# 15447310w Ex Rect , Raushan Kumar Singh v. The Armed Forces Tribunal Regional Bench Lko & Ors

- **Citation:** (2023) 10 ILRA 1289
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-09
- **Case number:** Writ-A No. 7699 of 2023
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/15447310w-ex-rect-raushan-kumar-singh-v-the-armed-forces-tribunal-regional-49325
- **Pages:** 10

## Headnote

A.s.G.I.

Held:
The petitioner, enrolled in the Indian Army on
28.04.2014, was invalidated out on 01.01.2015
due to 'Primary Generalised Epilepsy' assessed
at 20% disability for life by the Invaliding
Medical Board. The Board held the disability as
'neither attributable to nor aggravated by'
military service, and the claim for disability
pension was rejected.
The Armed Forces Tribunal, Regional Bench,
Lucknow, dismissed the petitioner's Original
Application No. 164 of 2019 challenging the
rejection of disability pension vide order dated
01.07.2021. The present writ petition under
Article 226 of the Constitution of India
challenged this order.

The petitioner contended that the Medical
Board's
finding
was
arbitrary,
violating
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
Regulation 153 of the Regulations for Medical
Services Armed Forces, 1983, and Rules 5, 9,
14(b), 14(c), and 15 of the Entitlement Rules for
Casualty
Pensionary
Awards,

## Text

10 All. 15447310w Ex Rect, Raushan Kumar Singh Vs. The Armed Forces Tribunal Regional
 Bench Lko & Ors.
1289
report without following the aforesaid
procedure prescribed under Rule 7 of the
Rules of 1999, as such, the entire inquiry
stands vitiated and, therefore, punishment
order dated 24.06.2021, based on the said
inquiry report, is unsustainable in the eyes
of law.

29. I find that Rule 9(4) of the Rules
of 1999 provides that after submission of
the inquiry report, the disciplinary authority
is required to issue a show cause notice
annexing therewith copy of inquiry report
thereby
calling
upon
the
delinquent
employee to submit his reply to the
findings recorded in the inquiry report and
only after considering the said reply,
disciplinary
authority
can
pass
the
punishment order whereas in the present
case, disciplinary authority neither issued a
show cause notice to the petitioner nor
provided her copy of the inquiry report and
straightaway has passed the punishment
order dated 24.06.2021, as such, it is
patently manifest that procedure prescribed
under Rule 9(4) of the Rules of 1999 has
not
been
followed,
accordingly,
punishment order dated 24.06.2021 is
unsustainable in the eyes of law.

30. I also find that the appellate
authority while rejecting the appeal filed by
the petitioner vide order dated 6.02.2023
has not considered the grounds taken by the
petitioner in respect of violation of Rule 7
and Rule 9 of the Rules of 1999, therefore,
the order dated 06.02.2023 is unsustainable
in the eyes of law.

31. In view of the aforesaid reasons,
this writ petition is allowed. The orders
dated 24.06.2021 and 06.02.2023 are
quashed. Consequences to follow. It is
open for the respondents to proceed against
the petitioner from the stage of submission
of reply to the charge-sheet.

----------
(2023) 10 ILRA 1289
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.10.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI,
J.
THE HON'BLE OM PRAKASH SHUKLA , J.

Writ-A No. 7699 of 2023

15447310w Ex Rect , Raushan Kumar
Singh ..Petitioner
Versus
The
Armed
Forces
Tribunal
Regional
Bench Lko & Ors. ...Respondents

Counsel for the Petitioner:
Anshuman
Srivastava,
Manoj
Kumar
Awasthi, Murtaza Hasan

Counsel for the Respondents:
A.s.G.I.

Held:
The petitioner, enrolled in the Indian Army on
28.04.2014, was invalidated out on 01.01.2015
due to 'Primary Generalised Epilepsy' assessed
at 20% disability for life by the Invaliding
Medical Board. The Board held the disability as
'neither attributable to nor aggravated by'
military service, and the claim for disability
pension was rejected.
The Armed Forces Tribunal, Regional Bench,
Lucknow, dismissed the petitioner's Original
Application No. 164 of 2019 challenging the
rejection of disability pension vide order dated
01.07.2021. The present writ petition under
Article 226 of the Constitution of India
challenged this order.

