Sep. G. Kantibhai v. Union Of India & Ors.

The petitioner was enrolled as a Gunner in the Regiment of Artillery on 11.02.1986 He was discharged from service on medical grounds by Release Medical Board on 30.06.1993 He was found to be in medical category BEE (Permanent). He was found to be suffering from “Hysterical Conversion Reaction”. It was recorded by the Medical Board that it was not aggravated or attributable to the military service. While discharging the applicant, the respondents invoked Army Rule 13 under item III(v). It is under these circumstances the petitioner has questioned this order before this Tribunal.

2. The ground of challenge is that.

a) That the petitioner was required to be boarded out by an Invalidation Medical Board and not by Release Medical Board;

b) That the findings recorded by the Medical Board is not in consonance with the Rule 14 of the Entitlement Rules which provides that if no note of any disability was made at the time of individual's acceptance for military service, a disease which has led to an individual's discharge or death will be deemed to have arisen in service. The rule further provides that if the Medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons;

c) That the petitioner has been wrongly discharged and he is entitled to the reinstatement along with consequential benefits.

3. We have heard the learned counsel for the parties.

4. With respect to the prayer for reinstatement, learned counsel for the respondents has raised preliminary objection that such a plea is barred by limitation. The petitioner was discharged somewhere in 1993. Therefore, there is no cause to agitate the same after 20 years. The petitioner sat over the matter and has come up before this court in 2013. It is after a lapse of 20 years he has come up for reinstatement. The contention of the learned counsel for the respondents is correct in view of the fact that petitioner should have agitated the matter within a reasonable time. He has slept over his right. Therefore, the relief of reinstatement cannot be given to him at this stage.

5. The second contention raised by the learned counsel for the petitioner is that the Medical Board has failed to comply with the Rule 14(b) of the Entitlement Rules in as much as no certificate has been recorded by the Medical Board to indicate that the disease could not have been detected at the time of enrolment. It is also evident from the records that the Medical Board has not given any reason as to why this disease could not have been detected at the time of his enrolment. From the record we find that both these requirements have not been complied with. There is no certificate recorded by the Board as alleged by the petitioner which fact has not been denied by the respondents in their counter. The respondents in their counter affidavit have not specifically denied these facts.

6. Therefore, it is presumed that no certificate has been issued by the Board that the disease could not have been detected at the time of enrolment nor have the reason been indicated as to why the disease could not have been detected at the time of enrolment.

7. The petitioner has placed reliance of a judgment of the apex court in Civil Appeal No. 4949 of 2013, Ex. L/Hav. Dharamvir Singh v. Union Of India & Others , decided on 02.07.2013 The apex court has held under:

“In spite of the aforesaid provisions, the Pension Sanctioning Authority failed to notice that the Medical Board had not given any reason in support of its opinion, particularly when there is no note of such disease or disability available in the service record of the appellant at the time of acceptance for military service. Without going through the aforesaid facts the Pension Sanctioning Authority mechanically passed the impugned order of rejection based on the report of the Medical Board. As per Rule 5 and 9 of “Entitlement Rules for Casualty Pensionary Awards, 1982, the appellant is entitled for presumption and benefit of presumption in his favour. In absence of any evidence on record to show that the appellant was suffering from” Generalized seizure (Epilepsy)” at the time of acceptance of his service, it will be presumed that the appellant was in sound physical and mental condition at the time of entering the service and deterioration in his health has taken place due to service”.

8. In view of the stated legal position as well as the judgment of the apex court, we are inclined to agree with the contention of the learned counsel for the petitioner, that the disease was incurred by the petitioner during the course of his military service, that is why, he is entitled to disability pension. The other contention of the learned counsel for the petitioner is that instead of Release Medical Board, he should have been released by Invalidation Medical Board. Petitioner clearly stated that he was in P-2 category, therefore, there was no obligation on the respondents to have him boarded him out through the Invalidation Board.

9. There is an application for condonation of delay of 20 years and 6 months in filing the petition. For the reasons stated in the application, the same is allowed and delay condoned. Therefore, we allow the petition to the extent that the petitioner shall be entitled to disability pension from three years prior to the date of filing the petition. Respondents will take steps to release the disability pension within a period of four months. No order as to costs.

10. Learned counsel for the respondents orally prayed for granting leave to appeal. There is no question of law of public importance involved in this matter. This is not a fit case to grant leave to appeal before the Hon'ble Supreme Court as it does not involve any question of public importance. As such the prayer is declined.