Supreme Court of India
UNION OF INDIA & ANR.versusRAJBIR SINGH
- Citation
- 2015 INSC 114
- Decided
- 13 February 2015
- Disposal
- Dismissed
- Bench
- T S THAKUR
Holding
In the absence of any evidence to the contrary, a serviceman discharged on medical grounds is presumed to have incurred the disability due to or aggravated by military service, and the employer must prove the opposite; therefore the Tribunal’s award of disability pension stands.
Summary
The Supreme Court considered appeals by the Union of India against the Armed Forces Tribunal’s orders granting disability pensions to several ex‑servicemen who were invalided out on medical grounds. The key issue was whether the disabilities were attributable to or aggravated by military service under Regulation 173 of the 1961 Army Pension Regulations. The Court examined the Entitlement Rules for Casualty Pensionary Awards, 1982, particularly Rules 5, 9 and 14, which create a presumption that a serviceman was fit at entry and that any later medical discharge is due to service unless the employer proves otherwise. It held that the burden of disproving the presumption lies on the employer and that the Medical Board must give reasons if it claims the disease could not have been detected at entry. Since no such reasons were recorded and the disabilities were assessed above 20%, the presumption stood and the Tribunal’s awards were upheld. Consequently, the appeals were dismissed.
Issues considered
- The applicability of Regulation 173 of the Army Pension Regulations, 1961 to the claimants.
- Whether the disabilities of the respondents were attributable to or aggravated by military service.
- Who bears the burden of proof to show that a disability is unrelated to service.
- Whether the Medical Board’s opinion, without reasons, can defeat the presumption in favour of the claimant.
Subjects
disability pensionmilitary servicepresumption of fitnessburden of proofArmed Forces TribunalPension Regulations 1961Entitlement Rules 1982non‑battle casualtymedical board opinionbeneficial provision
Judgment
[2015] 2 S.C.R. 183
UNION OF INDIA&ANR. A
v.
\ RAJBIR SINGH
(Civil Appeal No. 2904 of 2011)
FEBRUARY13, 2015
B
[T.S. THAKUR AND R. BANUMATHI, JJ.]
Pension Regulations for the Army, 1961: Regulation 173
- Disability Pension - Respondents invalided out of service
on account of medical disability - Whether the disability
which each one of the respondents suffered was attributable C
to or aggravated by military service and the Tribunal has not
erred in holding the respondents entitled to claim disability
pension - Held: It is for the employer to prove that the
disability/disease was wholly unrelated to military service
since otherwise the rules raise a presumption that the D
deterioration in the health of the member of service was on
account of military service or aggravated by it-+- In the instant
case, there was admittedly neither any note in the service
records of the respondents at the time of their entry into E
service nor any reasons 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 - Each one of the
respondents having been discharged from service on F
account of medical disease/disability, the disability must be
presumed to have been arisen in the course of service.
Dismissing the appeals, the Court
HELD: 1. The claims of the respondents for payment G
of pension are regulated by Pension Regulations for the
Army, 1961. Regulation 173 of the said Regulations
provides for grant of disability pension to persons who
are invalided out of service on account of a disability
183 H
184 SUPREME COURT REPORTS [2015] 2 S.C.R.
A which is attributable to or aggravated by military service
in non-battle casualty and is assessed at 20% or above.
Whether or not the disability is attributable to or
aggravated by military service, is in turn, to be
determined under Entitlement Rules for Casualty
B Pensionary Awards, 1982 forming Appendix-II to the
Pension Regulations. [Paras 7, 8) [191-E; 192-B]
Union of India v. Keshar Singh (2007) 12 SCC 675 :
2007 (5) SCR 408; Om Prakash Singh v. Union of India
C (2010) 12 SCC 667: 2010 (8) SCR 490 - referred to.