The petitioner contended that the Medical
Board's
finding
was
arbitrary,
violating
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
Regulation 153 of the Regulations for Medical
Services Armed Forces, 1983, and Rules 5, 9,
14(b), 14(c), and 15 of the Entitlement Rules for
Casualty
Pensionary
Awards,
1982.
The
petitioner, medically fit at enrollment, argued
that the disability's onset after eight months of
service under stress and strain should be
deemed attributable to service.

The respondents defended the Medical Board's
expert opinion, stating the disability was
constitutional, not connected to service, as the
petitioner was posted at a peace station
(Lucknow) without severe stress or strain. The
Tribunal's dismissal was based on a thorough
consideration of rules and the Medical Board's
findings.

The Court, relying on Ex. Cfn. Narsingh
Yadav Vs U.O.I. (Civil Appeal No. 7672 of
2019), held that mental disorders like epilepsy,
undetectable at enrollment, do not automatically
entitle one to disability pension unless a clear
causal connection with military service is
established.
The
Medical
Board's
opinion,
supported by medical evidence, was not
arbitrary.

The Court found no evidence linking the
petitioner's disability to military service, as the
petitioner was not exposed to harsh conditions
or exceptional stress. The Tribunal's order was
upheld, and the writ petition was dismissed for
lack of merit.

Case Law Discussed:

1. Dharamvir Singh Vs U.O.I., (2013) 7 SCC 316

2. U.O.I. Vs Rajbir Singh, (2015) 12 SCC 264

(Delivered by Hon'ble Om Prakash Shukla,
J.)

(1) The challenge in the instant writ
petition
under
Article
226
of
the
Constitution of India is to an order
passed by the Armed Forces Tribunal,
Regional Bench, Lucknow (hereinafter
referred to as 'Tribunal') on July 01,
2021 whereby, Original Application
No.
164
of
2019
filed
by
the
applicant/petitioner
arising
out
of
letters
dated
27.02.2016
and
19.01.2018 rejecting his claim for
grant
of
disability
pension,
was
dismissed.

(2) Succinctly, the facts of the
case are that the applicant/petitioner
was enrolled in the Indian Army on
April 28, 2014. On November 18,
2014, the Invaliding Medical Board
(hereinafter referred to as 'Board')
found the petitioner to be suffering
from 'Primary Generalised Epilepsy',
which disability was assessed at 20%
for life. The opinion of the Board was
that
disability
was
'neither
attributable
to
nor
aggravated'
(NANA) by military service and
consequently,
the
petitioner
was
invalidated out/discharged from army
service on January 01, 2015. The
assessment of disability pension of the
petitioner was also adjudicated and it
was opined by the competent authority
after
assessment
that
the
net
assessment qualifying for disability
pension assessed as Nil for life. This
decision of the competent authority
for
non-qualify
of
the
disability
pension
of
the
petitioner
was
communicated to him vide letter dated
27.02.2016.

(3) Feeling aggrieved by the
aforesaid order of discharge dated
January 01, 2015, the petitioner had
filed an appeal dated 29.01.2015,
which was rejected vide order dated
23.06.2015. Thereafter, the petitioner
had filed Original Application No.
332 of 2015 before the Tribunal,
seeking to reinstate him in service
along with seniority and consequent
10 All. 15447310w Ex Rect, Raushan Kumar Singh Vs. The Armed Forces Tribunal Regional
 Bench Lko & Ors.
1291
benefits including arrears of salary and
continuity in service. Vide judgment/order
07.04.2017, the learned Tribunal dismissed
the said original application.

(4) Moreover, against the decision of
rejection
of
disability
pension
dated
27.02.2016, the petitioner had filed appeal
dated 28.08.2017, which was examined and
rejected by the competent authority and the
same was also communicated to the
petitioner vide letter dated 19.01.2018.

(5) Against the rejection of the claim
of the petitioner to grant him disability
pension vide letters dated 27.02.2016 and
19.01.2018,
he
had
filed
Original
Application No. 164 of 2019 before the
Tribunal. The learned Tribunal, vide
judgment/order dated July 01, 2021,
dismissed the said original application. It is
this order dated July 01, 2021, which has
been challenged in this writ petition.

