Devi Prasad Singh, Judicial Member:— The petitioner in the instant case was enrolled in the Indian Army on 27.05.2005 but was discharged from the Army service on the ground of being low in medical category. Feeling aggrieved with the impugned order of discharge from service and consequent rejection of appeal thereon, the Petitioner preferred a Writ Petition being Writ Petition No. 1831 of 2009 in the High Court of Judicature at Allahabad. Since jurisdiction to try the case of Armed Forces Personnel vested in the Tribunal, the petition was transferred to this Tribunal in pursuance of the provisions contained in Section 34 of the Armed Forces Tribunal Act, 2007 and on receipt of record in this Tribunal, it was renumbered as T.A. No. 85 of 2013.
2. Shorn of unnecessary details, the facts of the case are that the Petitioner was enrolled as a recruit in the Indian Army on 27.05.2005 and joined the Army Air Defence Centre, Nasik Road Camp on 28.05.2005 for basic Military Training and Advance Technical Training. After completing basic military training, the petitioner reported to Technical Training Regiment on 19.12.2005. It appears that during the course of training, the petitioner got himself admitted to Army Hospital on 21.06.2006. He was discharged from hospital namely INH Ashwani Mumbai on 04.07.2005 with diagnosis “GENERALIZED EPILEPSY”. He was again admitted to Military Hospital Deolali on 19.07.2006 and after prolonged and sustained treatment, the petitioner was discharged from the said hospital on 02.09.2006 with diagnosis “GENERALISED SEIZURES FOR IMB” and was downgraded to category SIHIAIP5EI.
3. Thereafter on recommendations of Medical Authorities, the petitioner was referred to Military Hospital Deolali for being examined by Invaliding Medical Board and in pursuance of the report of Invaliding Medical Board, discharge drill began on 26.08.2006 and in consequence thereof, he was discharged with remark “Unlikely to become an efficient solider” in accordance with Table IV annexed to Army Rule 13(3). In ultimate analysis, the petitioner was discharged from the Army service with effect from 14.09.2005 in pursuance of the opinion of the Invaliding Medical Board as ordered by Headquarters Maharashtra, Gujarat and Goa Area Colaba, Mumbai dated 26.08.2006. It is in this backdrop that the Petitioner preferred the writ Petition which stood transferred to the present Tribunal.
4. While assailing the impugned order of discharge, it has been submitted by learned counsel for the Petitioner that the disability assessed by the Medical Board is only to the extent of 11 to 14% and hence, the Petitioner could not have been discharged in view of law laid down by Hon'ble Apex Court in the case of Sukhvinder Singh v. Union of India reported in 2014 STPL (Web) 468 SC. The learned counsel for the petitioner further submitted that Medical Board fell in error and committed substantial irregularities in declaring the petitioner invalid on account of suffering from the disease of Epilepsy without any proper medical examination. The quintessence of submission is that the order of discharge suffers from the vice of arbitrariness and the opinion of the Medical Board is premised on unfounded facts.
5. Per contra, the submission advanced across the bar by the learned counsel for the respondents is that the disease of Epilepsy or seizures is a serious disease fraught with serious consequences and a person suffering from the disease shall not be able to discharge duties as the service of Army requires round-the-clock fitness to meet out the exigencies of the service. It is not known when Epilepsy attack a person and hence it is fraught with grave consequences in case the disease relapses on the personnel while discharging some hazardous duties. The learned counsel for the Respondents fairly and candidly concedes that in case the petitioner is discharged, he may claim disability pension and in view of law laid down by Hon'ble the Apex Court by a catena of decisions, it may be rounded off to 50%.
6. The averments contained in Para 6 of the T.A. show that the Petitioner had himself gone to Army hospital after sensing some problem, for treatment where after medical examination, he was detected to be suffering from seizures and later-on, he was found suffering from incurable seizures. Hence, discharge was ordered in pursuance of the opinion of the Invaliding Medical Board. A copy of the Medical sheet filed with the T.A. dated 21.06.2006 contains opinion of the Doctors forming part of the Invaliding Medical Board. It appears that the petitioner requires long term anticepitiors, employbility reinction and medical inpusion and hence he was recommended to be invalidated out of service on medical grounds. The suggestions recommended therein are; not to consume alcohol, not to drive, not to work near fire or open running machinery, not to be employed at unprotected heights, not to stay awake over night, not to be entrusted with fire arms, not to be without antiseptice medication unsupervised, periodic monthly review of the Petitioner by physician of nearest service hospital.
