Invalided Soldier Presumed To Be Disabled Due To Military Service; Entitled To Disability Pension : Supreme Court

While ordering the grant of 50% disability pension to an army personnel who was discharged from service 36 years ago, the Supreme Court reiterated that a soldier, who is invalided out of service, is presumed to have incurred the disease/disability due to military service. It is the burden of the Army to prove that the disability was not on account of military service, the Court said, since only a medically fit person is enrolled into the service. "A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same. The very fact that upon proper physical and other tests, the member was found fit to serve in the army would give rise to a presumption that he was disease free at the time of his entry into service. For the employer to say that such a disease was neither attributable to nor aggravated by military service, the least that is required to be done is to furnish reasons for taking such a view," observed a bench comprising Justice Abhay S Oka and Justice Ujjal Bhuyan.The bench was hearing an appeal filed against an order of the Armed Forces Tribunal which denied disability pension to the appellant on the ground that his disability was less than 20%.The appellant, who had joined the Army in 1985, was invalided out in 1989 on account of the disease "generalized tonic clonic seizure old 345 V-67" assessed at less than 20% on the recommendations of the Invaliding Medical Board. The appellant claimed that he was hale and healthy at the time of joining the Army and the disease was contracted due to his posting at high altitude Siachen glacier from May, 1988 to 20.09.1988. As per Regulation 173 of the Pension Regulations for the Army, 1961, disability pension is granted only if the officer was invalided out of service due to a disability/disease attributable to military service which is assessed at 20% or over. The Court noted that as per Rule 5 of the Entitlement Rules for Casualty Pensionary Awards, 1982, the assessment must be based on a presumption that concerned member was in sound physical and mental condition while entering service except as to physical disabilities noted or recorded at the time of entrance. As per Rule 9, the onus of proof is on the authority and not on the claimant. Rule 14(b) provides for a legal presumption 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 of military service.In Union of India vs Rajbir Singh (2015) 12 SCC 264, the Court summarised the principles from a conjoint and harmonious reading of Rules 5, 9 and 14 of the Rules as follows :(i) 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;(ii) in the event of his being discharged from service on medical grounds at any subsequent stage it must be presumed that any such deterioration in his health which has taken place is due to such military service;(iii) the 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; and(iv) if medical opinion holds that the disease, because of which the individual was discharged, could not have been detected on medical examination prior to acceptance of service, reasons for the same shall be stated.Referring to various precedents such as Dharamvir Singh Vs. Union of India (2013) 7 SCC 316 and Union of India Vs. Angad Singh Titaria (2015) 12 SCC 257, the judgment authored by Justice Bhuyan stated : "As can be seen from the above, this Court emphasized that the morale of the armed forces requires absolute and undiluted protection. If any injury leads to loss of service without any recompense, this morale would be severely undermined. Further, this Court noticed that there appeared to be no provision authorising the discharge or invaliding out of service where the disability is below 20% which is quite logical. Therefore, it has been held that where a member of the armed forces is invalided out of service, it perforce has to be assumed that his disability was found to be above 20%. Most important is that this Court after considering the extant Rules and Regulations has held that a disability leading to invaliding out of service would attract grant of 50% disability pension.Thus, this Court held that essence of the Rules is that a member of the armed forces is presumed to be in sound physical and mental condition at the time of his entry into the service if there is no note or record to the contrary made at the time of such entry. In the event of subsequent discharge from service on medical ground, any deterioration in health would be presumed to be due to military service. The burden would be on the employer to rebut the...

Invalided Soldier Presumed To Be Disabled Due To Military Service; Entitled To Disability Pension : Supreme Court

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The burden is on the Army to prove that the disability was not due to military service, the Court said.

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