UNION OF INDIA & ORS.versusANGAD SINGH TITARIA

                     [2015] 2 S.C.R. 524


A                UNION OF INDIA & ORS.

                             v.

                  ANGAD SINGH TITARIA
B             (Civil Appeal No. 11208 of 2011)

                   FEBRUARY 24, 2015

        [SUDHANSU JYOTI MUKHOPADHAYA AND
c                N.V. RAMANA, JJ.]

        Pension Regulations for Indian Air Force, 1961:
    Regulation 153 - Disability Pension - Claim for
    - Medical Board recommended that the disabilities
D   were not attributable to nor aggravated by service
    in Air Force - Held: In the absence of any specific
    note as to the respondent suffering from any
    disease prior to his joining the service, he is
    presumed to have been in sound physical and
E   mental condition while entering service as per Rule
    5(a} of the Entitlement Rules - Simply recording
    a conclusion that disability was not attributable
    to service, without giving a reason would show
    Jack of proper application of mind by the Medical
F   Board - View taken by Medical Board not upheld
    - Tribunal did not commit any error in awarding
    disability pension to the respondent for 60%
    disability from the date of his discharge -
    Entitlement Rules for Casualty Pensionary Awards,
G   1982 -     rr.5, 14(b}, 14(c}, 15.

       Dismissing the appeal, the Court

       HELD: 1. Admittedly, at the time of his enrolment
H                           524
    UNION OF INDIA v. ANGAD SINGH TITARIA               525



into the employment of Indian Air Force in the year A
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
                                                         8
classification A4 G4 (permanent) on account of his
ailments. The Medical Board assessed the composite
disability of the respondent to be 60%. Rule 4 of
the Entitlement Rules makes it clear that invalidating
from service is a necessary condition for grant of c
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".
[Paras 9, 10] [533-C,D; 534-A-B]                         D

     2. 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.
According to sub-rule (b) of Rule 14 that a disease E
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 F
detected at the time of enrolment, the disease will not
be deemed to have arisen during service. In that case,
the medical opinion must contain valid reasons that
the disease is not attributable to service. [Paras 12,
14] [535-C; 536-D-G]                                     G

    3. In the case on hand, the respondent was
rendered ineligible for further promotion and thereby
invalidated on the ground of his being in medical
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A 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
B 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
C 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, would show
  lack of proper application of mind by the Medical
0
  Board. The view taken by the Medical Board cannot
  be upheld. The Tribunal did not commit any error in
  awarding disability pension to the respondent for
  60% disability from the date of his discharge
E along with 10% p.a. interest on the arrears.
  [Paras 16, 17] [538-D-H; 539-A,C]
       Ministry of Defence v. A. V. Damodaran (2009)
  9 SCC 140: 2009 (13) SCR 416; Union of India v.
  Keshar Singh (2007) 12 SCC 675: 2007 (5) SCR
F 408; Union of India v. Baljit Singh (1996) 11 SCC
  315:    1996 (7) Suppl. SCR 626; Controller of
  Defence Accounts v. S. Balachandran Nair (2005)
  13 SCC 128 : 2005 (4) Suppl. SCR 431; Dharamvir
  Singh v. Union of India & Ors. (2013) 7 SCC 316 -
G relied on
                    Case Law Reference
         2009 (13) SCR 416         relied on Para 5
         2007 (5) SCR 408          relied on Para 5
H        1996 (7) Suppl. SCR 626 relied on   Para 5
    UNION OF INDIA v. ANGAD SINGH TITARIA             527


      2005 (4) Suppl.SCR 431   relied on   Para 5      A
      (2013) 1 sec 316         relied on   Para 7
   CIVIL APPELLATE JURISDICTION:              Civil
Appeal No 11208 of 2011

   From the Judgment and Order dated                   B
03.12.2010 of the Armed Forces Tribunal,
Chandigarh Bench at Chandi Mandir, in 0. A. No.
837 of 2010.
   Rama Mukherjee, B. V. Bairam Das, Chelan
Chawla, Anil Katiyar for the Appellants.               C

   Col. S. R. Kalka!, R. C. Kaushik for the
Respondent.

   The Judgment of the Court was delivered by          D

    N.V. RAMANA, J. 1.This appeal arises out
of the impugned order dated 3'ct December, 2010
passed    by the Armed       Forces Tribunal,
Chandigarh, Bench at Chandimandir in OA
No.837/2010 whereby the tribunal allowed the E
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 F
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 G
known as SHAPE-I. On 17th 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
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528     SUPREME COURT REPORTS             [2015) 2 S.C.R.


A diagnosed for coronary artery disease namely lnfero-
  lateral Myocardial Infraction (1'' 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,
8 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-I I Diabetes Mellitus in the year 2006 (2""
  disability). Thereafter, on 27'h November, 2008 the
C respondent was referred to the Release Medical Board.
  The Medical Board assessed his 1'' disability i.e.
  coronary artery disease at 60% and 2"" disability at
  15 to 19%. The composite disability was however
  assessed as 60%. The Medical Board recommended
D 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
E 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'h October,
F 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
G superannuated from service on 31.10.2009 after
  rendering 30 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
H
    UNION OF INDIA v. ANGAD SINGH TITARIA                529
               [N.V. RAMANA, J.]

allowed directing the appellants to assess and A
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              B
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.                     c
     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 aggrava'ted by       D
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            E
constitutional in nature. The Tribunal has
committed serious error by ignoring the opinion
dated 27'" November, 2008 of the Release
Medical Board. The record clearly shows that the
onset of disabilities on the respondent was at            F
peace locations as th.e respondent, at the
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              G
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                  H
530        SUPREME COURT REPORTS           [2015] 2 S.C.R.


