‘Illness is presumed to be service related if no disease is recorded by medical board at time of entry’; Supreme Court orders 50% disability pension for ex-serviceman

Supreme Court: In an appeal filed by a former army personnel against the orders passed by the Armed Forces Tribunal, wherein, the Tribunal held that the appellant’s disability was less than 20%, and consequently, no relief was granted, the division bench of Abhay S. Oka and Ujjal Bhuyan*, JJ. highlighted that, the law had crystallized to the effect that if no mention was made by the Medical Board at the time of entry into service regarding the presence of a particular disease, the presumption was that the member contracted the disease due to military service. Consequently, the burden of proving that the disease was not attributable to or aggravated by military service rested entirely on the employer. Furthermore, any disease or disability that led to invaliding out of service was to be presumed to be above 20%, and as per the Court’s findings, it should have attracted the grant of a 50% disability pension.

Background

The appellant was enrolled in the army on 30-09-1985 and was invalided out of service with effect from 14-08-1989 due to a low medical category caused by generalized tonic-clonic seizures, which were assessed at less than 20% on the recommendations of the Invaliding Medical Board. According to the appellant, he was in good health when he joined the army and developed the disability during his posting at the high-altitude Siachen Glacier from May 1988 to September 1988, with the onset of the disability occurring on 09-10-1988. The Invaliding Medical Board, in its proceedings opined that the disability was not attributable to or aggravated by military service and assessed the disability for a period of two years. As a result, the appellant was invalided out of service on 14-08-1989 and granted only the service element of the disability pension, as the disability was assessed at less than 20% and was not considered attributable to military service.

Re-Survey Medical Boards were conducted three times, each time assessing the appellant’s disability at around 15% to 19%, with the observation that the disability was permanent. The appellant submitted representations to respondent 3, requesting that his disability be recognized as attributable to and aggravated by military service, and that his disability pension be adjusted accordingly, with a disability assessment of 50% effective from 01-01-1996. However, these representations went unanswered.

Consequently, the appellant filed an application before the Armed Forces Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007, seeking entitlement to the disability element of his disability pension due to a disability attributable to military service, along with the rounding off of his disability to 50%. However, by an order, the Tribunal concluded that the appellant’s disability was less than 20%, and consequently, no relief was granted. The appellant subsequently filed a review application under Rule 18 of the Armed Forces Tribunal (Procedure) Rules, 2008, seeking a review of the order. On 22-01-2018, the Tribunal dismissed the review application, finding no grounds to review the original order, and also declined the appellant’s request for leave to appeal. Aggrieved by this, the appellant filed the present appeal.

Analysis and Decision

In dealing with the proceedings of the Invaliding Medical Board, the Court noted that the Medical Board had carefully examined the appellant, who was being released and invalided out of service due to a low medical category for generalized tonic-clonic seizures. The Board opined that the appellant was in good bodily health and had an average life expectancy, recommending him for extended insurance cover by the Army Group Insurance upon his release/invalidment. In Part III of the proceedings, which was marked as confidential, the Medical Board answered “no” to the question of whether the appellant’s disability existed prior to entering service. The Board also answered “no” to the question of whether the disability was attributable to the appellant’s negligence or misconduct. The percentage of disability was assessed at 15%, with a probable duration of two years.

The Court also noted that, the same view was reiterated in the Re-Survey Medical Board proceedings held on 07-08-1993, where the disability was assessed at less than 20% (15% to 19%) for a duration of 5 years. This assessment was again reaffirmed in the Re-Survey Medical Board proceedings dated 23-06-1998, where the disability was assessed between 15% and 19% for a period of 10 years. Finally, in the Re-Survey Medical Board proceedings dated 28-06-2002, the disability was assessed at being static i.e. 15 to 19% with the further remark that duration of such disability would be lifelong.

