R. Murugan Versus Union of India, Rep by Its Secretary, Department of Defence, New Delhi and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1117260
CourtArmed forces Tribunal AFT Regional Bench Chennai
Decided OnFeb-22-2010
Case NumberT.A.No.12 of 2009 (W.P.No.16909 of 2004)
JudgeTHE HONOURABLE JUSTICE A.C. ARUMUGAPERUMAL ADITYAN (MEMBER-JUDICIAL) & HONOURABLE MR. LT GEN (RETD) S. PATTABHIRAMAN (MEMBER – ADMINISTRATIVE)
Excerpt:
lt gen (retd) s.pattabhiraman the petitioners wife had filed w.p.no.1949 of 2001 before the honourable high court of madras, which has subsequently been transferred to this tribunal, after the formation of armed forces tribunal under armed forces tribunal act 2007 and renumbered as t.a.no.12 of 2009. 2. the petitioner in the affidavit to the petition would state as follows:- 2(a) the petitioner was enrolled in the corps of eme on 22.2.1988 and discharged from service on 25.06.1991 on medical grounds in category ‘eee without any kind of pension. while in service, the petitioner sustained a head injury in july 1990 during games parade. he was admitted to command hospital (ch), lucknow. thereafter, he was placed in low medical category ‘cee for six months. thereafter, he was released out of service with disability ‘cannabis psychosis. his case for invalidment seems to be unjustifiable. there are sufficient grounds to believe that only the head injury which occurred in july 1990 had aggravated to a mental disability. but the cause for disability has been wrongfully assessed by the medical authorities. because of the wrongful declaration, the petitioner stands to lose all privileges due to an exserviceman. moreover, there has not been any history of using cannabis during his service. his disability is only because of the head injury sustained while in service. 2(b) the petitioner has been issued with the discharge certificate showing excellent remarks with fitness certificate for employment in civil. however, the cause of disability shown as ‘cannabis psychosis would render the petitioner unable to get any job in civil though he is only 35 years (then). repeated requests for grant of disability pension have been rejected on the ground that ‘cannabis psychosis is neither attributable to nor aggravated by military service. the petitioner also submitted a case for re-examination on 15.04.2003 by constituting a special resurvey medical board. the petitioner, therefore, has a plea for constituting a special resurvey medical board and dispose of the case in accordance with law. hence, the petition. 3. in their common counter filed by the respondents, the respondents would state as follows:- the petition is not maintainable in law. it is stated that the petitioner r.murugan was discharged from service due to disability viz., ‘cannabis psychosis and not due to head injury. the petitioner r.murugan went on leave and he met with an accident on 2.7.1990 at karaikal when he was a pillion rider of moped sustained head injury and he was treated in local hospital at karaikal. the allegation that he sustained the head injury while on parade is denied. due to the head injury sustained when he was on leave, on reporting for duty, he was examined and was down graded to category ‘cee (t) for six months with effect from 20.10.1990. thereafter, his case was reviewed and he was upgraded to medical category ‘aye. the injury sustained by the petitioner murugan was considered by the duly constituted court of inquiry as well as competent medical authority as neither attributable to nor aggravated by military service. 3(a) as per the findings of the medical board, the petitioner murugan was said to be regularly smoking cannabis right from his childhood and continued in service, and increasing the habit of smoking cannabis gradually since he was getting monthly salary. in the first week of 1991, the petitioner murugan behaved abnormally he was admitted in mh bhopal, then he was shifted to mh jabalpur for psychiatrist treatment. the pshycastrist noted that the petitioner mruguan was overactive with pressure of speech and delusion of grandeur when deprived of smoking cannabis. the petitioner did not respond to the treatment and was invalided and discharged from service with effect from 26.06.1991. the medical board has clearly indicated in its report that he was not fit for duty and recommended invaliding due to disability ‘cannabis psychosis. as per pension regulations for the army 1961 (part-i) para 173, the petitioner murugan is not entitled for any disability pension since he has been categorized as disability of ‘cannabis psychosis the honourable supreme court in its judgment in c.a.no.164/1991 dated 14.01.1993 filed by union of inida against ex sapper mohinder singh has held that findings of medical boards which physically examine the individual should be respected until he is brought before a fresh medical board and comes to a conclusion in contrary to earlier report. 3(b)it is further submitted by the respondents that as per pension regulations for the army 1961 (part-i) in para 178(a), the individual may request for fresh medical board within a period of ten years from the date of discharge/invalidment out of service. in the instant case, the petitioner murugan has made request for the resurvey of medical board through his wife after a lapse of 14 years from the date of his invalidment. there is no material before this tribunal to show that the petitioner has made such a request prior to filing of the writ petition in 2004. further, the allegation of the petitioner that the medical board had wrongly come to the conclusion for having a disability of ‘cannabis psychosis is denied as being baseless. 3(c) with regard to the certificate of excellent remarks and fitness certificate for civil employment, these are denied as being not connected with the mental fitness. only the medical board has termed the disability as ‘cannabis psychosis. while issuing a certificate to the petitioner these remarks of the medical board have been suppressed. further, the petitioners claim for disability pension has been rejected earlier by pcda (p), allahabad vide their letter no.g-3/88/899/10-92 dated 7.1.1999 and also by the government of india, ministry of defence vide letter no.7(812)/93/d (pen a and ac) dated 16.2.1999. hence, this petition may be dismissed. 4. now the point for determination is whether the petitioners case for constitution of resurvey medical board can be allowed? 5. point:- the petitioner was invalided out of service on 25.08.1991 on medical ground of ‘cannabis psychosis by a duly constituted medical board. even though the petitioner has made a claim for grant of disability pension on invalidment, he has not, prior to filing of this petition (writ petition), made a plea for constitution of resurvey medical board. as per the regulation 178(a) of the pension regulations for the army 1961 (part-i), such a claim for constitution of resurvey medical board is to be made within a period of 10 years from the date of discharge. however, there is no material placed before this tribunal to show that the petitioner has made any such appeal for constitution of resurvey medical board within a period of 10 years from the date of his discharge from service. apart from this, a perusal of the invalid medical board proceedings in respect of the petitioner held on 1st june 1991 at command hospital, lucknow, which was approved by the approving authority, shows that the petitioner was discharged on medical ground ‘cannabis psychosis with medical category ‘eee, giving opinion that the disease of the disability is neither attributable to nor aggravated by the military service. detailed reasons have been cited by the medical specialist, giving the background of the history of consumption of cannabis by the patient. further the detailed opinion denies that the same is attributed to his head injury sustained by the petitioner on 2.7.1990 at karaikal while on leave. 5(a) the validity of the medical board opinion shall be given due weight and consideration in all such cases. this has been upheld by the honourable apex court in 2009(8) mlj 1475 (secretary, ministry of defence and others vs. damodaran a.v (dead) through lrs and others), in the following terms_ “7. 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 ‘aye (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.” hence, the relief sought for in this petition cannot be granted. point is answered accordingly. 6. in fine, the petition is dismissed. no costs. in the circumstances of the case and keeping the poor financial condition of the petitioner, we recommend to the rajya sainik board at puducherry to favourably consider the petitioners case for monetary relief at their discretion from the funds available at their disposal.
Judgment:

