UNION OF INDIA & ORS.versusRAM PRAKASH

                         (2010] 7 S.C.R. 506


A                      UNION OF INDIA & ORS.
                                  V.
                          RAM PRAKASH
                  (Civil Appeal No. 4887 of 2010)

                            JULY 5, 2010
B
         [DR. MUKUNDAKAM SHARMA AND DR. B.S.
                     CHAUHAN, JJ.]

        Service Law:
c
       Armed Forces - Air Force Service - Disability pension
  - Employee released from service on the opinion of the
  Release Medical Board that he suffered from 90% disabilities
  which were neither attributable to nor aggravated by Air Force
0 Service - HELD: Keeping in view the Pension Regulations
  and the Entitlement Rules it was unjustified for the single
  Judge of the High Court to set aside the concurrent opinions
  of the Appellate Board and the Release Medical Board -
  Further, in view of s. 100 CPC, the High Court should not have
E set aside the concurrent findings of the trial court and the first
  appellate court, merely on the presumption that the plaintiff
  was undergoing arduous nature of job as he was in the Air
  Force Service - The findings given by the High Court were
  presumptive in nature and based on surmises and
  conjectures - Air Force Pension Regulations - Regulation
F 153 - Appendix II - Entitlement Rules - Code of Civil
  Procedure, 1908·- s.100.
       The respondent, after having rendered 15 years of
   service in the Indian Air Force, was discharged in terms
G of the opinion of the Release Medical Board which found
   him suffering from rational detachment and Immature
   Cataract of both the eyes. The Board assessed the
   composite disability at 90% and opined that the
  ·disabilities suffered by the respondent were neither
~                                506
      UNION OF INDIA & ORS. v. RAM PRAKASH                 507

 attributable to nor aggravated by the Air Force service,         A
 but were constitutional in nature. The claim of the
 respondent for disability pension having not been
 accepted by the authorities concerned, he filed a suit
 which was dismissed. His appeal having been dismissed
 by the first appellate court, he filed the second appeal,        B
 which was allowed by the High Court.
       In the instant appeal filed by the employers, it was
  contended for the appellants that the High Court was not
. justified in interfering with the concurrent findings of fact
  of the two courts below; and that the medical report            C
  having a primacy, should have been given primary
  consideration and due weightage and the High Court was
  not justified in substituting the findings and opinion of the
  Medical Board by its own opinion.
                                                                  D
      Allowing the appeal, the Court
       HELD: 1.1. In view of Regulation 153 of the Air Force
   Pension Regulations, unless and until it is proved and
  established that an individual ha.s become disabled to the
  extent of more than 20% during his service career and           E
   released from service due to such disability which is
  attributable to or aggravated by Air Force service, he is
   not entitled to receive the disability pension. The Rules
   In Appendix II to the Regulations are also clear on the
   issue that such entitlement should be considered and           F
   decided giving emphasis and primacy to t11e opinion of
  the Medical Board constituted for the purpose. [para 19]
 . [515-H; 51 G·A·B]
      1.2. In the report of the Release Medical Board, it is
  stated that though the diseases from which the                  G
· respondent was suffering did not exist before.his entering
  the service, but the same were neithe:r attributable to nor
  apgravated by service during peace or underfield service
. conditions. !he Medical Board has given a specific and          H .
   508      SUPREME COURT REPORTS               [2010] 7 S.C.R.

