ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI. O A No. 121 OF 2010

Transcription

1 ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI O A No. 121 OF 2010 MONDAY, THE 27TH DAY OF JANUARY, 2014/7TH MAGHA, 1935 CORAM: HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN,AVSM & BAR, NM, MEMBER (A) 1. T.B. HABIB, SEPOY, EX.NO , INDIAN ARMY, NEZHISSERIL PUTHEN VEEDU, MANNADY P.O., PATHANAMTHITTA. (DIED) APPLICANT: 2. AMINA AMMAL, AGED 61, W/O. LATE T.B. HABIB, (SEPOY, EX.NO O. NEZHISSERIL PUTHEN VEEDU, MANNADY P.O., PATHANAMTHITTA DISTRICT. (LEGAL REPRESENTATIVE OF FIRST APPLICANT) BY ADV. SRI. E.V. JOSEPH versus RESPONDENTS 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, NEW DELHI DIRECTOR GENERAL OF RESETTLEMENT, DEFENCE HEADQUARTERS, GOVT. OF INDIA, NEW DELHI. 3. RECORDS OFFICER, ASC RECORDS (SOUTH) BANGALORE CHIEF CONTROLLER OF DEFENCE ACCOUNTS (PENSION) ALLAHABAD, U.P. BY ADV. SMT. E.V. MOLY, CENTRAL GOVERNMENT COUNSEL.

2 O.A.No. 121 of Shrikant Tripathi, Member (J): ORDER Heard Mr. E.M. Joseph for the applicant and Smt. E.V. Moly for the respondents and perused the records. 2. The original applicant T.B. Habib, Ex Sepoy, No , filed the instant Original Application for a direction to the respondents to sanction and pay him disability pension with effect from the date of his discharge. He died on 5 th January, 2012, during the pendency of the case, and his widow, Amina Ammal, the present applicant, is pursuing the matter as his legal representative. The present applicant, therefore, claims not only disability pension payable to the original applicant, Habib, during his life time, but also claims family pension with effect from the date of his death. 3. The original applicant, T.B. Habib, was enrolled in the Army on 18 th February 1961 and was invalidated out of service with effect from 5 th August 1969 on the recommendation of the Invaliding Medical Board, which opined that he was suffering from the disability hyperhidrosis (sweating) on both palms. The Medical Board further opined that the percentage of the disability was 20% for life. As the

3 O.A.No. 121 of Medical Board found that the disability was constitutional, the claim of the original applicant for disability pension was turned down by the PCDA(P), Allahabad. Even the applicant's appeals (both first and second) were also turned down on the same ground. So, he filed O.P.No of 1996 in the Hon'ble High Court of Kerala and moved an interim application (CMP No of 1999). The Hon'ble High Court of Kerala dismissed the Original Petition, O.P.No of 1996 and C.M.P.No of 1999 vide the order dated 8 th November, The original applicant, thereafter, filed W.A.No of 2001 before a Division Bench, which was disposed of on 5 th December, 2001 with a direction to the respondent No.2 therein to reconsider the representation of the original applicant and pass appropriate orders within four months from the date of receipt of a copy of the order of the Court. Accordingly, the matter was reconsidered, but it was decided vide the communication dated 14 th May, 2002 (Annexure R4) not to grant disability pension to the applicant. It is also relevant to state that the original applicant filed second Original Petition, O.P.No of 2002, which was disposed of by the Hon'ble High Court on 8 th December, 2004 vide Annexure A3, with a direction to the respondent No.3 to consider the original applicant's representation and pass appropriate orders in the matter. In compliance of the order dated 8 th December 2004, the matter was

4 O.A.No. 121 of reconsidered and the order dated 14 th May, 2005 was communicated to the original applicant rejecting his claim. After that he filed the instant Original Application. 4. A copy of the Medical Board's proceedings along with the opinion recorded by the Medical Board is on record as Annexure R6. A perusal of the proceedings of the Medical Board reveals that on 24 th March, 1969 the original applicant complained of sweating over palms for the last eight months, so he was examined by a doctor, who recorded the following history: Patient noticed about 8 months ago that he is having excessive sweating over both palms. He is a driver by trade and it is difficult for him to control the sweating. He was admitted 3 months ago for the same trouble and psychiatric opinion sought which excluded any psychic factor. Patient was put in low medical category for three months. However he reports no improvement during this period. 5. It is also relevant to state that according to the Medical Board's proceedings, the original applicant was put to low medical category for three months on 19 th December 1968 for hyperhidrosis both hands by the Command Hospital, Western Command. The

