Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5678 OF 2009
[Arising out of SLP (Civil) No. 23727 of 2008]
Secretary, Ministry of Defence & Others .. Appellants
Versus
Damodaran A.V. (Dead) through LRs.
& Others .. Respondents
J U D G M E N T
Dalveer Bhandari, J.
1. Leave granted.
2. This appeal is directed against the judgment of the High
Court of Kerala at Ernakulam dated 19.7.2007 delivered in
Writ Appeal No. 2038 of 2001.
3. The short question that arises for consideration of this
Court is whether the High Court was justified in ignoring the
report of the Medical Board in which it is clearly mentioned
that disability of A.V. Damodaran was neither attributable nor
aggravated by the military service.
4. Brief facts which are necessary to dispose of the appeal
are as under:
A.V. Damodaran was enrolled in the Indian Army as
Sapper in the Madras Engineers Group on 28.11.1979. After
st
completion of basic training he was posted to 1 Engineer
Regiment.
5. A.V. Damodaran was admitted to MI Allahabad and was
diagnosed to be suffering from “Malaria” B.T.” on 24.6.1984.
He was discharged from the hospital on 30.6.1984 and was
again admitted in the Air Force Hospital, Jhansi because he
was suffering from “Hallucination”. A.V. Damodaran was
transferred to the Command Hospital, Lucknow for
management by a psychiatrist on 5.7.1984. The disability of
A.V. Damodaran was diagnosed as “Schizophrenia (295)” in
peace station in July 1984.
6. On 17.1.1985 the Medical Board recommended him to be
invalided out of service in medical category “EEE” with 60%
disability for a period of two years due to the disease
“Schizophrenia (295)”. The Medical Board had opined that the
disability of A.V. Damodaran was not attributable to the
military service nor has it been aggravated thereby and it is not
connected with the service, as Schizophrenia is a
constitutional disease. The opinion of the Medical Board reads
as under:
“OPINION
This is a case of Schizophrenia in a young
officer with 5 yrs service with no disorder of through
peruption, behavior and irrational inconguity. He
also exhibited impairment of judgment and might
onset July 84. He has been treated with
neuroleptis, electroplexy and psychotherapy.
Response to therapy has been satisfactory. There is
no evidence of active present features of illness at
present.
However, in view of early onset of the illness, a
short period of service and chances of relapse in
future under stress and strain of military service, he
is considered unfit for further service.
Recommended medical category EEE (Psychological).
He has been reviewed by the medical specialist
and no physical contributory factor elicited for his
psychiatric breakdown. In abetment assessed is
60% (sixty percent) disability neither attributable
nor aggravated by service. Longevity: Average
11.1.85. AFMSF 16281 along with related documents.”
7. The legal representatives of respondent no. 1 herein filed
an Original Writ Petition before the High Court praying for
grant of disability pension. By an order dated 20.12.2000 the
learned Single Judge has allowed the original petition and
declared that the individual was eligible to get disability
pension under the provisions contained in the Pension
Regulations for the Army, 1961 and such other enabling
provisions. The Department filed a Writ Appeal before the
High Court. By an impugned order, the High Court has
dismissed the said appeal finding no reason to interfere with
the discretion exercised by the learned Single Judge.
8. The main questions of law that arise for consideration of
this Court are as under:
i) Whether the High Court is justified in upholding the
order passed by the learned Single Judge granting
disability pension to the respondents and dismissing
the Writ Appeal by the appellant?
ii) Whether the respondents are entitled to the grant of
disability pension under the provisions as contained
in Regulation 173 of the Pension Regulations for the
Army, 1961 and such other enabling provisions?
9. The appellant Union of India submitted that:
a) As per the medical opinion the respondent A.V.
Damodaran was examined by the medical specialist and
no physical contributory factor elicited for his psychiatric
breakdown. In disablement assessed is 60% (sixty
percent) disability neither attributable nor aggravated by
service.
b) The respondent’s personal history reveals that he joined
army in 1979 to secure a good job. He is unmarried and
supporting his family. He is having no addiction to any
intoxication. Field Service is Nil and Punishment is Nil.
c) It is submitted that Discharge Certificate was prepared
and issued to the respondent by the Commanding Officer
of his parent Unit upon his release from the service.
