UNION OF INDIA & ORS. VERSUS EX. SEP. R. MUNUSAMY

UNION OF INDIA & ORS. VERSUS EX. SEP. R. MUNUSAMY


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6536 OF 2021
UNION OF INDIA & ORS. ……Appellant(s)
 VERSUS
EX. SEP. R. MUNUSAMY ...Respondent(s)
J U D G M E N T
Indira Banerjee, J.
This appeal is against a judgment and order dated 18th February
2020 passed by the Chennai Regional Bench of the Armed Forces
Tribunal allowing the application being O.A. No. 53 of 2018 filed by
the Respondent about 20 years after he was discharged from the
Indian Army, and holding that the Respondent was entitled to
disability pension. The arrears were restricted to a period of three
years prior to the date of application before the Tribunal.
2. The Respondent was enrolled in the Army on 26th March 1987.
By an order dated 5th April 1997, the Respondent was discharged from
service on administrative grounds, as an undesirable Soldier under
Rule 13(3) III(v) of the Army Rules, 1954. The Respondent had
1
rendered service for nine years seven months and one day excluding
161 days of non-qualifying service. Annexed to the appeal is a copy
of the Order/Certificate of the Commandant dated 12th October 1996
regarding the proposal to discharge the Respondent. As per the
certificate of the Commandant, service of the Respondent was no
longer required. The cause of discharge was shown in paragraph 20
as “Undesirable Soldier under Rule 13 III(V) of Army Rules, 1954”.
3. At the time of discharge, the Respondent was in low medical
category. A meeting of the Release Medical Board held on 30th
January 1997 found “Right Partial Seizure with Secondary
Generalization 345” neither attributable to nor aggravated (NANA) by
military service. The disability was assessed @ 20% for two years.
4. The Respondent did not challenge his discharge under Rule
13(3) III(v) of the Army Rules, 1954 as an undesirable soldier. The
Respondent, however, made an application claiming disability
pension. By order No. G-3/85/318/11-97 dated 19th May 1998, the
Office of the Chief CDA(P), Allahabad rejected the claim of the
Respondent for disability pension. Relevant part of the said order
reads as under :-
“3. Accordingly, for clauses (i) & (ii) of Para 1 above, no
disability pension is admissible under the existing rules. The
above decision may pl. be communicated to the individual
under registered post alongwith MA(P)’s findings, and a
clause may also be added therein that he may appeal
against the decision not later than six months from the date
of issue of this letter, on such grounds as he may deem fit to
put forth, if desired by him.
2
4. A sum of Rs.10450 on account of invalid gratuity and a
sum of Rs.15711 on account of dcrg has been admitted. In
case, the individual dies before receiving dcrg amount it
should not be paid to his heirs & the matter referred to g-4
section of this office.”
5. On 6th October 1998, the Respondent filed an appeal against
the rejection of disability pension. The Appellate Authority rejected
the appeal. By a communication dated 11th January 2000, the
Respondent was informed that his appeal against rejection of
disability pension had been rejected by the first Appellate Authority.
6. On 25th August 2017 i.e. almost 20 years after his discharge and
over seventeen and a half years after the dismissal of his appeal
against the rejection of disability pension, the Respondent sent a
legal notice claiming disability pension on the ground of parity with
one Dharamvir Singh and one Rajbir Singh.
7. The case of the Respondent appears to be distinguishable since
the Respondent was not discharged on medical grounds, unlike Rajbir
Singh or Dharamvir Singh. It appears that in course of his career, the
Respondent had earned red ink entries in his service records on seven
occasions, as per the particulars given hereinbelow :-
“S.
No.
Date of
Offence
Punishment awarded Sec of
Army Act
1950
Remarks
(a) 25 Oct
1990
28 days Imprisonment in military custody
while serving with 4002 Field Ambulance
39(b) Red Ink
entry
(b) 25 Apr
1991
14 days detention in military custody while
serving with Command Hospital (Western
Command) Chandimandir
39(b) Red Ink
entry
(c) 05 Sep 28 days Rigorous Imprisonment in military 39(b) Red Ink
3
1993 custody while serving with 166 Military
Hospital, c/o 56 APO
entry
(d) 30 May
1994
28 days Rigorous Imprisonment in military
custody while serving with 166 Military
Hospital, c/o 56 APO
39(b) Red Ink
entry
(e) 22 Jun
1995
28 days Rigorous Imprisonment in military
custody while serving with 155 Base
Hospital C/o 99 APO
39(b) Red Ink
entry
(f) 12 Sep
1995
28 days Rigorous Imprisonment in military
custody while serving with 155 Base
Hospital, c/o 99 APO
39(b) Red Ink
entry
(g) 14 Feb
1996
28 days Rigorous Imprisonment in military
custody while serving with 155 Base
Hospital c/o 99 APO
39(b) Red Ink
entry”
8. The Appellants contend that the Respondent was a habitual
offender who kept breaching military discipline, notwithstanding
repeated counseling and advice given by his superiors. He proved to
be an inefficient soldier. Be that as it may, the fact remains that, for
20 years, the Respondent did not question his discharge.
9. By a communication dated 27th October 2017, the Appellant No.
3 replied to the said notice stating:-
“You have been discharged under Army Rule 13(3) III (v)