2. The guiding principles that emerge from conjoint
and harmonious reading of Rules 5, 9 and 14 of
Entitlement Rules are: a member is presumed to have
been in sound physical and mental condition upon
D entering service except as to physical disabilities noted
or recorded at the time of entrance; in the event of his
being discharged from service on medical grounds at
any subsequent stage it must be presumed that any
such deterioration in his health which has taken place
E is due to such military service; the 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; and if medical opinion holds that the
F disease, because of which the individual was
discharged, could not have been detected on medical
examination prior to acceptance of service, reasons for
the same shall be stated. [Para 11] [194-A-E]
Secretary, Ministry of Defence and Ors. v. A. V.
G Damodaran (Dead) through LRs. and Ors. (2009) 9 SCC
140: 2009 (13) SCR 416 - referred to.
3. The provision for payment of disability pension is
a beneficial provision which ought to be interpreted
liberally so as to benefit those who have been sent home
H with a disability at times even before they completed their
UNION OF INDIA &ANR. v. RAJ BIR SINGH 185
tenure in the armed forces. There may indeed be cases, A
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 B
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 c
military service or was aggravated by the same. Applying
the above parameters to the cases at hand, each one of
the respondents having been discharged from service
on account of medical disability, the disability must be
presumed to have been arisen in the course of service D
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 was,
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 E
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 disease and in sound F
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. [Paras 15, 16] [200-E-H; 201- G
A-F]
Union of India v. Ram Prakash (2010) 11 SCC 220: 2010
(7) SCR 506; Dharamvir Singh v. Union of India and Ors.
(2013) 7 SCC 316- referred to. H
186 SUPREME COURT REPORTS [2015] 2 S.C.R.
A Case Law Reference
2007 (5) SCR 408 referred to Para 3
2010 (8) SCR 490 referred to Para 3
2009 (13) SCR 416 referred to Para 3
B
2010 (7) SCR 506 referred to Para 3
(2013) 1 sec 316 referred to Para 4
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
c 2904of2011.
From the Judgment and Order dated 16.03.2010 of the
Armed Forces Tribunal Chandigarh in OA No. 114 of 2010
with C.A. Nos. 2905, 3409, 5144, 2279, 1498, 5090,
D 5414,5163,5840,7368,7479,7629,5469, 10747and11398
of2011, 183, 167 of2012, 10105, of2011, 5819, C.A. D 5260
of2012, C.A. Nos. 16394 of2013, 1856, 1854, 1855, 1858 &
1859of2015
E R. Balasubramanian, Rekha Pandey, T.A. Khan, Santosh
Kumar, B.V. Bala ram Das, Arvind Bambroo, Anil Katiyar, Anand
Mishra, Dr. Vipin Gupta, Manjeet Chawla, Bhaskar Y. Kulkarni,
C. N. Sree Kumar, Rahul Kumar, R. D. Upadhyay, Gp. Capt.
Karan Singh Bhati, Aishwarya Bhati, Parikshit, Sanjoli Mittal,
F Mrinmoi Chatterjee for the Appellants.
S. B. Upadhyay, Kaustuv P. Pathak, Param Misra, Nishant
Kumar, Sharmila Upadhyay, S. R. Kalkal, R. C. Kaushik, Bhim
Sen Sehgal, Avijit Bhattacharjee, Sanchar Anand, Piyush Hans,
Devendra Singh, Gunnam, Venkateswara Rao, D. V.
G Raghuvamsy, Anikit Swarup, Rohit Kumar Singh, Karan
Kapoor, Ranbir Singh Yadav, Anzu K. Varkey, Sajith, Prakash
Kumar Singh, Nikhil Jain, Abhishek Jain, Dr. Vijender, Dr.
Sukhdev Sharma, Dr. Kailash Chand (Respondent - In -
Person), Usha Nandini, Bimlesh Kumar Singh, Saurabh Mishra,
H Rajat Sharma, Dinesh Verma, Subhasish Bhowmick, Mohan
UNION OF INDIA&ANR. v. RAJBIR SINGH 187
Kumar, Ghan Shyam Vasisht, Sanjay R. Hegde, Bineesh Karat, A
Biju P. Raman, Yogmaya, Usha Nandini, Major K. Ramesh,
Archana Ramesh, V. S. Gupta, Rakesh Kumar Singla (RR in-
person) forthe Respondent.
