Union Of India And Others v. Ic 41068w Maj Gen Anil Chaudhary Retd And Another
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH CWP202872025 Date of Decision : 28.07.2025 UNION OF INDIA AND OTHERS .....Petitioners IC41068W MAJ. GEN. ANIL CHAUDHARY (RETD) AND ANOTHER ....Respondents CWP202852025 UNION OF INDIA AND OTHERS .....Petitioners JARNAIL SINGH AND ANOTHER ....Respondents CWP202892025 UNION OF INDIA AND OTHERS .....Petitioners EX SEP ACP II SANJAY KUMAR, NO 15618280L AND ANOTHER ....Respondents CWP203972025 UNION OF INDIA AND OTHERS .....Petitioners SURJIT SINGH AND ANOTHER ....Respondents CWP203992025 UNION OF INDIA AND OTHERS .....Petitioners
RAMESH KUMAR AND ANOTHER ....Respondents CWP208672025 UNION OF INDIA AND OTHERS .....Petitioners SERVICE NO 13881675Y EX SEPOY VIDYA SAGAR (SINCE DECEASED) THR. LR AND ANOTHER ....Respondents CWP209112025 UNION OF INDIA AND OTHERS .....Petitioners EX NK JARNAIL SINGH S NO 1555816 AND OTHERS ....Respondents CWP210852025 UNION OF INDIA AND OTHERS .....Petitioners MWO SULINDER SINGH (RETD) ....Respondents CWP211552025 UNION OF INDIA AND OTHERS .....Petitioners EX SUB (HONY LT) DHARAM SINGH ....Respondents
CWP-33132-2024 UNION OF INDIA AND OTHERS .....Petitioners HAV HAKIM SINGH AND ANOTHER ....Respondents CWP-33144-2024 UNION OF INDIA AND OTHERS .....Petitioners DESH RAJ AND ANOTHER ....Respondents CWP-33148-2024 UNION OF INDIA AND OTHERS .....Petitioners TS DARSHAN SINGH AND ANOTHER ....Respondents CWP-33162-2024 UNION OF INDIA AND OTHERS .....Petitioners KALU RAM AND ANOTHER ....Respondents CWP331912024 UNION OF INDIA AND OTHERS .....Petitioners GAJANAND AND ANOTHER ....Respondents
CORAM:
HON'BLE MR. JUSTICE ASHWANI KUMAR MISHRA HON'BLE MR. JUSTICE KULDEEP TIWARI Present :
Mr. Narender Kumar Vashist, Advocate, for the petitioners (Sr. No. 149, 179 & 151) Ms. Geeta Singhwal, Advocate for the petitioners (Sr. No.148) Mr. Karan Kumar Jund, Advocate, for the petitioners (Sr. No.157, 170, 276 to 280) Mr. Agam Kumar Jund, Advocate, for the petitioners (Sr. No.158 & 166) Mr. Shubham Thakur, Advocate, for the petitioners (Sr. No.176 & 179) Mr. Navdeep Singh, Advocate with Ms. Roopan Atwal, Advocate for respondent no.1.
ASHWANI KUMAR MISHRA, J. (ORAL) 1.
This order shall dispose of above 14 writ petitions, wherein a common issue is involved, and for the sake of brevity, the facts are being culled out from CWP52028752025.
2.
This petition is filed by the Union of India challenging the order dated 09.01.2025 (Annexure P51), passed by the Armed Forces Tribunal (AFT) (hereinafter referred to as the 'Tribunal') allowing application bearing No.OA/1059/2021, filed by respondent no.1. 3.
The Tribunal vide its order has allowed the benefit of Disability Pension to respondent no.1. The Tribunal has noticed that an element of disability on account of Primary Hypertension to the extent of 30% for life has been assessed by the Release Medical Board (hereinafter
referred to as 'RMB'). The conclusion drawn by the Release Medical Board that the disability was neither attributable nor aggravated by military service as it was caused during his posting in a peace area, does not sustain, in view of the long line of judgment of the Supreme Court including the decision in the case of "
" (OA No.861 of 2022 decided 06.12.2024) (Annexure P54).
4.
