Judgment:
(Order of the Tribunal made by Justice ACA Adityan)
1. The unfortunate petitioner, who had AFMSF-16 / opinion of the Invaliding Medical Board in his favour, after getting an order of rejection of the disability pension from the second respondent, ultimately knocked at the doors of the Honourable High Court of Andhra Pradesh by way of filing W.P.No.12250 of 2005, the same, after the constitution of the Armed Forces Tribunal, Regional Bench at Chennai, after the enactment of the Armed Forces Tribunal Act 2007, has been transferred to this Tribunal and assigned T.A.No.77 of 2010.
2. The short facts in the affidavit to the petition relevant for deciding this case sans irrelevant particulars are as follows:- The petitioner enrolled in the Army on 09.11.1984 in the Artillery Centre and at the time of joining Indian Army, he was placed under the medical category âAYE. After the training, the petitioner was posted at high altitude area and he was assigned the job of Mess-waiter in the Army close to the kitchen. Due to adverse service conditions and exposure, the petitioner had suffered with âMigrain ICD 346-V-67 and in June 1991, he was admitted in the Section Hospital, Gopalpur. Thereafter, he was transferred to Navy Hospital, Chilka and then to the Hospital of INHS âKalyaniâ, Visakhpatnam, wherein the petitioner was examined by Medical Board and was placed under the medical category âC for six months. Thereafter, he was admitted to Navy Hospital, Chilka and the Medical Board placed the petitioner under medical category âE EE(P) Migrain, ICD 346-V-67 and discharged the petitioner from service with effect from 01.05.1993. The petitioner was orally informed that the Medical Board has recommended for 30% disability pension. The disability under which the petitioner was suffering was aggravated due to service condition, in the Discharge Certificate there is an endorsement to the effect that âCombined Certificate of Discharge and Recommendation for Civil Employment. The said certificate itself indicates that the disability is aggravated only due to military service. In the communication of R3 dated 17.01.1994 the petitioner was intimated that the CCDA (P), Allahabad (UP), ie., the second respondent, issued a rejection memo dated 06.01.1994 intimating that the disability resulted in the petitioners invalidment is not attributable to the military service and hence, the petitioner is not eligible for invalid pension. The second and third respondents have also rejected the disability pension claim of the petitioner. The appeal dated 05.02.1994 preferred by the petitioner to the first respondent also failed. The second appeal preferred by the petitioner to the third respondent also was of no avail. Hence, the petition for sanction of disability pension.
3. In the common counter the respondents would contend that as per Para 383 of Defence Regulations, the petitioner was enrolled after prior medical examination. The petitioner has served in the field area from 10.10.1986 to 27.09.1989, during which he had hardly served in difficult areas including high altitude area from 10.10.1988 to 30.11.1988. However, the on set of the disease was during February 1991, while he was serving at Gopalpur in peace area since 27.09.1989. There is no extra stress and strain of service involved in the said area. The petitioner was placed in low medical category âCEE (Temporary) with effect from 18.03.1991 and on subsequent review at INHS Nivarini, the petitioner was placed in low medical category CEE (Permanent) with effect from 01.11.1991 due to âMigraine ICD No.346. The petitioner was down graded to low medical category âCEE (Permanent) with effect from 01.11.1991 and expressed his unwillingness for further service in sheltered appointment vide his certificate dated 02.09.1992. So, he was not considered for sheltered appointment. The duly constituted Release Medical Board viewed his disability âMigraine ICD No.346 as aggravated by military service due to stress and strain of service and degree of disablement was assessed at 30% (permanent). As per Rule 14(b) of Entitlement Rule for Casualty Pensionary Awards 1982, as amended, even if a disease is accepted as having arisen in service, for acceptance of the aggravation due to military service, it must also be established that the conditions of military service contributed to onset of disease and that the conditions were due to the circumstances of duty in military service.
3(a) The disablement of the petitioner was viewed as neither attributable to nor aggravated by military service by the Medical Advisor (pension) in terms of ibid Rule, under the provisions of Rule 17 and 27 of Entitlement Rule for Casualty Pensionary Awards 1982. Therefore, the petitioner was not granted disability pension in terms of Para 173 of Pension Regulations for the Army 1961, Part-I. However, necessary comments in this regard will be offered by medical Advisor (Pensions) as well as by PCDA (P) Allahabad. The claim of the petitioner for disability pension was rejected by the PCDA(P), Allahabad, vide their letter No.G- 3/53/696/9-93/Arty, dated 06.01.1994, on the ground that the disability, on which the claim was based, was viewed as not attributable to military service. Hence, the claim of the petitioner for disability pension was rejected by the PCDA (P), Allahabad. Further, the decision of PCDA (P), Allahabad, was communicated to the petitioner vide Arty Records Letter No.14499649M/PPO/DP-38876/NE. dated 17.01.1994, with an option to prefer an appeal to Government of India, Ministry of Defence (Pen-A), New Delhi, within six months from 06.01.1994, if he was not satisfied with the decision of PCDA (P), Allahabad.
