ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 1943 of 2011

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1 OA NO of ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR OA 1943 of 2011 Babu Singh Petitioner(s) Vs Union of India and others Respondent(s) For the Petitioner (s) : Mr. Johny Goyal, Advocate For the Respondent(s) : Mr. RN Sharma, CGC Coram: Justice Rajesh Chandra, Judicial Member. Air Marshal (Retd) SC Mukul, Administrative Member. JUDGMENT By this petition the petitioner prays for grant of disability pension consisting of service pension and disability element against 30% disability. The facts of the case are that the petitioner was enrolled in the Regiment of Artillery on 08 Sep 1965 and invalided out of service with effect from 18 Dec 1967 under Rule 13 item III (iii) of Army rule 1954 due to ANXIETY STATE WITH SCHIZOID FEATURES (318) after rendering 02 years and 03 months service. He was brought before duly constituted Invaliding Medical Board held at Military Hospital Ambala Cantt on 28 Nov 1967 to assess the cause, nature and degree of disablement. The duly constituted medical board had viewed his invaliding disability as neither attributable to nor aggravated by military service and also not connected with service due to constitutional disease not influenced by Army service and assessed his disability at 30% for two years. The disability claim forwarded to PCDA(P) Allahabad vide Arty Records letter No /DP/2666/NE dated 21 Feb 1968 for adjudication was rejected by PCDA (P) Allahabad vide their letter No. G3/CA/68/55663/11 dated 21 Feb 1968 on the grounds that the disability from which he suffered during service was neither attributable to nor aggravated by military service. As per the averments of the petitioner the respondents wrongly rejected his claim for disability element of the 30% without considering pension regulations for the Army 1961 (Part-1) and Rule 14 (b) of the Entitlement Rules

2 OA NO of for Casualty Pensionary Awards, That the disease developed after completion of more than one and half year s service while the petitioner was posted in field area during emergency. The petitioner joined after thorough medical examination and there is no note given by the authorities at the Invaliding Medical Board that the disease could not be detected at the time of his enrollment. That the disease of the petitioner developed during emergency period and same is required to be considered by taking a lenient view by the respondents. On rejection of his legal notice dtd , he filed a civil suit on However, during the pendency of the suit the AFT become functional and the after permission from the court the suit was withdrawn and filed at AFT. The Respondents in their written statement bring out that since disability of the petitioner was assessed as neither attributable to nor aggravated by military service and not connected with military service by the duly constituted Invaliding Medical Board and was upheld by the competent authority while rejecting disability pension claim the petitioner was not entitled for grant of disability pension in accordance with Para 173 of Pension Regulations for the Army 1961 Part-I as well as well settled law by the Supreme Court in case Saper Mohinder Singh in Civil Appeal No. 164/1993 arising out of SLP No. 4233/1993 ruled that the views of the Medical Board have primacy and should be respected. Further so far as grant of service pension as per Para 132 of pension Regulations for the Army 1961 Part-I is concerned, the minimum qualifying service required to earn service pension is 15 years. Since in the instant case the petitioner had rendered only 02 years and 03 months service, he is not entitled for grant of service pension under the existing rules. Heard the learned counsel for the parties. The disease ANXIETY STATE WITH SCHIZOID FEATURES (318) manifested for the first time in August 1967 when the petitioner was posted at Pathankot and not in field area. The Invaliding Medical Board held in respect of the petitioner at MH Ambala Cantt on 28 Nov 1967 viewed the disease ANXIETY STATE WITH SCHIZOID FEATURES (318) as neither attributable to nor aggravated by military service being a constitutional disease and assessed his disability at 30% for two years. The summary of the case and the specialist opinion at the Invaliding Medical Board reads as under :-

