Vakada Thirumurthulu Vs. Union of India, Rep. by Its Secretary to the Government, Ministry of Defence and Others - Court Judgment

(Order of the Tribunal made by Justice ACA Adityan)

1. The petitioner, who has been discharged on medical ground soon after his recruitment in the Indian Navy as a musician, has challenged the same before the Honourable High Court of Andhra Pradesh by way of filing W.P.No.15284 of 2009 and the same after the constitution of the Regional Bench of the Armed Forces Tribunal at Chennai was transferred to this Tribunal under Section 34(2) of the Armed Forces Tribunal Act 2007 and renumbered as T.A.No.182 of 2010.

2. The facts in brief as narrated in the affidavit to the petition filed by the petitioner run as follows. The petitioner hails from a poor agricultural family and he has studied upto 10th standard and passed the same in the year 2005 and thereafter, he joined in Intermediate 1st year during 2005-06 and since he failed in one subject in the first year, he applied for a post in the Indian Navy and he has opted for the branch of Music. The petitioner was called for by a call letter to appear before the 7th respondent on 26.6.2007 at 08.00 hours and the petitioner appeared before the 7th respondent on 26.6.2007. The petitioner had also participated in the written test conducted by the 7th respondent and he was thereafter asked to appear for final screening test to be conducted on 5.9.2007. The 7th respondent had conducted various tests including physical tests, running test, medical tests and declared that the petitioner was fit in all those tests and directed to report the office of the 8^th respondent at Mumbai, wherein he had undergone basic training for 20 days. Thereafter, the petitioner underwent training under the 5^th respondent.

2(a) While the petitioner was undergoing training under the 5^th respondent, the Officials directed the petitioner to undergo medical examination, since the petitioner was having a big mole (Black Pigmentation) on his right forehead in blackish colour. Dr.Rahul Ray, Sergeant Commander, had examined the petitioner on 15.10.2007 and declared that he was unfit for the job due to the said Black Pigmentation. Thereafter, the petitioner was admitted in INS Nivarini at Chilka on the ground that he was having some skin disease. At that time, the annual inspection was conducted by the higher officials of the Indian Navy and one of the higher officials has visited the said Hospital and enquired about the case of the petitioner and accordingly, referred his case for re-medical examination at the 9th respondent hospital. Subsequently, on 21.12.2007 another Doctor viz. Vivek Kumar, Sergeant Commander, had conducted tests and opined that the petitioner was unfit for the job due to the said big mole and has opined that the said mole was due to ‘neurocysticercosis/prior gramlomatous infection and EEG brain was also taken. Thereafter, the petitioner was sent to INHS Nivarini (hospital) ie., 6th respondent at Chilka.

2(b) In the meantime, the respondents officials were pleased to refer the case of the petitioner to the Medical Board ie., 6th respondent. The Medical Board, consisting of three Doctors, have examined the case of the petitioner and conducted several tests on 25.2.2007 and thereafter, referred the matter to the 3rd respondent on 4.1.2008 by declaring that the petitioner was unfit for service and invalided out from the service. The reason assigned by the Medical Board is that the petitioner is having “Intra Cranial Calcification” and “Zostero Form Hypo Pigmentation”. As per the opinion given by the 6th respondent, the 3rd respondent was pleased to approve the same on 12.12.2008 by confirming that the petitioner is unfit for the job applied for. The 4th respondent as per its order dated 10.3.2008 had invalided the petitioner from service. A copy of the same was also marked to the 5th respondent on 11.04.2008. Thereafter, the 5th respondent has obtained the petitioners signatures in various forms and invalided him on medical grounds with effect from 14.3.2008. The 4th respondent was pleased to issue an order dated 3.12.2008 holding that the petitioner is not entitled for disability pension for the reason that the disease under which the petitioner is suffering is neither attributable to nor aggravated by Navy service and the same was also assessed as 11% to 14%. The petitioner has not applied for invalid pension / disability pension. The petitioner was not suffering with any disease much less the alleged disease relating to the brain. But, to his surprise the petitioner was invalided out of service on medical grounds.

