to  

Regulation  No.  153  of  the  Pension  Regulations  for  Indian  Air  Force,  1961  

(Part-I) (for short “the Regulations”) the disability should be either attributable  

to  or  aggravated  by  Air  Force  Service.  Whereas  in  the  present  case  the  

Release Medical  Board which is  an expert  Body,  has clearly  expressed its  

opinion that the disabilities suffered by the respondent were neither attributable  

to nor aggravated by service and constitutional  in nature.  The Tribunal has  

committed serious error by ignoring the opinion dated 27th November, 2008 of  

the  Release  Medical  Board.  The  record  clearly  shows  that  the  onset  of  

disabilities on the respondent was at peace locations as the respondent, at the

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relevant time, was not engaged in duty in high altitude areas or snow bound  

remote areas.  He was not in  war  bound field area or  undergoing intensive  

physical or arms training. The respondent was neither a prisoner of war nor  

exposed to adverse climatic conditions while performing his duties. Throughout  

his employment, the respondent has served in peace station. Therefore, there  

cannot be any stress or strain caused by the service which could have led to  

the onset of the disabilities. The Medical Board has clearly and categorically  

observed  that  the  disabilities  of  the  respondent  were  “not  connected  with  

service” and hence they do not fall under the category of “either attributable to  

or  aggravated  by  Air  Force  Service”  which  is  a  prerequisite  for  granting  

disability pension. The adjudicating authority as well as the 1st and 2nd appellate  

authorities  correctly  upheld  the  recommendations  of  the  Release  Medical  

Board and rightly denied disability pension to the respondent, but the Tribunal  

failed to appreciate the recommendation of the Release Medical Board and  

committed grave error in allowing the original application of the respondent. In  

support of his contention that the Court while deciding the case of granting or  

otherwise of disability pension must give due weight, value and credence to the  

opinion of expert body, learned counsel relied upon this Court’s decisions in  

Ministry of Defence Vs. A.V. Damodaran (2009) 9 SCC 140, Union of India  

Vs. Keshar Singh (2007) 12 SCC 675, Union of India Vs. Baljit Singh (1996)  

11 SCC 315 and Controller of Defence Accounts Vs. S. Balachandran Nair  

(2005) 13 SCC 128. Learned counsel finally submitted that the Tribunal has

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utterly failed to take into account the settled principle enshrined by the Apex  

Court  in  various  decisions  and  hence  this  appeal  deserves  to  be  allowed  

setting aside the impugned judgment.

6. Learned counsel for the respondent, on the other hand, contended that  

the  declaration  of  the  Release  Medical  Board  that  the  disease  of  the  

respondent  was  “neither  attributable  to  nor  aggravated  by  service”  was  

arbitrary and illegal as the Board had not scrupulously followed the Regulations  

and decided the case in clear violation of the rules framed thereunder. The  

assessment of disability for attributability is to be ascertained in accordance  

with Regulation No. 153 and Rules 5, 14(b), 14(c) and 15 of Entitlement Rules  

for  Casualty  Pensionary  Awards,  1982  (for  short”  Entitlement  Rules”)  

prescribed under Appendix-II further following the rules specified in Annexure-

III to Appendix-II. But the Board flouted all the relevant rules and regulations  

and arbitrarily decided the case of the respondent. The Board ignored the vital  

fact that the respondent was enrolled in the Indian Air Force on 13 th November,  

1971 after medically and physically found fit by the medical officers at the time  

of recruitment. The onset of Disability No. 1 was in the year 1987 which is after  

rendering 16 years of service. During his service, the respondent was posted  

at different places where he had to carry on his duties under lot of stress and  

strain. Consequent to the disabilities emerged during the period of service the  

respondent was denied promotion to the rank of Warrant Officer in spite of the

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fact that the respondent’s name was empanelled for promotion panel 2008-

2009 and again in next promotion panel of Airmen in 2009-2010. His name was  

dropped from the promotion panel for being placed in medical category A4 G4  

(Permanent).

7. Learned counsel further contended that as per Rules 9, 5(b) and 14(b) of  

the Entitlement Rules the Board ought to have given specific findings in its  

report  as  to  why  disability  is  not  deemed  to  be  attributable  to  service,  

particularly when the respondent was not affected with any disease at the time  

of his enrolment in the Air Force. In the absence of such specific findings by  

the  Board,  merely  furnishing  a  declaration  that  the  disability  being  

constitutional in nature was neither attributable to nor aggravated by service,  

cannot  be  accepted  and  the  claim of  the  respondent  for  disability  pension  

cannot be rejected. In support of his contention, learned counsel has placed  

reliance on this Court’s judgment in  Dharamvir Singh Vs.  Union of India &  

Ors. (2013)  7  SCC  316.  He  further  contended  that  although  the  Release  

Medical Board is an expert body, the adjudicating authority has the power and  

jurisdiction to interfere and decide the correctness or otherwise of the opinion  

given by the expert body.  The Court cannot be expected to adhere to the  

opinion  of  the  expert  body.  Moreover,  in  terms  of  Regulation  423  (a)  of  

Regulations  for  medical  Services,  Armed Forces,  1983,  for  the  purpose  of  

determining whether the cause of a disability or death is or is not attributable to

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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. The Tribunal in the present case came to the right  

conclusion only after giving its thoughtful consideration to the opinion given by  

the Board in the light of true legal norms and prescribed rules and regulations  

and hence the impugned order need not be interfered with by this Court.