3 OA NO of SUMMARY OF THE CASE No Rank Sep Name BABU SINGH Age 19 years Service 2 yrs 2 months Fd Service Nil Height 5 6 Weight 63 kg D/Adm A&D No. 848 Psy Wing (Wd 10) Unit 54 Lt Regt (Pack) c/o 56 APO DISABILITY:- ANXIETY STATE WITH SCHIZOID FEATURES (318) Admitted to MH Pathankot on to Transferred to MH Jullundur Cantt on COMPLAINTS:- Difficulty in breathing (some times) 3 months. Place of on-set Pathankot. Time of on-set Aug. 67 History of present illness :- Patient has been referred by Medical Sepcialist MH Pathankot for psychiatric investigation. He was admitted to MH Pathankot for his complaints of breathing difficulty. No organic cause for his above symptomatology was detected. Last History:- Nil particular. Family History:- Parents alive and healthy. Brothers-3 younger to patient. Sister-1 younger to patient. Order of birth Ist out of five siblings. No history of any psychiatric illness in the family. Personal History :- No history of any neurotic traits during childhood. School going upto 9 th standard. Service 2 yrs and 2 months. (He says that he was awarded 42 days R.I. for cutting his beard). Unmarried. No smoking or drinking. Extract of A.F.M.S.-10 Report dated 30 Sep 67:- Efficiency and response to training Average. Mental outlook and personal habits. Normal. Behaviour in the Unit Awarded 28 days R.I. and 14 days detention. Examination:- Physically-NAD. Resp-16/m regular. Lungs and heart-nad. Mentally :- He is not tense or depressed. Mild pre-occupation over his symptoms +. Sleeps and eats well. Oriented. Withdrawn and apathetic. He concentrates poorly. Not hallucinated or deluded. Investigation:- Urine-R.E. NAD dt Blood. ESR 11 mm fall in the first hour. Hb-15.0 gms%. TLC-5900/cmm. DLC P-54%, L-42%, M-2%, E-2% dt Blood Sugar 90 mgm/100 ml. dt. 1/9/67. WR Khan and VDRL Negative dt X-ray-Skull 5259/dt NAD. Treatment:- Psychotherapy, 002 therapy and tranquiliser.. Progress:- Under treatment his physical complaints and pre-occupation subsided. Opinion of Lt col N.G. Chakraborty, AMC Specialist in Psychiatary on The individual was awarded 28 days R.I. for AWOL. The patient believed that he was punished for having clipped his beard. While undergoing imprisonment, he developed breathlessness and was admitted to hospital. No past or family history of mental illness. No history of domestic worry. Recently he had some difficulty with a NCO of his unit and has been expressing unwillingness to go back to his unit. Phychiatrically a case of anxiety state of with schizoid features (Physical complaint, withdrawn, apathy, lethargy, loss of spontaneity) under treatment his physical complaint and pre-occupation have subsided but the other symptoms persist. Recommended category EEE.

4 OA NO of Sd/- xxxxx Lt Col AMC (N.G.Chakraborty) Specialist in Psychiatry In view of the above the patient has been brought before the invaliding medical board. Sd/- Lt. AMC (AK Daska ) Additional inputs received from DGAFMS office are as under : /Legal/DGAFMS/MA(Pens)/BS 10 Jan 2012 Legal Cell (Army) AFT HQ Western Command C/O Stn HQ Chandimandir Pin c/o 56 APO OA NO. 1943/2011 FILED BY NO EX GNR BABU SINGH VS UOI AND OTHERS IN HON BLE AFT, CHANDIGARH BENCH FOR GRANT OF DISABILITY PENSION CONSISTING OF SERVICE ELEMENT AND DISABILITY 30% WEF 19 DEC 1967 TO 31 DEC % WEF 01 JAN 1996 FOR LIFE 1. Reference Arty Records letter No /LC/145/NE-5(C) dated 30 Dec Addl inputs of O/o DGAFMS are as under :- (a) It may be appropriate to bring out boldly that individual was examined by a specialist in psychiatry. Opinion of specialist dated 23 Oct 1967 clearly bring out that Individual was awarded 28 days vigorous imprisonment for being Absent without leave. The patient believed that he was punished for having clipped his beard. His symptoms appeared while undergoing imprisonment. After that he was admitted in hospital. He also had some difficulty with a NCO of his unit and did not want to go back to unit. Copy of specialist opinion is attached with invaliding medical board and reproduced as Annexure R-1. (b) From above it emerges that the disability has been due to his own doings and his interpersonal relationship and can not be assigned to service. Hence invaliding medical board rightly opined it to be constitutional not influenced by army service. Sd/- (D Bhatnagar) Col Dir AFMS(Pension) for DDG (Pension) It is evident from the record that the disablement was held as neither attributable to nor aggravated by military service by the Invaliding Medical Board as also by the Competent Medical Authority which led to the rejection of disability pension claim under the provisions of Regulations 173 of Pension Regulation 1961 (Part I) which provides that unless otherwise specifically provided a disability pension 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 and is

