2022 Supreme(SC) 618
INDIRA BANERJEE, V. RAMASUBRAMANIAN
Union Of India – Appellant
Versus
Ex. Sep. R. Munusamy – Respondent
Advocates appeared:
For the Appellant :Jayant K. Sud, ASG, Sanjay Kumar Tyagi, Nachiketa Joshi, Neela kedar Gokhale, Rajan Kumar Chourasia, Arvind Kumar Sharma, Advocates
For the Respondent:S. Gowthaman, Advocate
Judgement Key Points
- The respondent soldier was discharged from service on administrative grounds as an undesirable soldier under Army Rule 13(3)(iii)(v), after rendering approximately nine years and seven months of service, and did not challenge the discharge for over 20 years. [1000758350001] (!) (!)
- At discharge, the Release Medical Board assessed the respondent's condition ("Right Partial Seizure with Secondary Generalization 345") at 20% for two years and opined it was neither attributable to nor aggravated by military service (NANA), described as constitutional in origin and unrelated to service. [1000758350002] (!)
- Initial claim for disability pension was rejected in 1998, with appeal dismissed by 2000, and no further action until a legal notice in 2017 claiming parity, which was denied as discharge was administrative, not medical. [1000758350003] (!) (!) [1000758350004][1000758350005] (!) (!)
- Respondent had multiple red ink entries for disciplinary offenses under Section 39(b) of the Army Act, 1950, indicating habitual breaches of discipline despite counseling. [1000758350006]
- Tribunal directed constitution of a Resurvey Medical Board after about 21 years from discharge; the Board assessed disability at 20% for life but did not opine it was caused or aggravated by service. (!) (!) (!) (!)
- Entitlement to disability pension cannot be determined based on medical examination conducted 20 years after discharge, as accurate assessment of causation or aggravation is not feasible after such delay. (!) (!)
- Tribunal cannot sit in appeal over expert opinion of a Medical Board that disability was not attributable to or aggravated by military service, absent any finding of infirmity in the Board's process; no basis to direct Resurvey Board after two decades. (!)
- Since discharge was on administrative grounds, not due to disability, Release or Resurvey Medical Boards had no occasion to opine on causation or nature of ailment in terms of Entitlement Rules. (!) (!)
- Under relevant entitlement rules for diseases, if a disease leads to discharge and was not noted at recruitment, it is ordinarily deemed to arise in service (rebuttable presumption), but only if medical opinion does not state it could not have been detected earlier; additionally, must establish service conditions caused or contributed to onset due to duties. (!) (!) (!) (!) (!) (!) (!)
- Rule on presumption for diseases leading to discharge does not apply where discharge is administrative, not medical; mere detection of ailment at discharge does not presume attributability to service, and onus not automatically on employer. (!) (!) (!)
- Causation of disability requires expert medical opinion considering symptoms, service conditions, and nexus; Tribunal erred in presuming any undetected ailment at recruitment, diagnosed later, entitles to pension regardless of discharge reason or Board's NANA opinion. (!) (!)
- Claim for disability pension should not be entertained 20 years after administrative discharge, without contemporaneous challenge or evidence linking ailment to service. (!) (!)
- Appeal allowed; Tribunal's order granting disability pension (with 3-year arrears limit) set aside. (!) (!)
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
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