(6) Heard Shri Anshuman Srivastava,
learned Counsel representing the petitioner
and Shri S.B. Pandey, learned Senior
Advocate/Deputy Solicitor General of
India, assisted by Shri Varun Pandey,
representing
the
Union
of
India/respondents no. 2 to 5.

(7) Learned Counsel representing the
petitioner has submitted that the declaration
of the Release Medical Board that the
disease of the petitioner was "neither
attributable to nor aggravated by service"
was arbitrary and illegal as the Board had
not scrupulously followed the Regulations
and decided the case in clear violation of
the
rules
framed
thereunder.
The
assessment of disability for attributability is
to be ascertained in accordance with
Regulation No. 153 of the Regulations for
Medical Services Armed Forces, 1983
(hereinafter referred to as 'Regulations,
1983') and Rules 5, 14(b), 14(c) and 15 of
Entitlement Rules for Casualty Pensionary
Awards, 1982 (hereinafter referred to as
'Entitlement Rules') prescribed under
Appendix-II
coupled
with
the
rules
specified in Annexure-III to Appendix-II.
According to the learned. Counsel, the
Board flouted all the relevant rules and
regulations and arbitrarily decided the case
of the petitioner as it ignored the vital fact
that the petitioner was enrolled in the
Indian Army on 28.04.2014 after medically
and physically found fit by the medical
officers at the time of recruitment.
According to him, the onset of disability
was on 18.11.2014 which is after rendering
more than eight months of service. During
his service, the petitioner was posted at
Lucknow where he had to carry on his
duties under lot of stress and strain. He
further submitted that as per Rules 9, 5(b)
and 14(b) of the Entitlement Rules, the
Board ought to have given specific findings
in its report as to why disability is not
deemed to be attributable to service,
particularly when the petitioner was not
affected with any disease at the time of his
enrollment in the Indian Army. In the
absence of such specific findings by the
Board, merely furnishing a declaration that
the disability being constitutional in nature
was neither attributable to nor aggravated
by service, cannot be accepted and the
claim of the petitioner for disability
pension cannot be rejected.

(8) Learned Counsel for the petitioner
has also contended that although the
Release Medical Board is an expert body,
the adjudicating authority has the power
and jurisdiction to interfere and decide the
correctness or otherwise of the opinion
given by the expert body. The Court cannot
be expected to adhere to the opinion of the
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
expert body. Moreover, in terms of
Regulation 423 (a) of Regulations, 1983,
for the purpose of determining whether the
cause of a disability or death is or is 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 service/active service
area or under normal peace conditions. The
Tribunal has not considered the aforesaid
aspect of the matter and has erred in
dismissing the original application filed by
the petitioner.

(9) Per contra, learned Counsel
representing the Union of India has
vehemently
opposed
the
aforesaid
submissions of the learned Counsel for the
petitioner
and
while
supporting
the
impugned judgment/order, he has argued
that the Board, which is an expert body, has
clearly expressed its opinion that the
disabilities suffered by the petitioner were
neither attributable to nor aggravated by
service and constitutional in nature. The
record clearly shows that the onset of
disabilities on the petitioner was at peace
location as the petitioner, at the relevant
time, was not engaged in duty in high
altitude areas or snow bound remote areas
nor he was in war bound field area or
undergoing intensive physical or arms
training nor he was a prisoner of war nor
exposed to adverse climatic conditions
while performing his duties. Throughout
his employment, the petitioner has served
in peace station. Therefore, there cannot be
any stress or strain caused by the service
which could have led to the onset of the
disabilities. The Medical Board has clearly
and
categorically
observed
that
the
disabilities of the respondent were "not
connected with service" and hence they do
not fall under the category of "either
attributable to or aggravated by army
service" which is a prerequisite for granting
disability
pension.
The
adjudicating
authority as well as the appellate authorities
correctly upheld the recommendations of
the Board and rightly denied disability
pension to the petitioner. The Tribunal in
the present case came to the right
conclusion only after giving its thoughtful
consideration to the opinion given by the
Board in the light of true legal norms and
prescribed rules and regulations and hence
the impugned order need not be interfered
with by this Court.