Lt Gen (Retd) S.Pattabhiraman

The petitioners wife had filed W.P.No.1949 of 2001 before the Honourable High Court of Madras, which has subsequently been transferred to this Tribunal, after the formation of Armed Forces Tribunal under Armed Forces Tribunal Act 2007 and renumbered as T.A.No.12 of 2009.

2. The petitioner in the affidavit to the petition would state as follows:-

2(a) The petitioner was enrolled in the Corps of EME on 22.2.1988 and discharged from service on 25.06.1991 on medical grounds in category ‘EEE without any kind of pension. While in service, the petitioner sustained a head injury in July 1990 during games parade. He was admitted to Command Hospital (CH), Lucknow. Thereafter, he was placed in low medical category ‘CEE for six months. Thereafter, he was released out of service with disability ‘Cannabis Psychosis. His case for invalidment seems to be unjustifiable. There are sufficient grounds to believe that only the head injury which occurred in July 1990 had aggravated to a mental disability. But the cause for disability has been wrongfully assessed by the medical authorities. Because of the wrongful declaration, the petitioner stands to lose all privileges due to an exserviceman. Moreover, there has not been any history of using Cannabis during his service. His disability is only because of the head injury sustained while in service.

2(b) The petitioner has been issued with the discharge certificate showing excellent remarks with fitness certificate for employment in civil. However, the cause of disability shown as ‘Cannabis Psychosis would render the petitioner unable to get any job in civil though he is only 35 years (then). Repeated requests for grant of Disability Pension have been rejected on the ground that ‘Cannabis Psychosis is neither attributable to nor aggravated by military service. The petitioner also submitted a case for re-examination on 15.04.2003 by constituting a Special Resurvey Medical Board. The petitioner, therefore, has a plea for constituting a Special Resurvey Medical Board and dispose of the case in accordance with law. Hence, the petition.

3. In their common counter filed by the respondents, the respondents would state as follows:- The petition is not maintainable in law. It is stated that the petitioner R.Murugan was discharged from service due to disability viz., ‘Cannabis Psychosis and not due to head injury. The petitioner R.Murugan went on leave and he met with an accident on 2.7.1990 at Karaikal when he was a pillion rider of moped sustained head injury and he was treated in local hospital at Karaikal. The allegation that he sustained the head injury while on parade is denied. Due to the head injury sustained when he was on leave, on reporting for duty, he was examined and was down graded to category ‘CEE (T) for six months with effect from 20.10.1990. Thereafter, his case was reviewed and he was upgraded to medical category ‘AYE. The injury sustained by the petitioner Murugan was considered by the duly constituted Court of Inquiry as well as competent medical authority as neither attributable to nor aggravated by military service.