Therefore, original discharge certificate is not available
with the Department. The copy of discharge certificate
presently available with the Department is one which was
forwarded by the respondent along with his
representation dated 18.3.1986 submitted by him to the
Department. Hence, the authenticity of the discharge
certificate cannot be relied upon and taken into account
for grant of disability pension. In any event, in view of the
Medical Board held on 17.1.1985, it is erroneous.
d) In the present case, the Medical Board held on 17.1.1985
at Command Hospital (Central Command), Lucknow,
consisting of specialized Doctors had opined that the
disability of the respondent is neither attributable nor
aggravated by the Military service and it is not connected
with the service, but it was constitutional in nature. The
said opinion is binding on all the concerns and is the only
document on the basis of which disability pension can be
granted or refused.
10. The appellant, aggrieved by the judgment of the Division
Bench of the High Court, preferred this appeal.
11. The appellant relied upon the judgment of this Court in
Controller of Defence Accounts (Pension) & Others v. S.
Balachandran Nair (2005) 13 SCC 128. In that case, a
reference made under Rule 173 of the Pension Regulations for
the Army has also been discussed. Rule 173 of the Pension
Regulations for the Army reads as under:
“173. Primary conditions for the grant of disability
pension .—Unless otherwise specifically provided a
disability pension may be granted to an individual
who is invalided from service on account of a
disability which is attributable to or aggravated by
military service and is assessed at 20 per cent or
above.
The question whether a disability is attributable
to or aggravated by military service shall be
determined under rule in Appendix II.
Relevant portion in Appendix II reads as follows:
‘2. Disablement or death shall be accepted as
due to military service provided it is certified that—
( a ) The disablement is due to wound, injury or
disease which—
( i ) is attributable to military service; or
( ii ) existed before or arose during military
service and has been and remains
aggravated thereby;
( b ) the death was due to or hastened by—
( i ) a wound, injury or disease which was
attributable to military service, or
( ii ) the aggravation by military service of a
wound, injury or disease which existed
before or arose during military service.
Note .—The rule also covers cases of death after
discharge/invaliding from service.
3. There must be a causal connection between
disablement or death and military service for
attributability or aggravation to be conceded.
4. In deciding on the issue of entitlement all the
evidence, both direct and circumstantial, will be
taken into account and the benefit or reasonable
doubt will be given to the claimant. This benefit will
be given more liberally to the claimant in field
service case.’ ”
12. Regulation 423 which deals with “Attributability to
service” has also been discussed in S. Balachandran Nair’s
case (supra), which reads as under:
“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 area or under
normal peace conditions. It is, however, essential to
establish whether the disability or death bore a
causal 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 due 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.
( 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 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 officer who signs
the death certificate. The Medical Board/medical
officer will specify reasons for their/his opinion. The
opinion of the Medical Board/medical officer, insofar
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 CO Unit will furnish a report on:
( i ) AFMS F-81 in all cases other than those due
to injuries.
( i ) IAFY-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).”
13. The question regarding payment of disability pension has
also been dealt with by this Court in Union of India v. Baljit
Singh (1996) 11 SCC 315. In para 6 at page 316, this Court
observed as under:
“ 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 a 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 amply clear from
clauses ( 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 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 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.”
14. This question again came up before this Court in Union
of India & Others v. Dhir Singh China, Colonel (Retd.)
(2003) 2 SCC 382 and the Court in para 7 of the said judgment
observed as under:
“ 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.”
15. This Court in this case has clearly observed that the High
Court was not justified in ignoring the conclusions of the
Medical Board and directing payment of pension.
16. This Court in Union of India & Others v. Keshar Singh
(2007) 12 SCC 675 dealt with a case where the respondent a
rifleman was discharged from Army on ground of his non-
suitability for continuance in Army as he was suffering from
Schizophrenia. Respondent’s application for grant of disability
pension was rejected on the ground that the disability was not
connected with the service. Single Judge as well as a Division
Bench had held that it was not mentioned at the time of
entering to army service that the respondent suffered from
Schizophrenia and therefore it was attributable to army
service. This Court has held 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. This court relied on
Medical Board’s opinion to the effect that the illness suffered
by the respondent was not attributable to military service.
This court while setting aside the judgments of the learned
Single Judge and the Division Bench held that the respondent
was not entitled to disability pension.
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.
