UNION OF INDIA & ORS.versusEX. SEP. R. MUNUSAMY

                        [2022] 7 S.C.R. 473                             473


                    UNION OF INDIA & ORS.                               A
                                 v.
                    EX. SEP. R. MUNUSAMY
                  (Civil Appeal No. 6536 of 2021)
                           JULY 19, 2022                                B
 [INDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.]
       Army Rules, 1954 – r. 13(3) III(v) – Discharge under – Army
Pension Regulation, 1961 – Entitlement Rules for Casualty
Pensionary Awards, 1982 – r.14 – Armed Forces Tribunal held that
                                                                        C
respondent was entitled to disability pension by allowing the
application filed by him after 20 years – Held: 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 the soldier to disability pension on the      D
presumption that the disability was attributable to military service,
whether or not the disability led to his discharge, and the onus was
on the employer to prove otherwise, which the appellants in this
case had failed to do – In the instant case, since the discharge was
on administrative grounds and not medical grounds, there was no
                                                                        E
occasion for the Release Medical Board or for that matter, the
Resurvey Medical Board to give any opinion as to cause and nature
of the ailment of the Respondent of “Right Partial Seizure with
Secondary Generalisation 345” as diagnosed, whether such
disability/ailment could reasonably have gone undetected at the
time of appointment of the Respondent, in terms of Rule 14(b) of the    F
Entitlement Rules – Also, claim of the respondent for disability
pension should not have been entertained and that too, 20 years
after its discharge.
      Allowing the appeal, the Court
       HELD: 1. The Resurvey Medical Board did not opine that           G
the disability, if any, of the Respondent was either caused or
aggravated by military service. Even otherwise, the question of
entitlement of soldier to disability pension cannot be determined
on the basis of medical examination conducted 20 years after his
discharge. The Tribunal does not sit in appeal over the expert          H
                                473
474            SUPREME COURT REPORTS                      [2022] 7 S.C.R.


A     opinion of a Medical Board holding that the disability suffered by
      a soldier was not attributable to or aggravated by military service.
      There was no reason for the Tribunal not to accept the opinion
      of the Release Medical Board held on 30th January 1997 and no
      reasons have been disclosed. In the absence of any finding of
      infirmity in the decision making process adopted by the Release
B
      Medical Board, there could be no reason to direct the constitution
      of a Resurvey Medical Board, and in any case, not after two
      decades from the date of discharge. [Paras 15 & 16][479-D-F]
            2. As provided in Rule 14(c) of the Entitlement Rules, if a
      disease were accepted as having arisen in service, it must also
C     be established that the conditions of military service determined
      or contributed to the onset of the disease and that the conditions
      were due to the circumstances of duty in military service. Even
      though, the Tribunal accepted that there might be cases, where
      an ailment/disease could be wholly unrelated to military service
D     and the denial of disability pension could be justified on that
      ground, the Tribunal overlooked the mandate of Rule 14(c) of
      the Entitlement Rules. From the Report of the Resurvey Medical
      Board, as extracted in the impugned judgment and order, it does
      not appear that the Review Medical Board gave any opinion as
      contemplated in Rule 14(b) or 14(c) of the Entitlement Rules.
E     There were no materials before the Tribunal, on the basis of which
      the Tribunal could have been satisfied that, the conditions of
      service of the Respondent contributed to his disability and/or
      ailment. The Review Medical Board only assessed the extent of
      the disability of the Respondent and the approximate duration
F     of the disability, but not the cause thereof. [Paras 23 & 24][481-
      F-H; 482-A-B]
            3. 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
G     symptoms occur at intervals. Reliance would necessarily have to
      be placed on expert medical opinion based on an in depth study
      of the 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

