R.S.A. No.1270 of 2008 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1270 of 2008 (O&M) Date of Decision: 15.05.2009 Union of India & Ors. .......Appellants Versus Ex. Hav./AA, Indraj Parasar ....Respondent Present: Mr. Anil Rathee, Central Govt. Standing Counsel for the appellants. Mr. R.S. Panghal, Advocate for the respondent. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ?Yes -.- K. KANNAN J. I. Scope: 1. The second appeal addresses the issue of the entitlement of a claim for disability pension by an ex-serviceman. The claim of the plaintiff survives through reversing fortunes where the trial Court had held that the plaintiff had been posted in Medical Corps and retired from 167 Military Hospital and he had not been invalidated from service due to any disability. The trial Court also found that the Civil Court had no jurisdiction to decide the issue of plaintiff's entitlement and had stated that the claim had been barred by limitation. The Appellate Court held that the plaintiff was entitled for disability pension from 01.07.1994 with arrears upto date with interest @ 7% per annum. R.S.A. No.1270 of 2008 (O&M) -2- II. The questions of law posited: 2. The appeal that was brought to this Court was not yet admitted but notice had been served on the plaintiff and with the consent of parties the regular second appeal was taken up for final hearing for consideration upon the following questions of law: a) Whether the plaintiff was entitled to disability pension, even after if the Medical Board had held that the disability was not on account of service? b) Whether the plaintiff's claim was barred by limitation? III. The basis of plaintiff's claim: 3. The controversy could be resolved by reference initially to the facts brought out through pleadings and the evidence. The plaintiff had joined the Army on 12.06.1970 and was discharged from service on superannuation on 01.07.1994 from 167 Military Hospital Medical Corps Group. He had been suffering from psoriasis vulgaris at the time of discharge from service. The plaintiff had been granted service pension for life along with all other retiral benefits. His claim to disability pension had been rejected by the competent authority and communicated to him vide letter dated 23.05.1995, since as per the report of the Medical Board, the disability was neither considered as attributable to military service nor aggravated by military service. There was a provision for an appeal against the report of the Medical Board but the plaintiff had not availed of such a remedy. He filed a suit in the year 2003 in Civil Suit No.300 of 2003 on 08.09.2003 that is after seven years of his discharge from service. R.S.A. No.1270 of 2008 (O&M) -3- IV. The points of contention in appeal: 4. It was argued on behalf of the appellants, the Central Government, that the plaintiff's suit was stale and that he had not challenged the decision of the Medical Board, which had stated that the ailment psoriasis vulgaris was not in any way connected with the service and having not challenged the finding of the Medical Board, the suit was instituted nearly seven years after the decision. Learned counsel for the appellants points out that the Appellate Court had substituted its own opinion to the opinion of the Medical Board, despite the fact that the plaintiff had not at any time challenged the report of the Medical Board. He had not even filed a statutory appeal against the order dated 23.05.1995. The plaintiff was not entitled to contend that he could have the benefit of the disability pension. The Appellate Court had placed reliance in Para 179 of the relevant Regulations, which read as follows:- “An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of other period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalidated out of service.” 5. Making reference to this provision, learned counsel for the appellants would state that the disability must be attributable to or aggravated by military service. Since, neither the disability was attributable nor aggravated due to military service, the reliance on R.S.A. No.1270 of 2008 (O&M) -4- para 179 of the Regulations has no basis. Learned counsel would also argue that the plaintiff himself had not placed any medical evidence to show that the report of the Medical Board was wrong or even independently established that the particular ailment that plaintiff was suffering was attributable to the conditions of service. 