JUDGMENT
Dharmadhikari B.P., J.
1. By this petition under Article 226 of the Constitution of India, the petitioner is seeking disability pension from 31-12-1994 and is challenging the orders dated 13-5-1999, 20-6-1999 and the subsequent order dated 8-3-2001 passed by the Competent Authority, the First Appellate Authority and Second Appellate Authority.
2. The petitioner appeared in person and therefore, his pleadings in the matter are scattered in various rejoinders, applications, which are all on record. Similarly, the respondents also did not file any return and at the time of final hearing of the matter, the Counsel for the respondents made request to call for their submissions filed to oppose the admission. Thus submissions were, therefore, accordingly called. The respondents have also filed their replies to the rejoinders and applications of the petitioner from time to time. Thus, the pleadings of the parties are not compact in any one document and one has to peruse all these papers to ascertain the same. In view of this position, the review of how the parties have filed their pleadings on record needs to be taken.
3. The petitioner has filed this petition on 22-1-2001 and on 31-3-2001 he filed additional affidavit with a copy of order dated 8-3-2001, communicating rejecting his Second/Final Appeal. Thereafter on 22-6-2001, the respondents filed a submission with Medical Board proceedings and Rules titled as “Entitlement Rules for Casualty Pension and Awards, 1982” (hereinafter referred to as “1982 Rules”). The petitioner filed his first rejoinder to these submissions on 28-6-2001 and thereafter additional rejoinder on 21-7-2001. The matter was admitted on 9-7-2001 for urgent hearing. These two rejoinders filed by the petitioner were replied to by the respondents in their two replies filed on 11-10-2001. On 5-11-2001, the petitioner filed his counter to these replies of the respondents. On 10-12-2001, he filed his another counter in continuation of his first counter affidavit mentioned above. On 12-12-2001, he filed second counter affidavit in same process. Thereafter at the stage of final hearing, on 22-7-2004, the respondents have filed their affidavit on record and along with it produced the Medical Board papers of 1970. On 3-8-2004, the respondents have filed affidavit with copies of two Medical Board proceedings of the year 1982. On 6-8-2004, the petitioner filed his affidavit and on the same day, the respondents have filed their written notes of arguments along with appendix 2 which contains the different Entitlement Rules. These rules are again in relation to disability pension only but appear to be prior to 1982 in point of time. Hence, these Rules are referred to as “old Rules” in the body of this judgment.
4. The case of the petitioner, in brief, is that he did his Law in 1964 and in December, 1964, he was selected by the respondents as Pilot Officer and underwent training. On 26-6-1965, he was commissioned in account Branch of Indian Air Force and was posted at Air Force Technical College, Bangalore, as Accounts Officer. The petitioner states that on 10-8-1966, he was posted in same capacity at No. 3 Wing at Palam. He states that on account of his L.L.B. degree, he was also entrusted with the additional work of conducting Court Martial apart from his usual duties as Accounts Officer. He states that during his service period, he conducted several Court Martials either as Prosecutor or as Defending Officer. He got married on 18-11-1968, He states that he was not getting Annual Leave and was constantly under pressure. He states that on 17-9-1969, he was given his long awaited leave after completion of Court Martial at 25 Wind (A.F.) Rajokri. He states that after permission to avail this annual leave from 18th September, 1969 onwards, the petitioner along with his wife went to his native place to meet his parents. There (at Saharanpur) in the night between 18-9-1969 and 19-9-1969, he got the stroke of Cerebral Haemorrhage which resulted in paralysing his complete right side. He states that he was in coma for more than two months and thereafter he was given training to use his left hand and physiotherapy. The petitioner has described in detail about his plight. However, the same is not relevant for the purpose of this petition.