A definite opinion that the said diseases were in no manner
  connected with service. The Appellate Medical Board
  upheld the opinion of the Medical Board. [para 18-19] [515-
  A:E]
         2.1. The scope and limit of interfering with the finding
8 of fact in a case u/s 100 CPC has been .reiterated by this
    Court time and again. Besides, the consistent view of this
    Court is that the opinion of the Medical Board would be
    given a primacy and a court should be slow in interfering
 ,. with and substituting its own opinion with that of the
C Medical Board. [para 20-21] [516-C; 517-D-E]
       Secretary, Ministry of Defence and Ors. Vs. A. V.
  Damodaran (D) through LRs. and Ors. 2009 (13) SCR 416 =
   2009 (9) SCC 140, Union of India & Ors. Vs. Keshar Singh
D 2007 (5 ) SCR 408        =
                           2007 (12) SCC 67; Controller of
  Defence Accounts (Pension) and Others Vs. S. Ba/achandran
  Nair2005 (4) Suppl. SCR 431       =
                                    2005 (13) SCC 128; Union
  of India and Ors. Vs. Dhir Singh China (Colonel) Retd. 2003
  ( 1 ) SCR 779 = 2003 (2) sec 382 and Union of India and
E Anr. Vs. Baljit Singh 1996 (7) Suppl. SCR 626 = 1996 (11)
  sec 315, relied on.
         Sheet Chand v. Prakash Chand 1998 (1) Suppl.
    SCR 297 = (1998) 6 SCC 683, referred to.
        2.2. The Pension Regulations when read with the
F Entitlement Rules, make it clear that the determination of
  'attributable' or 'aggravation' is as per the Entitlement
  Rules. As the Medial Board has given a categorical
  opinion that the ailment of the respondent was
  constitutional and the same is not attributable to or
G aggravated by Air Force Service, it was unjustified for the
  Single Judge of the High Court to set aside the
  concurrent opinions of the Appellate Board and the
  Release Medical Board and also the findings recorded by
  the trial court and the appellate court merely because the
H Single Judge felt that there could be a presumption that
        UNION OF INDIA & ORS. v. RAM PRAKASH                  509


· the respondent was undergoing arduous nature of job as A
  tte was appointed as an Air Force personnel. The
· findings recorded by the Single Judge of the High Court
   were presumptive in nature and based on surmises and
   conjectures. There is no factual foundation for arriving at
   such a decision. The High Court totally ignored the B
   applicability of the Regulations to the case of the
   respondent. The judgment and order of the High Court .
 . is set aside. [para19,22 and 23] [515-F-H; 517-F-H; 518-
 A-B]

           ""           Case Law Reference:                          c
   1998 (1) Suppl. SCR297            referred to       para 20
   2009 (13) SCR 416                 relied on         para 21
   2007 (5 ) SCR 408                 relied on         para 21       D
   2005 (4) Suppl. SCR 431            relied on        para 21
   2003 (1) SCR 779                  relied on         para 21
   1996 (7) Suppl. SCR 626            relied on        para 21
                                                                     E
     CIVIL APPELLATE JURISDICTION : Civil appeal No.
 4887 of 2010.
      From the Judgment & Order dated 4.07.2005 of the High
 Court of Punjab & Haryana at Chandigarh in Regular Second
 Appeal No. 3795 of 1998.                                            F
                   .
      D.K. Thakur, Rohini Mukherjee, Kunal Bahri (for Anil
 Katiyar) for the Appellants.
     S.C. Paul, Rahul Kumar, Roopa Paul, Sarojbala (for
 Satyendra Kumar) for the Respondent. .                              G
     The Judgment of the Court was delivered by
        DR. MUKUNDAKAM SHARMA, J. 1. Leave granted.
        2. The present appeal is directed against the judgment and   H
    510     SUPREME COURT REPORTS                  [2010) 7 S.C.R.


A order dated 4.7.2005 passed by the learned Single Judge of
  the Punjab and Haryana High Court whereby the learned Single
  Judge has allowed the Second Appeal filed by the respondent
  and thereby setting aside the findings recorded by the Civil
  Judge (Junior Division) in his judgment and decree dated
B 27 .9 .1996 dismissing the suit of the respondenUplaintiff for the
  grant of disability pension and also the judgment and decree
  dated 27.8.1998 passed by the Additional District Judge,
  Jalandhar whereby the appeal filed by the respondent was
  dismissed.
c      3. The respondent was enrolled in the Indian Air Force in
  the month of May, 1970. After he rendered service for 15 years
  in the Air Force, the Respondent was unwell and consequently
  he was examined by a Medical Board which was constituted
  to consider the case of the respondent. After such medical
D examination, the Release Medical Board found that the
  respondent suffered from Retinal detachment to the extent of
  60% and that the degree of disablement was permanent. He
  was also found to be suffering from Immature Cataract of both
  the eyes and his disablement was assessed at 40% by the
E Release Medical Board.                                  '

        4. The Release Medical Board assessed the composite
  disability at 90% and gave an opinion that the said disability
  suffered by the respondent during his service was neither
F attributable to nor aggravated by Air Force Service and that the
  diseases were constitutional in nature.