6. Referring to the bar of limitation, the learned counsel would submit that a suit for declaration in matters relating to service is governed by Article 58 of the Limitation Act, 1963 that a suit is to be filed within a period of three years from the time to the terminus quo viz., when the right to sue first accrued. In this case, the right accrued to the plaintiff on 01.07.1994 on the date of superannuation or at any date on 23.05.1995 when his claim for disability pension was rejected by the competent authority and the institution of the suit on 08.04.2003 was barred by limitation. V. The plaintiff's support to the judgment of Appellate Court: 7. Learned counsel for the plaintiff would submit that the decision of the Medical Board had not been communicated to the plaintiff and the plaintiff came to know about the decision of the Government to represent his plea only when the Government in response to a legal notice issued by the plaintiff responded by stating that the contention had no merit by its letter No.PC- B/74303/LN/IP/DGMS (legal) dated 16.04.2003. According to him, the plaintiff had contracted the disease in the year 1990, when he was posted in Sikkim in high altitude and that his ailment was directely attributed to the military service and he had been subjected to 20% disability as evident from Ex.D2. The learned counsel would also R.S.A. No.1270 of 2008 (O&M) -5- submit responding to the plea of plaintiff that even the trial Court had held that the claim of pension is a recurring right and the trial Court had also held that the suit was within the period of limitation. VI. The Medical Board's opinion, its effect: 8. The case suffers from a fundamental vice in rejecting out of reckoning the decision of Medical Board that had been constituted with the team of experts and clearly stated at page 3 of Ex.D2 that the disability is an auto immune disorder not connected with service. The letter Ex.D4 showed that the disability of the petitioner was not attributable to the military service or aggravated by the service. Page 1 of the Medical Board proceedings in Ex.D2 revealed that the plaintiff had himself mentioned in Column No.2 that the disease first started on 12.04.1991 when he was posted at 167, MH, C/o 56 APO. In Column No.4, he had shown no cause which made his disability worse. The form has been filled up by the plaintiff himself. The plaintiff has not explained anywhere either in the plaint or in his evidence as to how and why the plaintiff had not stated in his application that his disease has been aggravated only by the conditions of service. On the other hand, plaintiff has made a statement inconsistent with what is found in his application in Column No.2 of Ex.D2 that he had contacted the disease in the year Feb, 1990 when he was posted in Sikkim in the high altitude. The plaintiff had also admitted that he had not been medically invalidated or retired on account of his illness but he was superannuated in the usual course of his service having served to the full length of service period. Right from the time when he was superannuated, he had been receiving only R.S.A. No.1270 of 2008 (O&M) -6- his service pension and he ought to have, therefore, known that the plaintiff had not been favoured with any disability pension even from the year 1995. His own communications on several occasions making a plea for disability pension cannot give to him a cause of action. 9. The effect of representations at several times had been considered by the Hon'ble Supreme Court in C. Jacob Vs. Director of Geology & Mining & Anr. AIR 2009 SC 264. The Hon'ble Supreme Court had held that: "every representation to the Government for relief, may not be replied on merits. Representations relating to matters, which have become stale or barred by limitation can be rejected on that ground alone, without examining the merits of the claims. In regard to representations unrelated to the Department, the reply may only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations cannot furnish a fresh cause of action or revive a stale or dead claim (para 7)." The Hon'ble Supreme Court was examining the case of person, who was making a claim for pension by taking the last communication to a representation by the Government rejecting such a claim on the ground that he had not been superannuated in the usual course but dismissed from service, was taken to be a starting point of limitation. In this case, the plaintiff had been superannuated in the year 1994 and he had been drawing his pension right from the year R.S.A. No.1270 of 2008 (O&M) -7- 1995. The plaintiff ought to have known that he was being denied the disbaility pension and he cannot plead ignorance about the decision of the Medical Board by the only fact, a specific reference to that was made only in the year 2003 when there was a reply denying his entitlement and referred to by the notice of the Government referred to above. He ought to have known that right from the year 1995 to 2003, he had been denied of such a right. 