2014 Supreme(P&H) 377

IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Hemant Gupta
The Hon’ble Mr. Justice Fateh Deep Singh
CWP No.7277 of 2013
Ex. Naik Umed Singh
v.
Union of India & Ors.
{Decided on 14/05/2014}

Headnote:Service Law--Disability Pension--Armed Forces Tribunal or Writ Court in exercise of power of Judicial review cannot re-examine the report of Release Medical Board categorizing the disability either attributable to Military Service or aggravated by Military Service.

       Service Law--Disability Pension--Armed Forces--If no note of the disease is made at the time of individual's acceptance in military service, it raises a presumption that an individual's discharge or death, will be deemed to have arisen for reasons attributable to or aggravated by service.

       (A) Service Law--Disability Pension--Armed Forces--Judicial Review--Armed Forces Tribunal or Writ Court in exercise of power of Judicial review cannot re-examine the report of Release Medical Board categorizing the disability either attributable to Military Service or aggravated by Military Service--Held;

       (i) The power of judicial review is to examine the decision making process and if the decision making process contravenes the statutory regulations or the instructions issued, to correct the same.

       (ii) If the Invalidating or Release Medical Board has not given any categorical opinion that the disease could not have been detected on medical examination; the disease which led to discharge of an individual will be deemed to have arisen in service, then High Court in exercise of the power of judicial review will strike down such decision for the reason that the Medical Board has failed to carry out the mandate given to them by the Regulations and the instructions by the Central Government.

       (iii) But, if the Invalidating or Release Medical Board has categorized that the disability is either not attributable to military service or aggravated by military service for the reason that it could not be detected at the time of entry into service, then the said opinion is in terms of the Regulations and instructions issued and cannot be substituted while exercising the powers of judicial review. (Para 18)

       (B) Service Law--Disability Pension--Armed Forces--Non detection any disease irrespective of its nature at the time of acceptance of service--Held; in cases where the Medical Board does not disclose the reasons that disease could not have been detected on medical examination prior to acceptance of service, the cause of discharge from armed forces, will be deemed to be aggravated or attributable to military service.

       Held that if no note is given of any disease at the time of acceptance of an individual into service, the disease would be deemed to have arisen in service. The Invalidation Medical Board or Review Medical Board has to record a categorical opinion that the disease, the reason of invaliding out of service could not have been detected on medical examination at the time of enrollment. In the absence of any such finding of the Medical Board, the disease would be deemed to have arisen in service. (Para 22)

       (C) Service Law--Disability Pension--Armed Forces--Limitation for Claim--Held; that the claim of disability pension cannot be declined for the reason that it was not raised within three years of discharge from the Army, but the payment of arrears would be restricted to a period of three years before the initiation of lis--Therefore, the long silence for not lodging a claim of disability pension cannot be said to bar the remedy. (Para 27 & 31)

       (D) Service Law--Disability Pension--Armed Forces--Maintainability of Claim after the destruction of the records--Held; in case of weeding of the records, the claim of the Armed Forces personnel or their legal heirs would be required to be examined on the basis of available record, if possible, to determine the cause of discharge from the Army and whether such cause leads to a finding of the discharge being attributable or aggravated by military service.

       In case either from the record produced by the legal heirs or the Armed Forces personnel or from the Army Authorities, the cause of discharge is not made out as attributable or aggravated by military service, no adverse inference can be drawn against the Army Authorities. In fact, the inference can be drawn only against the Armed Forces personnel or their legal heirs on account of delay leading to acquiesce in the process of discharge. (Para 32)