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.

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 order