10. Assuming for the sake of argument that the plaintiff had come to know about the decision of the Government to deny his entitlement to disability pension, he ought to have known that such denial did arise only by virtue of the reliance on the decision of the Medical Board. It is that decision, which must be challenged in the manner provided for under the relevant Regulations and if the plaintiff had been confronted with the decision of the Medical Board, the appropriate remedy would be to challenge the Medical Board's decision in an appropriate intra-departmental forum, for that would have provided a scientific basis for reappraisal, if at all possible. The Civil Court exercising its jurisdiction cannot comment about the validity of the decision of the Medical Board comprising of experts in the field. VII. Plea of limitation: 11. Even the decision of the trial Court that the suit was not barred by limitation is clearly wrong. The cause of action for suit arose on the date of entitlement to the disability pension that was on the date when he was superannuated and where, according to the plaintiff, the entitlement to obtain pension including the disability R.S.A. No.1270 of 2008 (O&M) -8- pension arose on account of the disability arising on account of service. The denial to such entitlement arose even by the decision of the Board in the year 1995. If, according to the plaintiff, he knew about the decision only in the year 2003, it could have been a cause for condonation of delay in the appeal against the decision of the Medical Board to the appropriate authority but it could not give him a cause to institute the suit ignoring the decision of the Medical Board. VIII. Disability arising out of service, not merely a matter of inference but a matter of specific proof: 12. The case also suffers from another serious difficulty. So long as the decision of the Medical Board was on record, which had not been assailed in the manner known to law and established through regulations, the plaintiff has no right to canvass for his entitlement, for it cannot be a matter of mere inference that any disease that a person contracted during his service was on account of such service. It has been held in the decision of the Hon'ble Supreme Court in Union of India and others Vs. Keshar Singh 2007 (3) RSJ 47 that if there is a clear medical opinion that the illness suffered was not attributable to the military service, the Civil Court would not be justified in interfering with the decision of the Medical Board. It was also held in the decision in Union of India and another Vs. Baljit Singh (1996) 11 SCC 315 that where the Medical Board found that there was absence of proof of any illness as having been sustained due to miltary service or being attributable thereof, the Court's direction to the Government to pay disability pension was not correct. Referring to Rule 173 of Pension Regulations, the Court observed: "it must also be established that the conditions of military R.S.A. No.1270 of 2008 (O&M) -9- 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 are 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 injuriy 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 aggravated which contributed to invalidation for the military service (para 6)." It should be noted that even in the suit, the plaintiff had not made any attempt to establish through any medical evidence that the illness had been only on accountof his military service. No medical opinion was brought again to show that the opinion of the Medical Board rendered in 1995 was wrongly done. As found by the Hon'ble Supreme Court in Union of India and others Vs. Dhir Singh China, Colonel (retd.)AIR 2003 Supreme Court 1197 that in case, where the opinion of the Medical Board itself is not assailed, a claim to disability pension without reference to such opinion of the Medical Board will not be tenable. The plaintiff's alleged entitlement shall, therefore, be dismissed by returning a finding that the opinion of the Medical Board had become final and the same not having been R.S.A. No.1270 of 2008 (O&M) -10- challenged in the manner provided for under the relevant Regulations, the plaintiff was not entitled to seek for declaration that he was entitled to disability pension. IX. The final disposition: 13. In the light of the discussions made above, it is held in answer to the points raised in appeal before this Court that: (i) A Civil Court will have no jurisdiction to comment about the opinion of the Medical Board in the absence of a specific challenge to the decision and without exhausting the remedy provided under the relevant Regulations. (ii) The presence of a disease or an ailment during service could not be a matter of inference that such disease or ailment arose only on account of service. It shall be a matter of independent proof. (iii) The entitlement to disability pension shall stand the test of the relevant regulations under Rule 173 where the invalidation results from a clear finding that the disability arose on account of service and is clearly attributable to the military service and in the absence of such proof, a party cannot seek for disability pension. (iv) The limitation for preferring the claim shall be the date when the decision of Medical Board is made and communicated to the party resulting in the disentitlement to disability pension. R.S.A. No.1270 of 2008 (O&M) -11- 14. The decision of the Appellate Court reversing the decision of the trial Court, under the circumstances is clearly erroneous and the appeal filed by the appellant deserves to be allowed and accordingly allowed. (K. KANNAN) JUDGE May 15, 2009 Pankaj*