SYNOPSIS

The applicant (now deceased) was enrolled in Boys Battalion (North) as Boy

Recruit on 06.05.1964 and was transferred to Army Medical Corps of the Indian

Army on 20.07.1967. The enrolment of the applicant was given effect after

Extensive Medical Examination, Physical and Mental Fitness and of sound mind.

The applicant has not any family history of “Schizophrenia” or of any kind of

such disease of nervous system. After completion of basic Military Training

satisfactorily and while serving in Command Hospital Lucknow in the year 1971,

the applicant was admitted to hospital for neurosis on May, 1971 and medically

invalidated out of service on 22.11.1972 for low medical category

“Schizophrenia (ICD 295)” (Category- EEE). Constitutional in nature and by

the military service and assessed it as 40% for two years.

After serving more than 8 years of service and facing various situations including

stress and strains of military service, the applicant was left at that stage by the

Department with aggravated medical condition on the pretext of straight jacket

formula violative of Article 21 of Constitution of India. Facing problems of

medical condition, financial hardship as being the only bread earner of the family,

the applicant was forced to approach Court of law to seek justice by way of OA

104/2011 in AFT(RB) Jaipur, which inter alia without circumspection and

analyzing the facts and circumstances of the case and nature of question of law

involved in the grievance of applicant took the stand of the Respondent and
dismissed the OA on being lacks merit. A Review Petition filed by the applicant

was also dismissed on 09.12.2021 without considering the prepositions of law on

the issue. Hence this SLP.

 LIST OF DATES AND EVENTS

S.No. DATES EVENTS

1. 06.05.1964 Applicant was enrolled in Boys Battalion (North) as

Boy Recruit and was transferred to Army Medical

Corps of the Indian Army on 20.07.1967.

(Annexure A-1)

2. 22.11.1972 Applicant was invalided out of the service in

Medical Category “EEE” for disability

Schizophrenia after more than 08 years, 06 months

and 17 days of service.

(Annexure A-2)

3. 21/28.06.1973 Disability pension claim of the applicant was

rejected by PCDA (P) Allahabad on the ground that

ID is neither attributable nor aggravated to military

service and information was communicated by

Record office. (Annexure A-3)

4. 06.07.1973 Letter No. 13909550 DP issued by the Records

Office. (Annexure A-4)

5. 27.07.1973 Applicant filed appeal/representation against the

rejection of disability pension claim.

6. 20.03.1974 Appeal was rejected by Respondent No.1 by none

speaking and unreasoned order. (Annexure A-5)

7. 07.09.2009 Legal notice was served by applicant for demand of

justice but without any result. (Annexure A-6)

8. 28.10.2010 Applicant asked for certain documents from the

Record office, and these were supplied vide letter

dated 19.11.2010. (Annexure A-7)

9. 2011 Aggrieved by the decision of the Department for

denial of disability pension, the petitioner

approached AFT (RB) Jaipur by way of filing OA

104/2011.

10. 17.05.2012 Hon’ble Tribunal vide order dated 17.05.2012

without considering the facts and question of law

involved in the case has erred to straightway

dismissing the OA in reference to submission of the

department pleading it as a NANA case hence, lacks

merit. (Annexure A-8)

11. 2019/2020 Review Application 03/2020 with MA 655/2019 &

MA 342/2020 in OA No. 104/2011 (Through video

conferencing). (Annexure A-9)

12. 09.12.2021 Hon’ble Tribunal vide order dated 09.12.2021 again

without going into consideration of essence of the

case and law involved has mechanically dismissed

the RA in reference to lack of meeting requirement

of Order 47 Rule 1of the Code of Civil Procedure

1908. (Annexure A-10)

 GROUNDS FOR RELIEF WITH LEGAL PROVISIONS

The applicant is entitled for disability pension on the following grounds:

1. It is submitted that the non-availability of any kind of monthly financial

assistance or pension to such disabled military personnel with less than 10

years of service who are invalided out or discharged directly infringes their

right to enjoy a dignified life and may in fact be in contravention of

guidelines of the United Nations and the International Labour

Organisation. In all developed democracies, personnel suffering injuries

are entitled to disability pensionary benefits but the same has been denied

to the Indian Soldier. In our country, members of the armed forces who

suffer service-related disabilities are made to suffer the life of ignominy

with no protection whatsoever. Equity demands that our disabled soldiers

who are discharged from service due to reasons not under their under

control should be made entitled to at least some minimum allowance,

irrespective of their length of service, that may be required to lead a decent

dignified life. The lack of any such protection is not only dispiriting but

also demoralizing for persons joining the armed forces.

