Ex-Sepoy v. Union Of India

A.N Varma, Member (J):— By means of the instant Original Application the applicant has assailed order dated 27.11.2007 by which he has been discharged on medical grounds. It has further been prayed that the applicant be reinstated after setting aside order. The applicant has further prayed for a direction to be issued to the respondents to re-assess the applicant in respect of the disability for which he was found suffering from.

2. The applicant was enrolled in the Indian Army in the Grenadier Regiment on 10.01.2003 and was invalided out of service on 26.11.2007 under Army Rule 13(3) Item III (iii) having been found medically unfit for further military service on account of disease which he was found to be suffering from i.e DYSTHYMIA (OLD). The applicant had rendered only four years, ten months and sixteen days of service and the disability was found neither attributable to nor aggravated by the Military Service.

3. Pleadings by both the parties have been exchanged.

4. We have heard Shri P.N Chaturvedi Learned Counsel for the applicant and Shri K.D Nag Senior Central Government Counsel for respondents.

5. Shri Chaturvedi vehemently argued that the applicant had not been examined by the graded specialist within the parameters as required. According to him it was no material so as to come to the conclusion that the applicant was suffering from mental disease i.e DYSTHYMIA (OLD). It was further asserted that it was on account of malicious attitude of the respondents and fictitious complaints of one Rajendra Singh (Respondent No. 5), that the applicant has illegally been discharged on the ground that the particular disease is not attributable to military service. It was further asserted that the disability has been assessed to less than 20 percent which also according to the applicant has incorrectly been done. As per submissions of the Learned Counsel there was no material before the concerned medical authority to come to conclusion as recorded. The Learned Counsel also referred Para 28 of the Guide to Medical Officers (Military Pensions-2002) of Govt. of India. As per his submissions when an assessment of an individual is being made, who is said to be a mental case, the Board should give separate assessment in each condition, as compensation would be discontinued when the total disablement falls below pensionable degree viz. 20 per cent or only the “non-accepted” condition persists, whichever is earlier. As per policy laid down the assessment is based on Criteria of an individual's capability to look after himself and family. The provisions is quoted herein under:—

“28. …………………

Assessment is based on the criteria of individual's capability to look after himself andfamily:

(a) Person able to look after himself and interact with his family and

Assessment 50-60% for a period of 5 to 10 years.

(c) Individual is not able to look after his basic needs:

Assessment 80 - 100% permanent.”

6. On the strength of the aforesaid provision, Learned Counsel submitted that in respect of the applicant, the assessment regarding disability ought to have been made between 20 to 30 percent by the concerned Medical Board had the applicant been examined in right perspective. Learned Counsel lastly submitted that in negating the claim of the applicant for disability pension and discharging him on medical ground the respondents have acted in a most illegal and arbitrary manner as such their action should be quashed. It was further submitted that at the time of entry in Army Service the applicant was not found suffering from any disease and subsequently if some ailment is found the same is deemed to have been aggravated by military service.

7. Shri K.D Nag in opposition controverted the arguments raised by the Learned Counsel for the applicant. As per his submission since the applicant was brought before the Invaliding Medical Board and he had been examined by Graded Specialist and disability found in respect of the applicant being 6 to 10%, and same not been found attributable to nor aggravated by military service, as such his discharge under Rule 14 of the Entitlement Rules for Casualty Pensionary Awards to Armed Forces Personnel 1982 read with Rule 173, 173A and 178 of the Pension Regulations for the Army, 1961 is perfectly in accordance with law. It was further out that the applicant was physically examined by the Graded Specialist who found him to be suffering from a mental disease not aggravated by military service and also not fit to be retained in army service. As such he was rightly discharged. Regarding malicious attitude it was asserted that nothing is borne out from the record so as to come to conclusion that the impugned order was tainted, as such deserves to be set aside.

8. Regulation 173 of the Pension Regulations for Army Part-I postulates that for a person to be entitled for disability pension, an individual should have disability to the extent of 20% or more and the same is attributable to or aggravated by military service. Regulation 173 of the Pension Regulations for the Army reads as follows:

“173. Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 percent or over.

