IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 WP(C).No. 19558 of 2003(C) ------------------------------------- PETITIONER(S): ---------------------- M.K.KRISHNAKUMAR, (EX-SEPOY NO.2586112 W) MARUPPAMCODE HOUSE, PERUMKADAVILA P.O., NEYYATTINKARA TALUK, TRIVANDRUM. BY ADV. MR.V.SANTHARAM RESPONDENT(S): -------------------------- 1. GOVERNMENT OF INDIA, MINISTRY OF DEFENCE, NEW DELHI, REP. BY ITS SECRETARY. 2. THE ACCOUNTS OFFICER, (PENSION) O/O THE C.C.D.A. (P) ALLAHABAD. 3. THE RECORD OFFICER, THE MADRAS REGIMENT, P.O. BOX NO.1, WELLINGTON (NILGIRIS) 643231. ADV.MR.V.V.SURESH, ADDL.CGSC FOR R MR.THOMAS MATHEW NELLIMOOTTIL,SR.P.ARM FOR R1 TO R3 MR.A.JAYASANKAR, ADDL.CGSC FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2009, THE COURT ON 20/02/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.10558/2003 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE DISCHARGE SLIP DT. 31.1.95 ISSUED BY COMMAND HOSPITAL, AIR FORCE, BANGLORE. P2:- COPY OF THE SHOW CAUSE NOTICE DT. 26.4.96 ISSUED BY COLONEL, COMMANDING OFFICER, 3 MADRAS, C/O. A.P.O. P3:- COPY OF THE TESTIMONIAL FOR CIVIL EMPLOYMENT DT. 26.7.96 ISSUED BY COLONEL, COMMANDING OFFICER, MADRAS REGIMENT. P4:- COPY OF THE PENSIONER'S MEDICAL CARD DT. 27.9.96 ISSUED BY MEDICAL OFFICER , MADRAS REGIMENTAL CENTRE . P5:- COPY OF THE ORDER DT. 9.4.97 OF REJECTION OF DISABILITY PENSION CLAIM ISSUED BY THE 3RD RESPONDENT. P6:- COPY OF THE APPEAL DT. 26.4.97 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. P7:- COPY OF THE LETTER DT. 7.5.97 FORWARDED BY THE 3RD RESPONDENT TO THE IST RESPONDENT. P8:- COPY OF THE LETTER DT. 17.8.98 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P9:- COPY OF THE LETTER DT. 7.12.98 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P10:- COPY OF THE LETTER DT. 24.2.99 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE IST RESPONDENT. P11:- COPY OF THE LETTER DT. 23.10.99 SENT BY SR. RECORD OFFICER MADRAS REGIMENT TO THE IST RESPONDENT. P12:- COPY OF THE LETTER DT. 7.4.2000 ISSUED BY THE SENIOR RECORD OFFICER, OF MADRAS REGIMENT TO THE PETITIONER. P13:- COPY OF THE LETTER DT. 18.7.2000 ISSUED BY THE SIT RESPONDENT TO THE PETITIONER. P14:- COPY OF THE LETTER DT. 25.7.2000 ISSUED BY THE SENIOR RECORD OFFICER, MADRAS REGIMENT TO THE PETITIONER P15:- COPY OF THE LETTER DT. 13.11.2000 ISSUED BY SENIOR REOCRD OFFICER, MADRAW REGIMENT TO THE PETITIONER. P16:- COPY OF THE LETTER DT. 12.5.01 ISSUED BY SENIOR RECORD OFFICER, MADRAS REGIMENT TO THE PETITIONER. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 19558 of 2003-C - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of February, 2009. JUDGMENT The petitioner who has been denied disability pension on discharge from Army Service, is challenging Exts.P5 and P13 as illegal. 2. The petitioner was enrolled in the Army Service in Madras regiment on 24.8.1983 and was discharged from service with effect from 30.9.1996 after rendering 13 years and 37 days of qualifying service. He was discharged from service on the ground of disability, viz. 'Schizophrenia'. Ext.P1 is the discharge slip from the Command Hospital, Airforce, Bangalore. 3. Thereafter, the petitioner was placed in low medical category B.E.E. (permanent) with effect from 23.7.1995. This was followed by Ext.P2 show cause notice as to why he should not be discharged from service as per the relevant Army Rules. He submitted an explanation. By Ext.P5, the disability pension was declined stating that the disability is not attributable to military service or aggravated by military service. He challenged the same in Ext.P6 appeal. Subsequently, he had been pursuing the appeal by submitting repeated representations. Finally, by Ext.P13, the WPC 19558/2003 2 appeal was stated to have been rejected. Ext.P13 is dated 18.7.2000. But, by Exts.P14 to P16 he was informed that orders for revision of service element of disability pension is under process. 4. The respondents have filed a counter affidavit contending that disability is not attributable to military service. It is a constitutional disease. It is submitted that Medical Board considered the matter and found that it is not attributable to military service or aggravated by military service. 5. Learned counsel for the petitioner submitted that the petitioner was having good health and no disease was found out in the medical examination when he was enrolled in the Army. He was deployed to Siachen Glacier of Jammu & Kashmir for three months. The disease suffered by him occurred due to the said service and the stress and strain he suffered there. It is submitted that the Medical Board did not give an opinion that his disease was one based on his constitution and could not have been noticed at the time of enrollment in the Army. It is therefore submitted that he is entitled for grant of disability pension. It is further submitted that the medical records will never show that this disability can be attributable to his constitution. 6. Learned counsel for the respondents relied upon the principles WPC 19558/2003 3 stated by the Apex Court in Union of India v. Keshar Singh (2007 (3) KLT 171 (SC) and other cases to submit that when the Medical Examination Board has opined that the disability is not one attributable or aggravated by military service, the petitioner is not entitled for the benefit of pension. 7. A reference to the summary and opinion dated 13.7.1996 by a specialist in Psychiatry, Command Hospital, Calcutta is relevant here. The same was submitted for perusal by learned counsel for the respondents. About past history, it is stated, no past history of mental illness prior to 1983. No past history of head injury/fits or STD. While noting the family history, it is observed that mother suffers from mental illness and keeps behaving abnormally frequently. Learned counsel for the petitioner submitted that the above observations have no factual basis, as the mother of the petitioner is not having any abnormality and the same is not based on any records. Going by the report, no record is referred to in support of the above observation regarding the mental illness of the mother. Apart from that, one thing that is noticeable is that there is no finding that the disease 'Schizophrenia' is a constitutional defect. The report does not obviously show that the disease is one which could not have been noticed at the time of enrollment in the Army. Therefore, the petitioner is right in submitting WPC 19558/2003 4 that in the absence of such findings, the petitioner is entitled to be granted the pension. 