Padmanabhan Nair, Member (J):
1. This Transferred Application was filed as an Original Petition, O.P.No.13646/2001 before the Honourable High Court of Kerala and was pending. It was been transferred to this Bench of the Armed Forces Tribunal consequent to its formation. The applicant in this Transferred Application is an ex-serviceman, who was discharged on account of disability. In the application it is averred that the applicant was enrolled as an Airman in Indian Air Force on 12.6.1986. After training, he was posted at Air Force Station, Kanpur. He took part in the Republic Day Parade at Delhi held on 26.1.1988. During June 1992, the applicant was posted at 2209 Squadron, A.F., Suratgarh, which according to the applicant is a Hard Station and he had to face number of problems. It is a desert area also. He was subjected to inhuman treatment in so many ways. The applicant was subjected to duties, which call for heavy responsibility, alertness and promptness. He became mentally upset and could not sleep due to terrifying atmosphere in Suratgarh at that time, which was an area affected by terrorist activities. The mental condition of the applicant was aggravated due to the ill-treatment of the officers also. He was admitted at Military Hospital, Chandigarh during December 1993 as he was suffering from mental disturbances very similar to one which he had in June 1992, which was treated and cured. Finally he was admitted in Command Hospital, Western Command, Chandimandir in Chandigarh on 8.9.1995. He underwent treatment till 29.9.1995. He was brought before an Invaliding Medical Board. The Board found that applicant was suffering from Schizophrenia and included him in category EEE (Permanent) and invalided him out of service with effect from 26.9.1995. In the discharge book, his character and behaviour was noted as exemplary and trade proficiency was recorded as exceptional. According to the applicant, he was not suffering from Schizophrenia. If as a matter of fact he was suffering from Schizophrenia, it ought to have been detected in the medical examination at the time of enrolment. Further, he would not have been able to attend the Republic Day Parade. According to the applicant, he was suffering from some kind of mental disturbances like 'Psychosis' or 'psychoneurosis' affected by stress and strain attributable to Air-force Service during the period from 1992 onwards. He was not suffering from any illness till 8.5.1995, except the fact that he had undergone treatment from December 1993 to February 1994. The applicant was not referred for better treatment to higher medical officers or even civil medical officers. He was discharged from service and sent home. He was not given any further medical help. The applicant joined service after executing a bond for 20 years regular service and 6 years reserve service. Hence the Air Force authorities had an equal mandatory duty to allow him to work for 20 years in regular service and 6 years in reserve. The release of the applicant on medical ground is highly illegal, arbitrary, mala fide, void, unjust and in violation of the fundamental rights guaranteed to him under the Constitution. The applicant applied for disability pension. The same was rejected. The applicant filed appeal. He filed a petition before the Hon'ble Minister for Defence also. His appeal was rejected. The applicant filed a application for selection to the post of L.D.Clerk in Sainik Welfare Department before the District Officer, Kerala Public Service Commission, Palakkad. As he could not produce any Pension Payment Order his application was rejected. He is entitled to get selection and appointment as U.D.Clerk. Before December 1991 the applicant was not affected in any way with mental illness. There was no history of any family member suffering from any mental illness. The applicant has put in 9 years and 106 days of service. Since the respondents did not take any action, applicant filed O.P.No.18353 of 1999 before the Hon'ble High Court of Kerala, which was disposed of with a direction to the first respondent in that Original Petition to consider and pass orders on Ext.P10 representation filed before the first respondent. Ext.P10 was rejected and the fact was communicated to the applicant. Hence, the present Writ Petition filed for a declaration that discharge is illegal and ab initio void and for a direction to reinstate the applicant in service and also to pay a compensation for Rupees Fifty Lakhs to him. There is a claim for disability pension also.