H
    UNION OF INDIA & ORS. v. EX. SEP. R. MUNUSAMY                        475


of the ailment/disability and the conditions and/or requirements         A
of service. The 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
the soldier to disability pension on the presumption that the
                                                                         B
disability was attributable to military service, whether or not the
disability led to his discharge, and the onus was on the employer
to prove otherwise, which the Appellants in this case had failed
to do. In this case, since the discharge was on administrative
grounds and not medical grounds, there was no occasion for the
Release Medical Board or for that matter, the Resurvey Medical           C
Board to give any opinion as to cause and nature of the ailment
of the Respondent of “Right Partial Seizure with Secondary
Generalisation 345” as diagnosed, whether such disability/ailment
could reasonably have gone undetected at the time of appointment
of the Respondent, in terms of Rule 14(b) of the Entitlement
                                                                         D
Rules. The Appellants did not get the opportunity to show that
the ailment was not caused or aggravated by military service in
terms of Rule 14(b) and 14(c) of the Entitlement Rules referred
to above. The claim of the Respondent for disability pension
should not have been entertained and that too, 20 years after his
discharge. [Paras 25 & 26][482-B-G]                                      E
      Union of India v. Rajbir Singh (2015) 12 SCC 264 :
      [2015] 2 SCR 183 17 - held inapplicable.
                       Case Law Reference
[2015] 2 SCR 183               held inapplicable          Para 17        F
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6536
of 2021.
      From the Judgment and Order dated 18.02.2020 of the Armed
Forces Tribunal, Regional Bench, Chennai in O.A. No. 53 of 2018.
                                                                         G
       Jayant K. Sud, ASG, Nachiketa Joshi, Neela Kedar Gokale, Sanjay
Kumar Tyagi, Rajan Kumar Chourasia, Arvind Kumar Sharma, Advs.
for the Appellants.
      B. Karunakaran, E. Sudarsanan, K. Balambihai, S. Gowthaman,
Advs. for the Respondent.
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476             SUPREME COURT REPORTS                            [2022] 7 S.C.R.


A           The Judgment of the Court was delivered by
            INDIRA BANERJEE, J.
             1. 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
B     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.
C     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/
D     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”.

E            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.

F            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 :-
G
            “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
H           decision not later than six months from the date of issue of
     UNION OF INDIA & ORS. v. EX. SEP. R. MUNUSAMY                          477
                 [INDIRA BANERJEE, J.]

      this letter, on such grounds as he may deem fit to put forth, if      A
      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          B
      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    C
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         D
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       E
occasions, as per the particulars given hereinbelow :-




                                                                            F




                                                                            G




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478             SUPREME COURT REPORTS                           [2022] 7 S.C.R.


A            8. The Appellants contend that the Respondent was a habitual
      offender who kept breaching military discipline, notwithstanding repeated
      counseling and advice given by his superiors. He proved to be an
      inefficient soldier. Be that as it may, the fact remains that, for 20 years,
      the Respondent did not question his discharge.
B            9. By a communication dated 27th October 2017, the Appellant
      No. 3 replied to the said notice stating:-
            “You have been discharged under Army Rule 13(3) III (v)
            being undesirable soldier and not invalidated out from service
            as mentioned in your above legal notice. Hence, disability
C           pension is not admissible as per existing rules in force”
            10. Being aggrieved, the Respondent filed O.A. No. 53 of 2018
      before the Tribunal claiming disability pension and benefits under
      Regulation 183 of the Army Pension Regulation, 1961. The application
      has been allowed by the judgment and order impugned.
D             11. At the cost of repetition, it is reiterated that the Respondent
      was discharged under Rule 13(3) III(v) of the Army Rules, 1954 on
      administrative grounds as an undesirable soldier and not on the ground
      of medical disability. Any opinion of the Release Medical Board held on
      30th January 1997 with regard to the ailment of the Respondent does not
E     entitle the Respondent to disability pension, as the ailment did not lead to
      his discharge. In any case, even as per the opinion of the Release Medical
      Board, the disability, if any, of the Respondent was not attributable to
      military service. The Tribunal recorded that the Release Medical Board
      had in Paragraph 3(d) stated “Disability constitutional in origin, unrelated
      to service”.
F
             12. For over 20 years from the date of the discharge, the
      Respondent did not challenge his discharge on the administrative ground
      of being an undesirable soldier. His discharge on administrative grounds
      could not have been challenged after two decades.
              13. In the considered opinion of this Court, the Tribunal fell in
G
      error in passing its order dated 2nd November 2018 directing the Appellants
      to convene a Resurvey/Review Medical Board at the Military Hospital,
      Chennai or a designated hospital for the purpose of examining the
      applicant and assessing the degree of disability due to “Right Partial
      Seizure with Secondary Generalisation 345” and the probable duration
H     of disability. The tenor of the order itself shows that even the Tribunal
        UNION OF INDIA & ORS. v. EX. SEP. R. MUNUSAMY                         479
                    [INDIRA BANERJEE, J.]