being undesirable soldier and not invalidated out from
service as mentioned in your above legal notice. Hence,
disability pension is not admissible as per existing rules in
force”
10. Being aggrieved, the Respondent filed O.A. No. 53 of 2018
before the Tribunal claiming disability pension and benefits under
Regulation 183 of the Army Pension Regulation, 1961. The application
has been allowed by the judgment and order impugned.
4
11. At the cost of repetition, it is reiterated that the Respondent
was discharged under Rule 13(3) III(v) of the Army Rules, 1954 on
administrative grounds as an undesirable soldier and not on the
ground of medical disability. Any opinion of the Release Medical
Board held on 30th January 1997 with regard to the ailment of the
Respondent does not entitle the Respondent to disability pension, as
the ailment did not lead to his discharge. In any case, even as per
the opinion of the Release Medical Board, the disability, if any, of the
Respondent was not attributable to military service. The Tribunal
recorded that the Release Medical Board had in Paragraph 3(d) stated
“Disability constitutional in origin, unrelated to service”.
12. For over 20 years from the date of the discharge, the
Respondent did not challenge his discharge on the administrative
ground of being an undesirable soldier. His discharge on
administrative grounds could not have been challenged after two
decades.
13. In the considered opinion of this Court, the Tribunal fell in error
in passing its order dated 2nd November 2018 directing the Appellants
to convene a Resurvey/Review Medical Board at the Military Hospital,
Chennai or a designated hospital for the purpose of examining the
applicant and assessing the degree of disability due to “Right Partial
Seizure with Secondary Generalisation 345” and the probable
duration of disability. The tenor of the order itself shows that even
the Tribunal realized that accurate medical opinion could not have
5
been obtained after lapse of 30 years from the date of recruitment of
the Respondent and after 20 years from the date of his discharge.
The Tribunal, therefore, sought assessment of ‘probable duration of
disability’.
14. Be that as it may, the Appellants, in compliance of the order of
the Tribunal, convened a Review Medical Board as directed and
submitted a report. The Tribunal noted :-
“7. From the Resurvey Medical Board dated 11.4.2019 held
pursuant to our order dated 02.11.2018 placed before us, it
is seen that the applicant’s disease “Right Partial Seizure
with Secondary Generalisation 345” has now been
considered as ‘Remained Static’ and the degree of the
disability has been assessed @ 20% for life with effect from
08.04.2019. The Board also assessed the degree of
disability for the intervening period from 27.03.1989 and
25.03.1989 @ 20%. The applicant has prayed for grant of
disability pension.”
15. Significantly, even the Resurvey Medical Board did not opine
that the disability, if any, of the Respondent was either caused or
aggravated by military service. Even otherwise, the question of
entitlement of soldier to disability pension cannot be determined on
the basis of medical examination conducted 20 years after his
discharge.
16. The Tribunal does not sit in appeal over the expert opinion of a
Medical Board holding that the disability suffered by a soldier was not
attributable to or aggravated by military service. There was no reason
6
for the Tribunal not to accept the opinion of the Release Medical
Board held on 30th January 1997 and no reasons have been disclosed.
In the absence of any finding of infirmity in the decision making
process adopted by the Release Medical Board, there could be no
reason to direct the constitution of a Resurvey Medical Board, and in
any case, not after two decades from the date of discharge.
17. The Tribunal relied on the judgment of this Court dated 13th
February 2015 in Civil Appeal No.2904 of 2011 (Union of India v.
Rajbir Singh
1
) heard and disposed of along with 23 other appeals.
In the aforesaid case, this Court dismissed appeals arising out of
orders passed by the Armed Forces Tribunal and upheld directions for
grant of disability pension to the concerned ex-soldiers.
18. In Rajbir Singh (supra), it was not in dispute that the
Respondents in all the appeals had been invalidated out of service on
account of medical disability as shown in the chart set out in the
judgment. The judgment in Rajbir Singh (supra) was rendered in
the context of invalidation from service on medical grounds, having
regard to the provisions of the Entitlement Rules for Casualty
Pensionary Awards, 1982, hereinafter referred to as “the Entitlement
Rules”.
19. Rule 14 of the Entitlement Rules, referred to in Rajbir Singh
(supra) is extracted hereinbelow for convenience: -
1 (2015) 12 SCC 264
7
“14. Diseases.- In respect of diseases, the following rule
will be observed –
(a) Cases in which it is established that conditions of military
service did not determine or contribute to the onset of the
disease but influenced the subsequent courses of the
disease will fall for acceptance on the basis of aggravation.
 (b) 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 military service. 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.
(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.

