K.P. George Vs. Union of India, Represented by Its Secretary to Government, Ministry of Defence New Delhi and Others - Court Judgment

Excerpt:

Judgment:

Shrikant Tripathi, Member (J):

1. Heard Ms. Preethi Ramakrishnan for the applicant and Mr.Tojan J.Vathikulam for the respondents and perused the record.

2. Rejoinder filed on behalf of the applicant is taken on record.

3. The applicant, K.P.George, Ex-NAM 1, No.204080, claims disability pension with effect from the date of his discharge. He was enrolled in the Indian Navy on 28^th December,1976 and was discharged from service with effect from 14th November, 1986, on the recommendations of an Invaliding Medical Board, which had opined that he was suffering from “ Neurotic Depressive Reaction with Ganja Dependence” disability, which was neither attributable to, nor aggravated by, military service. As the applicant had rendered only 9 years and 322 days service, he was not sanctioned service pension. His claim for the disability pension was also denied on the ground that the disability was neither attributable to nor aggravated by the military service. Consequently, he filed Writ Petition No.32145/09 in the Hon'ble High Court of Kerala, which was disposed of on 11th November,2009 with the direction to the third respondent therein to consider and pass orders on Exts.P2 to P5 within three months. Accordingly, the respondents reconsidered the matter and passed the reasoned order, Annexure A8, holding that the disability pension was not payable to the applicant due to the simple reason that the disability was neither attributable to nor aggravated by military service. The order Annexure A8 has also been impugned in the present matter.

4. The respondents have filed reply statement alleging that the disability occurred to the applicant only due to his habitual consuming Ganja, which resulted in causing Neurotic Depressive Reaction in him and as such, the disability was not in any way connected with the service.

5. The learned counsel for the applicant tried to contend that the applicant had a good service record without any complaint and there was no extraneous reasons to aggravate the disability. It was next submitted that the applicant was medically fit at the time of his enrolment in the Navy and whatsoever disability he sustained, it occurred due to the service conditions and as such the disability was attributable to the service.

6. The learned counsel for the applicant further submitted that the applicant had sought for leave for a few days in 1985 to attend his sister's marriage, but was denied the leave, consequently, he had no option except to proceed to his native place to attend the marriage, and on his return from the native place, he was sent in a solitary confinement for 14 days, which resulted in causing mental depression and was the sole reason for the disability.

7. The learned counsel for the applicant next submitted that in the discharge certificate, at Page 4, the applicant's medical category has been mentioned as S1 A1, therefore, according to that certificate the applicant had no disability.

8. It is true that, the discharge certificate had an endorsement of the applicant's medical category as S1 A1, but the same, being contrary to the opinion of the Medical Board cannot be given precedence over the opinion of the Medical Board. According to the Medical Board, the applicant's medical category was S5 A5(S) permanent. In this view of the matter, the endorsement made on the discharge certificate cannot be taken as a ground to discard the opinion of the Medical Board.

9. The Medical Board has categorically recorded the opinion that the sailor was sent to the Air Force hospital, Bangalore for the opinion of Psychiatrist, who had recommended S5 A5. The opinion of the classified specialist in Psychiatry, Air Force Hospital, Bangalore may be reproduced as follows:-

“OPINION OF THE CLASSIFIED SPECIALIST IN PSYCHIATRY WG CDR B.S.SANI OF CH (AF) BANGALORE AS ON 17.2.86 AND 21.8.86.

This 25 year old Sailor is a case of neurotic depressive reaction with ganja dependence, manifesting in sadness of mood, lack of concentration, the psycho-motor nutrilisation withdrawal, Ideas of hopelessness, unworthiness, Ideas of reference persecution and suspicious, crying spells and disturbed sleep, precipitated by domestic problems and his dislike for service after he was punished hard for AWOL. He was consuming Ganja for last few years and got more addicted after his punishment. He has 4 – 5 red ink entries in his document. His mother is having depressive type of mental illness. His father died 7 years back and his uncle died on 15.1.86. He has been treated with Psychotherapy, anti-depressant and antipsychotic group of drugs. He has shown poor response to therapy. Physical examinations-- NAD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In view of neurotic depression with ganja dependence and incomplete recovery, Inactive personality make-up, suicidal risk, history of mental illness in his mother, personal domestic problems, 4-5 red ink entries in his documents. He is considered unfit for further retention in service. Recommended to be invalided out of service in low medical category S5 A5. Refer to my opinion dated 17.2.86 remains unchanged. This 25 year old Sailor is a case of neurotic depressive reaction with ganja dependence. He was recommended to be placed in low medical category S5 A5 for invalidment out of service. From INHS Sanjeevani he was discharged to INS Venduruthy without holding the invalidment medical board. From Venduruthy he absconded. He was brought to this hospital by his brother with abnormal behaviour. Mental state examination showed features of depression during his absence. He continued to consume ganja. He has been treated with anti-psychotic and antidepressant group of drugs. He has shown some response to therapy.