8. In Union of India's case (2007 (3) KLT 171 (SC), their Lordships of the Apex Court considered the true effect of the relevant regulations. It was held that “ordinarily 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 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. 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 are due to the circumstances of duty in military service.” In that respect their Lordships referred to Regulation 423. The said regulation is extracted below: “423. Attributability to Service: (a) For the purpose of determining whether the cause of a disability or death is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a Field Service/Active Service WPC 19558/2003 5 area or under normal peace conditions. It is, however, essential to establish whether the disability or death bore a casual connection with the service conditions. All evidence both direct and circumstantial, will be taken into account and benefit of reasonable doubt, if any, will be given to the individual. The evidence to be accepted as reasonable doubt, for the purpose of these instructions, should be of a degree of cogency, which though not reaching certainty, nevertheless carry the high degree of probability. In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his favour, which can be dismissed with the sentence “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt. If on the other hand, the evidence be so evenly balanced as to render impracticable, a determinate conclusion one way or the other, then the case would be one in which the benefit of doubt could be given more liberally to the individual, in cases occurring in Field Service/Active Service areas. (b) The cause of a disability or death resulting from wound or injury, will be regarded as attributable to service if the wound/injury was sustained during the actual performance of “duty” in armed forces. In case of injuries which were self inflicted or duty to an individual's own serious negligence or misconduct, the Board will also comment how far the disability resulted from self-infliction, negligence or misconduct. © The cause of a disability or death resulting from a disease will be WPC 19558/2003 6 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 arisen during service. d) The question, whether a disability or death is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a Medical Board or by the medical officers who signs the death certificate. The opinion of the Medical Board/medical officer, in so far as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant circumstances can be attributed to service will, however, be decided by the pension sanctioning authority. e) To assist the medical officer who signs the death certificate or the Medical Board in the case of an invalid, the C.O. Unit will furnish a report on:- (i) AFMS F-81 in all cases other than those due to injuries. WPC 19558/2003 7 (ii) LAFY-2006 in all cases of injuries other than battle injuries. f) In cases where award of disability pension or reassessment of disabilities is concerned, a Medical Board is always necessary and the certificate of a single medical officer will not be accepted except in case of stations where it is not possible or feasible to assemble a regular Medical Board for such purposes. The certificate of a single medical officer in the latter case will be furnished on a Medical Board form and countersigned by the ADMS (Army)/DMS(Navy)/DMS (Air).” Going by the same, it has to be established by evidence whether the disability or death has any casual connection with the service conditions. Therefore, going by the dictum laid down in the above decision, the petitioner had to establish that the conditions of military service contributed to the onset of disease and the conditions are due to the circumstances of duty in the military service. 9. Regarding the same, the allegations raised by the petitioner in the writ petition is the adverse effect of his deployment in Siachen area. He is a recipient of Siachen Glacier Medal. The argument raised by the learned counsel that at the time when he was enrolled in the Army, any kind of disease or constitutional defect was not noticed, is of much force. Even in the medical reports nothing of that sort is stated. No opinion has been recorded that the disease could not have been detected by the Medical WPC 19558/2003 8 Examination Board prior to acceptance of service. Therein also, reasons would have been stated even if such an opinion is recorded. Hence, regarding those aspects, the petitioner has definitely satisfied the conditions provided under the Rules. But at the same time, he has to establish that the conditions and circumstances of duty in the military service contributed to the onset of the disease. Evidence has to be let in as provided in Regulation 423. Herein, apart from stating that the primary cause may be due to his deployment in Siachen, no other materials have been produced. Therefore, it is a matter for evidence to be adduced by him. 10. In Ext.P5 order the above aspects have been not considered in the right perspective. Merely because the authorities of the Medical Examination Board have reached the conclusion that the disability is not attributable to military service, the other aspects relevant for consideration have not been kept in mind by the pension sanctioning authority. The order contains only a verbatim reproduction of the medical report. Going by the dictum laid down by the Apex Court above, in the absence of any opinion by the Medical Board that the disease could not have been detected by the Medical Examination Board prior to acceptance for service, the benefit will go to the petitioner. The relevant aspects have not been considered either in Ext.P5 or in Ext.P13. WPC 19558/2003 9 11. Therefore, Exts.P5 and P13 are quashed. The respondents will reconsider the issue in the light of the above findings, after affording an opportunity to the petitioner to produce further materials in support of his case. If he wishes to be heard in person, the same will be granted. He will be entitled to adduce all evidence in the matter. Final orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. (T.R. Ramachandran Nair, Judge.) kav/