5 O.A.No. 121 of Medical Board further recorded that the original applicant had no habit of drink, smoking, but was non-vegetarian. He was a well built and well nourished individual and was not anemic and jaundiced. No abnormality whatsoever was detected by the Medical Board, but found that there was excessive sweating of both palms only. Capt. S.K. Budhraja, AMC, Psychiatrist recorded the opinion that there were no improvement, so he recommended for disposing off the original applicant by a Dermatologist. On such reference, Major Y. Bisaria AMC, Dermatologist recorded the following opinion : Patient is having excessive sweating over both palms. He was placed in category CEE and on treatment for the same but he has shown no improvement. He is a driver and unable to discharge his duties efficiently. His condition is unlikely to improve. He is therefore deemed unfit for further military service. Recommended category EEE. 6. The Medical Board on the basis of the aforesaid opinions of the Psychiatrist and Dermatologist found that the original applicant had disability hyperhidrosis both palms, which was assessed at 20% for life. The Medical Board clearly opined that the disability was constitutional in nature.

6 O.A.No. 121 of If we take the Medical Board's opinion as it is, without any application of mind and without referring to various medical authorities on the topic, no further decision is required in the matter. But when we enter into the controversy with the help of various medical authorities, we find that the disability hyperhidrosis could not occur only due to some constitutional disorder. There were other reasons also for the disability and that could be stress and strain. In this connection the learned counsel for the applicant referred to A case of idiopathic unilateral circumscribed hyperhidrosis by Hari Kishan Kumar Yadalla, H. Ambika and Simran Chawla. According to that medical article, the primary or essential form of hyperhidrosis arises mainly from emotional factors and is located in most cases in the axilla, on the palms of the hands, or on the soles of the feet. In the secondary form, an underlying neurologic or endocrinological disease is the cause of the usually diffuse sweating. Besides these quite common forms of hyperhidrosis, rare disorders such as Frey syndrome or Ross syndrome, which also have an underlying neurologic cause, can produce localized hyperhidrosis. The learned counsel for the applicant referred to another article down loaded from the internet, according to which, emotional stress and strain, especially anxiety are also causes for the hydrohidrosis.

7 O.A.No. 121 of The learned counsel for the respondents, on the other hand, submitted that the primary hyperhidrosis was linked to the patient's mental and emotional state and also affected stressed, anxious or nervous individuals. She further submitted that the recent studies showed that genes also play a role in the hyperhidrosis. 9. Learned counsel for the respondents next contended that the cause of hyperhidrosis was virtually unknown. When it is caused by another condition, such as anxiety or menopause, it is called the secondary hyperhidrosis. She further contended that once the underlying cause is treated, the hyperhidrosis typically ends. When it is not caused by another condition, it is termed primary hyperhidrosis, which appears to run in families. 10. Keeping in view the submissions of the learned counsel for the parties, genetic reasons may be one of the cause of hyperhidrosis. Apart from the genetic reasons, emotion, stress, anxiety, heat etc. are also relevant causes for the hyperhidrosis. It is for the medical experts to decide as to how the original applicant sustained the disability hyperhidrosis. Whether he had any genetic problem or he suffered the disability due to nature of duties being

8 O.A.No. 121 of performed by him as a driver, because while driving vehicles, a possibility of resulting stress, strain and anxiety, in a frequent manner cannot be overruled. So it was expedient and necessary for the Medical Board to see as to whether or not the disability sustained by the applicant had occurred or could occur due to the nature of driving duties assigned to him by the respondents. But the Medical Board, instead of entering into the aforesaid questions, adopted a short cut formula of indicating the disability as constitutional origin without assigning any reason. 11. It is also significant to state that the original applicant was found fit medically at the time of his enrollment in the Army and no note regarding any adverse physical or mental factor was made at the time of the enrollment. It is also not in dispute that the original applicant was discharged from the Army before completion of full tenure on account of the aforesaid disability. Therefore, the normal presumption would be that the disability occurred to him in the course of his service. In such situation, the Medical Board was required to record the reasons for arriving at the conclusion that the disability was constitutional. But we find that no such reasons had been recorded in the entire proceedings of the Medical Board.