 (emphasis supplied)”
20. Rule 14(b) of the Entitlement Rules relied upon in Rajbir Singh
(supra) is not attracted in this case, because the Respondent was not
discharged on account of any disease, ailment or disability, but for
administrative reasons. The Rule is only attracted when a disease
leads to an individual’s discharge or death. Such disease is ordinarily
to be deemed to have arisen in service, if no note of it was made at
the time of the individual’s acceptance for military service, but not
always. In any case, the presumption under Rule 14(b) of the
Entitlement Rules is rebuttable. 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. There was no direction
on the Review Medical Board to give any opinion as to the question of
8
whether the ailment of the Respondent could or could not have been
detected at the time of his recruitment. Furthermore, the mere fact
that an ailment or disease may have arisen in service does not mean
that the ailment or disease is attributable to service conditions.
21. In the instant case, as observed above, the discharge of the
Respondent was not on account of any disability or disease but on
administrative grounds and such discharge was not questioned for
two decades. The judgment in Rajbir Singh (supra) or the judgments
relied upon in Rajbir Singh (supra) have no application in the facts
and circumstances of this case. The learned Tribunal noted red ink
entries in the service records of the Respondent on the ground of
unauthorized absence, but arrived at the purported finding in effect
that the absence of the Respondent was only on account of his
ailment/disability. Such finding is patently conjectural, and not based
on any materials on record.
22. Moreover, even in the case of discharge on account of any
disability or disease, the authorities might dispute that such disability
or disease was caused or aggravated by military service. The Medical
Board might, for reasons to be stated, give an opinion that the disease
could not have been detected on medical examination prior to
appointment, in which case the disease/disability would not be
deemed to have arisen during service.
23. Moreover, as provided in Rule 14(c) of the Entitlement Rules, if a
disease were accepted as having arisen in service, it must also be
9
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.
24. Even though, the Tribunal accepted that there might be cases,
where an ailment/disease could be wholly unrelated to military
service and the denial of disability pension could be justified on that
ground, the Tribunal overlooked the mandate of Rule 14(c) of the
Entitlement Rules. From the Report of the Resurvey Medical Board, as
extracted in the impugned judgment and order, it does not appear
that the Review Medical Board gave any opinion as contemplated in
Rule 14(b) or 14(c) of the Entitlement Rules. There were no materials
before the Tribunal, on the basis of which the Tribunal could have
been satisfied that, the conditions of service of the Respondent
contributed to his disability and/or ailment. The Review Medical
Board only assessed the extent of the disability of the Respondent
and the approximate duration of the disability, but not the cause
thereof.
25. What exactly is the reason for a disability or ailment may not be
possible for anyone to establish. Many ailments may not be
detectable at the time of medical check-up, particularly where
symptoms occur at intervals. Reliance would necessarily have to be
placed on expert medical opinion based on an in depth study of the
cause and nature of an ailment/disability including the symptoms
thereof, the conditions of service to which the soldier was exposed
10
and the connection between the cause/aggravation of the
ailment/disability and the conditions and/or requirements of service.
The Tribunal patently erred in law in proceeding on the basis of a
misconceived notion that any ailment or disability of a soldier, not
noted at the time of recruitment but detected or diagnosed at the
time of his discharge or earlier, would entitle the soldier to disability
pension on the presumption that the disability was attributable to
military service, whether or not the disability led to his discharge, and
the onus was on the employer to prove otherwise, which the
Appellants in this case had failed to do.
26. In this case, since the discharge was on administrative grounds
and not medical grounds, there was no occasion for the Release
Medical Board or for that matter, the Resurvey Medical Board to give
any opinion as to cause and nature of the ailment of the Respondent
of “Right Partial Seizure with Secondary Generalisation 345” as
diagnosed, whether such disability/ailment could reasonably have
gone undetected at the time of appointment of the Respondent, in
terms of Rule 14(b) of the Entitlement Rules. The Appellants did not
get the opportunity to show that the ailment was not caused or
aggravated by military service in terms of Rule 14(b) and 14(c) of the
Entitlement Rules referred to above. The claim of the Respondent for
disability pension should not have been entertained and that too, 20
years after his discharge.
11
27. The appeal is, therefore, allowed. The impugned judgment and
order is set aside. There shall be no order as to costs.
...…………………………………,J.
 [INDIRA BANERJEE]
...…………………………………,J.
 [V. RAMASUBRAMANIAN]
NEW DELHI;
JULY 19, 2022.
12

Comments

Popular posts from this blog

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर