UNION OF INDIA & ORS. versus EX. SEP. R. MUNUSAMY

Citation: [2022] 7 S.C.R. 473 · Decided: 19-07-2022 · Supreme Court of India · Bench: INDIRA BANERJEE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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UNION OF INDIA & ORS.
v.
EX. SEP. R. MUNUSAMY
(Civil Appeal No. 6536 of 2021)
JULY 19, 2022
[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
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
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
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
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
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
[2022] 7 S.C.R. 473
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SUPREME COURT REPORTS
[2022] 7 S.C.R.
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
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
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
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.
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. [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
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
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of the ailment/disability and the conditions and/or requirements
of ser

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