HEMANT GUPTA, J. - (1.) A large number of writ petitions come up for hearing before this Bench claiming disability pension on account of the discharge from service of the personnel of the Armed Forces. The parties cite quite large selection of judgments in support of their respective stands. Since the issues relating to payment of disability pension arise rather frequently, we framed three questions for consideration for in depth examination in one case, the decision of which can be relevant in deciding other similar cases. However, each of the writ petitions claiming disability pension would be taken up for hearing in the light of the decision on the following issues: 1. Whether the Armed Forces Tribunal or Writ Court in exercise of power of judicial review can re -examine the report of release Kumar Vimal 2014.05.14 14:06 I attest to the accuracy and integrity of this document Chandigarh 2 CWP No.7277 of 2013 Medical Board categorizing the disability either not attributable to Military Service or aggravated by Military Service? 2. Whether the disability suffered after enrollment irrespective of its nature, may be constitutional or otherwise, will entitle personnel of the Armed Forces for the disability pension as it would be presumed that such disability is attributable to or aggravated by Military Service? 3. Whether the claim of the disability pension can be declined for the reason that it was not raised soon after discharge from the Army on the ground of limitation, even after the record has been weeded out by the authority after the expiry of statutory period and if it is entertainable then what relief the personnel would be entitled to?
(2.) SECTION 191 of the Army Act, 1950 empowers the Central Government to frame Rules to give effect to the provisions of the Act and also in respect of the matters specified in sub -section (2). The matters empowering the Central Government are the matters relating to dismissal, removal and court martial etc. Section 192 empowers the Central Government to frame regulations in respect of which rules are not contemplated. Since the payment of pension does not fall within the scope of the rule making authority of the Central Government contemplated under Section 191 of the Army Act, 1950, therefore, the Central Government has framed Pension Regulations for the Army in the year 1961. The relevant clauses i.e. 48 and 173 from the Pension Regulations for the Army, 1961 are as under: Pension Regulations for the Army, 1961 "48. (a) Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an officer who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non -battle casualty cases and is assessed at 20 per cent or more. Kumar Vimal 2014.05.14 14:06 I attest to the accuracy and integrity of this document Chandigarh 3 CWP No.7277 of 2013 (b) The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II. xxx xxx xxx 173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non -battle 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." Regulation 48 provides for disability pension to an Officer and Regulation 173 provides for disability pension to an individual, consisting of service element and disability element, who is invalided out of service on account of a disability, which is attributable to or aggravated by military service in non -battle casualty cases and is assessed at 20 per cent or more. The question whether the disability is attributable to or aggravated by military service is required to be determined under the Rules as in Appendix II. Appendix II contains the 'Entitlement Rules for Casualty Pensionary Awards, 1982' promulgated by Ministry of Defence on 22.11.1983, as amended on 21.08.1984. These Rules apply to service personnel, who become non -effective on or after 01.01.1982. The relevant clauses of the said Rules read as under: "5. The approach to the question of entitlement of casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions: - Prior to and During Service (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. Kumar Vimal 2014.05.14 14:06 I attest to the accuracy and integrity of this document Chandigarh 4 CWP No.7277 of 2013 (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. xx xx Onus of Proof 9. 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. xx xx Diseases 14. In respect of diseases, the following rule will be observed: - (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. 15. The onset and progress of some disease are affected by environmental factors related to service conditions, dietary compulsions, exposure to noise, physical and mental stress and strain. Disease due to infection arising in service, will merit an entitlement of attributability. Nevertheless, attention must be given to the possibility of pre -service history of such conditions which, if proved could rule out entitlement of Kumar Vimal 2014.05.14 14:06 I attest to the accuracy and integrity of this document Chandigarh CWP No.7277 of 2013 attributability but would require consideration regarding aggravation. For clinical description of common disease, reference shall be made to the Guide of Medical Officers (Military Pensions) 1980, as amended from time to time. The classification of diseases affected by environmental factors in service is given in Annexure III to these rules. xx xx Miscellaneous Rules 17. Medical Opinion: At initial claim stage medical views on entitlement and assessment are given by the IMB/BMB. Normally these views shall prevail for decisions in accepting or rejecting the claim. In case of doubt the Ministry / CCDA (Pensions) may refer such cases for second medical opinion to MA (Pensions) sections in the office of the DGAFMS/Office of CCDA(P), Allahabad, respectively. At appeal stage, appropriate appellate medical authorities can review and revise the opinion of the medical boards on entitlement and assessment.
(3.) AGGRAVATION : If it is established that the disability was not caused by service attributability shall not be conceded. However, aggravation by service is to be accepted unless any worsening in his condition was not due to his service or worsening did not persist on the date of discharge/claim.;