Articles

Disability Pension for "Schizophrenia" case

Disability Pension granted in case of  "Schizophrenia"...

 

IN THE ARMED FORCES TRIBUNAL, REGIONAL

BENCH, JAIPUR [RAJ.]

: ORDER :

SMT. VISHNU KANWAR NATHAWAT

VERSUS

UNION OF INDIA & OTHERS

ORIGINAL APPLICATION NO. 136 OF 2010

Under section 14 of the Armed Forces Tribunal Act 2007

:::

DATE OF ORDER ::: JULY 09, 2014.

:PRESENT:

HON’BLE DR. JUSTICE (MRS.) MEENA V.GOMBER, MEMBER (J)

 HON’BLE LT GEN V.K. AHLUWALIA, MEMBER (A)

Mr. O.P. Sheoran, counsel for the applicant.

Mr. Aslam Khan, counsel for the respondents.

Maj Asha Dahiya, OIC Legal for the respondents.

 

BY THE TRIBUNAL:

 

The applicant Smt Vishnu Kanwar Nathawat wife of

No.1580011W Ex Nk late Heerasingh Nathawat has filed this

application under section 14 of the Armed Forces Tribunal Act 2007

for grant of disability pension to her husband with effect from the

date he was invalided out of service i.e. 14th October 2014.

Briefly stated the facts giving rise to this application are: that

the applicant’s husband No.1580011W Ex Nk Heera Singh was

enrolled in the Indian Army in Bombay Engineer Group as Recruit

on 25

th June 1989 in medical category ‘A’. He was fit and was not

suffering from any disease as no note was appended at the time of 2

his enrolment. After completion of his basic/trade training, he was

posted to high altitude/mountain area of Kangra and Darjeelilng.

He also participated Operation Savage from 5th January 1992 to

22nd May 1992. He was recommended for Commission through

A.C.C. vide Station HQ Sukhna letter No. 17695/TBS dated 31st

January 1994. He was awarded Sainya Sewa Medal

(Assam/Bengal), 50th Independence Anniversary Medal; and 9 years

long service Medal and his character was also assessed as

exemplary. However, on account of stress and strain of military

service, he fell ill, lost his mental balance and was placed in lower

medical category with effect from 1st March 1996. The onset of

disease ‘Schizophrenia’ arose immediately after his return from

military exercise at Indo-China Border when he was posted at

Sukhna in Darjeeling District and then was posted to Ahmed Nagar,

a peace station. His disease kept aggravating and ultimately he

was invalided out of service on 14th October 2004 on account of

suffering from ‘Schizophrenia’ with 50% disability. His claim for

grant of disability pension was forwarded to the Principal Controller

of Defence Accounts (Pension) Allahabad, which came to be

rejected. Thereafter, he preferred first appeal, which was rejected

vide order dated 12th March 2007. A second appeal was also

preferred, which also came to be rejected vide order dated 26th

August 2008 holding that onset of invaliding disease ‘Schizophrenia’ 3

was on 1st March 1996 in a peace station. There was no close time

association between onset of ID and Op service. Hence, the

disability suffered by applicant’s husband was held to be neither

attributable to nor aggravated by military service. Hence this

application.

On behalf of the respondents, a detailed reply to the

application has been filed and it has been submitted that second

appeal preferred by applicant’s husband was rejected on 26th

August 2008 whereas this application has been filed on 8th

September 2010. Thus, this application is barred by stipulated

period of limitation. Moreover, by this application, the applicant has

not sought any relief regarding quashing of the orders dated 12th

March 2007 and 26th August 2008 rejecting his first and second

appeals against rejection of the claim of her husband for grant of

disability pension. It was submitted that since the disability suffered

by applicant’s husband has been viewed as neither attributable to

nor aggravated by military service, he has been rightly denied

disability pension.

We have heard Mr. O.P.Sheoran, the learned counsel for the

applicant and Mr. Aslam Khan, the learned counsel for the

respondents and have carefully gone through the record of the

case. 4

Mr. O.P.Sheoran, the learned counsel for the applicant argued

that Regional Bench of the Armed Forces Tribunal, Kochi in

Indeevarakshan Nair M.P. Vs. Officer I/c Records, ASC Records and

Others (T.A.No.17 of 2009, decided on 16th July, 2010) and the

Principal Bench of the Armed Forces Tribunal in T.A.No.48 of 2009,

which was considered alongwith T.A.No.5 of 2009, 106 of 2009 and 36

of 2009 held that presumption in regard to fitness will always be in

favour of the individual and he will never be asked to prove the

conditions of entitlement and the burden to establish that injury/

illness is not attributable to or aggravated by military service is on the

concerned authorities and it is a mandate to Medical Officer or Medical

Board to provide cogent reasons for it and simple cryptic slipshod or

vague reason by mentioning expression like not applicable or

constitutional would not serve the purpose. The opinion expressed

should be reasoned one and with explanation while taking due care of

Entitlement Rules, Guide to Medical Officers (Military Pension) and

circulars issued from time to time. He has argued that in the instant

case, the non-applicants have failed to establish that the injury/illness

is not attributable to or aggravated by military service as in this

respect, no valid or cogent reasons have been assigned by the Medical

Officer or the Medical Board, as such, a presumption deserves to be

drawn in favour of the applicant’s husband that the disability suffered

by him is aggravated by his service. Therefore, the applicant’s husband5

is entitled to disability pension from the date he was invalided out from

service i.e. from 14th October 2014.