8. Having heard rival contentions on either side, the moot question that falls  

for our consideration is whether or not the disabilities caused to the respondent  

during the course of his employment are attributable to his service entitling him  

to the benefit of disability pension in accordance with law.

9. Admittedly, at the time of his enrolment into the employment of Indian Air  

Force in the year 1971, the respondent was medically and physically examined  

and was found fit as per prescribed medical standards. The material on record  

shows that the respondent was put under lower medical classification A4 G4  

(permanent)  on  account  of  his  ailments.  The  Medical  Board  assessed  the  

composite disability of the respondent to be 60%. The Pension Regulations  

have  specified  the  circumstances  under  which  disability  pension  could  be  

granted to a person. Regulation No. 153 is relevant for the purpose, which  

reads thus:

153. Primary Condition for grant of disability pension— Unless  otherwise  specifically  provided,  a  disability  pension  may  be  granted  to  an  individual  who  is  invalided  /  discharged  from

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service  on  account  of  a  disability  which  is  attributable  to  or  aggravated by Air  Force Service 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.

10. Rule 4 of the Entitlement Rules makes it clear that  invalidating from  

service  is  a  necessary  condition  for  grant  of  disability  pension.  An  

individual who, at the time of his release under the Release Regulations,  

is in a lower medical category than that in which he was recruited will be  

treated  as  “invalidated  from  service”.  For  the  purpose  of  evaluation  of  

disabilities, two presumptions are provided under Rule 5. They read thus:

“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.”

11. Rule 9 of the Entitlement Rules mandates upon whom the burden lies to  

prove the entitlement conditions. The said rule is quoted below:

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

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benefit  will  be  given  more  liberally  to  the  claimants  in  field/afloat service cases.

12. While considering the aspect of onus of proof, this Court in Dharamvir  

Singh (supra) observed:

“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”.

13. Rule 14 of the Entitlement Rules stipulates how to determine whether a  

disease shall be deemed to have arisen in service or not. It reads thus:

14.  Diseases — In respect of diseases, the following rule 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.

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14. Thus, a plain reading of sub-rule (b) of Rule 14 makes it abundantly clear  

that  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 that the disease could not have been detected at the time of  

enrolment, the disease will not be deemed to have arisen during service. In  

that  case,  it  is  also important  that  the  medical  opinion must  contain  valid  

reasons that the disease is not attributable to service.  

15.  Recently, this Court in a similar case (Union of India &Anr. Vs. Rajbir  

Singh (Civil Appeal Nos. 2904 of 2011 etc.) decided on 13th February, 2015)  

after considering Dharamvir Singh (supra) and upholding the decision of the  

Tribunal granting disability pension to the claimants, observed:   

“...  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. ...

... 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  

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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  ”  .

16. Here in the case on hand, the respondent  was rendered ineligible for  

further  promotion  and  thereby  invalidated  on  the  ground  of  his  being  in  

medical category A4 G4 (Permanent).  In the absence of any specific note on  

record as to the respondent suffering from any disease prior to his joining the  

service, he is presumed to have been in sound physical and mental condition  

while  entering service as per  Rule 5(a) of  the Entitlement Rules.  The fact  

remains that the respondent was denied promotion on medical grounds and  

the  deterioration  in  his  health  shall  therefore  be  presumed  to  have  been  

caused  due  to  service  in  the  light  of  Rule  5(b)  of  the  Entitlement  Rules.  

Moreover, simply recording a conclusion that the disability was not attributable  

to service, without giving a reason as to why the diseases are not deemed to  

be attributable to service, clearly shows lack of proper application of mind by  

the Medical Board. In such circumstances, we cannot uphold the view taken  

by the Medical Board.

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17. Considering the facts and circumstances of the case in the light of above  

discussed  Rules  and  Regulations  as  well  as  settled  principles  of  law  

enshrined  by  this  Court  in  Dharamvir  Singh Vs.  Union  of  India  &Ors.  

(supra) and reiterated in Union of India & Anr. Vs. Rajbir Singh (supra), we  

are of the considered opinion that the Tribunal had not committed any error in  

awarding disability pension to the respondent for 60% disability from the date  

of  his  discharge  along  with  10%  p.a.  interest  on  the  arrears.  For  all  the  

reasons stated above, we do not find any merit in this appeal and the same  

stands dismissed without any order as to costs.

18. The appellants are directed to release the arrears of disability pension to  

the  respondent  within  three  months  from  today  together  with  interest  @  

10% p.a.

….…………………………………………...J. (SUDHANSU JYOTI MUKHOPADHAYA)

…………….....………………………………J. (N.V. RAMANA)

NEW DELHI FEBRUARY 24, 2015