3(b)The petitioner preferred an appeal dated 05.02.1994 and the same was forwarded to PCDA (P), Allahabad, for onwards submission to Government of India, Ministry of Defence (Pen-A), New Delhi, along with their audit report for consideration. The PCDA (P), Allahabad, processed the same to the Government of India, Ministry of Defence for consideration vide their letter No.G-3/53/696/9/93/Arty/II, dated 08.01.1994. The Appellate Medical Authority found that the onset of invalidating disease was in February 1991 at Gopalpur in peace station. Hence, his appeal was dismissed by the Appellate Authority and the same was communicated to the petitioner vide their letter No.7(410)/94/D (Pen â A and AC), dated 13.10.1994.
3(c)Thereafter, the petitioner preferred second appeal dated 06.02.1998 to the Government of India, Ministry of Defence. The second appeal was also rejected by the Government of India, Ministry of Defence, vide their letter No.6(21)/98 D (Pen A and AC), dated 03.06.1999. The representation dated 23.02.2002 received from Ex-Service League Visakhapatnam Pension Adalat was suitably replied vide Artillery Records Letter No.14499649/Appeal-6477/Pen-2, dated 11.03.2002. Thereafter, another representation dated 04.07.2002 received from Ex-Service League Visakhapatnam, was also suitably replied vide Artillery Records letter No.14499649/Appeeal-6477/Pen-2, dated 23.07.2002. After taking into consideration the opinion of the Release Medical Board (IMB), PCDA (P), Allahabad, has rejected the claim of the petitioner for disability pension. Hence, the petition is liable to be dismissed.
4. Now the point for determination in this petition is Whether the petitioner is entitled for sanction of disability pension for the reasons stated in the affidavit to the petition?
5. POINT:- Heard the learned counsel appearing for the petitioner and also the learned JAG Officer and considered their rival submissions. The learned JAG officer has filed original of AFMSF-16 / opinion of the Invalid Medical Board relating to the petitioner today, which shows that the petitioner was suffering from a disease âMigraine ICD 346â. The opinion of the Medical Board at page 3 reads that the disease under which the petitioner is suffering is not attributable to service but the same is aggravated due to service, âdue to stress and strain of serviceâ and that it is connected with the service. Rule 173 of the Pension Regulations for the Army, 1961, reads as follows:-
Primary conditions for the grant of disability Pension
âUnless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of disability which is attributable to or aggravated by military service in nonbattle casualty and is assessed at 20 per cent or over.â The question whether a disability is attributable to or aggravated by military service shall be determined under the Rules in Appendix II. The relevant portion of which reads as follows:-
â2. Disablement or death shall be accepted as due to military service provided it is certified that_
(a)The disablement is due to wound, injury or disease which_
(i) is attributable to military service; or
(ii)existed before or arose during military service and has been and remains aggravated thereby;
(b)the death was due to or hastened by_
(i) a wound, injury or disease which was attributable to military service, or
(ii) the aggravation by military service of a wound, injury or disease which existed before or arose during military service.
Note:-The rule also covers cases of death after discharge/invaliding from service.
â¦â¦â¦â¦..
4. In deciding on the issue of entitlement all the evidence, both direct and circumstantial, will be taken into account and the benefit or reasonable doubt will be given to the claimant. This benefit will be given more liberally to the claimant in field service case.â
5(a) The learned JAG Officer in his argument would draw the attention of this Tribunal to Regulation 423, which deals with the attributability to service. But the opinion of the Medical Board is that the disability under which the petitioner is suffering is not attributable to service. But their definite opinion is that the disease is aggravated due to service. What sanctity we can attach to AFMSF-16 / opinion of the Invaliding Medical Board has been laid down in the latest Judgment of the Honourable Apex Court reported in 2009(8) MLJ 1475 (Secretary, Ministry of Defence and others Vs. Damodaran A.V (Dead) through LRs and others). As per Dr.Mudundakamsharma, J., the dictum runs as follows:-
â7. The aforesaid provisions including that of the guidelines called the Guide to Medical Officers (Military Pensions) 1980 and also the source of power, i.e., the provision of Section 173 of the Pension Regulations including other relevant provisions came to be considered by the Supreme Court. A conjoint reading of the aforesaid provisions along with the decisions rendered by this Court makes it amply clear that the said provisions and the decisions lay down the entire procedure, guidelines and principles as to under what circumstances a person could be said to be medically unfit and disabled and is to be boarded out from service and its attributability. The decisions have also dealt with the manner and circumstances under which the said person would be entitled to receive the disability pension.