Per contra, it has been argued by Mr. Aslam Khan, the learned

counsel for the respondents that since the Invaliding Medical Board has

considered the disability suffered by the applicant’s husband as neither

attributable to nor aggravated by his military service and the opinion of

the medical expert having supremacy, the applicant’s husband is not

entitled to grant disability pension.

We have considered the rival submissions made by the learned

counsel appearing for the parties at the bar.

This Tribunal in Idrish Khan Vs. Union of India and Others

(T.A.No.97 of 2010, decided on 3.2.2011) has categorically held that

the cases arising after the promulgation of Entitlement Rules, 1982 are

to be dealt with strictly under the Entitlement Rules, 1982 but the

cases, which arose while Entitlement Rules 1961 were in force, are to

be dealt with strictly under the Entitlement Rules, 1961. This Tribunal

while considering Entitlement Rules, 1982, Regulations 173 and 173-A

of the Pension Regulations for the Army, 1961 and Regulation 423 of

the Regulations for Medical

Services for Armed Forces, 1983 has further held that a combined

reading of these Rules and Regulations make it obligatory on the part

of the medical board to state whether the disability was present at the

time of enrolment or not and whether it could not have been detected

on medical examination of the individual prior to acceptance of service 6

and the authorities had to record reasons as to why the disability

which was present at the time of acceptance of service could not be

detected and if cogent reasons are not given by the Medical Board in

its finding, a presumption has to be drawn that the disability has arisen

during service. This

Tribunal has further held that if the medical board has given its

reasons, the presumption will stand rebutted. The reasons means a

speaking detailed order showing application of mind that why the

disease which may be in embryonic stage at the time of induction in

service could not have been detected. The reasons given by the

Medical Board like ‘constitutional’ or ‘phychosomatic’ is not a sufficient

reason to show why the disease could not be detected at the time of

induction in service.

In Idrish Khan’s case, this Tribunal has further held in paras

13,14 and 15 of the judgment as under:

“13. For claim of disability pension, two crucial and important

words are ‘attributability’ and ‘aggravation’, which are linked and

attached with service and find place in Regulation 173 of the

Pension Regulations for the Army, 1961, Rules 5,6,7,8 & 14 of

the Rules of 1982 and also in Guide to Medical Officers (Military

Pension) 1983 as also 2002 and Rule 423 of the Regulations for

the Medical Service. The important point is that attributability

and aggravation should be conceded, if the disability has a

causal connection with service. With this aspect, Rule 5 (a) and 7

(b) and Rule 6(a) and (b) of the Entitlement Rules provide that a

man is presumed to be of sound health and condition upon

entering into service and if subsequently, he is discharged from

service on medical ground, any deterioration in health will be

presumed aggravation due to service, in case the disability arose

during service. This presumption of aggravation can only be

rebutted by the Medical Officer by giving detailed reason at the

time of medical examination because Rule 14 of the Rules of

1982, which stood amended in the year 1996 with retrospective

date i.e. 1.1.1982 enumerates that for acceptance of disease as

attributable, two conditions must be satisfied i.e. that the

disease has arisen during the period of military service and the

disease has been caused by condition of employment in service.

If these two conditions are not satisfied then the Medical Officer

should give detailed reasons to disprove the attributability or

aggravation. In absence of detailed reason or explanation, the

presumption in favour of the individual cannot be said to be

rebutted.”

“Rule 423 of the Regulations for the Medical Service also tilt in

favour of the individual in absence of detailed reasoned opinion

of the medical board. Merely by using the word ‘Yes’ or ‘No’ or

‘constitutional’ would not be of any help to the non-applicants.

While giving the opinion about non-attributability or nonaggravation,

the Medical Board has to be specific so as to allow8

them to rebut the presumption which is in favour of the

applicant’s husband. In fact, the Guide to Medical Officers

(Military Pension),2002 is very elaborate and discusses at length

all types of diseases. The Guide while dealing with so called

‘constitutional diseases’ spells out the parameters and service

conditions under which such diseases also can be attributed to or

aggravated by service. Whilst expressing their opinions, the

Medical Officers are required to comment on the evidence, both

for and against the concession of entitlement. Thus, if the

Medical Boards do not give evidence in support of their findings,

it is well nigh impossible for the pension sanctioning authorities

to admit or refuse an entitlement.”