2. The respondents filed a counter affidavit contending that applicant was enrolled on 12.6.1986 and was medically boarded out on 26.9.1995 by a duly constituted Invaliding Medical Board under the provisions of Rule 15(2)(c) of the Air Force Rules, 1969. The applicant was suffering from the disease 'Schizophrenia â 295'. His disability was fixed at 50% for two years by the Invaliding Medical Board. He had served 9 years and 110 days of service The Invaliding Medical Board was held on 26.8.1995 at Command Hospital, Chandimandir and approved by Air Headquarters on 7.9.1995. The invaliding disease was identified as Schizophrenia, not connected with military service; hence not attributable to or not aggravated by service. The applicant's claim for disability pension was forwarded to the office of the Chief Controller of Defence Accounts (Pensions). The Chief Controller of Defence Accounts (Pension) in consultation with the Medical Advisor (Pension) has held that applicant's disability is neither attributable to nor aggravated by Air Force Service and rejected his claim for disability pension. The appeal filed by the applicant was rejected. The applicant was paid an amount of Rs.10,440/- as Invaliding Gratuity and Rs.15996/- as Death Cum Retirement Gratuity. The applicant filed a Second Appeal challenging the decision of the First Appellate Authority. That was also rejected. The Ministry of Defence reviewed the applicant's case for grant of disability pension and a decision rejecting the same was taken. The applicant was sent for psychiatric evaluation on 11.11.1994 following his abnormal behaviour in a state of mental stress. The applicant was engaged in clerical work of his trade not involving much of physical or mental exertion. The allegation of ill treatment by officers is false and denied. He was again admitted in Command Hospital, Chandimandir on 13.11.1994 and placed under the psychiatric care of Lt.Col.Pandey, Classified Specialist in Psychiatry. The applicant was treated with anxiolytics. He was granted a spell of sick leave and his condition improved. He was placed in low medical category and sent back to his Unit. He was found behaving in abnormal way after few days. He was again brought to the hospital on 29.2.1995 and admitted. The applicant disclosed that he was suffering from mental illness from the year 1991 onwards. He did not show active psychotic features. The invaliding disease was diagnosed as Schizophrenia. In view of the report of the Classified Specialist in Psychiatry, the applicant was brought before an Invaliding Medical Board on 26.8.1995. The applicant was given the best treatment available in the hospital. Since his disease had a prolonged course with repeated relapses and residual impairment persisted in the form of negative symptoms, the need to refer the applicant to higher medical officials or civil doctors did not arise. The Classified Specialist opined that further retention of the applicant is not desirable. Hence, the Medical Board held on 26.8.1995 recommended invalidation of the applicant. The Medical Board has opined that the illness from which the applicant is suffering is a constitutional disorder. The Appellate Medical Authority also confirmed that finding. The onset of the invaliding disease was in a peace station. There had been no high altitude service. There was no history of trauma or infection. Hence, the invaliding disease was held as neither attributable to nor aggravated by the duties of military service. The claim for reinstatement is denied, as he was properly invalided out of service by an authorised Medical Board. The invaliding disease, Schizophrenia, is a disease which is constitutional in nature and incurable also. Hence, the respondents pray for dismissal of the application.
3. The following points arise for consideration in this matter:
(1) Whether the counter affidavits filed by the respondents are to be rejected?; (2) Whether the applicant is entitled to be reinstated in service?; (3) Whether he is entitled to get Rs.50 lakhs as compensation?; and (4) Whether he is entitled to get disability pension?.
4. Point No.(1): The applicant filed an additional reply affidavit before this Tribunal controverting the averments contained in the counter affidavit, he has raised a contention that counter affidavit is sworn to by Wing Commander A.S.Yadav, Commanding Officer, H Q Southern Air Command (Unit), Air Force, Akkulam, Thiruvananthapuram. It is also contended that the same is liable to be rejected as the deponent is unqualified and incompetent to swear the affidavit. It is also contended that cause of action had arisen at the Indo-Pak Border Air Force Station at Suratgarh in Rajasthan and the applicant was compulsorily discharged from service from Suratgarh to which the deponent was not a party to and he was not a serving personnel at Suratgarh Air Force Station during the relevant period.
5. If it is to be held that only an officer who is attached to the Station from which the applicant was discharged is competent to file the counter affidavit, the applicant will have to explain as to how he can maintain the action before this Tribunal. According to the applicant, the cause of action has arisen in Indo Pak Border. But he has filed this proceedings as Writ Petition in the year 2006 before the Honourable High Court of Kerala and was pending there till it was transferred to this Tribunal. If the contention of the applicant is accepted, the Honourable High Court of Kerala had no territorial jurisdiction to entertain the Writ Petition. But, in view of the provisions contained in Armed Forces Tribunal Act and Rules, this issue has become irrelevant. Rule 6 (2) of the Armed Forces Tribunal (Procedure) Rules, 2008, (for short, Procedure Rules) permits a person who has ceased to be in service by reason of his retirement, dismissal, discharge etc. to file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application. Rule 12 (7) of the Procedure Rules enjoins that an officer acquainted with the facts of the case but not below the rank of Commissioned Officer or a Group 'A' Officer or a Desk Officer in any Ministry or Department of the Union of India may verify the pleadings and other documents to be filed for an on behalf of the Union of India before the Tribunal. So, the person who has filed the counter affidavit is competent to file such an affidavit. It is not necessary that he should be a person who had actually worked at the place from where the applicant was discharged. So, we overrule the objection and hold that the person who filed the counter affidavit is fully competent to swear the same.