5. In November, 1970 the respondents placed him in A-4 G-5 category permanently. This is the last category in so far as fitness of the employees of respondents is concerned. The petitioner points out that when he joined the duties in 1964, he was in A-4 G-1 category. The Medical Authorities declared him fit for sedentary, ground job and he was posted to Air Force Delhi Cantonment 10. He further states that inspite of his this condition, he was given the same duties i.e. of accounts, cash handling and conducting Court Martials against the medical opinion. In October, he was transferred to Head Quarter Maintenance Command, I.A.F. Nagpur. Upto 1982, the petitioner continued to perform same duties even at Nagpur. In the year 1982, he was referred to Command Hospital at Pune for treatment and for Medical opinion by Principal Medical Officer. At Pune, he was subjected to rigorous medical tests including Cat-Scan. The Medical Board there gave opinion that disability has aggravated to 60% and observed that the petitioner can be continued in service. In May, 1983 he was posted in Central Accounts Office, New Delhi, and from there he was posted in April, 1988 to Chandigarh. He contends that even at Chandigarh, he was required to perform same duties even at various out stations. He was required to commute by buses or other modes of conveyance and he was given very short notice always to proceed to attend Court Martials at various places. He states that all this had affected his health and aggravated the disability. He states that because of all these, his wife was forced to take one year’s leave without pay to look after him but ultimately she was required to resume her duties as her employer threatened removal. After 3 1/2 years stay at Chandigarh, the petitioner was again shifter to Air Force Station, New Delhi, and thereafter was posted to Head Quarters Maintenance Command, I.A.F. Nagpur, in 1994. He retired on completing the age of 52 years, i.e. age of superannuation, on 31st December, 1994. 6. Because of his 60% disability, the petitioner was expecting disability pension, but the same was not given and therefore, the petitioner made a demand in writing and the said demand was kept under consideration for long time. On 28-9-1994, respondent No. 1 informed the Chief of Air Staff about the claim of the petitioner and communicated that the petitioner was found suffering from two disabilities (i) Subarachnoid Haemmorrhager Spastic Hemiplegia (Old) V-67 and (ii) Hypertension (old) V-67. It is mentioned that the petitioner was found suffering from these disabilities at the time of his release from service and he is not entitled for disability pension as the I.Ds are not considered to be attributable to nor aggravated by his Air Force Service. The petitioner was informed that he may prefer appeal against the decision within six months before the Appellate Authority and the appeal may be addressed to the Under Secretary, New Delhi. Petitioner received this letter on 7-12-1994.
7. The petitioner states that accordingly he filed the appeal on 10-2-1995 and the order on appeal was passed on 13-5-1999. The Appellate Medical Authority found that the first disability is due to contigental abnormality of Cerebral Circulation and it is by birth. It further observed no close relation between onset of these two disabilities and the service of the petitioner. It is mentioned that the petitioner was in sheltered appointment after onset of his disability and no deterioration has occurred thereafter. The petitioner preferred Second Appeal against this communication and the said Second Appeal came to be rejected on 8-3-2001. The Second/Final Appellate Authority has found that there is no ground to alter the decision of first Appellate Authority. It is in this background that the petitioner approached this Court.
8. As already stated above, the respondents have not filed any return in the matter. In their first affidavit dated 22-6-2001, sworn by Wind Commander J.J. Deshmukh, the respondents have stated that the disabilities suffered by the petitioner are not related with his service at all and rejection of his claim for disability pension is well within the four corners of law. It is further mentioned that at the time of his superannuation, the release Board found that his disabilities are to the extent of 30% and not 60%. It is further mentioned that the release Board has found that hypertension has commenced from February, 1982. In so far as the heavy nature of work asserted by petitioner is concerned, it states that Court Marital duties performed by the Officer cannot be the cause of disabilities. It is pointed out that the Court Martial proceedings are of urgent nature and are very rarely adjourned and are required to be completed expeditiously in the interest of justice to the accused. It is pointed out that when the petitioner commenced his service with I.A.F. he did not have High Blood Pressure and he did not have any problem: In 1969, it was found that he was suffering from Berry’s ancurysm and its rupture resulted in Subarachnoid haemorrhage and corresponding paralysis. It is mentioned that he continued in service for 25 years thereafter and therefore, service cannot be blamed for any of his disabilities. It is mentioned that the ancurysm is congential (by birth). It is further mentioned that Medical Board at Pune, which has found disability aggravated as 60% in February, 1982 is superseded by opinion of Release Medical Board in 1994 which found that the disability is only 30%. The respondents have mentioned that the petitioner continued to have stable health and petitioner performed normal routine duties which were being performed by any other officer. As such, he is not entitled to any disability pension.