2. It is submitted that disability pension scheme formulated by the

Government is a welfare measure to its employees, herein the soldiers of

the Indian Armed Forces, considering various factors including the post

situation observed on account of the death or disability attributable or

 aggravated due to Military Services. The essence of the terminologies viz.

attributable or aggravated do not restrict on account of interpretation. It is

ironical that the establishments which are to care and comfort our men and

women in uniform assume an adversarial role by embracing literal

interpretation and sticking to the letter and not the spirit of beneficial

provisions.

3. It is unfortunate that the Army itself is blindly opposing its veterans,

disabled soldiers, military widows and their kins in courts and other for a

on the pretext of defending Government Policies rather than making

attempts to standup for their own fraternity vociferously vouching for a

change and rationalization of such anomalous and spiteful policies. Taking

such an unnatural and obstructionist stand to the applicant who served at

the peril of their lives whatever of the reasons but cannot ignored his being

part of the organization, the ultimate sufferer are their families who were

totally dependent on the applicant. Such an insensitive and harshly

technical interpretation of the rules forced the widow into an arduous legal

battle over that which is legally her right and should honorably being

presented to her.

4. It is impotently and equally necessitate to bring the actual position and

circumstances before the Honorable Court of Law that just after the

disassociation of the soldiers by the organization, the applicant and his wife

left abandoned and how they survived with struggle even for one time of
 meal in a day and after his death the widow was left over for the mercy of

neighbors/villagers. It is unfortunate that organization are meant to purge

sufferings are the ones which perpetrate the applicant.

5. It is vehemently submitted that the case of the applicant is squarely covered

by Rule 20(a) of the Entitlement Rules, which states that “If nothing at all

is known about the cause of the disease, and presumption of the entitlement

in favour of the claimant is not rebutted, attributability should be

conceded”. The applicant was medically invalidated out from the service

and discharged in such a condition thereby not only depriving him of

medical care but also his entire family of their livelihood, bread, butter and

pension.

6. The applicant has even not been considered by Disability Compensation

Medical Board or any of such authority at that point of time for payment

of compensation in lieu of disability element made through IRLA on the

basis of payment authority issued by Pension Sanction Authority (PDA).

7. It is also submitted that at the time of enrollment in Army the applicant was

physically fit and mentally sound which the learned tribunal dated 17th May

2012 has fully overlooked the principles taken by the Hon’ble Supreme

Court in its order passed in Union of India vs Dharma Veer Singh (2013)

7 SCC 316 and Union of India vs Rajbir Singh (2015) 12 SCC 264

decided on 13th February 2015, Supreme Court specifically held in these

cases that a member of armed forces is presumed to be in sound mental and

 physical condition upon entering service if there is no note or entry to the

contrary in his record. In the event he is subsequently discharged from

service on medical ground onus of proves that deterioration in his health

was due to service condition lies on employer and in the instant case there

was no evidence produced by the respondent which shows that the

applicant encountered with disability before entering the services hence

entitle for the disability pension.

8. It is also submitted that after the death of the applicant there is no earning

source of income of present applicant and now there is a settle law on this

issue hence the respondents may be directed to grant the disability pension

in favor of the applicant and from the date of death the benefits for which

she is entitle be given.

9. It is also submitted that the applicant had no such medical history either of

the applicant or any of the family member of the applicant has never been

noticed or observed.

10. It is evident as per the records available with the department, the low

medical category has been noticed by the department only after the

considerable period of service with stress and strain in the light of the

position of the applicant cannot be denied and clearly shows a causal

connection between disablement and military service.

11. The learned tribunal in its judgement in the case of SSVN Murthy Vs.

Union of India, TA No. 135/2010 [WP (C) No. 13952/2000] referred to

the Entitlement Rule 5 incorporated in the Navy Regulation Act 1964: “In

deciding on the issue of the entitlement all the evidences both direct and

circumstantial, will be taken into account and the benefit of reasonable

doubt will be given to the claimant. This benefit will be given more liberally

to the claimant in field service cases.” All the evidences, both direct and

circumstantial in the case of the application has not been taken into

consideration by the department including medical authorities. Even

consideration of remoteness with degree of cogency of all those evidences

have not been examined by the Department.