The only ground on which the order of Tribunal is assailed, is that the remedy of second appeal was not availed, and the matter was entertained by the Tribunal.
5.
The ground placed on behalf of the petitioners does not appeal to this Court. Undisputedly, the respondent no.1 was commissioned in the Indian Army on 18.06.1983. At the time of his commissioning, he was placed in the highest possible medical category Shape51. He has been discharged from service on account of Permanently Low Medical Category on 31.01.2021. The opinion of the RMB is before this Court, which clearly mentions the date of disease as May, 2019. The rationale for denying disability pension by the RMB reads as under: "As the disability is of idiopathic origin, onset of disability is in pease Stn. Jaipur (Rajasthan). There is no evidence of military related stress or strain of service in fd/HAAI CIOPS area hence NAMA conceded vide para 543, Ch5VI of GMO52008. 6.
Attention of this Court has also been invited to clause 2 of the Report of the RMB, which reads as under:5
"2(a) Was the disease/disability attributable to the individual's own negligence or misconduct? If Yes, in what way? No 2(b) If not attributable, was it aggravated by the individual's own negligence or misconduct? If so, in what way and to what percentage of the total disablement?
No 7.
It is on account of the opinion of the RMB that the disability was caused during posting at peace station, and that the claim of the respondent no.1 for Disability Pension was rejected by the competent authority on 20.01.2021. The appeal filed thereagainst was also rejected on 07.05.2021. It is, thereafter, the matter was taken to the Tribunal. 8.
This Court has heard learned counsel for the petitioners at length on the merits of the decision of the petitioners5UOI for denying the Disability Pension to respondent no.1.
9.
The issue, as to whether, the Disability Pension could be denied to an Armed Forces personnel was adjudicated at length by a judgment of the Supreme Court in
(2013) 7 SCC 316'. There is a long line of judgments virtually reiterating the principles laid down in
().
We do not intend to burden this judgment by referring to large number of cases decided by the Supreme Court and this Court as well as other courts on the issue.
10.
This Court may refer to judgment of the Supreme Court in '
(Civil Appeal No.4458 of 2024 decided on 23.04.2025). After referring to the series of judgments on the
issue, the Supreme Court has summed up the law in paragraph no.45 to 47 of the said judgment, which are extracted hereinafter:5 "45.
We have already noticed the analysis of Rules 5, 9 and 14 of the Rules in Rajbir Singh (supra). After adverting to the decision of this Court in Dharamvir Singh (supra), this Court opined as under:
14. The legal position as stated in Dharamvir Singh case is, in our opinion, in tune with the Pension Regulations, the Entitlement Rules and the Guidelines issued to the Medical Officers. The essence of the rules, as seen earlier, is that a member of the armed forces is presumed to be in sound physical and mental condition at the time of his entry into service if there is no note or record to the contrary made at the time of such entry. More importantly, in the event of his subsequent discharge from service on medical ground, any deterioration in his health is presumed to be due to military service. This necessarily implies that no sooner a member of the force is discharged on medical ground his entitlement to claim disability pension will arise unless of course the employer is in a position to rebut the presumption that the disability which he suffered was neither attributable to nor aggravated by military service.
15. From Rule 14(b) of the Entitlement Rules it is further clear that if the medical opinion were to hold that the disease suffered by the member of the armed forces could not have been detected prior to acceptance for service, the Medical Board must state the reasons for saying so. Last but not the least is the fact that the provision for payment of disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit those who have been sent home with a disability at times even before they completed their tenure in the armed forces. There may indeed be cases, where the disease was wholly unrelated to military service, but, in order that denial of disability pension can be justified on that ground, it must be affirmatively proved that the disease had nothing to do with such service.
The burden to establish such a disconnect would lie heavily upon the employer for otherwise the rules raise a presumption that the deterioration in the health of the member of the service is on account of military service or aggravated by it. A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same.
into service. That presumption continues till it is proved by the employer that the disease was neither attributable to nor aggravated by military service. For the employer to say so, the least that is required is a statement of reasons supporting that view. That we feel is the true essence of the rules which ought to be kept in view all the time while dealing with cases of disability pension.
45.1.
