AFT Should Not Lightly Interfere With Views Of Medical Experts: Kerala High Court On 2008 Rules On Disability Pension For Ex-Army Personnel

The Bench of Chief Justice Nitin Jamdar and Justice S. Manu laid down the following guidelines to be followed by the AFT when dealing with such opinion of the Medical Board:

1. The AFT shall give due deference to the opinion of the Medical Board and will not lightly interfere with or substitute the views of Medical Board Experts;
2. In certain circumstances, the Tribunal can set aside the department's decision taken on a medical opinion if it is found that the opinion was made without considering relevant factors or when the reason for the conclusions are not discernible;
3. A party challenging the view of the Board has to show a prima facie case before the Tribunal to shift the burden to the department;
4. If the Tribunal is of the view that the conclusion of the Medical Board cannot be sustained, the Tribunal shall direct the department to reconstitute/ constitute a review Medical Board and obtain a fresh opinion. The Tribunal shall not review the decision of the Board on its own;
5. However, if the assessment made by the Board is questioned after a long lapse of time and a fresh assessment will be of no assistance to resolve the dispute in the nature of disability claimed at a distant point, a review may not be directed. In such circumstances, Tribunal may take appropriate decision.

The Court further noted that there is significant changes between the Entitlement Rules of Casualty Pensionary Awards to the Armed Forces Personnel, 2008' and “Pension Regulation for the Army 1961' and the allied rules, 'Entitlement Rules to Casualty Pensionary Awards to the Armed Forces Personnel, 1982'. The Court directed that the Tribunal should not apply principles of 1961 Rules and 1982 Regulation to case where 2008 Rules apply.

Many of the presumption in the favour of ex-service personnel incorporated in the 1982 Rules is not there in the 2008 Rules. The 1982 Rules says that if a person is discharged on medical grounds from the service, any deterioration in his health that has taken place and is not noted in the record at the time of entrance is presumed to have occurred during the service. This presumption is no more there. The 2008 Rules says that the mere fact that a disease manifested during military service does not per se establish attributability or aggravation by military service.

Further, as per the 1982 Rules the claimant shall not be called upon to prove the condition of entitlements. However, this is changed in the 2008 Rules. Now, the Rules says that a claimant shall not be ordinarily called upon to prove his condition of entitlement. The High Court held that as per the changes, now the onus is not completely on the establishment to show that the employee is not entitled for benefit. The Court observed that in appropriate cases, the employee shall discharge the onus of proof to seek benefit.

The Court observed that the onus on the establishment can be considered to be discharged and presumptions rebutted when the Medical Board is of the opinion that the claimant is not entitled to the benefits. In such case, the employee can discharge his burden of proof by pointing out the infirmities and illegalities in the procedure or conclusions of the Board. Once such infirmities are pointed out and the claimant makes a prima facie case, the onus is again on the Department.

The Court directed the Tribunal to keep these principles in mind while deciding cases where the 2008 Rules Apply.

Counsel for the Petitioners: Adv. R. V. Sreejith

Counsel for the Respondents: Adv. James Abraham

Case No: WP(C) 8414 of 2024

Case Title: Union of India and Others v Bhaskaran N.

Citation: 2024 LiveLaw (Ker) 763