       5. The respondent on being discharged from service in
  terms of the opinion of the Release Medical Board claimed for
  payment of disability pension. The Appellate authority, however,
G informed the respondent that disability for which the respondent
  was released from service were constitutional in nature. The
  authorities namely Chief Controller of Defence Accounts
  (Pension) and the appellate Jl1edical authority examined the
  case of the respondent and thereafter both the authorities held
H
     UNION OF INDIA & ORS. v. RAM PRAKASH                     511
         [DR. MUKUNDAKAM SHARMA, J.]
that the disability suffered by the respondent was not due to         A
injury suffered during the course of duty or because of nature
of duties performed by the respondent. The appellate authority
also gave an opinion that the disease of the respondent was
neither attributable to nor aggravated by Air Force service.
                                                                      B
     6. Being aggrieved by the aforesaid order, the respondent
herein filed a suit claiming payment of disability pension on the
ground that at the time of his entry to the Air Force service, no
such disease was recorded in his records and therefore, onset
of the aforesaid disease during the course of service should
be considered as attributable to service, particularly due to the     C
adverse service conditions which caused the disease.

     7. The aforesaid suit was contested by the appellant herein
by filing a detailed written statement. On the basis of the
pleadings of the parties, several issues were framed and the          D
parties led their evidence in support of their cases, and finally
by judgment and decree dated 27.9.1996, the learned Trial
Court dismissed the suit.

     8. Being aggrieved by the aforesaid judgment and decree,         E
the respondent filed an appeal before the first appellate court
which was heard and was dismissed.

      9. The respondent being aggrieved by the aforesaid
concurrent findings of fact arrived at by the two courts below
filed a second appeal in the Punjab and Haryana High Court            F
which, however, after hearing the parties was allowed by the
learned Single Judge, on account of which the present appeal
was filed by the appellant herein. The appeal was listed before
us and the counsel appearing for the parties were heard at
length.                                                               G

     10. The counsel appearing for the appellants submitted
before us that the High Court was not justified in interfering with
the concurrent findings of fact of two courts below and therefore,
the said judgment is required to be set aside and quashed. It         H
    512      SUPREME COURT REPORTS                 [2010] 7 S.C.R.

A was also submitted that the medical report having a primacy,
  should have been given due weightage and primary
  consideration and the learned Single Judge was not justified
  in substituting the said findings and opinion of the Medical
  Board by substituting its own opinion.
B
        11. The aforesaid submissions of the counsel appearing
  for the appellant were refuted by the counsel appearing for the
  respondent who submitted that the High Court was justified in
  holding that since at the time of his entry in the Air Force on
  1.5.1970, no such disease was found despite a thorough
C medical check up, it must be held that the adverse service
  conditions of the Respondent was the cause for onset of the
  diseases in question.

       12. In the light of the aforesaid submissions of the counsel
D appearing for the parties, the question that falls for our
  consideration is whether or not the disability suffered by the
  respondent court be attributed to the service conditions of the
  Air Force service.

E        13. The Pension Regulations was enacted for the Air
    Force, the provisions of which are made applicable to the
    personnel of the Air Force and all claims of pension are to be
    regulated by the provisions made in the Regulations at the time
    of individual's retirement or release or discharge as the case
    may be.
F
       14. Section Ill of the said Air Force Pension Regulations
  deals with the Disability Pensioner Awards. Regulation 37
  provides the manner and method of entertaining the claim of
  disability pension and also the circumstances under which such
G pension becomes admissible.
          Regulation 37 reads as follows:-
          "37(a) An officer who is retired from air force service on
          account of a disability which is attributable to or
H         aggravated by such service and is assessed at 20 per cent
     UNION OF INDIA & ORS. v. RAM PRAKASH                      513
         [DR. MUKUNDAKAM SHARMA, J.]
    or over may, on retirement, be awarded a disability                A
    pension consisting of a service element and a disability
    element in accordance with the regulations in this section .
                                                    .
    (b) The question whether a disability is attributable to or
    aggravated by air force service shall be determined                8
    under the regulations in Appendix II."