18. 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 and in the light of the judgments of
this Court. The legal representatives of A.V. Damodaran are
not entitled to the disability pension. However, in the facts and
circumstances of the case, in case some amount has been paid
to the legal representatives of A.V. Damodaran towards
disability pension, the same may not be recovered from them.
19. The appeal is accordingly allowed leaving the parties to
bear their own costs.
……………………………….. J .
(Dalveer Bhandari)
New Delhi;
August 20, 2009.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5678 OF 2009
(Arising out of SLP (Civil) No. 23727 of 2008)
Secretary, Ministry of Defence & Ors. …Appellants
Versus
Damodaran A.V. (Dead) through LRs & Ors. …Respondents
J U D G M E N T
Dr. Mukundakam Sharma, J.
1. I have had the privilege and opportunity of going through the
well considered and reasoned judgment of my learned brother
Justice Dalveer Bhandari. While most respectfully agreeing with
the conclusions arrived at, I would like to add a few paragraphs
recording my own reasons on the issues that arise for
consideration in this case.
2. The facts leading to the filing of the Special Leave Petition by
the Ministry of Defence are already set out in the detailed judgment
of my learned brother and therefore I do not intend to reiterate the
same and burden this judgment. In the light of the facts stated
therein, the issue that arises for our consideration is as to whether
in view of the opinion of the Medical Board that the disability of A.V.
Damodaran was not attributable to the military service nor
aggravated thereby and that it is not connected with the service as
“Schizophrenia” is a constitutional disease could still be said and
held to be attributable or aggravated by military service.
3. Schizophrenia is a term used to describe a mental disorder
characterized by abnormalities in the perception or expression of
reality, which is most commonly manifested as auditory
hallucinations, bizarre delusions, or disorganized speech and
thinking with significant social or occupational dysfunction. The
medical studies have opined that there is no known single cause
responsible for Schizophrenia. However, they have pointed
towards likelihood of genetic, behavioural and environmental
factors playing a role in the development of this mental health
condition.
4. At this stage reference may be made to the provisions of para
173 of the Pension Regulations, which provides as follows:-
“173. Unless otherwise specifically provided a disability pension
consisting of service element and disability element may be
granted to an individual who is invalided out of service on account
of a disability which is attributable to or aggravated by military
service in non-battle casualty and is assessed at 20 per cent or
over.
The question whether a disability is attributable to or aggravated by
military service shall be determined under the rules in Appendix II.”
5. The question of attributability or aggravation is determined
under Appendix-II of Pension Regulations. In 1982, a set of rules
called “Entitlement Rules for Casualty Pensionary Awards 1982”
were brought into force and after promulgation of the said rules the
question of attributability would have to be decided and determined
in accordance with the provisions of the said Rules. A guideline is
also framed which lays down the mode and manner as also the
guiding principles for determining such cases have been set out
therein. The aforesaid Entitlement Rules have been made
effective w.e.f. January 1, 1982 and the aforesaid set of rules is
required to be read in conjunction with the Guide to Medical
Officers (Military Pensions) 1980. It is provided in the aforesaid
Entitlement Rules read with the guidelines that invalidation from
service is a necessary pre-condition for grant of disability pension.
In paragraph 5 thereof a presumption is to be drawn for
determining the question of entitlement to such disability pension
when it provides as follows:-
“5. The approach to the question of entitlement to casualty
pensionary awards and evaluation of disabilities shall be on the
following presumptions:-
Prior to and during service
(a) A member is presumed to have been in sound physical and
mental condition upon entering service except as to physical
disabilities noted or recorded at the time of entrance.
(b) In the event of his subsequently being discharged from
service on medical grounds any deterioration in his health which
has taken place is due to service.”
6. Paragraph 6, on the other hand, provides that disablement or
death shall be accepted as due to military service provided it is
certified by appropriate medical authority that (a) the disablement is
due to a wound, injury or disease which is attributable to military
service, or existed before or arose during military service and has
been and remains aggravated thereby, or (b) the death of the
personnel was due to or hastened by a wound, injury or disease
which was attributable to military service, or the aggravation by
military service of a wound, injury or disease which existed before
or arose during military service. Paragraph 8 provides that
attributability/aggravation would be considered if causal connection
between death/disablement and military service is certified by an
appropriate medical authority. Paragraph 11 deals with cases
where an individual in receipt of disability pension dies at home.