2(c) After discharge, the petitioner had approached a private hospital viz. King George Hospital at Visakhapatnam and made a request to the concerned Doctors to conduct the required tests to know whether the reasons mentioned in the medical report given by the respondents-officials are true or not. Accordingly, the Doctors at King George Hospital, Visakhapatnam, have conducted various tests pertaining to skin and also brain by sending a part of the skin from the blackish spotted area of the petitioners forehead for Biopsy. After receiving all test reports from various Specialists, the Civil Surgeon, at King George Hospital, Visakhapatnam, was pleased to issued opinion on 19.05.2009 by stating that “Skin biopsy showed histological features suggestive of Vascular naevus. ‘Vascular means ‘containing vesels Conveying blood or sap and ‘naevus means ‘birth mark in the form of a raised red patch on the skin or mole. Accordingly, another certificate was also issued by the Civil Surgeon, King George Hospital, on 21.5.2009 by clearly stating that the petitioner is not having any ‘intracranial calcification. Even the report of Histopathology dated 12.05.2009 reads that ‘Sections from specimen show mild hyperplasia of the epidermis with spongiosis and vascuolar degeneration. Dermis shows dilated capillaries with red blood cells in the lumen. Mild to moderate perivascular lymphocytes are seen. Skin adnexa are unremarkable. No granulomas noted. There is no evidence of malignancy in the tissue sent.” Hence, it is very clear from the above said test report that the petitioner is not suffering from any disease either pertaining to skin or brain. Hence, challenging the impugned order of invalidation on medical ground from service, the petitioner has come forward with this petition.

3. The respondents in their common counter would contend that the petitioner appeared for a preliminary test at INS Circars on 26th July 2007 for the post of musician in the Indian Navy for Metric Recruit (Musician) 2/07 batch. The petitioner was declared qualified in the preliminary test and the physical fitness test. However, on 27th July 2007, when the petitioner was medically examined at MI Room, INS Circars, he was declared ‘temporarily unfit. Later he appealed for Medical Review at INHS Kalyani and qualified in the Review Medical Examination. The petitioner was directed to report for final screening at INS Kunjali at Mumbai by 16^th September 2007, where he was selected/recruited and enrolled as Metric Recruit (Musician). The petitioner thereafter reported to INS Chilka (the training establishment for sailors) on 5th October 2007 to undergo basic training subject to being declared fit in the final medical examination conducted as INS Chilka. The petitioner was subsequently diagnosed with ‘intra-cranial calcification and zostoform hyper pigmentation at INHS Kalyani and found to be unfit for military training.

3(a) The petitioner was brought before invalidation medical board at INHS Nivarini and the IMB proceedings were approved by the Director General Medical Services (Navy) and thereafter discharged from Naval Service on being medically unfit for military training. All personnel who are discharged on medical grounds are assessed for grant of disability pension if the disease based on which he is being invalidated is either attributable to or aggravated by naval service and the quantum of disability is assessed to be over 20%. In the present case, as admitted by the petitioner, he had the hyper pigmentation since birth and therefore the same was neither attributable to nor aggravated by naval service. Even otherwise, the disability has been assessed as 11-14%. The petitioner appeared for the preliminary test conducted at INS Circars on 26th July 2007 for the post of musician in the Indian Navy for Metric Recruit (Musician) 2/07 batch.

3(b) On 15th October 2007 the petitioner was examined by Surgeon Commander Rahul Ray, Classified Specialist in Dermatology and Venereal diseases at INHS Kalyani and the petitioner was diagnosed with hyper pigmentation v® and declared unfit from dermatology side. As per the Naval Medical Standard laid down in Navy Order (Spl) 1/99, the petitioner was discharged from Naval Service on IMB (Invalidation Medical Board). The IMB proceedings were approved by the Director General Medical Services (Navy), the highest medical authority of the Navy on 12^th February 2008. The petitioner was at INHS Nivarini for conduct of the medical board proceedings and thereafter, awaiting the decision of DGMS (Navy). The petitioner is not entitled to get disability pension as per Rules since the opinion of the Medical Board is that the disease under which the petitioner is suffering is neither attributable to nor aggravated by Naval Service and the disability was also assessed as between 11% and 14%. The examination by the private Doctors at King George Hospital at Visakhapatnam and their report/opinion does not merit any consideration. The strict standards of medical fitness are mandatory for service in the armed forces and these medical standards are common to all recruits. This disability may not affect civil employment and therefore a certificate to that effect was issued to the petitioner. Hence, the petition is liable to be dismissed.