The Judgment of the Court was delivered by B
T.S. THAKUR, J. 1. Leave granted.
2. These appeals arise out of separate but similar orders
passed by theArmed Forces Tribunal holding the respondents
entitled to claim disability pension under the relevant Pension c
Regulations of the Army. The Tribunal has taken the view that
the disability of each one of the respondents was attributable
to or aggravated by military service and the same having been
assessed at more than 20% entitled them to disability pension.
The appellant-Union of India has assailed that finding and D
direction for payment of pension primarily on the ground that
the Medical Boards concerned having clearly opined that the
disability had not arisen out of or aggravated by military service,
the Tribunal was not justified in taking a contrary view.
3. Relying upon the decisions of this Court in Union of E
India and Ors. v. Keshar Singh (2007) 12 SCC 675; Om
Prakash Singh v. Union of/ndia and Ors. (2010) 12 SCC
667; Secretary, Ministry of Defence and Ors. v. A. \I.
Damodaran (Dead) through LRs. and Ors. (2009) 9 SCC F
140; and Union of India and Ors. v. Ram Prakash (2010)
11 SCC 220, it was contended by Mr. Balasubramanian,
learned counsel appearing for the appellant in these appeals,
that the opinion of the Release Medical Board and in some
cases Re-survey Medical Board and Appellate Medical G
Authority must be respected, especially when the question
whether the disability suffered by the respondents was
attributable to or aggravated by military service was a technical
question falling entirely in the realm of medical science in which
the opinion expressed by medical experts could not be lightly H
188 SUPREME COURT REPORTS [2015] 2 S.C.R.
A brushed aside. Inasmuch as the Tribunal had failed to show
any deference to the opinion of the experts who were better
qualified to determine the question of attributability of a
disease/disability to a military service, the Tribunal had fallen
in error argued the learned counsel.
B
4. On behalf of the respondents it was, on the other hand,
submitted that the decisions relied upon by learned counsel
for the appellant were of no assistance in view of the later
pronouncement of this Court in Dharamvir Singh v. Union
c of India and Ors. (2013) 7 SCC 316 where a two-Judge
Bench of this Court had, after a comprehensive review of the
case law and the relevant rules and regulations, distinguished
the said decisions and stated the true legal position. It was
contended that the earlier decisions in the cases relied upon
o by the appellants were decided in the peculiar facts of those
cases and did not constitute a binding precedent especially
when the said decisions had not dealt with several aspects to
which the decision of this Court in Dharamvir Singh's case
(supra) had adverted. Applying the principles enunciated in
E Dharamvir Singh's case (supra) these appeals, according
to the learned counsel for the respondents, deserve to be
dismissed and indeed ought to meet that fate.
5. The material facts giving rise to the controversy in these
F appeals are not in dispute. It is not in dispute that the
respondents in all these appeals were invalided out of service
on account of medical disability shown against each in the
following chart:
Case No. Name of the Nature of Percentage
Respondent Disease/ of Disability
G
Disability determined
C.A. No. Ex. Hav. Generalized 20% for
2904/2011 Rajbir Singh Seizors 2 years.
C.A. No. Ex. Recruit Manic Episode 40%
H 5163/2011 Amit Kumar (F-30). (Permanent)
UNION OF INDIA&ANR. v. RAJBIR SINGH 189
[TS. THAKUR, J.]
C.A. No. Hony. Flt. Lt. Primary 30%
A
5840/2011 PS Rohilla Hypertension.
C.A. No. Ex. Power Diabetes Mellitus 4o«'!o
7368/2011 Satyaveer Singh (IDDM) ICD E 10.9. (Permanent).