Physical examination – NAD.

Mental state examinations continues to show features of depression and a motivation syndrome due to prolonged ganja dependence. He lacks in self confidence, initiative of drives. He is unlikely to be a useful Sailor.

Recommended to be invalided out of service in low medical category S5 A5.

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OPINION OF THE SENIOR ADVISOR IN MEDICINE SURG CAPTAIL RENJIT DAS, VSM AS ON 08.9.86. This Sailor has come back from Air Force Hospital Bangalore, after obtaining the opinion of Psychiatrist – who has recommended S5 A5. He has come now for the opinion of Senior Advisor in medicine for an opinion. No significant problem now. On exam-: Cooperative, afebrile, pulse 80/m, BP 120/76, CNS- No deficit clinically, evs, RS-NAD. P/A – No. Hepatosplinomegaly, CNS. No deficit clinically. Impression: To be boarded out of service in S5 A5 as per the opinion of the Psychiatrist Command Air Force hospital Bangalore.”

10. What is apparent from the aforesaid opinion of the Medical Board is that the applicant was habitual of consuming ganja which was the main reasons for causing the disability, diagnosed by the Invaliding Medical Board. He had been no doubt punished for having gone to his native place without leave, but that punishment was imposed only on account of misconduct committed by him and as such the same could not be taken as a ground to show that the applicant suffered the disability due to the service conditions, especially when the punishment was a part of the disciplinary action taken against him. He could not be said to be justified in any way in leaving the unit without leave, and if the authority punished him for such misconduct, it could not be inferred that the disability occurred due to the service conditions. According to the medical opinion, the consumption of ganja by the applicant was the sole cause for the disability. We do not find any other material to take a different view.

11. The Apex Court had occasion to consider the relevancy of the opinion of the Medical Board and its binding nature in the following decisions:

1. Union of India and Ors. vs. Keshar Singh, (2007) 12 SCC 675;

2. Union of India and Ors. vs. Surinder Singh Rathore, (2008) 5 SCC 747;

3. Secretary, Ministry of Defence and Ors. vs. A.V.Damodaran (Dead) through LRs. and others, (2009) 9 SCC 140;

4. Union of India and Ors. vs. Jujhar Singh, (2011) 7 SCC 735;

5. Union of India and Anr. vs. Talwinder Singh, (2012) 5 SCC 480;

12. In Union of India vs. Keshar Singh, (supra), the individual was discharged from the Army on 18.10.1984 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 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 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 significant to specify 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 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. 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."

13. In the matter of Union of India vs. Surinder Singh Rathore (supra), the respondent therein was discharged from the military service due to “Maculopathy (RT) Eye” which was assessed as 30% for two years, but it was neither attributable to nor aggravated by the military service. In that case, the Apex Court relied upon its previous decision rendered in Baljit Singh (supra), Dhir Singh China (supra) and also in Keshar Singh (supra) and believed the medical opinion that the disability was not attributable to military service and accordingly held that respondents was not entitled to disability pension.

14. In Secretary, Ministry of Defence and Others vs. A.V.Damodaran(Dead) through LRs. and Others, (supra), the Apex Court had considered the question of grant of disability pension in respect of late A.V.Damodaran, an ex-Air Force personnel, who was boarded out due to “Schizophrenia” within seven years of service. More so, the question of applicability of the Entitlement Rules for Casualty Pensionary Awards, 1982 contained in Appendix II to the Pension Regulations for the Army 1961 was also involved in that case. The Apex Court propounded mainly two principles, firstly, the opinion of the Medical Board is entitled to be given due weight, value and credence and secondly, the conditions of service play a pivotal role in deciding the question of disability being attributable to or aggravated by the service. It is significant to mention that both the Hon'ble Judges of the Apex Court in Damodaran's case (supra) delivered their judgments separately, but concurred on all points. The relevant observations of each of the Hon'ble Judges are being reproduced as follows:. Hon'ble Dalveer Bhandari, J., speaking for the Bench, observed as follows:

“17. I have heard the learned counsel for the parties. I am of the considered view that the Medical Board is an expert body and its opinion is entitled to be given due weight, value and credence. In the instant case, the Medical Board has clearly opined that the disability of late Shri A.V.Damodaran was neither attributable nor aggravated by the military service. In my considered view, both the learned Single Judge and the Division Bench of the High Court have not considered this case in proper prospective (sic. perspective) and in the light of the judgments of this Court. The legal representatives of A.V.Damodaran are not entitled to the disability pension.”