9. For the first time in their reply filed on 11-10-2001, the respondents have pointed out that the Medical Board conducted in February, 1982 was cancelled by another Medical Board conducted on 22-6-1982. The said Medical Board found that the disability of petitioner was 30% and not 60%. In this reply affidavit dated 11-10-2002 sworn again by Wing Commander J.J. Deshmukh, it is spepifically mentioned that 1982 Entitlement Rules are applicable to the petitioner and his case has been considered accordingly. In their last affidavit dated 22-7-2004, the respondents have pointed out that on 27-7-1970, Medical Board proceedings held at A.F.C. New Delhi, the Board has specifically opined that the disability is not directly attributable to conditions of service. The respondents have also filed on record a extract of Test Book viz., Principles of Eurology by Raymond D. Adams and Maurice Victor to contend that the ruptured Saceular Ancurysm is, a most frequent cerebrovascular disorder and such Saceular Ancurysms are rare in childhood and increase in frequency to reach their peak incidence between 35 and 65 years of age.
10. In last affidavit dated 3-8-2004, filed by Wg. Commander A.P. Selvan, the respondents have placed on record the proceedings of Medical Board conducted at Pune on 5-2-1982 and the documents pertaining to the decision to hold Review Medical Board and thereafter the report of Review Medical Board dated 2-6-1982. The respondents have pointed out that by this Review Medical Board dated 2-6-1982, the previous Medical Board dated 5-2-1982 was cancelled. It is stated that even Review Medical Board found that the petitioner is in same category i.e. A-4 G-5 so far as his fitness is concerned and he was retained in service. Thus, the controversy involved in this matter needs to be considered in this background.
11. The petitioner while arguing his matter in person, relying upon the petition and the affidavits on record, stated that he did not suffer any congential defect and he was hale and hearty when he entered in the service. He urges that it is only the heavy work load which on account stress and strain resulted in these disabilities. He contends that after marriage when he had been to Nainital, he was called back by curtailing his leave only to examine a witness in Court Martial as the said witness was not turning out earlier. He states that at the time of attack his blood pressure was very high and since then he has been treated for the ailment of blood pressure. He further states that the result of review Medical Board was never communicated to him. He further states that he learnt about the cancellation of said review Board only when the respondents filed their affidavit before this Court and disclosed this aspect in October, 2001. He denied that he has received the alleged communication dated 27-7-1982 about the cancellation of Pune Board conducted on 5-2-1982. He further states that the reasons given by the respondents for ordering Review Board are not correct and in fact Shri Mani, who has ordered that Review Board had no authority for the same. He contends that time and again he had been requesting this Court to direct the respondents to produce the reports of his Medical Examination and Boards, but the respondents avoided to produce those records on the ground that these records are destroyed and not available. He further contends that in this background, those records are not reflecting the correct and true state of affairs. He also pointed out that though at the time of his superannuation on 31-12-1994 as per date of birth he was 52 years old, still because of his disability, the respondents have overloaded one year and he has been treated as of 53 years for the purposes of calculation of retirement benefits. He, therefore, submits that this overloading of age also shows that he has suffered disability. He contends that he suffered 60% disability and the same is attributable to his service and in any case it is aggravated by the service. He has taken the Court through various affidavits and also other documents placed on record, in support of his contentions.