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

9. Perusal of the aforesaid provision clearly postulates that an individual can be entitled for disability pension only if his disability is found to be 20% or more and the same is aggravated by military service. The Medical Board proceedings have been annexed along with Counter Affidavit as Annexure No. CA - 1, perusal of which reveals that the disability in respect of the applicant has been found to be ??? percentage. The arguments of the Learned Counsel for the applicant regarding the ground of disability pension thus fails.

10. So far as the question regarding physical examination of the applicant is concerned the report of the Graded Specialist (Psychiatric) has also been annexed along with Counter Affidavit, perusal of which reveals that the applicant was brought before the Graded Specialist and after examining the individual the opinion has been recorded. Summary of the Opinion by the Graded Specialist is reproduced hereinunder:—

“Summary of Opinion of Lt. Col Arun Sen Graded Spl. (Psy), 158 BH dated 15 Sep 07

This 26 year old serving soldier with approx 05 y of service is a case of DYSTHYMIA (OLD) who has been observed in LMC S3 (T24+T24), S2 (T24) wef 25 Mar 06. LM3 was held at MH Jabalpur on 30 Mar 07.

He initially come under psychiatric attention in Nov 2005 after he attempted to commit suicide by hanging himself using his lanyard. It was evident that his act locked serious intact as he committed this act in the presence of his colleague. He was hospitalized & gave a history of being frustrated as he could not cope with the pressures of his job. He complained of pervasive low mood, thasicity to sleep and severe professional dysfunction related to his symptoms. He lost all interest in socialization and other recreation activities. Psychiatric evaluation revealed self esteems. Psychiatric confidence sad mood were a depressed affect. He was …. anti-depressness and retained in service under psychiatric surveillance.

period of observation, he has maintained compliance with therapy & has been functioning adequately.

AFMSF 10 dated 22 Aug 07 is soon and does not recommed retention in service.

In the present review he exhibited facts of manipulation (used his illness to gain rest) was seen to perform inadequately in routine ward activities. He avoided all duties which denoted that he functions in his chosen trade.

15 Sep 2007. He was persistently sought sympathy and exhibited unreliability. In view of the above, he is unlikely be a fit and an able soldier, will not be competent enough to take on the rigorous of active combat duty.

Recommended to be invalidedfor service in LMC S5”.

11. Thus the argument of the Learned Counsel that the applicant was not examined as required is not sustainable.

12. So far as the question of the malice is concerned, it is a settled proposition that the malafide and bias are required to be specifically pleaded and there should be sufficient and cogent material so as to establish the element of malice and bias. From the entire reading of the Petition noting is borne out regarding the element of the malice except in Paragraph 4.4 it has been averred that one Naib Subedar Rajendra Singh bore ill will against the applicant on account of which he kept on poisoning the mind of Commanding Officer who without checking the details, thought it proper to refer the applicant on AFMSF-10 which is for psychic examination. If the traits of some psychic disease are exhibited by the behaviour of be drawn regarding element of malice and bias, therefore the submission of the Learned Counsel for the applicant with regard to malafide and bias is rejected.

13. Regarding assessment of disability as laid down in Guide to Medical Officers (Military Pensions - 2002) of Govt. of India, the same is only a guideline provided for the medical authorities. The opinion expressed by the experts after examining an individual and upon going through the entire history is final. Therefore, if a categorical opinion has been recorded by a Graded Specialist regarding a particular disability then it cannot be said that it runs contrary to the aforesaid guideline.

14. In view of the fact that Specialist in a field had recorded specific opinion regarding disability of the applicant as also the percentage and the same being not attributable to or aggravated by military service that too after examining the applicant, contrary opinion cannot be arrived at by us as we do not have any material so as to hold otherwise. Thus we do not find any illegality in the order of discharge.

15. The Transferred Application thus being devoid of merits is hereby dismissed.

16. No order however as to costs.