“The Entitlement Rules, 1982 provides that in the event of an

individual subsequently being discharged from service on

medical grounds, any deterioration in his health which has taken

place is due to service and the disablement though existed prior

to entering into the service or during military service shall

remain aggravated thereby will also include hastening of the

onset of the disability. In view of the discussion made

hereinabove, the Rules of 1982, Guide to Medical Officers

(Military Pension), Regulations for the Armed Forces Medical

Services, and also the Circulars issued by the Govt. of India on

31.1.2001, 7.2.2001, 1.9.2005, 31.5.2006 and 20.7.2006 gives

a presumption in favour of army personnel about the physical 9

and mental fitness at the time of entrance in service, though it is

rebuttable by Medical Board by mentioning that it could not be

detected at the time of entrance in service. The over all effect of

these Rules, Circulars issued by the Govt. of India is more

beneficial and tilted in favour of the individuals who are

discharged on medical ground though the non-applicants have

been given liberty to rebut the same by giving a detailed medical

opinion.”

In the instant case, the applicant’s husband was discharged from

service on 14th October 2004 in medical category CEE (Permanent) and

the Invaliding Medical Board assessed his disability at 30% for five

years but considered it as neither attributable to nor aggravated by

service. The applicant’s husband had 15 years 3 months and 19 days

of service when he was invalided out. The medical Board’s

proceedings of the applicant’s husband makes it clear that it nowhere

mentions as to why this disease could not have been detected at the

time of applicant’s husband’s entering into the service and as per Rules

and Regulations, the disability arose to the applicant’s husband while

he was in service. It is not in dispute that after completion of his

basic/trade training, the applicant’s husband was posted to Sukhna

with operational role in the plains and in High Altitude/ Mountain area

of Darjeelilng and Sikkim. He participated in Operation Savage from

5

th January 1992 to 22nd May 1992. He fell ill, lost his mental balance

and was placed in lower medical category with effect from 1st March 10

1996. The onset of the disease ‘Schizophrenia’ was immediately after

his return from military exercise at Indo-China Border when he was

posted at Sukhna in Darjeeling District and was then posted to Ahmed

Nagar, a peace Station. Thus, it can safely be inferred that the

disability suffered by the applicant was not existing prior to his

entering into service and it cropped up when he was posted in a field

area in the East, with operational roles in the high altitude areas, or

immediately after deinduction from the field area. Moreover, in the

Medical Board Proceedings (Annexure R/2), Major MDIWAKAR, Graded

Specialist has specifically stated that the individual initially came under

psychiatric case in 1996 with history of fearfulness, insomnia and

writing irrelevant letters. Psychiatric evaluation then had revealed

grandiose delusions, disconnect thinking, disorganized behaviour and

impaired judgment and insight. He improved with ECT’s neurolaptics

and supportive measures. On improvement, he was retained in service

in LMC. Thereafter, he had three relapses in September 1998, June

2000 and January 2002. In this view of the matter, it can safely be

inferred that the disease ‘Schizophrenia’ arose to the applicant’s

husband during service and got aggravated due to military service.

Thus, there is nexus of disability with that of the service and in such

circumstances, presumption regarding disability suffered by the

applicant’s husband is aggravated by his military service deserves to

be drawn.11

Regulation 173 of the Pension Regulations for the Army provides

that disability pension may be granted to an individual if his disability

is assessed at 20% or above and is attributable to or aggravated by

military service. Since the disability of the applicant’s husband was

assessed at 30%, which deserves to be rounded off at 50% upon its

broadbanding and we have also held that his disability is aggravated

by his service, the applicant’s husband is entitled to disability pension

on the ground of aggravation from the date he was discharged from

service i.e. from 14th October 2004 till he is subjected to Re-Survey

Medical Board as his disability was assessed only for five years. To this

extent, this application deserves to be allowed.

Resultantly, this application is allowed and the orders (Annexure

A/1) dated 12th March 2007 and (Annexure A/2) 26th August 2008

rejecting his first and second appeals against rejection of the claim

applicant’s husband for grant of disability pension are set aside and

quashed. The respondents are directed to grant disability pension on

the basis of aggravation to the applicant’s husband considering his

30% disability as 50% upon broadbanding with effect from the date he

was discharged from service i.e. from 14th October 2004 till he is

subjected to Resurvey Medical Board. Since the disability of the

applicant’s husband was assessed for five years, the respondents shall

be at liberty to subject the applicant’s husband to Resurvey Medical

Board and to take appropriate steps on the basis of the

recommendations of the Resurvey Medical Board.12

In the facts and circumstances of the case, the parties are left to

bear their own costs.

[Lt Gen V.K. Ahluwalia] [Justice Meena V. Gomber]

 Member (A) Member (J)