Union Of India & Ors vs Ram Prakash

justified in holding that since at the time of his entry in

the Air Force on 1.5.1970, no such disease was found

despite a thorough medical check up, it must be held

that the adverse service conditions of the Respondent

was the cause for onset of the diseases in question.

12. In the light of the aforesaid submissions of the counsel

appearing for the parties, the question that falls for our

consideration is whether or not the disability suffered by

the respondent court be attributed to the service

conditions of the Air Force service.

13. The Pension Regulations was enacted for the Air Force,

the provisions of which are made applicable to the

personnel of the Air Force and all claims of pension are to

be regulated by the provisions made in the Regulations at

the time of individual's retirement or release or discharge

as the case may be.

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14. Section III of the said Air Force Pension Regulations

deals with the Disability Pensioner Awards. Regulation

37 provides the manner and method of entertaining the

claim of disability pension and also the circumstances

under which such pension becomes admissible.

Regulation 37 reads as follows:-

"37(a) An officer who is retired from air force service on account of a disability which is attributable to or aggravated by such service and is assessed at 20 per cent or over may, on retirement, be awarded a disability pension consisting of a service element and a disability element in accordance with the regulations in this section.

(b) The question whether a disability is attributable to or aggravated by air force service shall be determined under the regulations in Appendix II."

15. Section IV of the said Pension Regulations deals with the

primary conditions for the grant of disability pension. In

Regulation 153, it is stated thus;

"153. 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

7 air force service and is assessed at 20 per cent or over.

154. The question whether a disability is attributable to or aggravated by air force service shall be determined under the regulations in Appendix II."

16. In the light of the aforesaid provisions, what is laid down

in Appendix 2 becomes relevant. The said Appendix 2 deals

with the Entitlement Rules. It is provided therein that the

aforesaid Entitlement Rules would apply in cases where the

disablement or death, on which the claim to casualty

pensioner award is based. Rule 1, 2, 3 and 4 read as follows:-

"1. With effect from 1st April, 1948, in supersession of all previous orders on the subject, the entitlement to disability and family pension, children's allowance and death gratuities will be governed by the following rules. Invaliding from service at the time of his release under the Release Regulations is in a lower medical category than that in which he was recruited will be treated as invalided from service. Airmen who are placed permanently in a medical category other than `A' and are discharged because no alternative employment suitable to their low medical category can be provided as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have been invalided out of service.

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2. Disablement or death shall be accepted as due to air force service provided it is certified that :-

(a) the disablement is due to a wound, injury or disease which -

(i) is attributable to air force service ; or

(ii) existed before or arose during air force service and has been and remains aggravated thereby ;

(b) the death was due to or hastened by -

(i) a wound, injury or disease which was attributable to air force service;

(ii) the aggravation by air force service of a wound, injury or disease which existed before or arose during air force service.

3. There must be a casual connection between disablement and air force service for attributability or aggravation to be conceded"

17. There is no dispute with regard to the fact that when the

respondent was initially appointed as an Air Force Personnel

in the Indian Air Force, there was a medical examination held

in which he was found to be fit to be appointed to the Air

Force. After he had rendered service in the Air Force for

about 15 years, the respondent was examined by the Release

Medical Board and he was diagnosed as a case of retinal

detachment and immature cataract of both the eyes.

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18. A Medical Board assessed composite disability at 90%,

and in view of the opinion of the said Release Medical Board

and as recommended by them, the respondent was released

from service. The aforesaid Regulations which are referred to

and extracted hereinbefore give primacy to the Report of the

Medical Board. The Report of the Medical Board is annexed

with the records. Part 3 of the said Report deals with the

opinion of the Medical Board. In the said opinion of the

Medical Board, it is stated that the aforesaid disabilities did

not exist before entering the service. The Medical Board has

further given an opinion that the aforesaid diseases from

which the respondent was suffering were not attributable to

service during peace or under field service conditions nor

aggravated thereby. The Medical Board has given a specific

and definite opinion that the said diseases were in no manner

connected with service.

19. The respondent filed an appeal as against the aforesaid

opinion of the Medical Board and his case was considered by

the Appellate Medical Board who upheld the aforesaid opinion

10 of the Medical Board and held that the diseases from which

the respondent was suffering at the time of his release from

Air Force Service, were neither attributable to service nor

aggravated thereby. Despite the aforesaid opinion of the

Medical Board, the learned Single Judge took pains to re-

appreciate the records, and on such appreciation held that

there could be presumption drawn that the respondent was

subjected to perform arduous nature of duties during his span

of service with the Indian Air Force inasmuch as it is general

knowledge that a person in defence services is always required

to perform arduous nature of duties. The aforesaid findings

recorded by the Trial Court and Single Judge was presumptive

in nature and are based on surmises and conjectures and

there is no factual foundation for arriving at such a decision.