(10) Having heard the submissions
advanced by the learned Counsel for the
parties and going through the record
available before this Court in the instant
writ petition, it is required to be noted
herein that the petitioner at the time of his
enrollment into the employment of Indian
Army on 28.04.2014, he was medically and
physically examined and was found fit as
per prescribed medical standards. The
record available before us in the instant
writ petition also shows that the petitioner
was suffering from 'Primary Generalised
Epilepsy'. The Medical Board assessed the
disability of the petitioner to be 20% for
life. The Pension Regulations for the Army,
1961 (hereinafter referred to as 'Pension
Regulations, 1961') have specified the
circumstances
under
which
disability
pension could be granted to a person.
Regulation 173 of Pension Regulations,
1961 is relevant for the purpose, which
reads as under :-

"Primary conditions for the
grant of disability pension

173.
Unless
otherwise
specifically provided a disability pension
consisting of service element and disability
element may be granted to an individual
10 All. 15447310w Ex Rect, Raushan Kumar Singh Vs. The Armed Forces Tribunal Regional
 Bench Lko & Ors.
1293
who is invalidated out of service on
account of a disability which is attributable
to or aggravated by military service in nonbattle casualty and is assessed 20 per cent
or over.

The question whether a disability
is attributable to or aggravated by military
service shall be determined under the rule
in Appendix II."

(11) A bare perusal of the Regulation
173 of Pension Regulations, 1961 reveals
that disability pension in normal course is
to be granted to an individual (i) who is
invalidated out of service on account of a
disability which is attributable to or
aggravated by military service and (ii) who
is assessed at 20% or over disability unless
otherwise it is specifically provided.

(12) Rule 4 of the Entitlement Rules
makes it clear that invalidating from
service is a necessary condition for grant of
disability pension. An individual who, at
the time of his release under the Release
Regulations, is in a lower medical category
than that in which he was recruited will be
treated as "invalidated from service". For
the purpose of evaluation of disabilities,
two presumptions are provided under Rule
5 of the Entitlement Rules, which is
extracted as under :-

"5. The approach to the question
of entitlement to casualty pensionary
awards and evaluation of disabilities shall
be based on the following presumptions:

Prior to and during service

(a) A member is presumed to
have been in sound physical and mental
condition upon entering service except as
to physical disabilities noted or recorded at
the time of entrance.

(b)
In
the
event
of
his
subsequently being discharged from service
on medical grounds any deterioration in his
health, which has taken place, is due to
service."

(13) Rule 9 of the Entitlement Rules
mandates upon whom the burden lies to
prove the entitlement conditions, which
reads as under :-

"9. Onus of proof.-The claimant
shall not be called upon to prove the
conditions of entitlements. He/she will
receive the benefit of any reasonable doubt.
This benefit will be given more liberally to
the claimants in field/afloat service cases."

(14) While considering the aspect of
'onus of proof', the Apex Court in
Dharamvir Singh Vs. Union of India &
Ors. (2013) 7 SCC 316, has observed as
under :-

"The onus of proof is not on the
claimant (employee), the corollary is that
onus of proof that the condition for nonentitlement is with the employer. A
claimant has a right to derive benefit of any
reasonable doubt and is entitled for
pensionary benefit more liberally".

(15) Rule 14 of the Entitlement Rules
stipulates how to determine whether a
disease shall be deemed to have arisen in
service or not. Rule 14 of the Entitlement
Rules is extracted hereinbelow :-

"14. Diseases - In respect of
diseases, the following rule will be
observed -
1294 INDIAN LAW REPORTS ALLAHABAD SERIES

(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.

(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 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 that the conditions were
due to the circumstances of duty in military
service."

(16) A plain reading of sub-rule (b) of
Rule 14 of the Entitlement Rules makes it
abundantly clear 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 military
service. However, if medical opinion holds
that the disease could not have been detected
at the time of enrollment, the disease will not
be deemed to have arisen during service. In
such a situation, it is also important that the
medical opinion must contain valid reasons
that the disease is not attributable to service.