12. It is evident that the case of the applicant has not been considered in the

letter and spirit compliance of the guidelines on grant of disability pension

but simply decided on probable cause of the disease, the reason(s),

situation and circumstances without connecting therewith while in service

of the applicant. At this point of time the Department has isolated itself

from any in depth examination of the case in light of his family and social

position and undue hardship burdened.

13. It is also submitted that as per the para 423 of the Regulation for the

Medical Service of Armed Forces, 1983 has clearly states that “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 service in the armed forces…...”. Herein in the

instant case, the applicant was diagnosed only after a considerable of

service in the Army. This aspect was needed to be considered when there

is no such medical history of the applicant or any of the family member has

ever noticed.

14. It is also submitted that the decision of denial of grant of disability pension

in the instant case has been taken by 40% CDA(P) vide letter no. G3/C.A.

/73/447710 dated 28.06.1973 addressed to AMC Lucknow is ultra-virus

and contrary to the provisions of Para 423 of the Regulation for the Medical

Service of Armed Forces, 1983, when amply stipulates that “…. The

question whether the cause and the attendant circumstances can be

attributed to service will, however, be decided by the pension sanctioning

authority”. In this regard it is submitted that the Pension Sanctioning

Authority in the instant case is Ministry of Defense. In fact, CDA(P) is

Pension Disbursing Authority (PDA) and not the Pension Sanctioning

Authority (PSA).

15. In the instant case the Pension Disbursing Authority has maliciously acted

as Pension Sanctioning Authority erred in mechanically passing the

impugned order dated 28.06.1973 of rejection of disability pension based

on report of Medical Board which has rendered their medical opinion/

recommendations in a casual manner without in depth examination of the

case of a Soldier/Sepoy.
16. Further, in absence of note of any disease having been recorded at the time

of applicant entry into Military Service, it was incumbent upon Medical

Board to call for records before opining that disease could not have been

detected on Medical Examination prior to acceptance for Military Service.

In such case, failure by Medical Board to call for such records, and

conclusion that disability was not attributed to Military Service which was

not substantiated by reasons, shows non-application of mind of Medical

Board.

17. It is well settled preposition of law that in absence of any evidence to show

that appellant was suffering from any disease and later on development of

that disease during service herein “Schizophrenia(Category- EEE)” at

the time of entrance into service, it is presumed that applicant was sound

physically and mentally as well at that time and that deterioration of health

had taken place during service, and that disability of applicant bore casual

connection with service conditions, that it was immaterial whether the

cause giving rise to disability or death occurred in area declared to be a

field service/ active service or occurred under normal peace conditions.

18. In common parlance of disability pension matters and regulation therewith

that a member of armed forces is presumed to be in a sound physical and

mental condition upon entering service if there is no note or entry to the

contrary in his records and in the event, the applicant is subsequently

discharged from service on medical grounds, onus of proof that

 deterioration in applicant health was not due to service conditions lies on

employer and in case of reasonable doubt, benefit thereof must go to

employee.

19. As per Rule 5 read with Rule 14(b) of Regulation 173 of the Pension

Regulation for the Army, 1961, a member of the armed forces is to be

presumed to be in a sound physical and mental condition upon entering

service, if there is no note or record to contrary in his record at the time of

entrance. In the event of his subsequently being discharged from service

on medical grounds any deterioration in his health is to be presumed due

to service.

20. Further, as per Rule 9, the onus of proof is not on the claimant (employee),

the corollary is that onus of proof that the condition for non-entitlement to

disability pension is with the employer. A claimant has a right to derive

benefit of any reasonable doubt and is entitled for pensionary benefits more

liberally.

21. As per records available and submission of the Department that by the

applicant representation was rejected by MoD/D(Pension), the competent

pension sanctioning authority without consideration of the gravity of the

grievance and simply conveying the decision of PDA i.e., 40% CDA(P)

vide letter No. G3/CA/73/447710 dated 28.06.1973 through MoD letter no.

213195/R-53/Pen-A date 20.03.1974.

22. That other grounds shall be urged at the time of hearing of application.