C.A. No. Ex. Gnr. 1. Non-Insulin 20% each B
7479/2011 Jagjeet Singh Dependent Diabetes and
Melllitus (NIDDM). composite
2. Fracture Lateral disability
Condyl of Tibia with 40%
fracture neck of (Permanent).
Fibula left.
c
C.A. No. Ex. Rect. Mal-descended 60%
7629/2011 Charanjit Ram Testis (R) with (Permanent).
Inguinal hernia.
C.A. No. Jugti Ram Schizophrenic 80%
5469/2011 (through LR) Reaction (300) D
C.A. D. No. Havaldar Neurotic Depression 40% for
16394/2013 Surjit Singh V-67. 2 years.
C.A. No. Ex. Naik Otosolerosi.s (Rt.) 20%
2905/2011 Ram Phai Ear OPTD .
E
C.A. No. Sadhu Singh Schizophrenia 20% for
10747/2011 2 years.
C.A. No. Rampal Singh Neurosis (300. 20% for
11398/2011 2 years.
C.A. No. Raj Singh Neurosis 30%. F
183/2012
C.A. No. Ranjit Singh Other Non-Organic 20% for
167/2012 Psychosis (298, V-67) 2 years.
C.A. No. Ex. Sub. Primary Hypertension 30%
5819/2012 Ratan Singh (Permanent) G
C.A. No. Ex. Sep. Epilepsy (345) Less than
5260/2012 Tarlochan Singh 20%
C.A. No. Harbans Singh 1.Epilepsy (345) 20% each
10105/2011 2. High Hyper- and
H
190 SUPREME COURT REPORTS [2015] 2 S.C.R.
A metropia Rt. Eye composite
with partial disability
Amblyopia. 40% for
2 years
CANO. OF Balwan Singh Personality 60%
B 2015 (@ SLP(C) Disorder
No.27220/2012)
CANO ..... OF Sharanjit Singh Generalized Tonic Less than
2015 (@ SLP(C) Clonic Seizure, 20%
No. 32190/2010) 345 V-64.
c CA No. Abdulla Schizophrenia 30%
509012011 Othyanagath
C.A.NO ........ OF Sqn. Ldr. 1. Non-Organic 40%
2015 (@ SLP(C) Manoj Rana Psychosis
No. 2640112010) 2. Stato-Hypatitis
D C.A. No. Labh Singh Schizophrenia 30% for
2279/2011 2 years.
CA No. Makhan Singh Neurosis 20%
5144/2011 (300-Deep)
C.A. No. Ajit Singh Idiopathic Epilepsy 20%
E 14478/2011 (Grandma!)
CANO .. OF ManoharLal Renal Calculus 20%
2015(@ SLP(C) (Right)
No.15768/2011)
F C.A. No. Major Man !HD (Angina Less than
3409/2011 Mohan Krishan Pectoris) 20%
C.A. No. Ex. Sgt. Suresh 1.Generalized 70%
1498/2011 * Kumar Sharma Seizors2. Inter- (permanent)
vertebral Disc
Prolapse
G 3.PIVD C-7-D,
(Multi-Disc Prolapse)
C.A. No. Rakesh Kumar Bipolar Mood 20% for
5414/2011 Sing la Disorder 5 years.
H
UNION OF INDIA&ANR. v. RAJBIR SINGH 191
[TS. THAKUR, J.]