8. When an individual is found suffering from any disease or has sustained injury, he is examined by the medical experts who would not only examine him but also ascertain the nature of disease/injury and also record a decision as to whether the said personnel is to be placed in a medical category which is lower than âAYE (fit category) and whether temporarily or permanently. They also give a medical assessment and advice as to whether the individual is to be brought before the release/invalidating medical board. The said release/invalidating medical board generally consists of three doctors and they, keeping in view the clinical profile, the date and place of onset of invaliding disease/disability and service conditions, draws a conclusion as to whether the disease / injury has a causal connection with military service or not. On the basis of the same, they recommend (a) attributability, or (b) aggravation, or (c) whether connection with service. The second aspect which is also examined is the extent to which the function capacity of the individual is impaired. The said is adjudged and an assessment is made of the percentage of the disability suffered by the said personnel which is recorded so that the case of the personnel could be considered for grant of disability element of pension. Another aspect which is taken notice of at this stage is the duration for which the disability is likely to continue. The same is assessed/recommended in view of the disease being capable of being improved. All the aforesaid aspects are recorded and recommended in the form of AFMSF-16. The Invalidating Medical Board forms its opinion/recommendations on the basis of the medical report, injury report, court of enquiry proceedings, if any, charter of duties relating to peace or field area and of course, the physical examination of the individual.
9. The aforesaid provisions came to be interpreted by the various decisions rendered by this Court in which it has been consistently held that the opinion given by the doctors or the medical board shall be given weightage and primacy in the matter for ascertainment as to whether or not the injuries / illness sustained was due to or was aggravated by the military service which contributed to invalidation from the military service.â
5(b) The learned counsel appearing for the petitioner relying on 2004 LAB I.C. 347 ( Union of India and others Vs. Shamsher Singh) would contend that when the medical board has opined that the disability under which the army personnel is suffering is aggravated due to military service then without assigning any reason rejecting the disability pension by the authorities concerned is improper. The short facts of the said case are that a Non-Commissioned Officer had suffered from ailment in the year 1989, which is described in medical terms as âRecurrent Malignant Fibrous Hist-iocytoma. The said individual was under treatment during the years 1990, 1991, 1993 and 1995. In spite of the radiotherapy and other treatments, the ailment persisted and ultimately he was declared as unfit to perform military duties. The said individual applied for disability pension on 21.07.1997 which was refused on the ground that the disability of the personnel / respondent was neither aggravated nor could be attributed to military services but was due to constitutional disorder of the respondent. The respondent / Army Personnel filed OWP.No.404 of 2000, which was duly considered by a learned Single Judge on merits and the same was allowed with a direction that the disability of the respondent was 100%. Against the said decision, the Appeal in LPA (OW) No.37 of 2003 was preferred before the Division Bench of Jammu and Kashmir High Court. After considering the case of the appellants as well as the respondent, the Division Bench of the Jammu and Kashmir High Court has held as follows:-
âIt is settled position of law that the appellants, (Controller of Defence Accounts), who are not medical experts, cannot sit as if in appeal, over the opinion of medical experts. In the present case the Medical Board has given a clear finding that the disability suffered by the respondent was aggravated due to military service and if the appellants were not satisfied with the opinion of the Medical Board, they could have assailed that opinion which does not seem to have been done. Rejection of medical opinion, without complying with the above requirement, has been held had by the Apex Courts reported in a case titled Union of Inda and other Vs. Dhir Singh Chhine, (2003)(1) JT (SC) 561 : (2003 LAB IC 750). The relevant portion of the same is reproduced as under:-We have already referred to the opinion of the medical board which found that the two disabilities from which the respondent was suffering were not attributable to or aggravated by military service. Clearly, therefore, the opinion of the medical board ruled out the applicability of the Regulation 53 to the case of the respondent. The disease from which he was suffering were not found to be attributable to or aggravated by military service, and were in the nature of constitutional disease. Such being the opinion of the medical board, in our view the respondent can derive no benefit from Regulation 53. The opinion of the medical board has not been assailed in this proceeding and, therefore, must be accepted.â
5(c)In the case on hand, AFMSF-16 / opinion of the Invaliding Medical Board is to the effect that the disease viz. âMigraine ICD 346â under which the petitioner is suffering, even though is not attributable to the service, is aggravated due to strain and stress of the service. It is immaterial whether the onset of the disease of the petitioner is due to his service at peace area or in the war field. So, without giving due weightage and sanctity to the opinion of the Medical Board, the rejection of disability pension by the second respondent to the petitioner, in our considered view is not only illegal but also opposed to all cannons of natural justice. Point is answered accordingly.
6. In fine, the impugned order of the second respondent is hereby set aside and the petition is allowed as prayed for. For compliance four months. No costs.