1. Appeal against Armed Forces Tribunal orders denying disability pension to a soldier invalided out for a disease assessed below 20% and held not attributable to service. (Para 3 , 7 , 9 , 10 , 11 , 15 , 17 )
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2025 Supreme(SC) 694
SUPREME COURT OF INDIA
ABHAY S. OKA, UJJAL BHUYAN, JJ.
Bijender Singh – Appellant
Versus
Union of India & Ors. – Respondents
Civil Appeal Nos. 4458-4459 of 2024
Decided On : 23-04-2025
Important Points
The presumption of sound health upon entry into military service requires the employer to prove that a disability is not attributable to or aggravated by military service, especially when the individual is invalided out due to such disability.
Subject
Pensions - Disability Pension
Act Referred
ARMED FORCES TRIBUNAL ACT: S.14, S.30
ARMED FORCES TRIBUNAL PROCEDURE RULES: R.14, R.18, R.5, R.9
CONSTITUTION OF INDIA: Art.14
ARMED FORCES TRIBUNAL PROCEDURE RULES: R.14, R.18, R.5, R.9
CONSTITUTION OF INDIA: Art.14
Headnote
(A) Armed Forces Tribunal Act, 2007 - Sections 30 and 31(1) - Pension Regulations for the Army, 1961 - Regulations 173 and 183 - Disability pension - Appellant invalided out of service due to disability assessed at less than 20% - Tribunal dismissed claim for disability element of pension - Court found Tribunal failed to consider whether disability was attributable to military service - Court emphasized presumption of sound health upon entry into service and burden of proof on employer to establish non-attributability - Orders of Tribunal set aside, and disability pension granted at 50% from 01.01.1996 with interest. (Paras 47, 46, 45, 44, 43, 36, 35, 34, 33, 32, 31, 30, 29, 28, 27, 26, 25, 24, 23, 22, 21, 20, 19, 18, 17, 16, 15, 14, 13, 12, 11, 10, 9, 8, 7, 6, 5, 4, 3, 2.1)
Legal Category Hierarchy
Advocates appeared:
For the Appellant(s) : Mr. Himanshu Gupta, Adv. Mr. Manoj C. Mishra, AOR
For the Respondent(s): Dr. N. Visakamurthy, AOR
For the Appellant(s) : Mr. Himanshu Gupta, Adv. Mr. Manoj C. Mishra, AOR
For the Respondent(s): Dr. N. Visakamurthy, AOR
Table of Contents
2. Appellant claims presumption of attributability and rounding off to 50%; respondents contend disability was below 20% and not attributable to military service. (Para 16 , 18 , 19 , 20 )
3. The court found the Tribunal ignored legal presumptions regarding attributability and the burden of proof, which rests on the employer to rebut the presumption of service-related disability. (Para 22 , 31 , 32 , 33 , 34 , 35 , 36 , 43 , 44 , 45 , 46 )
4. Disability leading to invalidment is presumed attributable to military service if not recorded at entry, shifting the burden of proof to the employer to provide reasons. (Para 46 )
5. Tribunal orders set aside; respondents directed to grant disability element of pension at 50% for life with interest. (Para 47 , 48 )
6. Is a member of the armed forces presumed to be in sound health upon entering service?
Yes, a member is presumed to be in sound physical and mental condition upon entering service, except for physical disabilities specifically noted or recorded at the time of entrance. (Para 32 , 36 , 43 , 45 )
7. How is the attributability of a disease to military service determined when a member is invalided out?
A disease leading to discharge is ordinarily deemed to have arisen in service if not noted at entry. The burden of proof lies with the employer to rebut this presumption with cogent reasons. (Para 34 , 45 , 46 )
8. Does a disability assessment below 20% automatically disentitle a soldier from the disability element of a pension?
No; where a member is invalided out, it is assumed the disability is sufficient for compensation, and such disability attracts the grant of 50% disability pension under applicable rounding-off instructions. (Para 38 , 40 , 46 )
9. Who bears the burden of proof regarding the entitlement to a disability pension?
The onus of proof is on the authority (employer) and not the claimant. The claimant is entitled to the benefit of any reasonable doubt, which should be applied liberally. (Para 33 , 43 )
JUDGMENT :
UJJAL BHUYAN, J.