    15. Section IV of the said Pension Regulations deals with
the primary conditions for the grant of disability pension. In
Regulation 153, it is stated thus;
                                                                       c
    "153. 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 air force service and is assessed at
    20 per cent or over.                                               D
     154. The question whether a disability is attributable to or
     aggravated by air force service shall be determined under
     the regulations in Appendix II."

     16. In the light of the aforesaid provisions, what is laid down   E
in Appendix 2 becomes relevant. The said Appendix 2 deals
with the Entitlement Rules. It is provided therein that the
aforesaid Entitlement Rules would apply in cases where the
disablement or death, on which the claim to casualty pensioner
award is based. Rule 1, 2, 3 and 4 read as follows:-                   F

     "1. With effect from 1st April, 1948, in supersession of all
     previous orders on the subject, the entitlement to disability
     and family pension, children's allowance and death
     gratuities will be governed by the following rules. Invaliding    G
     from service 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 invalided from
     service. Airmen who are placed permanently in a medical
     category other than 'A' and are discharged because no
                                                                       H
    514          SUPREME COURT REPORTS                  [2010] 7 S.C.R.

A         alternative employment suitable to their low medical
          category can be provided as well as those who having
          been retained in alternative employment but are
          discharged before the completion of their engagement will
          be deemed to have been invalided out of service.
B
          2. Disablement or death shall be accepted as due to air
          force service provided it is certified that :-

           (a)    the disablement is due to a wound, injury or disease
                  which-
c
                  (i) is attributable to air force service ; or

                  (ii) existed before or arose during air force service
                  and has been and remains aggravated thereby ;

D          (b)    the death was due to or hastened by-

                  (i) a wound, injury or disease which was attributable
                  to air force service;

                  (ii) the aggravation by air force service of a wound,
E                 injury or disease which existed before or arose
                  during air force service.

          3. There must be a casual connection between
          disablement and air force service for attributability or
F         aggravation to be conceded~'

       17. There is no dispute with regard to the fact that when
  the respondent was initially appointed as an Air Force Personnel
  in the Indian Air Force, there was a medical examination held
G in which he was found to be fit to be appointed to the Air Force.
  After he had rendered. service ifl the Air Force for about 15
  years, the respondent. was examined by the Release Medical
  Board and he.was dfagl'losed as•a case of retinal detachment
  and immature cataract of both the eyes.
H         18. A Medical Board asses~ed composite disability at
    UNION OF INDIA & ORS. v. RAM PRAKASH                 515
        [DR. MUKUNDAKAM SHARMA, J.]
90%, and in view of the opinion of the said Release Medical A
Board and as recommended by them, the respondent was
released from service. The aforesaid Regulations which are
referred to and extracted hereinbefore give primacy to the
Report of the Medical Board. The Report of the Medical Board
is annexed with the records. Part 3 of the said Report deals B
with the opinion of the Medical Board. In the said opinion of
the Medical Board, it is stated that the aforesaid disabilities
did not exist before entering the service. The Medical Board
has further given an opinion that the aforesaid diseases from
which the respondent was suffering were not attributable to c
service during peace or under field service conditions nor
aggravated thereby. The Medical Board has given a specific
and definite opinion that the said diseases were in no manner
connected with service.

     19. The respondent filed an appeal as against the D
aforesaid opinion of the Medical Boar,d and his case was
considered by the Appellate Medical Board who upheld the
aforesaid opinion of the Medical Board and held that the ·
diseases from which the respondent was suffering at the time
of his release from Air Force Service, were neither attributable E
to service nor aggravated thereby. Despite the aforesaid
opinion of the Medical Board, the le.arned Single Judge took
pains to re-appreciate the records, and on such appreciation
held that there could be presumption drawn that the respondent
was subjected to perform arduous nature of duties during his F
span of service with the Indian Air Force inasmuch as it is
general knowledge that a person in defence services is always
required to perform arduous nature of duties. The aforesaid
findings recorded by the Trial Court and Single Judge was
presumptive in nature and are based on surmises and G
conjectures and there is no factual foundation for arriving at
such a decision. The learned Single Judge totally ignored the
applicability of the aforesaid Regulations to the case of the
Respondent. Unless and until it is proved and established that
 an individual has become disabled to the extent of more than H
    516       SUPREME COURT REPORTS                   [201 O] 7 S.C.R.


