IMPORTANT POINT
To deny disability pension, it must affirmatively be proved that the same had nothing to do with such service.

Headnote:(a) Pension Regulations for the Army, 1961 (part-1) – Regulation 173 r/w Rule 14(b), Entitlement Rules for Casualty Pensionary Awards, 1982 and para 7,8 and 9, "General Principles" of Guide to Medical Officers (Military Pension), 2002 - Appellant joining Army service after being declared medically fit – Later diagnosed with "Generalised Tonic Clonic Seizure" and "Neurotic Depression" – Disability of 20% declared for both deceases – Medical Board opining the deceases to be constitutional in nature and not attributable to Army service – Advising boarding him out of Army service – Disability pension denied – Regulation 173 raising presumption of disability owing to Army service – Rule 14(b) requiring Medical Board to give reasons for its conclusion that deceased was not attributable to Army service and it could not be detected at the time of entry – Instantly Medical Board not giving reasons – Appellant entitled to disability pension. (Para 22)
       LPA (SW) 212/2006 (J&K); (2009)9 SCC 140; (2011)7 SCC 735; (2013) 7 SCC 316; (2013) 8 SCC 83; Civil Appeal No. 1837/2009; Civil Appeal No: 2904 of 2011 – Referred
       (b) Pension Regulations for the Army, 1961 (part-1) – Regulation 173 – Provision for disability pension – A beneficial provision – Persons not completing their tenure also entitled – To deny disability pension, it must affirmatively be proved that the same had nothing to do with such service – Burden to establish disability lies heavily upon the employer – Burden to be discharged with statement of reasons supporting the employer’s view – Instantly burden not discharged –Appellant held entitled to disability pension. (Para 25)
       Civil Appeal No. 2904 of 2011; (2013) 7 SCC 316 – Relied upon
       Facts of the case:
       The respondent had joined the Army service on 06.4.1999 being awarded medical category of "AYE".
       He was posted at No. 5 JAK Rifles at Amritsar on 5.3.2000. One day he fell unconscious in the course of cross country practice in the unit premises and had to be shifted to Military Hospital, Amritsar where he was treated for his ailment. The Medical Board that was set up for his examination lowered his category from "AYE" to "CEE" temporary w.e.f. April, 2000.
       He again fell to the same illness and had to be hospitalized. The Review Medical Board, after examining him, placed him in category "BEE" permanent for the first disability and category "CEE" temporary for the second disability. On his discharge from the hospital, the respondent was sent to JAK Rifles, Jabalpur. Though he applied for sheltered appointment, the same was not entertained.
       Soon thereafter he was invalided from service on being adjudged unsuitable, by the invaliding Medical Board which assessed his disability percentage as 20% qua the first disability; and 20% for the second disability; summing upto 40% for both the diseases.
       He was invalided out of Army service on 01.1.2002.
       His claim for disability pension was also rejected.
       The Single Judge of the High Court held that as the disability of the respondent was assessed at 20%, he was entitled to disability pension and as a consequence, quashed the orders to the contrary and directed the Union of India and its authorities to grant disability pension to him from the date he was discharged from service. Time limit of four months was also outlined for the completion of the exercise, failing which it was ordered that the respondent would be entitled to interest @ 7.5% p.a.
       The Division Bench wholly endorsed the determination made by the Single Judge.
       Finding of the Court:
       Impugned judgment does not warrant interference.
       Result: Appeal dismissed.

JUDGMENT

AMITAVA ROY, J.

1. Leave granted.

2. The instant appeals witness a challenge to the judgment and order dated 22nd May, 2012 rendered in LPA (SW) No. 157/2009 and CMA No. 211/2009 affirming the determination made in SWP No. 1439/2004 thereby sustaining the claim of the respondent herein to disability pension on being boarded out of the Army service on the ground of disabilities identified as "Generalised Tonic Clonic Seizure" and "Neurotic Depression".

3. The Union of India being aggrieved by the concurrent verdicts requiring it to grant disability pension to the respondent herein from the date of his discharge from service, seeks redress in the instant appeals.

4. We have heard the learned counsel for the parties and have perused the records.

5. The foundational facts as offered by the rival pleadings would provide the back-drop of the lingering debate. The respondent had joined the Army service under the Union of India on 06.4.1999 being awarded medical category of "AYE" and according to him after undergoing rigorous medical examinations as prescribed. He, thereafter, underwent initial military training at JAK Rifles Centre, Jabalpur where after he was posted at No. 5 JAK Rifles at Amritsar on 5.3.2000. One day he fell unconscious in the course of cross country practice in the unit premises and had to be shifted to Military Hospital, Amritsar where he was treated for his ailment. The Medical Board that was set up for his examination lowered his category from "AYE" to "CEE" temporary w.e.f. April, 2000. The respondent has pleaded that subsequent to his discharge from the hospital he was detained for duties at Kargil. He availed leave as was granted thereafter, to join later at his transit Camp at Chandigarh. As admitted by him, while on duty, he again fell to the same illness and had to be hospitalized. The Review Medical Board, after examining him, placed him in category "BEE" permanent for the first disability and category "CEE" temporary for the second disability as mentioned therein. On his discharge from the hospital, the respondent was sent to JAK Rifles, Jabalpur. Though he applied for sheltered appointment, the same was not entertained.

It was soon thereafter that he was invalided from service on being adjudged unsuitable, by the invaliding Medical Board which assessed his disability percentage as 20% qua the first disability; and 20% for the second disability; summing upto 40% for both the diseases. The Board thus recommended that he be invalided out of Army service which, in fact, was given effect to on 01.1.2002. He unsuccessfully appealed against this decision before the higher authorities. His claim for disability pension was also rejected on the ground that the disabilities detected in him were neither attributable to the Army service nor could get aggravated there from. Contending that the decision to board him out of service and the denial of disability pension otherwise payable to him under the relevant rules, was illegal and arbitrary, the respondent invoked the writ jurisdiction of the High Court of Jammu and Kashmir at Jammu for its remedial intervention.

6. The appellants in their reply apart from the preliminary objection to the maintainability of the assailment, in essence pleaded that having regard to the respondent's short service profile which demonstrated that for a major part thereof he had remained hospitalized during the training and thereafter, the diseases diagnosed could neither to be attributable to the Army service nor comprehended to be aggravated thereby. While admitting that the respondent had joined the Army service on 06.04.1999 and that on the completion of the basic military training he was posted at 5, JAK Riffles on 04.03.2000, the Union of India set out in details, the particulars of the periods during which the respondent had remained hospitalized for treatment. According to it, the official record did reveal that he remained under medical treatment being hospitalized for the p

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2015 Supreme(SC) 412

SUPREME COURT OF INDIAM.Y. Eqbal, Amitava Roy, JJ.UNION OF INDIA & ORS. – APPELLANTSVs. MANJEET SINGH – RESPONDENTCIVIL APPEAL NOS .4357-4358 OF 2015 (arising out of SLP(Civil) Nos.13732-13733/2014)Decided On : 12-05-2015

IMPORTANT POINTTo deny disability pension, it must affirmatively be proved that the same had nothing to do with such service.

Cases Referred (4)

SUPREME COURT OF INDIA
M.Y. Eqbal, Amitava Roy, JJ.
UNION OF INDIA & ORS. – APPELLANTS
Vs.
MANJEET SINGH – RESPONDENT
CIVIL APPEAL NOS .4357-4358 OF 2015 (arising out of SLP(Civil) Nos.13732-13733/2014)
Decided On : 12-05-2015

IMPORTANT POINT
To deny disability pension, it must affirmatively be proved that the same had nothing to do with such service.