(17) The Rule 14 of the Entitlement
Rules, as reproduced above, was amended
vide Government of India, Ministry of
Defence letter No. 1(1)/81/D(Pen-C) dated
20th June, 1996. The amended Clauses read
as under -

"Rule 14 (a)- For acceptance of a
disease as attributable to military service, the
following two conditions must be satisfied
simultaneously:

(i) That the disease has arisen
during the period of military service, and

(ii) That the disease has been
caused by the conditions of employment in
military service.

(b) If medical authority holds, for
reasons to be stated, that the disease although
present at the time of enrolment could not
have been detected on medical examination
prior to acceptance for service, the disease,
will not be deemed to have arisen during
service. In case where it is established that the
military service did not contribute to the onset
or adversely affect the course disease,
entitlement for casualty pensionary award
will not be conceded even if the disease has
arisen during service.

(c)
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 course of the disease, will fall
for acceptance on the basis of aggravation.

(d)
In
case
of
congenital,
hereditary, degenerative and constitutional
diseases which are detected after the
individual has joined service, entitlement to
disability pension shall not be conceded
unless it is clearly established that the
course of such disease was adversely
affected due to factors related to conditions
of military services."
10 All. 15447310w Ex Rect, Raushan Kumar Singh Vs. The Armed Forces Tribunal Regional
 Bench Lko & Ors.
1295

(18) In Union of India & Anr. v.
Rajbir Singh : (2015) 12 SCC 264, the
Apex Court has held that the respondents
having been discharged from service on
account of medical disease/disability, the
disability must be presumed to have been
arisen in the course of service which must,
in the absence of any reason recorded by
the Medical Board, be presumed to have
been attributable to or aggravated by
military
service.
There
is
initial
presumption that the respondents were all
physically fit and free from any disease and
in sound physical and mental condition at
the time of their entry into service.

(19) In Veer Pal Singh v. Secretary,
Ministry of Defence : (2013) 8 SCC 83,
the Apex Court has rejected the opinion of
invaliding Medical Board but directed the
respondents to refer the case to Review
Medical Board to reassess the medical
condition of the appellant and to find out
whether at the time of discharge from
service, he was suffering from disease
which made him unfit to continue in
service. In the said case, the appellant was
appointed in the year 1972 and was
discharged in view of the opinion of the
invaliding Medical Board dated November
14, 1977. The appellant has prayed for
constitution of a fresh Medical Board to
assess his disease and disability in a writ
petition filed before the Allahabad High
Court. The Apex Court held as under :-

"10. Although, the courts are
extremely loath to interfere with the
opinion of the experts, there is nothing like
exclusion of judicial review of the decision
taken on the basis of such opinion. What
needs to be emphasised is that the opinion
of the experts deserves respect and not
worship
and
the
courts
and
other
judicial/quasi-judicial
forums
entrusted
with the task of deciding the disputes
relating to premature release/discharge
from the army cannot, in each and every
case, refuse to examine the record of the
Medical Board for determining whether or
not the conclusion reached by it is legally
sustainable.

xx xx xx

16. F.C. Redlich and Daniel X.
Freedman in their book titled The Theory
and Practice of Psychiatry (1966 Edn.)
observed: "Some schizophrenic reactions,
which we call psychoses, may be relatively
mild and transient; others may not interfere
too seriously with many aspects of
everyday living.... (p. 252) Are the
characteristic remissions and relapses
expressions of endogenous processes, or
are
they
responses
to
psychosocial
variables, or both? Some patients recover,
apparently completely, when such recovery
occurs without treatment we speak of
spontaneous remission. The term need not
imply an independent endogenous process;
it is just as likely that the spontaneous
remission is a response to non-deliberate
but nonetheless favourable psychosocial
stimuli other than specific therapeutic
activity...."

(emphasis supplied)

18. In Controller of Defence
Accounts (Pension) v. S. Balachandran
Nair [(2005) 13 SCC 128 : 2006 SCC
(L&S) 734] on which reliance has been
placed by the Tribunal, this Court referred
to Regulations 173 and 423 of the Pension
Regulations and held that the definite
opinion formed by the Medical Board that
the disease suffered by the respondent was
constitutional and was not attributable to
military service was binding and the High
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
Court was not justified in directing
payment of disability pension to the
respondent. The same view was reiterated
in Ministry of Defence v. A.V. Damodaran
[(2009) 9 SCC 140: (2009) 2 SCC (L&S)
586] . However, in neither of those cases,
this Court was called upon to consider a
situation where the Medical Board had
entirely relied upon an inchoate opinion
expressed by the psychiatrist and no effort
was made to consider the improvement
made in the degree of illness after the
treatment.