9 O.A.No. 121 of It is true that the Medical Board's opinion is required to be given due weight and credence as held by the Apex Court in the matter of Union of India & Ors. vs. Keshar Singh, (2007) 12 SCC 675 and subsequently followed in the matters of Secretary, Ministry of Defence and Ors. vs. A.V.Damodaran (Dead) through LRs. and others, (2009) 9 SCC 140 and Union of India and Anr. vs. Talwinder Singh, (2012) 5 SCC In Union of India vs. Keshar Singh, (supra), the individual was discharged from the Army on as he was found suffering from Schizophrenia. In that case, the Medical Board opined that the disability did not exist before entering the service, but it was not connected with the service. In para 5, the Apex Court propounded mainly two principles, firstly that, if a disease has led to the discharge of individual it shall ordinarily be deemed to have arisen in service if no note of it was made at the time of individual's acceptance for military service. An exception, however, is carved out, i.e. if medical opinion holds for reasons to be stated that the disease could not have been detected by Medical Examination Board prior to acceptance for service, the disease would not be deemed to have arisen during service and, secondly, that, 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

10 O.A.No. 121 of the disease and that the conditions are due to the circumstances of duty in military service.. The Apex Court then considered the Regulation 173 of the Pension Regulations for the Army, 1961 and Para 423 of the Regulation for Medical Services for Armed Forces and its previous decisions rendered in Union of India vs. Baljit Singh, (1996) 11 SCC 315, Union of India vs. Dhir Singh China, (2003) 2 SCC 382, and Controller of Defence Accounts (Pension) vs. S.Balachandran Nair, (2005) 13 SCC 128 and opined in Para 6 that the respondent therein was not entitled to disability pension as the Medical Board's opinion was clearly to the effect that illness suffered by him was not attributable to the military service. It is also relevant to observe that the Apex Court had relied on certain observations of its previous decisions rendered in Baljit Singh (supra) and Dhir Singh China (supra). In Baljit Singh's case (supra), the Apex Court observed in para 6 as follows: 6...It is seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the military service. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains

11 O.A.No. 121 of aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. This is made ample clear from clause (a) to (d) of para 7 which contemplates that in respect of a disease the Rules enumerated thereunder required to be observed. Clause (c) provides that 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. Unless these conditions satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of Doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for and made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service". In Dhir Singh China's (supra), the Apex Court observed in para 7 as follows: "7. That leaves for consideration Regulation 53. The said Regulation provides that on an officer being compulsorily retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by military service and recorded by service medical authority, he may be granted, in addition to retiring pension, a disability element as if he had been retired on account of disability.

12 O.A.No. 121 of It is not in dispute that the respondent was compulsorily retired on attaining the age of superannuation. The question, therefore, which arises for consideration is whether he was suffering, on retirement, from a disability attributable to or aggravated by military service and recorded by service medical authority. 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 Regulation 53 to the case of the respondent. The diseases from which he was suffering were not found to be attributable to or aggravated by military service, and were in the nature of constitutional diseases. 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." 14. The decision in Union of India vs. Talwinder Singh, (supra) has reiterated the above principles and laid down the relevant guielines in para 9, 10, 11, 12 and 14 as follows: It is also a settled legal proposition that opinion of the Medical Board should be given primacy in deciding cases of disability pension and the court should not grant such pension brushing aside the opinion of the Medical Board ordinarily, the court should not interfere with the order based on opinion of experts on the subject. It would be safe for the courts to leave the decision to experts who are more familiar with the problems they face than the courts generally can be In view of regulation 179, a discharged person can be granted disability pension only if the disability is attributable to or aggravated by

13 O.A.No. 121 of military service and such a finding has been recorded by Service Medical Authorities. In case the Medical Authorities records the specific finding to the effect that disability was neither attributable to nor aggravated by the military service, the court should not ignore such a finding for the reason that Medical Board is specialised authority composed of expert medical doctors and it is a final authority to give opinion regarding attributability and aggravation of the disability due to the military service and the conditions of service resulting in the disablement of the individual. 12. A person claiming disability pension must be able to show a reasonable nexus between the act, omission or commission resulting in an injury to the person and the normal expected standard of duties and way of life expected from such person the opinion of the Medical Board which is an expert body must be given due weight, value and credence. A person claiming disability pension must establish that the injury suffered by him bears a causal connection with the military service Apart from giving due consideration to the relevant provisions of the Entitlement Rules, the Medical Board and other Medical Authorities are required to observe the relevant provisions contained in the Guide to Medical Officers (Military Pension), 1980 as amended from time to time as also Regulation 423 of the Regulation for Medical Services for Armed Forces, which contain guidelines to be followed in considering and fixing whether a disability is attributable to Military Service. Regulation 423 (c) which is relevant, in the present matter, reads as follows: "423. (a) xxx xxx xxx (b) xxx xxx xxx