6. It is also not in dispute that the extent of disability in A
each one of the cases was assessed to be above 20% which
is the bare minimum in terms of Regulation 173 of the Pension
Regulations for the Army, 1961. The only question that arises
in the above backdrop is whether the disability which each
one of the respondents suffered was attributable to or B
aggravated by military service. The Medical Board has rejected
the claim for disability pension only on the ground that the
disability was not attributable to or aggravated by military
service. Whether or not that opinion is in itself sufficient to deny
to the respondents the disability pension claimed by them is C
the only question falling for our determination. Several decisions
of this Court have in the past examined similar questions in
almost similar fact situations. But before we refer to those
pronouncements we may briefly refer to the Pension
Regulations that govern the field. D
7. The claims of the respondents for payment of pension, it
is a common ground, are regulated by Pension Regulations for
theArmy, 1961. Regulation 173 of the said Regulations provides
for grant of disability pension to persons who are invalided out E
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 above. The regulation reads:
"173. Primary conditions for the grant of disability
F
pension: Unless otherwise specifically provided a
disability pension may be granted to an individual
who is invalided from service on account of a
disability which is attributable to or aggravated by
military service and is assessed at 20 percent or
G
over. The question whether a disability is attributable
to or aggravated by military service shall be
determined under the rule in Appendix II. "
8. The above makes it manifest that only two conditions
have been specified for the grant of disability pension viz. (i) H
192 SUPREME COURT REPORTS [2015] 2 S.C.R.
A the disability is above 20%; and (ii) the disability is attributable
to or aggravated by military service. Whether or not the
disability is attributable to or aggravated by military service, is
in turn, to be determined under Entitlement Rules for Casualty
Pensionary Awards, 1982 forming Appendix-I I to the Pension
B Regulations. Significantly, Rule 5 of the Entitlement Rules for
Casualty Pensionary Awards, 1982 also lays down the
approach to be adopted while determining the entitlement to
disability pension under the said Rules. Rule 5 reads as under:
c "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
,Q
(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.
E
(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. "
F 9. Equally important is Rule 9 of the Entitlement Rules
(supra) which places the onus of proof upon the establishment.
Rule 9 reads:
"9. Onus of proof. - The claimant shall not be
called upon to prove the conditions of entitlements.
G
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."
10. As regards diseases Rule 14 of the Entitlement Rules
H stipulates that in the case of a disease which has led to an
UNION OF INDIA&ANR. v. RAJBIR SINGH 193
[TS. THAKUR, J.]
individual's discharge or death, the disease shall be deemed A
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
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 B
not be deemed to have so arisen". Rule 14 may also be
extracted for facility of reference.
"14. Diseases.- In respect of diseases, the following
rule will be observed -
c
(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 D
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 E
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 F
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
G
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."
(emphasis supplied) H
194 SUPREME COURT REPORTS [2015] 2 S.C.R.
A 11. From a conjoint and harmonious reading of Rules 5,
9 and 14 of Entitlement Rules (supra) the following guiding
principles emerge:
i) a member is presumed to have been in sound physical
B and mental condition upon entering service except
as to physical disabilities noted or recorded at the
time of entrance;
ii) in the event of his being discharged from service on
medical grounds at any subsequent stage it must be
c presumed that any such deterioration in his health
which has taken place is due to such military service;
iii) the disease which has led to an individual's discharge
or death will ordinarily be deemed to have arisen in
D service, if no note of it was made at the time of the
individual's acceptance for military service; and
iv) if medical opinion holds that the disease, because of
which the individual was discharged, could not have
been detected on medical examination prior to
E
acceptance of service, reasons for the same shall be
stated.
12. Reference may also be made at this stage to the
guidelines set out in Chapter-II of the Guide to Medical Officers
F (Military Pensions), 2002 which set out the "Entitlement:
General Principles", and the approach to be adopted in such
cases. Paras 7, 8 and 9 of the said guidelines reads as under:
"7. Evidentiary value is attached to the record of a
G member's condition at the commencement of
service, and such record has, therefore, to be
accepted unless any different conclusion has been
reached due to the inaccuracy of the record in a
particular case or otherwise. Accordingly, if the
H disease leading to member's invalidation out of
UNION OF INDIA&ANR. v. RAJBIR SINGH 195
[TS. THAKUR, J.]
service or death while in service, was not noted in a A
medical report at the commencement of service, the
inference would be that the disease arose during th-a
period of member's military service. It may be that
the inaccuracy or incompleteness of service record
on entry in service was due to a non-disclosure of B
the essential facts by the member e.g. pre-enrolment
history of an injury or disease like epilepsy, mental
disorder, etc. It may also be that owing to latency or
obscurity of the symptoms, a disability escaped
detection on enrolment. Such lack of recognition c
may affect the medical categorisation of the member
on enrolment and/or cause him to perform duties
harmful to his condition. Again, there may
occasionally be direct evidence of the contraction
of a disability, otherwise than by service. In all such D
cases, though the disease cannot be considered to
have been caused by service, the question of
aggravation by subsequent service conditions will
need examination.