3(a) As per the findings of the Medical Board, the petitioner Murugan was said to be regularly smoking cannabis right from his childhood and continued in service, and increasing the habit of smoking cannabis gradually since he was getting monthly salary. In the first week of 1991, the petitioner Murugan behaved abnormally he was admitted in MH Bhopal, then he was shifted to MH Jabalpur for psychiatrist treatment. The Pshycastrist noted that the petitioner Mruguan was overactive with pressure of speech and delusion of grandeur when deprived of smoking cannabis. The petitioner did not respond to the treatment and was invalided and discharged from service with effect from 26.06.1991. The Medical Board has clearly indicated in its report that he was not fit for duty and recommended invaliding due to disability ‘Cannabis Psychosis. As per Pension Regulations for the Army 1961 (Part-I) Para 173, the petitioner Murugan is not entitled for any disability pension since he has been categorized as disability of ‘Cannabis Psychosis The Honourable Supreme Court in its judgment in C.A.No.164/1991 dated 14.01.1993 filed by Union of Inida against Ex Sapper Mohinder Singh has held that findings of Medical boards which physically examine the individual should be respected until he is brought before a fresh medical board and comes to a conclusion in contrary to earlier report.

3(b)It is further submitted by the respondents that as per Pension Regulations for the Army 1961 (Part-I) in Para 178(A), the individual may request for fresh medical board within a period of ten years from the date of discharge/invalidment out of service. In the instant case, the petitioner Murugan has made request for the Resurvey of Medical Board through his wife after a lapse of 14 years from the date of his invalidment. There is no material before this Tribunal to show that the petitioner has made such a request prior to filing of the writ petition in 2004. Further, the allegation of the petitioner that the Medical Board had wrongly come to the conclusion for having a disability of ‘Cannabis Psychosis is denied as being baseless.

3(c) With regard to the certificate of excellent remarks and fitness certificate for civil employment, these are denied as being not connected with the mental fitness. Only the Medical Board has termed the disability as ‘Cannabis Psychosis. While issuing a certificate to the petitioner these remarks of the Medical Board have been suppressed. Further, the petitioners claim for disability pension has been rejected earlier by PCDA (P), Allahabad vide their letter No.G-3/88/899/10-92 dated 7.1.1999 and also by the Government of India, Ministry of Defence vide letter No.7(812)/93/D (Pen A and AC) dated 16.2.1999. Hence, this petition may be dismissed.

4. Now the point for determination is whether the petitioners case for constitution of Resurvey Medical Board can be allowed?

5. POINT:- The petitioner was invalided out of service on 25.08.1991 on medical ground of ‘Cannabis Psychosis by a duly constituted medical board. Even though the petitioner has made a claim for grant of disability pension on invalidment, he has not, prior to filing of this petition (writ petition), made a plea for constitution of Resurvey Medical Board. As per the Regulation 178(A) of the Pension Regulations for the Army 1961 (Part-I), such a claim for constitution of Resurvey Medical Board is to be made within a period of 10 years from the date of discharge. However, there is no material placed before this Tribunal to show that the petitioner has made any such appeal for constitution of Resurvey Medical Board within a period of 10 years from the date of his discharge from service. Apart from this, a perusal of the Invalid Medical Board Proceedings in respect of the petitioner held on 1st June 1991 at Command Hospital, Lucknow, which was approved by the approving authority, shows that the petitioner was discharged on medical ground ‘Cannabis Psychosis with medical category ‘EEE, giving opinion that the disease of the disability is neither attributable to nor aggravated by the military service. Detailed reasons have been cited by the Medical Specialist, giving the background of the history of consumption of Cannabis by the patient. Further the detailed opinion denies that the same is attributed to his head injury sustained by the petitioner on 2.7.1990 at Karaikal while on leave.

5(a) The validity of the Medical Board opinion shall be given due weight and consideration in all such cases. This has been upheld by the Honourable Apex Court in 2009(8) MLJ 1475 (Secretary, Ministry of Defence and others Vs. Damodaran A.V (Dead) through LRs and others), in the following terms_

“7. 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 ‘AYE (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.”

Hence, the relief sought for in this petition cannot be granted. Point is answered accordingly.

6. In fine, the petition is dismissed. No costs. In the circumstances of the case and keeping the poor financial condition of the petitioner, We recommend to the Rajya Sainik Board at Puducherry to favourably consider the petitioners case for monetary relief at their discretion from the funds available at their disposal.