14 O.A.No. 121 of (c) The cause of a disability or death resulting from a disease will be regarded as attributable to Service, when it is established that the disease arose during Service and the conditions and circumstances of duty in the Armed Forces determined and contributed to the onset of the disease. Cases, in which it is established that Service conditions did not determine or contribute to the onset of the disease, but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in Service, if no note of it was made at the time of the individual's acceptance for Service in the Armed Forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have risen during service. 16. A three Judge Bench of the Apex Court in Veer Pal Singh v. Secretary, Ministry of Defence (2013) 8 SCC 83) dealt with the relevancy of the Medical Board's opinion and held that although the Courts are extremely loath to interfere with the opinion of the experts, there is nothing like exclusion of judicial review of the decision taken on the basis of such opinion. The Apex Court further held that the opinion of the experts deserves respect and not worship. The relevant observations of the Apex Court in paragraph 10 of the judgment is reproduced as follows: 10. Although, the courts are extremely loath to interfere with the opinion of the experts, there is nothing like exclusion of judicial review of the decision taken on the basis of such opinion. What needs to be emphasised is that the opinion of the experts deserves respect and not

15 O.A.No. 121 of worship and the courts and other judicial/quasi-judicial forums entrusted with the task of deciding the disputes relating to premature release/discharge from the army cannot, in each and every case, refuse to examine the record of the Medical Board for determining whether or not the conclusion reached by it is legally sustainable. 17. Even in the matter of Dharamvir Singh v. Union of India and others ((2013) 7 SCC 316), the Apex Court, inter alia, gave much stress on recording of reasons by the medical Board if the individual was medically fit at the time of his enrollment and no note of any disability or disease was made at the time of his acceptance for the Military service. The Apex Court further held that a disease or disability which led to an individual's discharge will be deemed to have arisen in service. The various guidelines laid down by the Apex Court have been summarised in paragraph 29 of the judgment, which may reproduced as follows: 29. A conjoint reading of various provisions, reproduced above, makes it clear that: Disability pension to be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable to or aggravated by military service to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II (Regulation 173).

16 O.A.No. 121 of A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service [Rule 5 read with Rule 14(b)] The onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for nonentitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally (Rule 9) If a disease is accepted to have been 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 [Rule 14(c)] If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led to an individual's discharge or death will be deemed to have arisen in service [Rule 14 (b)] If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons [Rule 14(b)]; and It is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions), Entitlement: General Principles, including Paras 7, 8 and 9 as referred to above (para 27)..

17 O.A.No. 121 of The aforesaid decisions have thus settled the legal position with regard to the relevancy of the opinion of the Medical Board. The guidelines laid down in paragraph 29 of the decision of the Apex Court in Dharamvir Singh (supra) are required to be observed by the respondents while considering a case for the claim of disability pension. While doing so, the opinion of the Medical Board, no doubt, is required to be given due respect, but it should not be worshiped as held by the Apex Court in the matter of Veer Pal Singh (supra). 19. No doubt the respondents, while entering into the controversy raised by the original applicant, several times examined the matter and rejected his claim for the disability pension, but at no point of time they ever considered the relevancy of the opinion of the Medical Board in the light of the above settled principles, particularly when only genetic reasons could not be as the basis for the occurrence of the disability hyperhidrosis. Even stress, anxiety and strain could also be one of the reasons for the disability. The Medical Board did not record any reason as to how it arrived at the conclusion that the original applicant's disability was constitutional. More so, the Medical Board did not consider the question whether the nature of duties as driver discharged by the original applicant

18 O.A.No. 121 of could result in causing the disability hyperhidrosis or not. The Medical Board had also not expressed any opinion with regard to the question whether or not the duty of driving vehicles could result in causing stress, strain and anxiety to the original applicant and if so, whether such stress, strain and anxiety could be the main reasons for the disability hyperhidrosis. Due to non-consideration of these material aspects of the matter, the opinion of the Medical Board stood vitiated in law and as such could not be out rightly acted upon to discard the claim of the original applicant for the disability pension. So, in our view, the matter needs to be given due reconsideration by the respondent No.1 after seeking a fresh opinion of the qualified medical experts regarding the causes of the disability hyperhidrosis, and if according to the qualified medical experts, the disability sustained by the original applicant could occur due to driving duties performed by him, the respondent No.1 will have to give due weight to such opinion and decide the applicant's claim accordingly for disability pension during the life time of the original applicant and family pension after his death. Therefore, we have no option except to remit the matter to the respondent No.1 for reconsideration. 20. For the reasons stated above, the Original Application is allowed. The respondent No.1 is directed to consider the applicant's

19 O.A.No. 121 of prayer for disability pension and family pension in the light of the observations made herein before and take appropriate decision in accordance with law, preferably within six months from the date of receipt of a copy of this order. In case the respondent No.1 accepts the claim for the disability pension payable to the original applicant, the question of grant of family pension to the present applicant, Amina Ammal, be also given due consideration in accordance with law. While deciding the question of family pension, it will be open to the respondent No.1 to see whether the said Amina Ammal is the widow of the deceased or not. 21. There will be no order as to costs. 22. Issue free copy of this order to both sides. Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J) tm. /true copy/ Prl. Private Secretary