E
The following are some of the diseases which
ordinarily escape detection on enrolment:
(a) Certain congenital abnormalities which are
latent and only discoverable on full
F
investigations e.g. Congenital Defect of Spine,
Spina bifida, Sacralisation,
(b) Certain familial and hereditary diseases e.g.
Haemophilia, Congential Syphilis,
Haemoglobinopathy. G
(c) Certain diseases of the heart and blood vessels
e.g. Coronary Atherosclerosis, Rheumatic
Fever.
H
196 SUPREME COURT REPORTS [2015] 2 S.C.R.
A (d) Diseases which may be undetectable by
physical ft.Xamination on enrolment, unless
adequate history is given at the time by the
member e.g. Gastric and Duodenal Ulcers,
Epilepsy, Mental Disorders, HIV Infections.
B
(e) Relapsing forms of mental disorders which have
intervals of normality.
(0 Diseases which have periodic attacks e.g.
Bronchial Asthma, Epilepsy, Csom, etc.
c
8. The question whether the invalidation or death of
a member has resulted from service conditions, has
to be judged in the light of the record of the
member's condition on enrolment as noted in service
D documents and of all other available evidence both
direct and indirect.
In addition to any documentary evidence relative to
the member's condition to entering the service and
during service, the member must be carefully and
E
closely questioned on the circumstances which led
to the advent of his disease, the duration, the family
history, his pre-service history, etc. so that all
evidence in support or against the claim is
F elucidated. Presidents of Medical Boards should
make this their personal responsibility and ensure
that opinions on attributability, aggravation or
otherwise are supported by cogent reasons; the
approving authority should also be satisfied that this
G question has been dealt with in such a way as to
leave no reasonable doubt.
9. On the question whether any persisting
deterioration has occurred, it is to be remembered
that invalidation from service does not necessarily
H imply that the member's health has deteriorated
UNION OF INDIA&ANR. v. RAJBIR SINGH 197
[T.S. THAKUR, J.]
during service. The disability may have been A
discovered soon after joining a(1d the member
discharged in his own interest in order to prevent
deterioration. In such cases, there may even have
been a temporary worsening during service, but if
the treatment given before discharge was on grounds B
of expediency to prevent a recurrence, no lasting
damage was inflicted by service and there would be
no ground for admitting entitlement. Again a
member may have been invalided from service
because he is found so weak mentally that it is c
impossible to make him an efficient soldier. This
would not mean that his condition has worsened
during service, but only that it is worse than was
realised on enrolment in the army. To sum up, in
each case the question whether any persisting D
deterioration on the available evidence which will
vary according to the type of the disability, the
consensus of medical opinion relating to the
particular condition and the clinical history."
E
13. In Dharamvir Singh's case (supra) this Court took
note of the provisions of the Pensions Regulations, Entitlement
Rules and the General Rules of Guidance to Medical Officers
to sum up the legal position emerging from the same in the
following words: F
"29.1. Disability pension to be granted to an
individual who is invalided from service on account
of a disability which is attributable to or aggravated
by military service in non-battle casualty and is
G
assessed at 20% or over. The question whether a
disability is attributable to or aggravated by military
service to be determined under the Entitlement
Rules for Casualty Pensionary Awards, 1982 of
Appendix II (Regulation 173). H
198 SUPREME COURT REPORTS [2015] 2 S.C.R.
A 29.2. A member is to be presumed in sound physical
and mental condition upon entering service if there
is no note or record at the time of entrance. In the
event of his subsequently being discharged from
service on medical grounds any deterioration in his
B health is to be presumed due to service [Rule 5 read
with Rule 14(b)].
