'Epilepsy Can't Be Attributed To Service In Navy As It Occurs Periodically And Could Be Dormant At Other Times', Delhi High Court Dismisses Petition
A Division Bench of Delhi High Court comprising Justices Navin Chawla and Shalinder Kaur dismissed an appeal wherein a Navy Officer sought disability pension based on the claim that his medical condition (Epilepsy) was attributable to his service in the navy. The Officer was invalidated after the detection of the medical condition which was not disputed, however, the Court held that the disease could not be due to the Petitioner's service as it was more of a condition which is dormant and occurs periodically. The Bench further held that there was nothing on the record to show that his disability aggravated due to his service condition.
Background
On 01.01.1977, the Petitioner joined the Indian Navy. He served the Navy for 5 years and 11 months and 19 days. On 20.12.1982, he was discharged from service because the Medical Board found him 'unfit' for Navy service. In the year 1981, the Petitioner was diagnosed with epilepsy. As per him, the condition could not have been worse to an extent of reaching a stage where he had to be discharged from service within a service period of five years. He claimed that the proceedings of the IMB and other medical documents were not provided to him and that he received only one certificate in which he was shown to be medically 'unfit' for Navy service. As per this certificate, he was shown as 'invalidated'.
The Petitioner approached the Armed Forces Tribunal, seeking grant of disability element of pension @ 50% for life from the date of his invalidation from service. However, the Tribunal passed an order granting him only invalid pension.
Aggrieved, he approached the High Court.
Contentions of the Petitioner:
The Counsel for the Petitioner submitted that the relevant medical documents were not provided to the Petitioner and by a letter dated 14.10.2019, he was only given a destruction certificate in relation to the medical documents.
It was contended that the medical documents shown to the Petitioner made him fall under the medical category A1S1 and owing to that, he could not have been considered as invalidated. The authorities did not consider the fact that the Petitioner was placed as an Officer in the Navy when he was medically fit, the Counsel argued. Furthermore, it was submitted that the production of only one medical certificate to show that the Petitioner invalidated out of service was unreasonable and unjustified.
The Counsel submitted that several Supreme Court judgements held that when a service member entered a Force in a 'fit' medical condition and was subsequently discharged with a disability, such disability, except in very specific and narrow circumstances, should be considered attributable to or aggravated by military service. This proposition was not considered by the Tribunal, the Counsel claimed.
In addition to this, the Counsel mentioned the Pension Regulations for the Army, 1961, wherein the conditions for grant of disability pension were provided. It was stated in the Regulations that disability pension, made up of a service element and a disability element, could be given to an officer discharged due to a disability caused or made worse by military service. This applied to non-battle injuries, as long as the disability was assessed at 20% or higher. Apart from this, the petitioner would also be entitled to the benefit of rounding off with respect to any disability up to 20% which was to be rounded off to 50% as per a Letter by Ministry of Defence.
Considering the nature of the condition and the kind of service he discharged while serving in a prolonged afloat service, the Counsel asserted that it could easily be attributed to and aggravated by the Naval Service.
The Counsel also stated that it would violate Rule 9 of the Entitlement Rules for Casualty and Pensionary Award, 1982 (The Entitlement Rules) if the Petitioner was not granted disability pension since he was entitled to a liberal grant of benefit in afloat service cases.
Contentions of the Respondents:
The Respondents submitted that the medical category under which the Petitioner fell was S5A5 and thus he was rightly invalidated because it was a Low Medical Category. In relation to why the other documents were not availed to the Petitioner, the Counsel stated that there was a policy for weeding out of medical documents for naval personnel back then and the petitioner's medical record had been destroyed in the year 1994. Therefore, none of the documents could be made available to him.
Stating that the Petitioner's case did not fall under the requisite conditions for grant of disability element of pension, the Counsel argued that the Tribunal was right in accepting the contention of the Respondents that the petitioner's disability was assessed as NANA (neither attributable nor aggravated) @ 6-10% of disablement. Moreover, it was contended that since the disability of the Petitioner was less than 20%, it could not be rounded off to 50%.
The Counsel further argued that at the time of being commissioned into service, the disease may have been dormant as it is known to occur periodically and therefore, it was quite possible that it was detected later, even though it could not be figured out earlier.
It was submitted that the personnel with less than 10 years of service were only entitled to grant of invalid pension and not disability pension.
Findings of the Court:
The Court perused the Order of the Tribunal and held that the records of petitioner were duly considered. Being in the medical category S5A5, the Petitioner was invalidated out of service. The Court considered the opinion of Lieutenant Colonel A.S. Narayanan Swamy, Specialist in Neurology and Medicine, who conveyed that the case of the petitioner was a case of generalized Epilepsy and also ruled out any secondary cause for the condition.
The Court further considered the opinion of the Medical Board that opined that the Petitioner's condition could not be because of his service in the military and that he was fit to perform suitable duties in civil service with a few exceptions like staying away from fire, water or heights and refrain from consuming alcohol or driving a vehicle.
In addition to this, the Court observed that while deciding the issue, the Tribunal had referred to the answers provided by the Commanding Officer stating that the Petitioner was not assigned to a submarine or sailing duties. Therefore, his medical condition could not be attributed to his service in the navy.
Mentioning the opinion of the Classified Specialist in Neurology and Medicine that the petitioner suffered from fits and severe throbbing generalized headache, which lasted for 4-5 hours since April, 1976, the Court accepted that the disease might have had been dormant at the time of commissioning the Petitioner into service and could not thus be attributed to his years of service in the Navy.
Making these observations, the Court dismissed the appeal.
Case Title: W.P.(C) 13577/2024 NO 40634Z LT A K THAPA (RELEASED) vs. UNION OF INDIA & ORS
Counsel for the Petitioner: Ms. Meenakshi Devgan, Mr. Anand S. Jha, Mr. A. Tiwari, Advs.
Counsel for the Respondent: Mr. Piyush Gupta, CGSC with Mr. Prateek Gupta, Mr. Amit Sharma, Advs. for UOI. Ms. Priya Singh, Adv. for UOI