19. As a corollary to the above
discussion, we hold that the impugned
order as also the orders dated 14-7-2011
and 16-9-2011 passed by the Tribunal are
legally unsustainable. In the result, the
appeal is allowed. The orders passed by the
Tribunal are set aside and the respondents
are directed to refer the case to the Review
Medical Board for reassessing the medical
condition of the appellant and find out
whether at the time of discharge from
service he was suffering from a disease
which made him unfit to continue in service
and whether he would be entitled to
disability pension."

(20) The Apex Court in Ex. Cfn
Narsingh Yadav Vs. Union of India &
others (Civil Appeal No. 7672 of 2019,
decided on 03.10.2019), which has been
relied by the learned Tribunal, has also
considered Dharamvir Singh (supra),
Rajbir
Singh
(supra),
Ex.
Gnr.
Laxmanram Poonia (Dead) through
Legal Representatives v. Union of India
& Ors : (2017) 4 SCC 697 and has held
that mental disorders cannot be detected
at the time of recruitment and their
subsequent manifestation (in this case
after about three years of service) does
not entitle a person for disability unless
there are very valid reasons and strong
medical evidence to dispute the opinion
of Medical Board. The relevant part of
the judgment is reproduced as under :-

"15) We find that it is not
mechanical application of the principle
that any disorder not mentioned at the
time of enrolment is presumed to be
attributed to or aggravated by military
service. The question is as to whether the
person was posted in harsh and adverse
conditions
which
led
to
mental
imbalance.

16) Annexure I to Chapter IV of
the Guide to Medical Officers (Military
Pensions), 2002 - "Entitlement: General
Principles"
points
out
that
certain
diseases which may be undetectable by
physical
examination
on
enrolment
including the Mental Disorders; Epilepsy
and Relapsing forms of mental disorders
which have intervals of normality, unless
adequate history is given at the time by
the member. The Entitlement Rules itself
provide that certain diseases ordinarily
escape detection including Epilepsy and
Mental Disorder, therefore, we are
unable to agree that mere fact that
Schizophrenia, a mental disorder was not
noticed at the time of enrolment will lead
to presumption that the disease was
aggravated or attributable to military
service.

17) The 1982 Rules classify the
diseases which are affected by climatic
conditions, stress and strain and dietary
complications. The stress and strain
cause the following injuries as per the
said classification of diseases: "(a)
Psychosis
and
psychoneurosis.
(b)
Bronchial
Asthma.
(c)
Myocardial
10 All. 15447310w Ex Rect, Raushan Kumar Singh Vs. The Armed Forces Tribunal Regional
 Bench Lko & Ors.
1297
infarction, and other forms of IHD. (d)
Peptic ulcer."

18) Therefore, each case has to
be examined whether the duties assigned
to the individual may have led to stress
and strain leading to Psychosis and
psychoneurosis.
Relapsing
forms
of
mental disorders which have intervals of
normality and Epilepsy are undetectable
diseases while carrying out physical
examination
on
enrolment,
unless
adequate history is given at the time by the
member.

19) The appellant was a young
boy of 18 years at the time of enrolment
and had been boarded within 31⁄2 years of
his service. Even if he was suffering from
any mental disorder prior to enrolment, the
same could not be detected as there were
intervals of normality. The appellant was
posted in peace station as a Vehicle
Mechanic. Neither the nature of job nor the
place of posting was such which could have
caused stress and strain leading to
disability as attributed to or aggravated by
military service.

20) In the present case, clause
14(d), as amended in the year 1996 and
reproduced above, would be applicable as
entitlement to disability pension shall not
be considered unless it is clearly
established that the cause of such
disease was adversely affected due to
factors related to conditions of military
service. Though, the provision of grant
of disability pension is a beneficial
provision but, mental disorder at the
time of recruitment cannot normally be
detected
when
a
person
behaves
normally. Since there is a possibility of
non-detection
of
mental
disorder,
therefore,
it
cannot
be
said
that
Schizophrenia is presumed to be attributed
to or aggravated by military service.