4. We heard the learned counsel Mr.D.Krishnamurthy appearing for the petitioner and the learned Senior Panel Counsel for Central Government Mrs.S.Seethalakshmi appearing for the respondents and considered their respective submissions.

5. Now the point for determination in this petition is whether the impugned orders dated 15.7.2007, 21.12.2007 issued by the 9^th respondent and the order dated 4.1.2008 issued by the 6th respondent and confirmed by the 3rd respondent by order dated 13.3.2008, discharging the petitioner from Naval service on medical grounds, are liable to be set aside for the reasons stated in the affidavit to the petition?

6. THE POINT:- The original Invaliding Medical Board proceeding relating to the petitioner ‘AFMSF-16 was produced by the learned Senior Panel Counsel for Central Government and We perused the original Invaliding Medical Board proceeding. It is really unfortunate that the petitioner, who after joining the Naval service, was discharged on medical ground within a short span of four months on the ground that he was suffering from the disability “ZOSTEROFORM HYPOPIGMENTAION V(RT) ICD NO-L-81-9”. According to the Board of Doctors, the disease under which the petitioner is suffering is neither attributable to nor aggravated by Naval service and the same is not connected with service. Further at part-5 of AFMSF-16, the Medical Board has opined that the disability would have existed even before the petitioner entering into service. The learned counsel appearing for the petitioner at this juncture would bring to the notice of this Tribunal the clear admission made by the respondents in their counter at Para-1, wherein the admission part of the respondents runs as follows:-

“The petitioner appeared for a preliminary test at INS Circars on 26th July 2007 for the post of musician in the Indian Navy for Metric Recruit (Musician) 2/07 batch. The petitioner was declared qualified in the preliminary test and the physical fitness test. However, on 27th July 2007, when the petitioner was medically examined at MI Room, INS Circars, he was declared ‘temporarily unfit. Later he appealed for Medical Review at INHS Kalyani and qualified in the Review Medical Examination. The petitioner was directed to report for final screening at INS Kunjali at Mumbai by 16th September 2007, where he was selected/recruited and enrolled as Metric Recruit (Musician).”

If the observation of the Medical Board in AFMSF-16 as to the effect that the disability is a congenital one, then atleast in the Review Medical Board examination, the Doctors who have reviewed the preliminary physical test conducted at MI Room, INS Circars, on 27th July 2007, would not have allowed the appeal preferred by the petitioner at INHS Kalyani against the opinion of the Doctors who have conducted the preliminary test and physical fitness test and would not have held that the petitioner is fit to be selected. Only on the basis of the opinion of the Review Medical examination conducted at INHS Kalyani, the petitioner was selected/recruited and enrolled as Metric Recruit (Musician). Only on 5^th October 2007, the petitioner was subsequently diagnosed of ZOSTEROFORM HYPOPIGMENTAION V(RT) ICD NO-L-81-9 and thereafter, referred to the Invaliding Medical Board and as per the Invaliding Medical Boards opinion (AFMSF-16), the petitioner was found unfit for the Naval service. So, We are of the considered view that the opinion of the Invaliding Medical Board (AFMSF-16) that the disability of the petitioner existed even before entering into service cannot hold any water.