Thus, this Court held that essence of the Rules is that a member of the armed forces is presumed to be in sound physical and mental condition at the time of his entry into the service if there is no note or record to the contrary made at the time of such entry. In the event of subsequent discharge from service on medical ground, any deterioration in health would be presumed to be due to military service. The burden would be on the employer to rebut the presumption that the disability suffered by the member was neither attributable to nor aggravated by military service. If the Medical Board is of the opinion that the disease suffered by the member could not have been detected at the time of entry into service, the Medical Board has to give reasons for saying so.
This Court highlighted that the provision for payment of disability pension is a beneficial one which ought to be interpreted liberally. A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same. The very fact that upon proper physical and other tests, the member was found fit to serve in the army would give rise to a presumption that he was disease free at the time of his entry into service. For the employer to say that such a disease was neither attributable to nor aggravated by military service, the least that is required to be done is to furnish reasons for taking such a view. 46.
Referring back to the impugned order dated 26.02.2016, we find that the Tribunal simply went by the remarks of the Invaliding Medical Board and Re5Survey Medical Boards to hold that since the disability of the appellant was less than 20%, he would not be entitled to the disability element of the disability pension. Tribunal did not examine the issue as to whether the disability was attributable to or aggravated by military service. In the instant case neither has it been mentioned by the Invaliding Medical Board nor by the Re5Survey Medical Boards that the disease for which the appellant was invalided out of service could not be detected at the time of entry into military service. As a matter of fact, the Invaliding Medical Board was quite categorical that no disability of the appellant existed before entering service.
As would be evident from the aforesaid decisions of this Court, the law has by now crystalized that if there is no note or report of the Medical Board at the time of entry into service that the member suffered from any particular disease, the presumption would be that the member got afflicted by the said disease because of military service.
attributable to or aggravated by military service rest entirely on the employer. Further, any disease or disability for which a member of the armed forces is invalided out of service would have to be assumed to be above 20% and attract grant of 50% disability pension.
47.
Thus having regard to the discussions made above, we are of the considered view that the impugned orders of the Tribunal are wholly unsustainable in law. That being the position, impugned orders dated 22.01.2018 and 26.02.2016 are hereby set aside. Consequently, respondents are directed to grant the disability element of disability pension to the appellant at the rate of 50% with effect from 01.01.1996 onwards for life. The arrears shall carry interest at the rate of 6% per annum till payment. The above directions shall be carried out by the respondents within three months from today."
11.
On behalf of the petitioners a feeble attempt is also made to dispute the factum of presumption that would arise with regard to disability having been caused during the course of employment, where the exact cause of disease is not ascertained. 12.
According to the petitioners the Entitlement Rules for Casualty Pensionary Awards to Armed Forces Personnel, 2008 (hereinafter referred to as the 'Rules of 2008') has since come into operation, therefore, the previous judgments ought to be discarded. 13.
The submission in that regard is noted only to be rejected. 14.
The Rules of 2008, have been introduced by substituting the previous rules framed by the competent authority for the purpose. The amended Rule 4(a) provides that invalidation from service with disablement caused by service factor is a condition precedent for grant of Disability Pension. The latter part of the said rule, however, contemplates that the disability element will also be admissible to personnel who retire
or discharge on completion of term of engagement in low medical category on account of disability attributable to or aggravated by military service, provided that the disability is accepted as not less than 20%. The said rule reads as under:5 4(a). Invalidation from service with disablement caused by service factors is a condition precedent for grant of disability pension. However, disability element will also be admissible to personnel who retire or are discharged on completion of terms of engagement in low medical category on account of disability attributable to or aggravated by military service, provided the disability is accepted as not less than 20%.
15.
Rule 4(a), therefore, makes it apparent that the Disability Pension would be admissible to a defence personnel, where he is invalidated from service caused by service factors. 16.
The other category where the personnel either retired or is discharged on completion of the terms of engagement due to low medical category on account disability attributable to or aggravated by military service would, however, be entitled to Disability Pension, build a disability accepted, is not less than 20%.
17.
Rule 10 of the Rules of 2008, deals with 'Attributability'. Clause (b) thereof specifies the diseases for the purposes of low medical category of the disease.