Hon'ble Dr. M.K.Sharma, J., in His Lordship's concurring judgment, has observed as follows:

“30. 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.

31. 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, draw 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.

32. The second aspect which is also examined is the extent to which the functional capacity of the individual is impaired. The same 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.

33. All the aforesaid aspects are recorded and recommended in the form of AFMSF-16. The Invalidating Medical Board forms its opinion/recommendation 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.

34. 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”.

15. In Union of India vs. Jujhar Singh,. (supra), the Apex Court reiterated the aforesaid principles and propounded mainly two principles, in para 22, as follows:

firstly, “... ... ..... a personnel can be granted disability pension only if he is found suffering from disability which is attributable to or aggravated by military service and recorded by Service Medical Authorities”

secondly, “the Medical Board is a specialised authority composed of expert medical doctors and it is the final authority to give information regarding attributability and aggravation of the disability to the military service and the condition of service resulting in disablement of the individual.”

16. In para 23 of the judgment, the Apex Court considered the relevancy of the finding on the nexus between the act resulting in the injury/disease and the normal expected standard of duties and way of life expected from a member of the Armed Forces and held as follows:

“...The member of the armed forces who is claiming disability pension must be able to show a normal 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 a member of such force. .... .....”.

17. No doubt, Jujhar Singh's case was with regard to an injury while on leave,but the Apex Court propounded the aforesaid principles for deciding the question as to how a claim for the disability pension is to be considered.

18. The decision in Union of India vs. Talwinder Singh, (supra) being the latest, has reiterated the above principles and propounded the relevant principles in para 9, 10, 11, 12 and 14 as follows:

“9. ................ ..........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.

10. ... .... ...... ....... 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.

11. .... ........ ...... In view of regulation 179, a discharged person can be granted disability pension only if the disability is attributable to or aggravated by 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. ..........

14....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. ......”

19. 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

(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.

20. The aforesaid decisions have, thus, laid down the following principles regarding relevancy of the opinion of the Medical Board and the principles governing the matters pertaining to disability pension.

(i) The disability pension is payable only when the 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 aggravated during the military service and recorded as such by the service medical authorities.

(ii) The opinion of the Medical Board should be given primacy in deciding cases of disability pension. In case the Medical Authorities record the specific finding that the 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. As such, the opinion of the Medical Board must be given due weight, value and credence.

(iii) When an individual is physically fit at the time of enrolment and no note regarding adverse physical factor is made at the time of entry into service and if the individual is discharged before the completion of full tenure on account of his physical disability, the initial onus of proving that the disability is not attributable to the Military Service shall be on the authority. However, in the cases where it is found on perusal of the available evidence that the individual had withheld relevant information or that the service conditions were not such as could have resulted in physical disability, the onus shall shift to the claimant.

(iv) The disease which has led to the individuals discharge will ordinarily be deemed to have arisen in the course of service if no note of it was made at the time of individual's acceptance for military service. However, the above deeming fiction is not available to the individual if the medical opinion, for the reasons to be recorded, hold the disease could not have been detected on medical examination prior to the claimant's acceptance to the service.

(v) A person claiming disability pension must establish that the disease or injury suffered by him bears a causal connection with the military service.

(vi) The direct and circumstantial evidence of the case is to be taken into account and the benefit of doubt if any is to be given to the individual.

(vii) A liberal approach is to be adopted in the matter of services rendered in the field areas.

21. The opinion of the Medical Board is, therefore, liable to be given due weight, value and credence. In view of the fact that the applicant's service conditions were not so hard and tough as to originate or aggravate the aforesaid disability, the claim for the disability pension, only on the ground that the applicant sustained the disability while in service, cannot be allowed.

22. We have also perused the original proceedings of the IMB produced today. A copy thereof is already on record as Annexure R3. The Medical Board has assigned adequate reasons to form its opinion. Therefore, the opinion being based on reasons, is liable to be given due weight, value and credence, which can not be discarded only on the basis of oral submissions.

23. For the reasons discussed above, we are of the view that the applicant's claim for the disability pension has no substance and accordingly the Original Application is dismissed.

24. There will be no order as to costs.

25. Issue free copy of the order to both side.