After reviewing the provisions of the Pension Regulations for the Army, 1961 (‘Regulations’), the Court observed that the disability pension consisted of two components: the service element and the disability element, which was determined in accordance with Regulation 183. According to Regulation 173, a disability pension was granted to an individual who was invalided out of service due to a disability that was attributed to or aggravated by military service and was assessed at 20% or more. Furthermore, Rule 5 established that entitlement to casualty pensionary awards and the evaluation of disabilities had to be based on the presumption that the individual was in sound physical and mental condition upon entering service, except for any physical disabilities noted or recorded at the time of entrance. In the event of discharge due to medical grounds, any deterioration in health was presumed to be due to service. Further, Rule 14(b) created a legal presumption that a disease leading to an individual’s discharge or death would generally be deemed to have arisen during service if there was no record of it at the time the individual was accepted into military service. However, if the medical opinion indicated that the disease could not have been detected during the pre-enlistment medical examination, then it would not be considered to have arisen during service, provided that reasons were recorded.

The Court took note of the instructions issued by the Government of India, Ministry of Defence, through the Director (Pensions) on 31-01-2001. These instructions were addressed to the Chief of the Army Staff, Chief of the Naval Staff, and Chief of the Air Staff, concerning the implementation of government decisions based on the recommendations of the Fifth Central Pay Commission. The subject of the instructions was related to the disability pension, war injury pension, special family pension, liberalized family pension, dependent pension, and liberalized dependent family pension for officers and personnel below the rank of officers in the armed forces who were retiring, invalided out, or dying in harness on or after 01-01-1996.

The Court also took note of a letter dated 20-07-2006 from the Adjutant General’s Branch, Integrated Headquarters of the Ministry of Defence (Army), which addressed the revision of rules and procedures regarding the grant of disability pension and special family pension to armed forces personnel. This letter outlined a standard operating procedure for these matters and notably removed the disability cap of 20% for cases of invalidment due to disability attributable to military service, applicable to personnel who were invalided out on or after 01-01-1996.

The Court also took note of the letter dated 19-01-2010 from the Department of Ex-Servicemen Welfare, Ministry of Defence, Government of India, which was addressed to the Chiefs of all three services. The letter stated that, in order to address various pension-related issues for armed forces pensioners, the government had established a committee headed by the Cabinet Secretary. This committee made recommendations regarding disability and war injury pensions, which were subsequently considered by the government. Following this review, it was decided that, with effect from 01-07-2009, the concept of broad branding of the percentage of disability or war injury, would be extended to officers and armed forces personnel who had been invalided out of service prior to 01-01-1996 and were in receipt of disability or war injury pensions as of 01-07-2009. However, it was clarified that, in cases where the disability or war injury element of the pension had been denied because the disability was initially assessed as less than 20% or reassessed as less than 20% at a later stage, such cases would not be reopened.

Referring to the impugned order, the Court found that the Tribunal had merely relied on the remarks of the Invaliding Medical Board and the Re-Survey Medical Boards to conclude that, since the appellant’s disability was assessed at less than 20%, he was not entitled to the disability element of the disability pension. However, the Tribunal failed to examine whether the disability was attributable to or aggravated by military service. In this case, neither the Invaliding Medical Board nor the Re-Survey Medical Boards had stated that the disability, for which the appellant was invalided out of service, could not have been detected at the time of his entry into military service. In fact, the Invaliding Medical Board was quite clear in stating that no disability existed before the appellant entered service.

The Court highlighted that, as was evident from its previous decisions, the law had crystallized to the effect that if no mention was made by the Medical Board at the time of entry into service regarding the presence of a particular disease, the presumption was that the member contracted the disease due to military service. Consequently, the burden of proving that the disease was not attributable to or aggravated by military service rested entirely on the employer. Furthermore, any disease or disability that led to invaliding out of service was to be presumed to be above 20%, and as per the Court’s findings, it should have attracted the grant of a 50% disability pension.

The Court viewed that the impugned orders of the Tribunal were wholly unsustainable in law. In light of this, the impugned orders dated 22-01-2018 and 26-02-2016 were set aside. Consequently, the respondents were directed to grant the disability element of the disability pension to the appellant at the rate of 50% with effect from 01-01-1996 onwards, for life. The arrears were to carry interest at the rate of 6% per annum until payment. The respondents were instructed to carry out these directions within three months from the date of the Judgment.