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SUPREME COURT OF INDIA
Indira Banerjee, V. Ramasubramanian, JJ.
Union Of India & Ors. – Appellants
Versus
Ex. Sep. R. Munusamy – Respondent
Civil Appeal No. 6536 of 2021
Decided on : 19-07-2022
Army Rules, 1954 – Rule 13(3) III(v) – Pension Regulations for Army, 1961 – Regulation 183 read with Rule 14 of Entitlement Rules, 1982 – Disability Pension – Discharge from service on administrative grounds as an undesirable soldier – For over 20 years from date of discharge, Respondent did not challenge his discharge on administrative ground of being an undesirable soldier – His discharge on administrative grounds could not have been challenged after two decades – Resurvey Medical Board did not opine that disability of Respondent was either caused or aggravated by military service – Even otherwise, question of entitlement of soldier to disability pension cannot be determined on the basis of medical examination conducted 20 years after his discharge – Tribunal does not sit in appeal over expert opinion of a Medical Board holding that disability suffered by a soldier was not attributable to or aggravated by military service – There was no reason for Tribunal not to accept opinion of Release Medical Board and no reasons have been disclosed – In absence of any finding of infirmity in decision making process adopted by Release Medical Board, there could be no reason to direct constitution of a Resurvey Medical Board, and in any case, not after two decades from date of discharge – Since discharge was on administrative grounds and not medical grounds, there was no occasion for Release Medical Board or for that matter, Resurvey Medical Board to give any opinion as to cause and nature of ailment of Respondent – Claim of Respondent for disability pension should not have been entertained and that too, 20 years after his discharge – Impugned judgment and order set aside. (Paras 12, 15, 16, 26 and 27)
Facts of the case:
Instant appeal is against a judgment and order dated 18th February 2020 passed by Chennai Regional Bench of the Armed Forces Tribunal allowing the application being O.A. No. 53 of 2018 filed by Respondent about 20 years after he was discharged from 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.
Findings of Court:
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 cause and nature of an ailment/disability including the symptoms thereof, the conditions of service to which the soldier was exposed and the connection between the cause/aggravation of ailment/disability and the conditions and/or requirements of service. 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 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 onus was on the employer to prove otherwise, which Appellants in this case had failed to do.
Result : Appeal allowed.
JUDGMENT
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 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.
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 Act1950 | 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 Comma | ||
Disability Pension – Question of entitlement of soldier to disability pension cannot be determined on the basis of medical examination conducted 20 years after his discharge from service.
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