Onus Of Proof On Review Medical Board To Prove How Disability Isn't Attributable To Or Aggravated By Service: Delhi High Court

Background

On August 5, 1985, the Respondent was enrolled in the Army. He was placed in Low Medical Category since he suffered from Diabetes Mellitus Type II and later, on August 31st, he was discharged from service. The Review Medical Board confirmed that the Respondent suffered from a 20% permanent disability for life on September 19, 2015 i.e., thirty years and 27 days of his service in the Army. As per the Respondent, he contracted the illness while he was posted in Shillong in 2015 and that before joining the army, he suffered from no ailment. Further, as per the Commanding Officer of the Respondent whose unit he had joined on June 5, 2013, the Respondent did not suffer from any disabilities and he was not placed in the low medical category. Furthermore, the commanding Officer mentioned in the report that the duties assigned to the Respondent did not involve severe or exceptional stress or strain. The Board held that the Respondent's disability could not be attributed to or associated with service in peace.

Moreover, the Board certified that the Respondent's disability did not arise before his entry into the service and that it could not even be attributed to his negligence or misconduct. However, the Board clarified that the Respondent was not entitled to Disability Pension.

The Respondent approached the Armed Forces Tribunal which passed an order on July 16, 2024 and relied upon the judgment of the Supreme Court in UOI v Ram Avtar holding that the Respondent was entitled to disability pension a 20%, rounded off to 50% for life.

Aggrieved by the order, the Petitioners filed a Writ Petition in the Delhi High Court.

Findings of the Court

The Court while deciding the case relied on various judgments including Dharamvir Singh v UOI, UOI v Rajbir Singh, Sukhvinder Singh v UOI and many others. Perusing the RMB Report, the Court confirmed that the Respondent's ailment did not exist prior to him joining services in the Army and as per the Board, the same could not even be attributed to his negligence or misconduct. The Bench noted that apart from mentioning that the Respondent was posted in a peace area when the disability arose, the Report of the Board did not prove as to how the disability was not attributable to or aggravated by military service.

The Bench observed that sufficient reasons were not provided by the Army in connection with the same.

The Court further cited the effect of the change in policy in the 2008 Entitlement Rules and observed that although the Petitioners correctly stated that the court could not assume the ailment detected later to have been caused by military service simply because the records at the time of the officer's induction did not show any signs of the condition. The Bench stated that it was not disputed that the disease having arisen during military service would not certainly only mean that it was attributable to military service. Furthermore, the Bench referred to the amended Rule 5 in the 2008 Entitlement Rules as per which the mere fact that a disease that arose during military service did not essentially mean it was attributable or aggravated by military service.

However, the Court cited Rule 7 of the 2008 Entitlement Rules, that states,

“Ordinarily the claimant will not be called upon to prove the condition of entitlement. However, where the claim is preferred after 15 years of discharge/retirement/invalidment/release by which time the service documents of the claimant are destroyed after the prescribed retention period, the onus to prove the entitlement would be on the claimant.”

Despite the argument of the Petitioners' Counsel that Rule 9 of the 1981 Rules, which once stated that the claimant "shall not be called upon to prove the conditions of entitlement," was changed to use the word "ordinarily," which was weaker and less mandatory than "shall", the Court held that the Rule was to be read as a whole. It was held that the onus to prove the Respondent's entitlement to Disability Pension remained on the Military Establishment and not the Officer. It was further added that the Onus would shift to the Military Establishment in case the officer had claimed entitlement after more than 15 years after discharge/retirement/invalidment/release.

It was observed that the Medical Board was required to provide sufficient reasons as to what else could have led to the illness if it was not due to being engaged in military service.

The Court placed emphasis on the law that dealt with such issues and held that even though the disability had arisen after being induced into service, it could not be presumed that the same was attributable or aggravated due to being in military service, however, at the same time, the Court also held that it was a requirement for the Board to establish and provide reasons as to how the disease contracted during the military service of the officer, was not attributable to such service. The Bench held that if no such reasons were provided by the Board, the Officer's claim of entitlement to Disability pension would sustain.

While dismissing the petition, the Court held that Diabetes is a disease that could be caused and exacerbated by stressful living conditions and therefore it could not be said that since the ailment arose during posting in a peace area, the same could not be aggravated by or attributable to military service. Since the Medical Board had failed to identify the cause of the disease, the Court held that despite acknowledging the absence of negligence or misconduct on part of the Respondent, he could not be held responsible for the same and the Board had failing in proving otherwise.

Case Title: Union Of India versus Ex Sub Gawas Anil Madso

Citation: 2025 LiveLaw (Del) 424

Counsel for the Petitioners: Mr. Jivesh Kumar Tiwari, Sr. PC for UOI with Ms. Samiksha with Major Anish Murlidhar

Counsel for the Respondent: Mr. U.S. Maurya, Adv.

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