A      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
B      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
C     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.
0
      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,
E     learned counsel relied upon this Court's decisions
      in Ministry of Defence Vs. A. II. Damodaran
      (2009) 9 SCC 140, Union of India Vs. Keshar
      Singh (2007) 12 SCC 675, Union of India Vs.
      Baliit Singh (1996) 11 SCC 315 and Controller
F     of Defence Accounts Vs. S. Balachandran Nair
      (2005) 13 SCC 128. Learned counsel finally
      submitted that the Tribunal has utterly failed to
      take into account the settled principle enshrined
      by the Apex Court in various decisions and hence
G     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
H
    UNION OF INDIA v. ANGAD SINGH TITARIA         531
               [N.V. RAMANA, J.]

 of the Release Medical Board that the disease A
 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 B
 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") C
 prescribed under Appendix-II further following the
 rules specified in Annexure-111 to Appendix-II. But
 the Board flouted all the relevant rules and
 regulations and arbitrarily decided the case of D
 the respondent. The Board ignored the vital fact
 that the respondent was enrolled in the Indian
 Air Force on 13 1h November, 1971 after medically
 and physically found fit by the medical officers at
the time of recruitment. The onset of Disability No. E
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 F
during the period of service the respondent was
denied promotion to the rank of Warrant Officer in
spite of the fact that the respondent's name was
empanelled for promotion panel 2008-2009 and
again in next promotion panel of Airmen in 2009- G
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    H
532        SUPREME COURT REPORTS              [2015] 2 S.C.R.


A     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
 B    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
C     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.
D     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
E     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
F     cause of a disability or death is or is not attributable
      to 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
G     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
H
    UNION OF INDIA v. ANGAD SINGH TITARIA           533
               [N.V. RAMANA, J.]

interfered with by this Court.                       A

    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 B
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 c
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 o
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 E
relevant for the purpose, which reads thus:

   153. Primary Condition for grant of disability
 ' pension- Unless otherwise specifically
   provided, a disability pension may be             F
   granted to an individual who is invalided I
   discharged from service on account of a
   disability which is attributable to or
   aggravated by Air Force Service and is
   assessed at 20% or over.                         G

   The question whether a disability is
   attributable to or aggravated by military
   service shall be determined under the rule
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534       SUPREME COURT REPORTS            [2015] 2 S.C.R.


A        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
B 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
C presumptions are provided under Rule 5. They read
  thus:

         "5. The approach to the question of
         entitlement to casualty pensionary awards
D        and evaluation of disabilities shall be based
         on the following presumptions:

           Prior to and during service

           (a) A member is presumed to have been
E          in sound physical and mental condition
           upon entering service except as to
           physical disabilities noted or recorded
           at the time of entrance.
F          (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."
G
      11. Rule 9 of the Entitlement Rules mandates upon
      whom the burden lies to prove the entitlement
      conditions. The said rule is quoted below:

H
      ; UNION OF INDIA v. ANGAD SINGH TITARIA        535
                   [N.V. RAMANA, J.]

      9. Onus of proof.-The claimant shall not        A
      be called upon to prove the conditions
      of entitlements. 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.        B

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       c
      (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          D
      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     E
thus:

14.     Diseases - In respect of diseases, the
       following rule will be observed -

(a)       Cases in which it is established that       F
       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.        G

(b)         A disease which has led to an
       individual's discharge or death will
       ordinarily be deemed to have arisen in
                                                      H
536       SUPREME COURT REPORTS             [2015] 2 S.C.R.


A         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
B         detected on medical examination prior
          to acceptance for service, the disease
          will not be deemed to have arisen
          during service.

C (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
D         due to the circumstances of duty in
          military service.

      14. Thus, a plain reading of sub-rule (b) of Rule
      14 makes it abundantly clear that a disease which
E 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
F 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.
G
  15. Recently, this Court in a similar case (Union
  of India &Anr. Vs. Rajbir Singh (Civil Appeal
  Nos. 2904 of 2011 etc.) decided on 13'h February,
  2015) after considering Dharamvir Singh (supra)
H
    UNION OF INDIA v. ANGAD SINGH TITARIA             537
               [N.V. RAMANA, J.]

and upholding the decision of the Tribunal granting    A
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             B
   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            C
   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                D
   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            E
   attributable to nor aggravated by military
   service . ...

   ... Last but not the least is the fact that
   the provision for payment of disability             F
   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               G
   the armed forces . ...

   ... There may indeed be cases, where
   the disease was wholly unrelated to military
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538        SUPREME COURT REPORTS             [2015) 2 S.C.R.


A         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 ta establish
B         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
c         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
          bv the same".
D
      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
E     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
F     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
G     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
H     mind by the Medical Board. In such circumstances,
     UNION OF INDIA v. ANGAD SINGH TITARIA                 539
                [N.V. RAMANA, J.]

we cannot uphold the view taken by the Medical A
Board.

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 B
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 C
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.       D

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.
Devika Gujral                          Appeal dismissed.    E