realized that accurate medical opinion could not have been obtained after     A
lapse of 30 years from the date of recruitment of the Respondent and
after 20 years from the date of his discharge. The Tribunal, therefore,
sought assessment of ‘probable duration of disability’.
       14. Be that as it may, the Appellants, in compliance of the order of
the Tribunal, convened a Review Medical Board as directed and submitted       B
a report. The Tribunal noted :-
         “7. From the Resurvey Medical Board dated 11.4.2019 held
         pursuant to our order dated 02.11.2018 placed before us, it
         is seen that the applicant’s disease “Right Partial Seizure with
         Secondary Generalisation 345” has now been considered as             C
         ‘Remained Static’ and the degree of the disability has been
         assessed @ 20% for life with effect from 08.04.2019. The
         Board also assessed the degree of disability for the intervening
         period from 27.03.1989 and 25.03.1989 @ 20%. The
         applicant has prayed for grant of disability pension.”
                                                                              D
       15. Significantly, even the Resurvey Medical Board did not opine
that the disability, if any, of the Respondent was either caused or
aggravated by military service. Even otherwise, the question of entitlement
of soldier to disability pension cannot be determined on the basis of
medical examination conducted 20 years after his discharge.
                                                                              E
       16. The Tribunal does not sit in appeal over the expert opinion of
a Medical Board holding that the disability suffered by a soldier was not
attributable to or aggravated by military service. There was no reason
for the Tribunal not to accept the opinion of the Release Medical Board
held on 30th January 1997 and no reasons have been disclosed. In the
absence of any finding of infirmity in the decision making process adopted    F
by the Release Medical Board, there could be no reason to direct the
constitution of a Resurvey Medical Board, and in any case, not after
two decades from the date of discharge.
       17. The Tribunal relied on the judgment of this Court dated
13th February 2015 in Civil Appeal No.2904 of 2011 (Union of India v.         G
Rajbir Singh1) heard and disposed of along with 23 other appeals. In
the aforesaid case, this Court dismissed appeals arising out of orders
passed by the Armed Forces Tribunal and upheld directions for grant of
disability pension to the concerned ex-soldiers.
1
    (2015) 12 SCC 264                                                         H
480             SUPREME COURT REPORTS                           [2022] 7 S.C.R.


A            18. In Rajbir Singh (supra), it was not in dispute that the
      Respondents in all the appeals had been invalidated out of service on
      account of medical disability as shown in the chart set out in the judgment.
      The judgment in Rajbir Singh (supra) was rendered in the context of
      invalidation from service on medical grounds, having regard to the
      provisions of the Entitlement Rules for Casualty Pensionary Awards,
B
      1982, hereinafter referred to as “the Entitlement Rules”.
            19. Rule 14 of the Entitlement Rules, referred to in Rajbir Singh
      (supra) is extracted hereinbelow for convenience: -
            “14. Diseases.- In respect of diseases, the following rule will
C           be observed –
            (a) Cases in which it is established that conditions of military
            service did not determine or contribute to the onset of the
            disease but influenced the subsequent courses of the disease
            will fall for acceptance on the basis of aggravation.
D           (b) A disease which has led to an individual’s discharge or
            death will ordinarily be deemed to have arisen in service, if
            no note of it was made at the time of the individual’s
            acceptance for military service. However, if medical opinion
            holds, for reasons to be stated, that the disease could not
            have been detected on medical examination prior to
E           acceptance for service, the disease will not be deemed to have
            arisen during service.
            (c) If a disease is accepted as having arisen in service, it
            must also be established that the conditions of military service
            determined or contributed to the onset of the disease and
F           that the conditions were due to the circumstances of duty in
            military service.
                                                      (emphasis supplied)”
             20. Rule 14(b) of the Entitlement Rules relied upon in Rajbir Singh
      (supra) is not attracted in this case, because the Respondent was not
G     discharged on account of any disease, ailment or disability, but for
      administrative reasons. The Rule is only attracted when a disease leads
      to an individual’s discharge or death. Such disease is ordinarily to be
      deemed to have arisen in service, if no note of it was made at the time of
      the individual’s acceptance for military service, but not always. In any
      case, the presumption under Rule 14(b) of the Entitlement Rules is
H
     UNION OF INDIA & ORS. v. EX. SEP. R. MUNUSAMY                             481
                 [INDIRA BANERJEE, J.]