A   20% during his service career and released from service due
  to such disability which is attributable to or aggravated by air
  force service, he is not entitled to receive such disability
  pension. Rules are also clear on the issue that such entitlement
  should be considered and decided giving emphasis and
B primacy on the opinion of the Medical Board constituted for the
  purpose.

         20. The scope and limit of interfering with the finding of fact
    in a case under Section 100 of the Code of Civil Procedure
  has been reiterated by this Court time and again. Instead of
C going into the ratio of all the aforesaid decisions, we may
  summarise the legal principles em,mciated by this Court in the
  decision of Shee/ Chand v. Prakash Chand reported in (1998)
  6 SCC 683. In this case, this Court while dealing with question
  of existence of a substantial question of law, held as foUows:-
D
          "7 ....... The existence of a "substantial question of law"
          is the sine qua non for the exercise of jurisdiction by the
          High Court under the amended provisions of Section 100
          CPC. It appears that the learned Single Judge overlooked
E         the change brought about to Section 100 CPC by the
          amendment made in 1976. The High Court unjustifiably
          interfered with pure questions of fact while exercising
          jurisdiction under Section 100 CPC. It was not proper for
          the learned Single Judge to have reversed the concurrent
F         findings of fact while exercising jurisdiction under Section
          100 CPC. That apart, we find that the learned Single Judge
          did not even notice, let alone answer the question of law
          which had been formulated by it at the time of admission
          of the second appeal. There is no reference to the question
          of law in the impugned order and it appears that the High
G
          Court thought that it was dealing with a first appeal and
          not a second appeal under Section 100 CPC. The findings
          of fact recorded by the two courts below were based on
          proper appreciation of evidence and the material on the
          record. There was no perversity, illegality or irregularity in
H
      UNION OF INDIA & ORS. v. RAM PRAKASH                   517
          [DR. MUKUNDAKAM SHARMA, J.]

     those findings. None has been brought to our notice by the      A
     learned counsel for the respondent either. The findings,
   · therefore, did not require to be upset in a second appeal
     under Section 100 CPC. The judgment of the learned
     Single Judge, under the circumstances, cannot be
     sustained ....... "                                             B

      21. Several decisions of this Court like Secretary, Ministry
 of Defence and Ors. Vs. A. V. Damodaran (DJ through LRs.
 and Ors. reported in 2009 (9) SCC 140, Union of India & Ors.
 Vs. Keshar Singh reported in 2007 (12) SCC 675, Controller          C
 of Defence Accounts (Pension) and Others Vs. S.
 Balachandran Nair reported in 2005 (13) SCC 128, Union of
 India and Ors. Vs. Dhir Singh China (Colonel) Retd. reported
 in 2003 (2) SCC 382 and Union of India and Anr. Vs. Baljit
 Singh reported in 1996 (11) SCC 315, this Court had the
 occasion to deal with a similar issue and in all the aforesaid      D
 decisions, it was held that the Medical Board consists of an
.expert body and that its opinion is entitled to be given due
 weight and value. The consistent view of this Court is that such
 opinion of the Medical Board would be given a primacy and a
 Court should be slow in interfering with and substituting its own   E
 opinion with the opinion of the Medical Board.

      22. The Medical Board has given a categorical opinion that
the diseases for which the respondent has been released from ·
service were neither attributable to nor aggravated by Air Force F
service. The aforesaid Pension Regulations when read with the
Entitlement Rules, make it clear that the determination of
attributable or aggravation is as per the Entitlement Rules. As
the Medial Board has given a categorical opinion that the
ailment of the respondent was constitutional and the same is G
not attributable to or aggravated by Air Force Service, it was
unjustified for the learned Single Judge to set aside the
aforesaid concurrent opinions of the appellate Board and
Released Medical Board and also the findings recorded by the
trial court and also by the First Appellate Court merely because
                                                                     H
    518     SUPREME COURT REPORTS                 (2010) 7 S.CR


A   the learned Single Judge felt that there could be a presumption
    that the respondent was undergoing arduous nature of job as
    he was appointed as a Air Force personnel.

        23. We, therefore, set aside the judgment and order of the
    learned Single Judge, and allow the appeal filed by the
8
    appellant. As a result of this order, the suit filed by the
    respondent should be held to be dismissed.

    R.P.                                          Appeal allowed