6(a) Further, the learned counsel appearing for the petitioner has also pointed out the team of Doctors in the Invaliding Medical Board are not experts in Neurology. The AFMSF-16 produced today by the learned Senior Panel Counsel for Central Government is dated 31.10.2007, which shows that within a month of service the petitioner was examined by the Medical Board. Along with the counter the respondents have produced duplicate copy of AFMSF-16 dated 4.1.2008, which had been conducted after the petitioner had completed three months of total service, wherein also the observation of the Medical Board is that the disability would have existed for the petitioner even before entering into service and that the disability is neither attributable to nor aggravated by Naval service. There is absolutely no explanation forthcoming on the side of the respondents as to why two AFMSF-16/Invaliding Medical Boards were conducted against the petitioner. The Doctors viz. Rani Malik, Surg Lieutenant, Manish, Surg Lt Commander and Anuj Singhal, Surg Lt Cdr, Graded Specialist (Med), were the members of the Medical Board (AFMSF-16) dated 31.10.2007, whereas the members of the Medical Board for AFMASF-16 dated 4.1.2008 are Manish, Surg Lt Commander, MO Specialist (Anaesth), S.Roy Choudhury, Surg Lt Cdr, MO gynaecologist and Anuj Singhal, Surg Lt Cdr, Graded Specialist (Med). It is pertinent to note here that no specialist in Neurology was a member of the Medical Board for AFMSF-16 dated 4.1.2008 or dated 31.10.2007, which examined the petitioner and gave the opinion that the disease under which the petitioner is suffering is neither attributable to nor aggravated by Naval service. So, the medical opinion of the Invaliding Medical Board (AFMSF-16) dated 4.1.2008 on the basis of which the petitioner was invalided out of service itself is not free from any doubt or suspicion.

6(b) The learned Senior Panel Counsel for Central Government relied on a judgment of the Honourable High Court of Delhi at New Delhi in W.P. (C).No.2944 of 2005 (Dharam Singh Vs. Union of India and others), wherein relying on a dictum of the Honourable Supreme Court in Ex- Sapper Mohinder Singh Vs. Union of India, in Civil Appeal No.163 of 1993, dated 6.2.1995, the Honourable Delhi High Court has held that on the basis of the medical opinion, which has held that the disease under which the petitioner therein was suffering was neither attributable to nor aggravated by Naval service, is not entitled to disability pension. Hence, the learned Senior Panel Counsel for Central Government would contend that the petitioner is also not entitled for disability pension or any other relief asked for in this petition on the basis of the Invaliding Medical Board proceedings AFMSF-16 dated 4.1.2008.

6(c) If the medical opinion of the Invaliding Medical Board AFMSF-16 is free from any doubt and if the opinion is unassailable, then the Tribunal has to give weightage, value, credence and Primacy to the medical opinion AFMSF-16 as per the latest judgment of the Honourable Supreme Court in 2009(8) MLJ 1475 (SC) [Secretary, Ministry of Defence and others Vs. Damodaran AV (Dead) through LRs and others). But, as We have already referred to above, there is absolutely no explanation forthcoming from the side of the respondents as to why there were two AFMSF-16 / Invaliding Medical Boards conducted one on 31.10.2007 and another one on 4.1.2008 for the petitioner. There is absolutely no explanation from the side of the respondents as to why there was no Doctor, who is an expert in Neurology, was made as a member in the Invaliding Medical Board, which examined the petitioner to come to a conclusion that the disease under which the petitioner is suffering is neither attributable to nor aggravated by Naval service and also to arrive at a conclusion that the disease existed even before entering into service. Under such circumstances, We are of the considered view that the petitioner is liable to be examined by a Review Medical Board to be properly constituted as per law by the respondents within two months from this date for the petitioner and the relief asked for in this petition is subject to the out come of the opinion of the Review Medical Board. Point is answered accordingly.

7. In fine, the respondents are directed to constitute a proper Review Medical Board at least with a Neurologist as one of the Members as per rules, for the petitioner near the place where the petitioner is residing (Vizakapatnam) within two months from today. The relief asked for in this petition is subject to the result of the opinion of the Review Medical Board to be held as directed. The petitioner is at liberty to approach this Tribunal, if he has got any grievance against the Review Medical Board to be held. The petition is disposed of in the above terms. No costs.