Union of
India & Ors. Vs. Ram Prakash [2010] INSC 440 (5 July 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4887 OF
2010 (Arising out of S.L.P. (C) No. 6825 of 2006) Union of India & Ors.
.... Appellants Versus Ram Prakash .... Respondent
Dr.
Mukundakam Sharma, J.
1.
Leave granted.
2.
The present appeal is directed against the judgment and order
dated 4.7.2005 passed by the learned Single Judge of the Punjab and Haryana
High Court whereby the learned Single Judge has allowed the Second Appeal filed
by the respondent and thereby setting aside the findings recorded by the Civil
Judge (Junior Division) in his judgment and decree dated 27.9.1996 dismissing
the suit of the respondent/plaintiff for the grant of disability pension and
also the judgment and decree dated 27.8.1998 passed by the Additional District
Judge, Jalandhar whereby the appeal filed by the respondent was dismissed.
3.
The respondent was enrolled in the Indian Air Force in the month
of May, 1970. After he rendered service for 15 years in the Air Force, the
Respondent was unwell and consequently he was examined by a Medical Board which
was constituted to consider the case of the respondent. After such medical
examination, the Release Medical Board found that the respondent suffered from
Retinal detachment to the extent of 60% and that the degree of disablement was
permanent. He was also found to be suffering from Immature Cataract of both the
eyes and his disablement was assessed at 40% by the Release Medical Board.
4.
The Release Medical Board assessed the composite disability at 90%
and gave an opinion that the said disability suffered by the respondent during
his service was neither attributable to nor aggravated by Air Force Service and
that the diseases were constitutional in nature.
5.
The respondent on being discharged from service in terms of the
opinion of the Release Medical Board claimed for payment of disability pension.
The Appellate authority, however, informed the respondent that disability for
which the respondent was released from service were constitutional in nature.
The authorities namely Chief Controller of Defence Accounts (Pension) and the
appellate medical authority examined the case of the respondent and thereafter
both the authorities held that the disability suffered by the respondent was
not due to injury suffered during the course of duty or because of nature of
duties performed by the respondent.
The
appellate authority also gave an opinion that the 3 disease of the respondent
was neither attributable to nor aggravated by Air Force service.
6.
Being aggrieved by the aforesaid order, the respondent herein
filed a suit claiming payment of disability pension on the ground that at the
time of his entry to the Air Force service, no such disease was recorded in his
records and therefore, onset of the aforesaid disease during the course of
service should be considered as attributable to service, particularly due to
the adverse service conditions which caused the disease.
7.
The aforesaid suit was contested by the appellant herein by filing
a detailed written statement. On the basis of the pleadings of the parties,
several issues were framed and the parties led their evidence in support of
their cases, and finally by judgment and decree dated 27.9.1996, the learned
Trial Court dismissed the suit.
8.
Being aggrieved by the aforesaid judgment and decree, the
respondent filed an appeal before the first appellate court which was heard and
was dismissed.
9.
The respondent being aggrieved by the aforesaid concurrent
findings of fact arrived at by the two courts below filed a second appeal in
the Punjab and Haryana High Court which, however, after hearing the parties was
allowed by the learned Single Judge, on account of which the present appeal was
filed by the appellant herein.
The
appeal was listed before us and the counsel appearing for the parties were
heard at length.
10.
The counsel appearing for the appellants submitted before us that
the High Court was not justified in interfering with the concurrent findings of
fact of two courts below and therefore, the said judgment is required to be set
aside and quashed. It was also submitted that the medical report having a
primacy, should have been given due weightage and primary consideration and the
learned Single Judge was not justified in substituting the said findings and
opinion of the Medical Board by substituting its own opinion.
11.
The aforesaid submissions of the counsel appearing for the appellant
were refuted by the counsel appearing for the respondent who submitted that the
High Court was 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.
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.
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.
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 and Ors.
reported in 2009 (9) SCC 140, Union of India & Balachandran Nair reported
in 2005 (13) SCC 128, Union of reported in 2003 (2) SCC 382 and Union of India
and Anr. 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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