29.3. The onus of proof is not on the claimant
(employee), the corollary is that onus of proof that
c 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 (Rule 9).
29.4. If a disease is accepted to have been as having
D
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 [Rule 14(c)].
E
29.5. If no note of any disability or disease was made
at the time of individual's acceptance for military
service, a disease which has led to an individual's
discharge or death will be deemed to have arisen in
F service [Rule 14(b)].
29. 6. If medical opinion holds that the disease could
not have been detected on medical examination
prior to the acceptance for service and that disease
G will not be deemed to have arisen during service,
the Medical Board is required to state the reasons
[Rule 14(b)]; and
29. 7. It is mandatory for the Medical Board to follow
the guidelines laid down in Chapter II of the Guide
H
to Medical Officers (Military Pensions), 2002 -
UNION OF INDIA&ANR. v. RAJBIR SINGH 199
[T.S. THAKUR, J.]
"Entitlement: General Principles", including Paras A
7, 8 and 9 as referred to above (para 27)."
14. Applying the above principles this Court in Dharamvir
Singh's case (supra) found that no note of any disease had
been recorded at the time of his acceptance into military B
service. This Court also held that Union of India had failed to
bring on record any document to suggest that Dharamvir was
under treatment for the disease at the time of his recruitment
or that the disease was hereditary in nature. This Court, on
that basis, declared Dharamvirto be entitled to claim disability c
pension in the absence of any note in his service record at the
time of his acceptance into military service. This Court
observed:
"33. In spite of the aforesaid provisions, the Pension
Sanctioning Authority failed to notice that the Medical D
Board had not given any reason in support of its
opinion, particularly when there is no note of such
disease or disability available in the service record
of the appellant at the time of acceptance for military
service. Without going through the aforesaid facts
E
the Pension Sanctioning Authority mechanically
passed the impugned order of rejection based on
the report of the Medical Board. As per Rules 5 and
9 of the Entitlement Rules for Casualty Pensionary
F
Awards, 1982, the appellant is entitled for
presumption and benefit of presumption in his favour.
In the absence of any evidence on record to show
that the appellant was suffering from "generalised
seizure (epilepsy)" at the time of acceptance of his
G
service, it will be presumed that the appellant was in
sound physical and mental condition at the time of
entering the service and deterioration in his health
has taken place due to service."
15. The legal position as stated in Dharamvir Singh's H
200 SUPREME COURT REPORTS [2015] 2 S.C.R.
A case (supra) 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
B 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
C 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. From Rule 14(b) of the Entitlement Rules it is
D further clear that if the medical opinion were to hold that the
disease suffered by the member of the armed forces could
not have been detected prior to acceptance for service, the
Medical Board must state the reasons for saying so. Last but
not the least is the fact that the provision for payment of disability
E pension is a beneficial provision which ought to be interpreted
liberally so as to benefit 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
F 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
G 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. The very fact that he
H was upon proper physical and other tests found fit to serve in
the army should rise as indeed the rules do provide for a
UNION OF INDIA&ANR. v. RAJBIR SINGH 201
[TS. THAKUR, J.]
presumption that he was disease-free at the time of his entry A
into service. That presumption continues till it is proved by the
employer that the disease was neither attributable to nor
aggravated by military service. For the employer to say so,
the least that is required is a statement of reasons supporting
that view. That we feel is the true essence of the rules which B
ought to be kept in view all the time while dealing with cases of
disability pension.
16. Applying the above parameters to the cases at hand,
we are of the view that each one of the respondents having c
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 D
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 E
entry into service. The 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 thus remains unrebutted. Since the disability has in
each case been assessed at more than 20%, their claim to F
disability pension could not have been repudiated by the
appellants.
17. In the result these appeals fail and are hereby
dismissed without any order as to costs.
G
Devika Gujral Appeals dismissed
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