Heard learned counsel for the parties.
2. Subject matter of both the civil appeals is the same. Therefore, both the appeals are being disposed of by this common judgment and order. However, for the sake of convenience, we refer to the facts mentioned in Civil Appeal No. 4458 of 2024.
2.1. This is an appeal under Section 30 of the Armed Forces Tribunal Act, 2007 against the order dated 22.01.2018 passed by the Armed Forces Tribunal, Chandigarh Regional Bench in R.A. No. 20 of 2016 in O.A. No. 3977 of 2013 as well as the order dated 26.02.2016 passed by the Armed Forces Tribunal, Chandigarh Regional Bench in O.A. No. 3977 of 2013.
3. Be it stated that appellant as the applicant had filed O.A. No. 3977 of 2013 before the Armed Forces Tribunal, Chandigarh Regional Bench (‘Tribunal’ for short) under Section 14 of the Armed Forces Tribunal Act, 2007 (briefly ‘the 2007 Act’ hereinafter) contending that he was entitled to the disability element of disability pension on account of his disability attributable to military service, rounding off of his disability to 50%. By the order dated 26.02.2016, Tribunal held that disability of the appellant was less than 20%. Therefore, no relief could be granted to the appellant. Resultantly, O.A. No. 3977 of 2013 was dismissed.
4. Appellant filed a review application under Rule 18 of the Armed Forces Tribunal (Procedure) Rules, 2008 for review of the order dated 26.02.2016. The same was registered as R.A. No. 20 of 2016. By order dated 22.01.2018, Tribunal held that there was no ground to review the order dated 26.02.2016 and, accordingly, dismissed the review application. Request made by the appellant for grant of leave to appeal was declined.
5. Aggrieved thereby, appellant has preferred the present civil appeal. Notice in this case was issued on 13.08.2018. In the hearing held on 19.03.2024, leave to appeal under Section 31(1) of the 2007 Act was granted. Delay in filing the appeal was condoned.
6. Relevant facts may be briefly noted.
7. Appellant was enrolled in the army on 30.09.1985. He was invalided out from service w.e.f. 14.08.1989 on account of low medical category for the disease generalized tonic clonic seizure old 345 V-67 assessed at less than 20% on the recommendations of the Invaliding Medical Board.
8. According to the appellant, he was hale and hearty when he had joined the army. He had suffered the aforesaid disability during his posting at high altitude Siachen glacier from May, 1988 to 20.09.1988. Onset of the disability was from 09.10.1988.
9. Invaliding Medical Board in its proceedings dated 12.07.1989 opined that the disability was not attributable to or aggravated by military service; the disability was assessed for a period of two years.
10. In view of the opinion of the Invaliding Medical Board, appellant was invalided out from service w.e.f. 14.08.1989. He was granted disability pension consisting of the service element only since the disability was assessed at less than 20% and held as not attributable to or aggravated by military service.
11. Re-Survey Medical Boards were held on 07.08.1993, 23.06.1998 and 28.06.2002. On all the three occasions, Re-Survey Medical Boards had assessed the disability of the appellant at around 15 to 19% further observing that such disability was for life.
12. Appellant had submitted representations dated 07.08.2010 and 05.02.2013 before respondent No. 3 requesting the authorities to accept his disability as attributable to and aggravated by military service and thereafter to release disability pension (disability element) to him by assessing the disability at 50% w.e.f. 01.01.1996. However, there was no response.
13. At that stage, appellant approached the Tribunal by filing O.A. No. 2322 of 2013. By order dated 13.05.2013, Tribunal disposed of O.A. No. 2322 of 2013 directing the respondents to take a decision on the aforesaid representations by passing a speaking order within four months.
14. Pursuant to the aforesaid orde