7. It would appear that the Doctors forming part of invaliding Medical Board made the assessment that the Petitioner was suffering from seizures from pre-enrolment period. This assessment has been made from Petitioner's own statement that he had been suffering from seizures right from the age when he was 16 years old. However, the Petitioner has denied to have made any such statement before the Doctors that he was suffering from Epilepsy from pre-enrolment period. The fact remains that the petitioner was found to be suffering from Seizures during the course of his service of about two years which includes training period. Where a person suffering from Epilepsy/Seizures of any kind may be retained in Army Service that too when according to the opinion of the Doctors is that he cannot serve at hazardous places, high altitude, deal with weapons or perform alike duty which is ordinarily assigned to Army personnel.
8. In Sukhvinder Singh v. Union of India (supra), Hon'ble Supreme Court has held as under:
“9. We are of the persuasion, therefore, that firstly, any disability not recorded at the time of recruitment must be presumed to have been caused subsequently and unless proved to the contrary to be a consequence of military service. The benefit of doubt is rightly extended in favour of the member of the Armed Forces; any other conclusion would be tantamount to granting a premium to the Recruitment Medical Board for their own negligence. Secondly, the morale of the Armed Forces requires absolute and undiluted protection and if an injury leads to loss of service without any recompense, this morale would be severely undermined. Thirdly, there appears to be no provisions authorizing the discharge or invaliding out of service where the disability is below twenty per cent and seems to us to be logically so. Fourthly, whenever 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 twenty per cent. Fifthly, as per the extant Rules/Regulations, a disability leading to invaliding out of service would attract the grant of fifty per cent disability pension.”
9. In Sukhvinder Singh (supra), their Lordships of Supreme Court held that a person cannot be invalided out of service where disability is below 20% but whenever a member of the Armed forces is invalided out of service, it shall be assumed that the disability was found to be above 20% and would attract a grant of 50% disability pension.
10. The case of Sukhvinder Singh (supra) does not deal with cases of seizures or Epilepsy which is a peculiar case in itself. It cannot be noticed apparently itself during the time unless it makes suffering a person by bodily pain and shivering. According to the Medical Board, such person shall not be able to meet out the exigencies of service as a member of the Armed Forces. Hence, retention in service seems to not make out a case based on sound principles of law and necessity. It is rightly said by learned counsel for the respondents that at the time of recruitment, the Epilepsy is not easy to be recorded.
11. Paras 22, 23 and 24 of the Instructions issued by the Director General of Medical Services, Army dated 03.08.2008 being relevant are reproduced below.
“22. All patients of seizure disorder while under observation are required to observe the following precautions—
a) Unfit for High Altitude Area.
b) Not to drive vehicles.
c) Not to swim.
d) Not to work with fire/fire-arms/moving machinery and at heights.
e) Not to be on night duty if working alone.
f) Special precautions as per the trade.
23. Cadets and Recruits - Anyone with history of seizures after the age of 5 years of age other than febrile seizures should not be considered for recruitment. Retention of recruits and trainees should be decided based on their clinical profile, likely deployment and nature of duties. Any recruit or trainee with a convincing true seizure and abnormal EEG and/or neuro-imaging should be invalided out of service.
24. Follow up and disposal of serving pers - Once seizures have been confirmed the individual must be placed in med category P3 for 24 weeks. On review, if the seizure disorder is satisfactorily controlled with drug therapy he/she will be observed in med cat P2.
12. From the aforesaid guidelines, it appears that at the time of recruitment, in case a person has got history of Epilepsy after age of 5 years, then such person should not be considered for recruitment. Obviously in the case of seizures, Doctors base their opinion on medical histories given by the recruits at the time of recruitments. In case, a recruit conceals the disease of seizures, then it shall not be possible for the Doctors to diagnose it.
13. The Circular of the Army, Director General Medical Services shows that parents and relatives should be contacted to deal with the Epilepsy patients. Paras 30, 31 and 32 being relevant are reproduced below.