rebuttable. If medical opinion holds, for reasons to be stated, that the       A
disease could not have been detected on medical examination prior to
acceptance for service, the disease will not be deemed to have arisen
during service. There was no direction on the Review Medical Board to
give any opinion as to the question of whether the ailment of the
Respondent could or could not have been detected at the time of his
                                                                               B
recruitment. Furthermore, the mere fact that an ailment or disease may
have arisen in service does not mean that the ailment or disease is
attributable to service conditions.
       21. In the instant case, as observed above, the discharge of the
Respondent was not on account of any disability or disease but on
administrative grounds and such discharge was not questioned for two           C
decades. The judgment in Rajbir Singh (supra) or the judgments relied
upon in Rajbir Singh (supra) have no application in the facts and
circumstances of this case. The learned Tribunal noted red ink entries in
the service records of the Respondent on the ground of unauthorized
absence, but arrived at the purported finding in effect that the absence       D
of the Respondent was only on account of his ailment/disability. Such
finding is patently conjectural, and not based on any materials on record.
       22. Moreover, even in the case of discharge on account of any
disability or disease, the authorities might dispute that such disability or
disease was caused or aggravated by military service. The Medical Board
                                                                               E
might, for reasons to be stated, give an opinion that the disease could not
have been detected on medical examination prior to appointment, in which
case the disease/disability would not be deemed to have arisen during
service.
       23. Moreover, as provided in Rule 14(c) of the Entitlement Rules,
if a disease were accepted as having arisen in service, it must also be        F
established that the conditions of military service determined or
contributed to the onset of the disease and that the conditions were due
to the circumstances of duty in military service.
      24. Even though, the Tribunal accepted that there might be cases,
where an ailment/disease could be wholly unrelated to military service         G
and the denial of disability pension could be justified on that ground, the
Tribunal overlooked the mandate of Rule 14(c) of the Entitlement Rules.
From the Report of the Resurvey Medical Board, as extracted in the
impugned judgment and order, it does not appear that the Review Medical
Board gave any opinion as contemplated in Rule 14(b) or 14(c) of the
                                                                               H
482              SUPREME COURT REPORTS                          [2022] 7 S.C.R.


A     Entitlement Rules. There were no materials before the Tribunal, on the
      basis of which the Tribunal could have been satisfied that, the conditions
      of service of the Respondent contributed to his disability and/or ailment.
      The Review Medical Board only assessed the extent of the disability of
      the Respondent and the approximate duration of the disability, but not
      the cause thereof.
B
              25. 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 the cause and nature of an ailment/
C     disability including the symptoms thereof, the conditions of service to
      which the soldier was exposed and the connection between the cause/
      aggravation of the ailment/disability and the conditions and/or requirements
      of service. The Tribunal patently erred in law in proceeding on the basis
      of a misconceived notion that any ailment or disability of a soldier, not
D     noted at the time of recruitment but detected or diagnosed at the time of
      his discharge or earlier, would entitle the 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 the onus was on
      the employer to prove otherwise, which the Appellants in this case had
      failed to do.
E
             26. In this case, since the discharge was on administrative grounds
      and not medical grounds, there was no occasion for the Release Medical
      Board or for that matter, the Resurvey Medical Board to give any opinion
      as to cause and nature of the ailment of the Respondent of “Right Partial
      Seizure with Secondary Generalisation 345” as diagnosed, whether such
F     disability/ailment could reasonably have gone undetected at the time of
      appointment of the Respondent, in terms of Rule 14(b) of the Entitlement
      Rules. The Appellants did not get the opportunity to show that the ailment
      was not caused or aggravated by military service in terms of Rule 14(b)
      and 14(c) of the Entitlement Rules referred to above. The claim of the
      Respondent for disability pension should not have been entertained and
G
      that too, 20 years after his discharge.
            27. The appeal is, therefore, allowed. The impugned judgment
      and order is set aside. There shall be no order as to costs.

      Ankit Gyan                                                    Appeal allowed.
H     (Assisted by : Rahul Rathi, LCRA)