The learned Single Judge totally ignored the applicability of

the aforesaid Regulations to the case of the Respondent.

Unless and until it is proved and established that an

individual has become disabled to the extent of more than

20% during his service career and released from service due to

such disability which is attributable to or aggravated by air

11 force service, he is not entitled to receive such disability

pension. Rules are also clear on the issue that such

entitlement should be considered and decided giving emphasis

and primacy on the opinion of the Medical Board constituted

for the purpose.

20. The scope and limit of interfering with the finding of fact

in a case under Section 100 of the Code of Civil Procedure has

been reiterated by this Court time and again. Instead of

going into the ratio of all the aforesaid decisions, we may

summarise the legal principles enunciated by this Court in the

decision of Sheel Chand v. Prakash Chand reported in

(1998) 6 SCC 683. In this case, this Court while dealing

with question of existence of a substantial question of law,

held as follows:-

"7. ...... The existence of a "substantial question of law" is the sine qua non for the exercise of jurisdiction by the High Court under the amended provisions of Section 100 CPC. It appears that the learned Single Judge overlooked the change brought about to Section 100 CPC by the amendment made in 1976. The High Court unjustifiably interfered with pure questions of fact while exercising jurisdiction under Section 100 CPC. It was not proper for the learned Single Judge to have reversed the concurrent findings of

12 fact while exercising jurisdiction under Section 100 CPC. That apart, we find that the learned Single Judge did not even notice, let alone answer the question of law which had been formulated by it at the time of admission of the second appeal. There is no reference to the question of law in the impugned order and it appears that the High Court thought that it was dealing with a first appeal and not a second appeal under Section 100 CPC. The findings of fact recorded by the two courts below were based on proper appreciation of evidence and the material on the record. There was no perversity, illegality or irregularity in those findings. None has been brought to our notice by the learned counsel for the respondent either. The findings, therefore, did not require to be upset in a second appeal under Section 100 CPC. The judgment of the learned Single Judge, under the circumstances, cannot be sustained......."

21. Several decisions of this Court like Secretary, Ministry

of Defence and Ors. Vs. A.V. Damodaran (D) through LRs. and Ors. reported in 2009 (9) SCC 140, Union of India &

Ors. Vs. Keshar Singh reported in 2007 (12) SCC 675,

Controller of Defence Accounts (Pension) and Others Vs. S.

Balachandran Nair reported in 2005 (13) SCC 128, Union of

India and Ors. Vs. Dhir Singh China (Colonel) Retd. reported in 2003 (2) SCC 382 and Union of India and Anr.

Vs. Baljit Singh reported in 1996 (11) SCC 315, this Court

had the occasion to deal with a similar issue and in all the

aforesaid decisions, it was held that the Medical Board

13 consists of an expert body and that its opinion is entitled to be

given due weight and value. The consistent view of this

Court is that such opinion of the Medical Board would be

given a primacy and a Court should be slow in interfering with

and substituting its own opinion with the opinion of the

Medical Board.

22. The Medical Board has given a categorical opinion that

the diseases for which the respondent has been released from

service were neither attributable to nor aggravated by Air

Force service. The aforesaid Pension Regulations when read

with the Entitlement Rules, make it clear that the

determination of attributable or aggravation is as per the

Entitlement Rules. As the Medial Board has given a

categorical opinion that the ailment of the respondent was

constitutional and the same is not attributable to or

aggravated by Air Force Service, it was unjustified for the

learned Single Judge to set aside the aforesaid concurrent

opinions of the appellate Board and Released Medical Board

and also the findings recorded by the trial court and also by

the First Appellate Court merely because the learned Single

14 Judge felt that there could be a presumption that the

respondent was undergoing arduous nature of job as he was

appointed as a Air Force personnel.

23. We, therefore, set aside the judgment and order of the

learned Single Judge, and allow the appeal filed by the

appellant. As a result of this order, the suit filed by the

respondent should be held to be dismissed.

.......................................J. [Dr. Mukundakam Sharma]

......................................J [Dr. B.S. Chauhan]

New Delhi, July 5, 2010.

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