Summary
The Supreme Court set aside Armed Forces Tribunal orders denying the disability element of disability pension to a soldier invalided out with a seizure disorder assessed below 20%, holding that where no disease was noted at entry the disability is presumed attributable to military service unless the employer rebuts it with reasons, and that a disability leading to invalidment must be assumed to be above 20% and attracts 50% disability pension.
Issues
- Whether the Tribunal was right in denying the disability element of disability pension solely because the Invaliding and Re-Survey Medical Boards assessed the disability at less than 20%, without examining whether it was attributable to or aggravated by military service.
- Whether, under the Pension Regulations for the Army, 1961 and the Entitlement Rules for Casualty Pensionary Awards, 1982, a disease not noted at the time of entry into service is presumed to be attributable to or aggravated by military service, and on whom the burden of rebuttal lies.
- Whether a member invalided out of service on account of a disability is entitled to have the disability reckoned at 50% for computing the disability element, and from what date.
Provisions considered
- Regulation 173, Pension Regulations for the Army, 1961Disability pension, consisting of service and disability elements, is granted to one invalided out on account of a disability attributable to or aggravated by military service and assessed at 20% or over; attributability is to be determined under the Entitlement Rules in Appendix II. (¶¶ 27, 29, 30, 35)
- Regulation 183, Pension Regulations for the Army, 1961Prescribes the two elements of disability pension and provides that a member invalided out for an attributable or aggravated disability assessed below 20% receives an award equal to the service element. (¶¶ 28, 29)
- Rule 4, Entitlement Rules for Casualty Pensionary Awards, 1982Invaliding from service is a necessary condition for disability pension; one released in a lower medical category than that at recruitment is treated as invalided. (¶ 31)
- Rule 5, Entitlement Rules for Casualty Pensionary Awards, 1982A member is presumed to have been in sound physical and mental condition on entering service except for disabilities recorded at entrance, and on later discharge on medical grounds any deterioration in health is presumed to be due to service. (¶¶ 32, 32.1, 36, 45.1, 46)
- Rule 9, Entitlement Rules for Casualty Pensionary Awards, 1982The claimant is not required to prove the conditions of entitlement and receives the benefit of any reasonable doubt, more liberally in field service cases; the onus lies on the authority. (¶¶ 33, 36, 46)
- Rule 14(b), Entitlement Rules for Casualty Pensionary Awards, 1982A disease leading to discharge is deemed to have arisen in service if no note of it was made at acceptance; it is not so deemed only if the Medical Board records reasons that it could not have been detected on examination before acceptance. No such reasons were recorded here; the Invaliding Medical Board in fact stated that no disability existed before entry. (¶¶ 34, 34.1, 36, 45.1, 46)
- Paras 7.2 and 8.2, Ministry of Defence instructions dated 31.01.2001 (Fifth CPC implementation)Para 7.2 broad-bands disability assessed at less than 50% to 50% for computing the disability element of invalided personnel; para 8.2 says no disability element is payable below 20%. The Court applied the rounding to 50% in light of its decisions in K.J.S. Buttar and Sukhvinder Singh. (¶¶ 37, 38, 39, 42, 46)
- Para 5, Letter dated 20.07.2006, Adjutant General's Branch, IHQ of MoD (Army)Removed the 20% disability cap for invalidment cases after 01.01.1996 where the disability is attributable to service (1% or more suffices), the disability element being regulated under para 7.2 of the 2001 instructions. (¶ 40)
- Sections 14, 30 and 31(1), Armed Forces Tribunal Act, 2007The original application lay under Section 14; the appeal to the Supreme Court was under Section 30, leave having been granted under Section 31(1) after the Tribunal declined leave. (¶¶ 2.1, 3, 4, 5)
Held
- A member of the armed forces is presumed to have been in sound health at entry if no disease was noted then, and on discharge on medical grounds any deterioration is presumed due to military service; the burden of proving that the disease is neither attributable to nor aggravated by military service rests entirely on the employer, which must at least record reasons for that view. (¶¶ 36, 45.1, 46)
- Where neither the Invaliding Medical Board nor the Re-Survey Medical Boards stated that the disease could not have been detected at entry, and the Invaliding Medical Board recorded that no disability existed before service, the presumption that the disease arose from military service stands unrebutted. (¶¶ 22, 46)
- The Tribunal erred in going solely by the Boards' assessment of disability below 20% without examining attributability; the provision for disability pension is beneficial and is to be interpreted liberally, and a soldier cannot be asked to prove that his disease was caused or aggravated by service. (¶¶ 45.1, 46, 47)
- Following Sukhvinder Singh, any disease or disability for which a member is invalided out of service must be assumed to be above 20% and attracts the grant of 50% disability pension. (¶¶ 44.1, 44.2, 46)
- Following K.J.S. Buttar, denying the broad-banding benefit of para 7.2 of the instructions dated 31.01.2001 to those invalided before 01.01.1996 while granting it to those invalided later would violate Article 14; the appellant, invalided in 1989, was granted the disability element at 50% from 01.01.1996. (¶¶ 42, 42.1, 47)
Result
Appeals allowed; Tribunal orders dated 26.02.2016 and 22.01.2018 set aside; respondents directed to grant the disability element of disability pension at 50% from 01.01.1996 for life, with arrears carrying 6% per annum interest till payment, within three months; no order as to costs.