SUKHVINDER SINGHversusUNION OF INDIA & ORS.

                       [2014] 8 S.C.R. 1


                    SUKHVINDER SINGH                                 A
                               v.
                  UNION OF INDIA & ORS.
               (Civil Appeal No.5605 of 2010)
                        JUNE 25, 2014
                                                                     B
   [VIKRAMAJIT SBN AND SHIVA KIRTI SINGH, JJ.]

      Service Law - Pension - Disability pension - Entitlement
- A combatant soldier, recruited in Indian Army - After 1 year
presented before Medical Board, who found that the                   C
incumbent was invalided out of service with disability of 6 to
 10% on account of hearing impairment - Further held him n.A
entitled to disability pension on the ground that the disability
was neither attributable nor aggravated by Military Services
and since the disability was not assessed at 20% or above -          o
Held: 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          E
tantamount to granting a premium to the Recruitment Medical
Board for their own negligence - 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 - There is no provision          F
authorising the tlischarge or invaliding out of seryice where
the disability is below twenty per cent - 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 -A disability leading to invaliding out of service would
attract the grant of fifty per cent disability pension - Thus, the   G
appellant would be entitled to the Disability Pension - Pension
Regulation for the Army, 1961, Part I - Regulations for the
JYfedical Services of the Armed Forces, 1983 - Chapter VII -

                                1                                    H
    2         SUPREME COURT REPORTS                  [2014] 8 S.C.R.


A Entitlement Rules for Casualty Pensionary Awards, 1982 -
  Rule 5. '

        CIVIL APPEAL JU131SDICTION : Civil Appeal No. 5605 of
    2010
8        From the Judgment and Order dated 30.03.2006 in W.P.
    (C) No. 3923 of 2005 of the High, Court of Delhi at New Delhi.

         R.C. Kaushik for the Appellant.
                                          0


C        K. Radhakrishna, Rashmi Malhotra, Rohitash Nagar, B.V.
    Bairam Das (for D.S. Mahra) for the Respondents.

         The Order of the Court was delivered

                                 ORDER
D
         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
E   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.

F      2. Succinctly stated, the facts germane for deciding the
  present Appeal are that consequent to the Primary Medical
  Examination for Recruitment having been cond1;1cted vis-a-vis
  the Appellant/Petitioner on 22nd December, 2000, he was
  enrolled in the Indian Army as a Combatant Soldier on 15th
G 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
H
  SUKHVINDER SINGH v. UNION OF INDIA & ORS.                       3


event of his subsequently being discharged from service on             A
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          B
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                   c
Regulation 383 which reads thus:-

     "383. Res pons i bi I ity 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            D
     Officers are responsible for the health, physical fitness for
     service, likely extent of development and identification
     marks."

     3. We are not a little surprised that although the Rules or       E
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             F
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          G
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
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    4         SUPREME COURT REPORTS                   [2014] 8 S.C.R


A -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
B on the ear by the Instructor in the Training Centre as a
  consequence of which 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
C 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
D a complaint against his Instructor. Such a complaint would have
  had serious
            1
                implications and an Inquiry under Regulation 520
  of the Regulations of the Army, 1987 would have had to be
  carried out.

E      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
F 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 to prove
  the conditions of entitlement. He/she shall receive the benefit
G of any reasonable doubt. This benefit shall ~e 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:-

H
  SUKHVINDER SINGH v. UNION OF INDIA & ORS.                       5
 /
     (i) as neithe~ attributable nor aggravated by Military            A
     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 B
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 C
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 o
disability pension in terms of the said Regulation. The said
Regulation is reproduced below for ease of reference:-

     "173. Unless otherwise specifically provided a disability
     pension consisting of service element and disability
     element may be granted to an individual who is invalided          E·
     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 ovef.

     173-A. Individuals who are placed in a lower medical F
     category (other than 'E') permanently and who are
     discharged because no alternative employment in their owri · .
     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 G
     employment are discharged before completion of their
     engagement, shall be deemed to have been inv.alided from
     service for the purpose of the entitlement rules laid down
     in Appendix II to these Regulations.
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    6        SUPREME COURT REPORTS                  [2014] 8 S.C.R. ·


         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
B
         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
C 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
D 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 impervious
  or unsympathetic towards members of the Armed Forces who
  have suffered disabilities, without receiving any form of
E 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
F 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
G 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
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  SUKHVINDER SINGH v. UNION OF INDIA & ORS.                   7


permanent. Otherwise, there would be a facial non-compliance        A
with Regulation 143, which is extracted below for ease of
reference:-

    "143.Re-Enrolment of Ex-Servicemen Medically Boarded
    Out._(a)Ex-Servicemen, who are in receipt of disability
                                                                    B
    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             C
    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          D
    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            E
    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 o.n
    accommodation and journey to and from the place of
                                                                    F
    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:-                                          G

    (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
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      8       SUPREME COURT REPORTS                [2014] 8 S.C.R.


- A       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
  B
          re-enrolled, provided a vacancy in the reserve exists, and
          be immediately transferred fo the reserve.

          (c) The counting of former service for pension or gratuity
          is governed by the provisions of Pension Regulations."
  c
          7. The next submission on behalf of the respondents is that
    the injury/disability susta.ined by the Appellant is neither
    attributable nor aggravated by Military Service, thereby
    disentitling him for grant of disability pension. We must draw
    an adverse presumption against the respondents, inasmuch as
  0
    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 presumpti0n
    is postulated in Appendix II (supra). In our opinion, the version
    of the Appellant that injury was sustained by him as a result of
  E 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
  F 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
  G 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.

        8. Paragraph 183 of the Pension Regulations for the Army'
  H 1961, (Part-I) stipulates as under:-
  SUKHVINDER SINGH v. UNION OF INDIA & ORS.                        9


     "183. The disability pension consists of two elements viz.         A
     Service element and disability element which shall be
     assessed as under:

     (1) Service element .... .

     (2) Disability element .... .                                      B



     In case where an individual is invalidated out of service
     before completion of his prescribed engagement/service             C
     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-1(1961 ). "
                                                                        0

      9. We are of the persuasion, therefore, that firstly, any
disability not recorded at the time of recruitment must be
presumed to have bee.n caused subsequently and unless
proved to the contrary to be a consequence of military service.         E
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             F
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 so. Fourthly, wherever a member             G
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.
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    10         SUPREME COURT REPORTS               [2014] 8 S.C.R.


A        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,
8
    a copy of this Order be dispatched to the Appellant at the given
    address. There will be no order as to costs.

    Kalpna K. Tripathy                                  Appeal allowed.