18.
Attention of this Court has been invited to sub clause (iii) of Rule 10(b) which reads as under:5 "(iii) If nothing at all is known about the cause of disease and the presumption of the entitlement in favour of the claimant is
not rebutted; attributability 'should be conceded on the basis of the clinical picture and current scientific medical application. " 19.
The provision aforesaid, clearly goes to show that even under Rules of 2008, where the cause of disease is not known, the presumption of entitlement is in favour of the claimant, unless is not rebutted and the attributability should be considered on the basis of clinical picture and current scientific medical application. It is therefore, clear that even under the amended rules the presumption of entitlement would continue to exist where the cause of disease is not known. In the facts of the present case, the cause of the disease has not been specified. 20.
The RMB has not attributed, such low medical condition to any misconduct or act of respondent concerned. At this juncture, we may also refer to Rule 5 and Rule 7 of the Rules of 2008, which read as under:5 Rule 5 Medical Test at entry stage: The medical test at the time of entry is not exhaustive, but its scope is limited to broad physical examination. Therefore, it may not detect some dormant disease. Besides, certain hereditary constitutional and congenital diseases may manifest later in life, irrespective of service conditions. The mere fact that a disease has manifested during military service does not per se establish attributability to or aggravation by military service.
7. Опus of proof: Ordinarily the claimant will not be called upon to prove the condition of entitlement. However, where the claim is preferred after 15 years of discharge/retirement/ invalidment/release by which time the service documents of the claimant are destroyed after the prescribed retention period, the onus to prove the entitlement would lie on the claimant. 21.
Under the amended Rule 7 ordinarily the claimant will not be called upon to prove the conditions of entitlement. It is only where
the claim is preferred after 15 years of discharge, in that case, such onus to prove the entitlement would lie on the claimant. 22.
In a case of the present kind, where the army personnel at the time of entering into the service, was in sound medical condition and the origin of the disease is during the service and the cause of disease is not ascertained, the presumption of sub rule (iii) Rule 10(b) would clearly cast a presumption of entitlement in favour of the claimant. 23.
Attention of this Court has also been invited to Regulation 423(a) of Regulations for the Medical Services in the Armed Forces, 2010, which has been amended in the earlier Rules of 1980, with the Rules of 2010, which is extracted hereinafter:5 "423(a). For the purpose of determining whether the cause of a disability or death resulting from disease is or not attributable to Service. It is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a Field Area/Active Service area or under normal peace conditions. It is however, essential to establish whether the disability or death bore a causal connection with the service conditions. All evidences both direct and circumstantial will be taken into account and benefit of reasonable doubt, if any, will be given to the individual.
The evidence to be accepted as reasonable doubt for the purpose of these instructions should be of a degree of cogency, which though not reaching certainty, nevertheless carries a high degree of probability. In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his/her favor, which can be dismissed with the sentence "of course it is possible but not in the least probable" the case is proved beyond reasonable doubt.
If on the other hand, the evidence be so evenly balanced as to render impracticable а determinate conclusion one way or the other, then the case would be one in which the benefit of the doubt could be given more liberally to the individual, in case occurring in Field Service/Active Service areas."
24.
In that view of the matter, this Court does not find any case on merits on part of the petitioners5UOI.
25.
Coming to the aspect of non5exhaustion of alternate remedy, this Court is not impressed by such argument, at this late stage, inasmuch as, the issue raised was not only decided by the competent authority, but the first appeal was also rejected.
26.
The petitioners5UOI, therefore, cannot insist that non5filing of a departmental appeal before an administrative authority, has caused such prejudice to it, that the claim of the respondent no.1 before the Tribunal, could not have been entertained. At such late stage of the proceedings, this Court is, otherwise, not persuaded to entertain the petition, on such ground.
27.
The instant petitions , accordingly, dismissed. 28.
All pending application(s), if any, also stand disposed of accordingly.
A photocopy of this order be placed on the files of the connected cases.
(ASHWANI KUMAR MISHRA) JUDGE (KULDEEP TIWARI) JUDGE July 28, 2025 Whether speaking/reasoned. :
Yes/No Whether Reportable.
:
Yes/No