7. The aforesaid provisions including that of the guidelines
called the Guide to Medical Officers (Military Pensions) 1980 and
also the source of power, i.e., the provision of Section 173 of the
Pension Regulations including other relevant provisions came to be
considered by the Supreme Court. A conjoint reading of the
aforesaid provisions along with the decisions rendered by this
Court makes it amply clear that the said provisions and the
decisions lay down the entire procedure, guidelines and principles
as to under what circumstances a person could be said to be
medically unfit and disabled and is to be boarded out from service
and its attributability. The decisions have also dealt with the
manner and circumstances under which the said person would be
entitled to receive the disability pension.
8. 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. The said
release/invaliding 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, draws
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. 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. 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.
9. 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.
10. In the case of Controller of Defence Accounts (Pension) and
others v. S. Balachandran Nair reported in AIR 2005 SC 4391 and
the decision in Union of India and another v. Baljit Singh reported in
1996 (11) SCC 315 held that Medical Board’s opinion to the effect
that illness and disability suffered by the respondent therein was
not attributable to military service cannot be substituted by the court
in order to arrive at a contrary finding. It was also held that where
a medical board found that there was absence of proof of the
injury/illness having been sustained due to military service or being
attributable thereto, the High Court’s direction to the Government to
pay disability pension was not correct. The Supreme Court in the
case of Baljit Singh (supra) also dealt with the contention that the
employee was posted at a sensitive border area and, therefore, his
illness was fully attributable to military service and negatived the
same.
11. In the backdrop of the aforesaid legal position made clear by
several decisions of this Court the facts of the present case are
required to be considered.
12. It is revealed from the personal and family history of the
respondent that on account of financial problems, the respondent
was forced to abandon his education and join the Army. The
respondent was the sole bread earner of his family and was
burdened with the responsibility of maintaining his aged parents
and three younger sisters. Further, it may be pertinent to note
here that the respondent was posted to 1st Engineer Regiment at
Allahabad, which is neither a sensitive border area nor a difficult
terrain/high altitude region. The respondent was not posted at an
isolated location. He had access to the society there. A person
is, under law, entitled to the disability pension provided his
disability is certified by the appropriate medical authority as being
attributable to or aggravated by or connected with the military
service.
13. In the present appeal, the record reveals that in the opinion of
the Medical Board no physical contributory factor was elicited for
the psychotic breakdown of the respondent. Thus, the condition of
military service cannot be said to have triggered the onset of
schizophrenia in the respondent. However, the possibility of the
development of schizophrenia in the respondent as a result of
family stress and pressure (which is regarded as a factor triggering
the onset of this mental condition in some individuals cannot be
ruled out totally. The respondent did not assail the validity of the
finding or the opinion of the Medical Board. On the contrary, the
respondent has placed reliance on the findings of the Board on the
aspect of the extent of the respondent’s disability being 60%.
14. Here is also a case where the Medical Board has given its
definite opinion that disease from which the petitioner was suffering
was not attributable or aggravated by military service. It was
recorded by the Medical Board that the case is of Schizophrenia in
a young officer with five years service manifested in disorder of
thought, perception, behaviour and emotional incongruity. Further
opinion of the Board is that he had been reviewed by the medical
specialist and no physical contributory factor elicited for his
psychiatric breakdown. In disablement assessed is 60% (sixty
percent) disability neither attributable nor aggravated by service.
15. Clearly therefore, the opinion of the Medical Board ruled out
the possibility of the disease of the respondent being attributable to
or aggravated by military service. That being the position, the
respondent cannot claim for payment of any disability pension.
Another relevant factor which is required to be noted that the report
of the medical board is not under challenge. As has been held by
this Court, such opinion of the medical board would have the
primacy and therefore, it must be held that the learned Single
Judge and the Division Bench of the High Court were not justified in
allowing the claim of the respondent.
16. I fully endorse and agree with the conclusion arrived at by my
esteemed brother Justice Dalveer Bhandari that the legal
representatives of the respondent A.V. Damodaran are not entitled
to disability pension but if any amount towards such disability
pension has already been paid, the same may not be recovered
from the legal representatives. I also hold that the appeal stands
allowed in terms of the aforesaid order.
.………………………J
[Dr. Mukundakam Sharma]
New Delhi;
August 20, 2009