6. Points (2) and (3): The prayer in the Transferred Application is to issue a writ of mandamus or direction declaring that discharging the applicant from service on the basis of Ext.P4 is illegal and he is entitled to be reinstated in service and continue till superannuation. The applicant was enrolled in the Air Force on 12.6.1986. He was invalided out of service on 26.9.1995 in view of the recommendations of a duly constituted Invaliding Medical Board. In the petition it is admitted that applicant was mentally upset and he could not sleep due to terrifying atmosphere prevailing at Suratgarh at that time. It is further admitted that his mental condition further aggravated due to ill-treatment of the superiors. It is also admitted that he was admitted in Military Hospital, Chandigarh in December 1993 as he was suffering from mental disturbances very similar to the one which he had in June 1992. He was admitted in Command Hospital, Western Command, Chandimandir on 8.5.1995 and he underwent treatment till 29.9.1995. The applicant was brought before a duly constituted Medical Board. The Medical Board held on 26.8.1995 found that the applicant was suffering from Schizophrenia and included him permanent low medical category â EEE. It is also certified that applicant is fit for discharge. Though the applicant has raised a contention that the certificate is false, frivolous, void, unreasonable etc. he has not stated any reason in support of that contention. On the other hand, in paragraph 7, the applicant has admitted that he was suffering from some sort of mental illness such as psychosis or psychoneurosis affected by the stress and strain attributable to Air Force Service. Why the applicant never made a request for Re-Survey Medical Board or Appellate Medical Board is not stated. Why a team of doctors duly form the Medical Board should issue a false certificate against him is also not explained by him. The Air Force Pension Regulations are very clear. When a person is suffering from illness, he has to be examined by a duly constituted Medical Board. If the Medical Board is of the opinion that the service of the Airman is no longer required, he has to be discharged. So, the contention of the applicant that he was discharged without any basis is unsustainable. The materials on record shows that applicant was assessed by a team of doctors, who found him suffering from mental illness (Schizophrenia- 295) and recommended that retention of the applicant in service is not necessary. So, the claim for reinstatement is without any basis and is only to be rejected. Apart from making a bald claim for Rs.50,00,000/- as compensation, the applicant has not adduced any evidence to substantiate that claim. We have already held that applicant was discharged in view of the opinion of a properly constituted Medical Board. So, the applicant is not entitled to get any amount as compensation also.
7. Point No.4: Now, we shall consider whether the applicant is entitled to get disability pension. The respondents have produced Form No.16 It shows that for the first time the illness started during November 1994 while the applicant was working at Suratgarh. Even though the applicant has raised a contention that Suratgard is a very difficult area being a border area, the learned counsel appearing for the respondents on instructions submitted that the statement is not correct. It is not a border area. It is also pointed out that though the applicant is an Equipment Assistant, actually he was discharging the duties of a Clerk in the Office and the contention that he had to undertake very strenuous journeys is false and without any material. The applicant was examined by Classified Specialist in Psychiatry. The report shows that at the time of examination he had stated that in the year 1991 he became aloof. There is absolutely no record available to show that from 1991 till November 1994 the applicant was suffering from mental illness. He was not admitted in any Army Hospital prior to 1994. The family history extracted in the certificate shows that applicant is hailing from a low socio economic family in Calicut District, his father was not keeping good health, his mother is suffering from hypertension, elder brother is a teacher and his sister is married and settled. Though there is a statement that one of his brothers committed suicide, this is denied by the applicant. Absolutely no material is available to hold that brother of the applicant committed suicide. Even assuming that brother committed suicide, there is nothing on record to show that brother was having mental illness. The applicant has studied upto 12th Standard and thereafter he did Diploma in Civil Engineering. There is no history of drug or alcohol abuse. The Board has opined that the disability did not exist before entering the service. All the material columns regarding aggravation and attributability are noted as 'NA' and 'NA'. The only statement made is that illness is a constitutional disease. The disability was assessed at 50% for two years from 26.8.1995. So, a perusal of the Form No.16 shows that Medical Board has not assigned any reason whatsoever, to hold that the disease from the applicant was suffering is a constitutional one. It is trite that the Medical Board is bound to give reasons. The applicant has produced materials and articles on Schizophrenia. It shows that one of the causes may be environmental factors including prenatal stressors, the living environment and drug abuse. So, the finding of the Board that illness is neither attributable to nor aggravated by the service conditions is not based on any material. The burden is on the respondent to establish that illness from which the applicant was suffering was neither attributable to nor aggravated by Air-force service. So, we accept the case of the applicant that illness from which the applicant was suffering was aggravated by the conditions of service in the Air force and hence he is entitled to get disability pension.
8. The Medical Board has assessed the disability of the applicant to 50% for two years from the date of discharge. Thereafter, there was no review. The counsel for the respondents submitted that there is no material to hold that what exactly is the percentage of disability the applicant is suffering. In Ex-Sapper Mohinder Singh v. Union of India (Civil Appeal No.164 of 1993) decided on 14.1.1993, in a similar case, the Apex Court directed that the applicant shall be paid disability pension at the rate of percentage of disability fixed and permitted the respondents authority to have the appellant re-examined by a properly constituted Medical Board for re-assessment of the disability. In this case, the percentage of disability was fixed as 50% for a period of two years from 26.8.1995. So, he is entitled to get disability pension at that rate for two years from 26.8.1995 to 25.8.1997. The respondents shall take steps to re-assess the disability of the applicant by examining him by a properly constituted Medical Board for re-assessing the disability with effect from 26.8.1997 and pay the disability pension at the rate fixed by the Board.
9. In the result, the Transferred Application is allowed in part. The claims of the applicant for reinstatement in service and compensation are rejected. It is held that applicant is entitled to get disability pension at the rate of 50% for a period of two years from 26.8.1995 till 25.8.1997. There will also be a direction to the respondents to constitute a Medical Board and to get the percentage of disability of the applicant re-assessed and to fix the disability from 26.8.1997 and pay the same to the applicant. The applicant shall cooperate and shall appear before the Board as and when he get intimation.
The parties shall bear respective costs. Issue free copies of the order to both sides.