“30. Patients should be instructed to avoid high-risk activities like swimming, driving, rooftops, fire places etc. for at least 6 months after the last seizure.
31. It is very important to explain that medications should be taken exactly as prescribed. Irregular intake of drugs or sudden stoppage can lead to status epilepticus and will also prolong the duration of treatment. Patient must report if seizure frequency increases, or if any illness develops, especially fever and behavioral problems. Young women on anti-epileptic drugs (AED) must consult the doctor before conceiving.
32. It is also pertinent to explain the possible side effects of the AED. The common adverse effects are as follows:—
a) Phenytoin - gingival hyperplasia, hirsutism, acnc, chloasma, coarsuing of facial features, sedation and ataxia.
b) Carbamazepine - sedation, ataxia, diplopia
c) Valproic acid - sedation, ataxia, diplopia, hair loss Hepato - toxicity can occur in children. For prevention of ‘gum hypertrophy, patient should be advised to maintain good oral hygiene, and frequent rinsing of mouth.
d) In - patients on AED - Explain possible risk of drug interactions especially oral contraceptives and anti-tubercular drugs.
14. The aforesaid precaution and care required for Epilepsy patient/person may not be possible to be provided by the Army as it requires personal care.
15. In Chapter 6 and 7 of the Guide to Medical Officers issued by the Ministry of Defence, Government of India in 2008, the Epilepsy has been dealt with as under:—
33. Epilepsy. This is a disease which may develop at any age without obvious discoverable cause. The persons who develop epilepsy while serving in forces are commonly adolescents with or without ascertainable family history of disease. The onset of epilepsy does not exclude constitutional idiopathic type of epilepsy but possibility of organic lesion of the brain associated with cerebral infarction and hemorrhage, and certain metabolic (diabetes) and demyelinating disease should be kept in mind.
The factors which may trigger the seizures are sleep deprivation, emotional stress, physical and mental exhaustion, infection and pyrexia and loud noise. Acceptance is on the basis of attributability if the cause is infection, service related trauma.
Epilepsy can develop after time lag/latent period of 7 years from the exposure to offending agent (Trauma, Infection, TB). This factor should be borne in mind before rejecting epilepsy cases.
Where evidence exists that a person while on active service such as participation in battles, warlike front line operation, bombing, siege, jungle war-fare training or intensive military training with troops, service in HAA, strenuous operational duties in aid of civil power, LRP on mountains, high altitude flying, prolonged afloat service and deep sea diving, service in sub-marine, entitlement of aggravation will be appropriate if the attack takes place while serving in those areas.
16. From the aforesaid guidelines, it appears that epilepsy may have latent period of 7 years in different situations. It may be triggered by sleep deprivation, mental stress, physical and medical exhaustion, infection and pyrexia and loud noise. The guidelines show that if it is because of infection, it may be service related problem. The different factors which have been dealt with in guidelines (supra) may not rule out that the Petitioner suffered from Seizures being aggravated by the Army Service while discharging duties.
17. The learned counsel for the Respondent has been very fair on his part though, may be half-heartedly, in saying that the Petitioner may be granted disability pension.
18. It may be noted here that decision of the respondents in discharging the petitioner from service does not seem to be hasty one by any reckoning inasmuch as it took almost two years in processing the matter for discharge of the petitioner on the ground of disease diagnosed as epilepsy and that is why he seems to be entitled to disability pension. It needs hardly be said that if two views are possible keeping in view the factual matrix on record, then one that favours the petitioner should be given effect to. It may not be ruled out that his condition of seizure may have been aggravated under the service condition of the Army. It is for this reason that the Petitioner seems to be entitled for disability pension for life.
19. In view of the above, we are of the opinion that though the Petitioner has been invalided out of service because of seizures, but he seems to be entitled to disability pension with rounding off to 50% for life in view of law laid down by the Apex Court in catena of decisions and case referred to above. We decline to interfere with the impugned order of discharge on account of its not suffering from any impropriety and illegality.
20. Accordingly, we partially allow the T.A. and mould the relief directing the respondents to consider the petitioner's case for payment of disability pension expeditiously, say, within four months from the date of receipt of a certified copy of this order and communicate the decision with all consequential benefits. Let order be complied with along-with consequential benefits expeditiously, say, within four months.
21. There shall be no order as to costs.