21) Though, the opinion of the
Medical Board is subject to judicial review
but the Courts are not possessed of
expertise to dispute such report unless
there is strong medical evidence on record
to dispute the opinion of the Medical
Board which may warrant the constitution
of the Review Medical Board. The
invaliding
Medical
Board
has
categorically held that the appellant is not
fit for further service and there is no
material
on
record
to
doubt
the
correctness of the Report of the invaliding
Medical Board."

(Emphasis supplied)

(21) Here in the case on hand, the
petitioner was enrolled as recruit in the
Indian Army on 28.04.2014. Annexure-4 to
the writ petition is the Medical Board
Proceedings, which shows that he was
posted at Unit No.2 MT Bn., AMC C & C
Lucknow from 28.04.2014 till the time, he
was
produced
before
the
Invaliding
Medical Board and the place of posting of
the petitioner was the peace station. In
respect of disease, the petitioner declared
that he was treated, firstly, at Base
Hospital, Lucknow w.e.f. 13.08.2014 to
08.11.2014 wherein it was opined by the
Medical Board on 08.11.2014 that the
petitioner was suffering from 'Primary
Generalised Epilepsy' and thereafter, he
was referred to and treated at Command
Hospital, Lucknow, till the time, he was
examined by the invaliding Medical Board.
In Part I of the Personal Statement, the
Question asked was to "4. Give details of
any incidents during your service which
you think caused or made your disability".
The answer given by the petitioner was
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
'NIL'. It transpires that the petitioner had
refused to sign Part-I. In Part III of the
Report, the Commanding Officer answered
'No' to the question - "5. Did the Duties
involve Severe/ exceptional stress and
strain ?".

(22) At this juncture, it would be apt
to note the opinion of the Graded Specialist
in Medical & Neurology of Command
Hospital,
Lucknow
dated
06.09.2014,
which is as under :-

"This 19 year old recruit had
three episodes of generalized seizures
within one month of which one is
witnessed
by
medical
officer.
His
neroimaging is normal but sleep deprived
EEG is abnormal. He will require antiepileptic drug therapy for at least three
years. He is unlikely to withstand the
stress of training and is unlikely to serve
as a fit soldier."

(23) The Medical Board, after
examining the medical record of the
petitioner as well as the opinion of Graded
Specialist in Medical & Neurology of
Command Hospital, Lucknow, concluded
that the disability of the petitioner is neither
attributed to army service nor aggravated
by military service though it assessed the
disability at 20% for life. Such opinion of
the Medical Board dated 18.11.2014 is the
basis of the discharge of the petitioner.

(24) Considering the facts and
circumstances of the case in the light of
above discussed Rules and Regulations as
well as settled principles of law enshrined
by the Apex Court in Ex. Cfn. Narsingh
Yadav (supra), we are of the considered
opinion that no doubt the Entitlement Rules
are beneficial in nature and ought to be
liberally construed, however, there has to
be a reasonable causal connection between
the injuries resulting in disability and the
military service. In the present case,
undisputed facts evolve that there is no
connection between the disability and the
military service and as such the Tribunal
had not committed any error in dismissing
the claim of the petitioner to award him
disability
pension
vide
impugned
judgment/order.

(25) The writ petition being bereft of
merit is, accordingly, dismissed. However,
there shall be no order as to costs

----------
(2023) 10 ILRA 1298
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 12991 of 2023

Suresh Babu ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manu Mishra, Sri Vijay Pathak, Sri Uday
Karan Saxena (Sr.Adv.)

Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava, Sri Vinayak
Ranjan, Sri Kartikeya Saran

Service Law - Disciplinary Proceedings -
Major Penalty - Requirement of Oral
Evidence - Principles of Natural Justice -
Petitioner,
a
Junior
Engineer,
challenged
dismissal order dated 07.06.2023 and recovery
of
Rs.3,46,23,208/-
-
Disciplinary
inquiry
initiated on charges of embezzlement - No oral
evidence
or
witnesses
produced
by