5 OA NO of assessed at 20% or over. Since the petitioner was neither entitled to nor granted any service/disability elements initially, therefore the provision of Regulation 186 of Pension Regulations are also not attracted. Being constitutional in nature the disease could not be detected at the time of enrolment as the medical examination of PBOR at the time enrolment is not so exhaustive as would enable detection of certain dormant disease. It may also be mentioned here in this connection that the mere fact that the disability manifested during service does not make it either attributable to or aggravated by military service unless so adjudicated by the Competent Medical Authority as presented in the entitlement Rules to Casualty Pensionary Awards to Armed Forces Personnel. Moreover, the provisions of Rule 14( c) of the Entitlement Rules also cannot be ignored which are as under: 14 (c ) If a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. In view of this Rule 14 (c ) even if the disease has arisen during service it has to be established by the petitioner that the onset of the disease or its manifestation or aggravation has been due to the conditions of military service and the conditions were due to the circumstances of duty in military service. We find that greater reliance needs to be placed on medical evidence with reference to a disability arising from the natural causes when a person is in service. Reliability of a medical evidence is necessary in view of the particular scientific knowledge that a medical professional has in tracking the natural causes of a particular progression of disability as resulting from military service or is aggravated by such service. Where disability was occasioned due to natural causes and not arising out of accidents and where there has been already a decision rendered by the Medical Board regarding the causal connection of the military service to the disability, doubtless in such circumstances, the medical report itself will obtain primacy, for an assessment by a scientific medical examination whether the particular disability was attributable to military service or could have been aggravated by military service would require little intervention from the court as

6 OA NO of held in Union of India Vs Surender Singh Rathore 2998(5) SCC 747. In that case, the army personnel was suffering from Maculopathy (Rt) eye, for which treatment had been given but there was not any improvement found. He was referred to Release Medical Board and the Board recommended the respondent s release in medical category CEE permanent, which was lower than the category AYE. The board opined that disability was neither attributable not aggravated by military service and the proceedings of the Board had been approved by the Competent authority. Consequently, the respondent had been discharged from service. The High Court interfered with the said decision and the Hon ble Supreme Court held that there ought to have been no scope for intervention in such like matters. The Hon ble Apex Court in its judgment dated 14 Jan 93, in case of Civil Appeal No. 164/1993 arising out of SLP 4233/1992 filed by Ex. Sapper Mohinder Singh has ruled that the opinion of medical boards who have examined the petitioner and are expert in the field, will have primacy over any other opinions and should be respected until any other medical board examines the individual. Further Hon ble Delhi High Court in the case of Signalman Shri Bhagwan Vs UOI reported at 103(2003) Delhi Law Times 269(DQ) has also held that the opinion of Medical Board expert in the field, is final binding and judicial intervention holding the contrary would not be permissible. The Hon ble Apex Court in one of its latest judgment dated 05 Jul 2010, in case of Civil Appeal No of 2010 (Arising out of S.L.P. (C) No of 2006) titled as Union of India & Ors. Versus Ram Prakash have observed as under :- 21. Several decisions of this Court like Secretary, Ministry of Defence and Ors. Vs. A.V. Damodaran (D) through LRs. and Ors. reported in 2007 (9) SCC 140, Union of India & Ors. Vs. Keshar Singh reported in 2007 (12) SCC 675, Controller 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 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 opinion with the opinion of the Medical Board. 22. The Medical Board has given categorical opinion that the diseases for which the respondent has been released from service were neither attributable to nor aggravated by Air Force 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 Medical Board has given a categorical opinion that the ailment of the respondent was constitutional and the same is not attributable to or

7 OA NO of 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 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 appellant. As a result of this order, the suit filed by the respondent should be held to be dismissed. In the light of above, we find that the disability of the petitioner is not attributable to or aggravated by military service and is not eligible for grant of disability pension. The petition is therefore dismissed. (Justice Rajesh Chandra) raghav (Air Marshal (Retd) SC Mukul) Whether the judgment for reference is to be put on internet? Yes / No.