12. As against this, the respondents have argued that the challenge in the petition is stale inasmuch as the Medical Board proceedings have been held way back in the year 1970 and thereafter in 1982 and 1994. They further contend that the petitioner has not challenged any finding of any Medical Board and that this Court cannot review the opinion of any Medical Board. For this proposition, the respondents have placed reliance on the rulings in the case of Union of India v. Dheer Singh China, reported in A.I.R. 2003 S.C. 1197. The respondents have further contended that the petitioner is receiving normal pension and disability pension is not a bounty. The respondents contend that the petitioner has not proved his entitlement for disability pension. The learned Counsel for the respondents tried to point out that there are no details in relation to any extra or heavy workload upon the petitioner or stress or strain on health thereby, in the entire petition. The Counsel argued that the disability arose in 1969 and the pleadings of petitioner relates to workload from May, 1983 onwards, The respondents argued that the petitioner was in the same state of health after 1969 till his superannuation in December, 1994 They contend that the petitioner has no Medical Report in his favour and in fact he sighed the proceedings and accepted the reports of all Medical Boards. The respondents point out that before the Review Medical Board, the petitioner has stated that his disability is not caused by his service and is not aggravated by his service. The respondents further point out that the petitioner has not alleged any mala fides against any Medical Board member. They further contend that the disability of petitioner has been stated as 60% only in February, 1982 Medical Board while in all other and later Medical Boards, it has been shown as 30%. They have argued that as the condition of petitioner was static but disability percentage was shown more by Pune Board, the Review Board was ordered. The Review Board held in June, 1982 has considered even the performance of petitioner during service and thereafter found that the disability of petitioner is only 30%. They also rely upon the proceedings of Release Board conducted in July, 1994 for this purpose. They also relied upon the extract of text book by Raymond D. Adams and Maurice Victor, to support their contentions.
13. Shri Kaptan, learned Counsel appearing for the respondents argued the matter while only at last two hearings i.e. on 5th August and 6th August; 2004. Advocate Shri A.B. Choudhari, has appeared for the respondents.
14. The perusal of Rules governing grant of disability pension is, therefore, relevant. As already stated above, along with affidavit dated 22-6-2001, the respondents have filed the 1982 Rules as entitlement Rules for Casualty Pensionary Awards, 1982. On last date i.e. on 6-8-2004, along with their written notes of arguments, the respondents have filed different set of Entitlement Rules to which the reference has been made above as old Rules. The Counsel appearing for respondents was, therefore, questioned as to which set of Rules Governs the services of petitioner. His attention was also invited to the 1982 Rules already on record at that time. However, the said Counsel could not make any definite statement. The officers of respondents present with him only stated that 1982 Rules are not applicable to Air Force. The perusal of both the Rules reveal that they are more or less similar. The provisions of old Rules filed along with written notes of arguments bear title Appendix-II and further make reference to Regulations 5-4-63, 5-4-64 and 5-4-67. It also provides that they apply in cases where the disablement or death, on which the claim to casualty pensionary award is based, takes place on or after the 1st April, 1948. It is mentioned that these rules apply to all personnel who are governed by Indian Air Force Pension Regulations. Rule 1 provides that an individual who 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 invalidated from service. Rule 2 provides that disablement or death shall be accepted as due to air force service provided it is certified that such disablement is due to a disease which is attributable to Air Force Service or existed before or arose during Air Force Service and has been and remains aggravated thereby Clause (b) of said Rule 2 provides that the death would be accepted as due to hastened by a disease which was attributable to Air Force Service or the aggravation by Air Force Service of any disease which existed before or arose during Air Force Service upon such certificate. The provisions of Rule 3 require a casual connection between disablement and Air Force Service for attributability or aggravation. Rule 4 provides that in deciding the issue of entitlement of evidence both direct and circumstantial will be taken into account and the benefit of reasonable doubt will be given to the claimants. Rule 7 which deals with cases of disease lays down the procedure that cases in which it is established that conditions of Air Force Service did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will fall for acceptance on the basis of aggravation. Clause (b) of Rule 7 provides that a disease which has led to an individual’s discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individual’s acceptance for Air Force Service. However, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance of service, the disease will not be deemed to have arisen during service. In case of disease accepted as having arisen in service, it must also be established that the conditions of Air Force Service determined or contributed to the onset of the disease and that the conditions were due to circumstances of duty in Air Force Service. Sub-clause (ii) of Clause (d) of Rule 7 gives common diseases known to be affected by stress and strain. It provides that this should be decided with due reference to the nature of duties an individual has to perform in Air Force Service. It may be that in some cases, the individual has been engaged on sedentary duties when they will normally not qualify for disability pension. Rule 9 which deals with assessment of disability contains an illustration as to who percentage of disability has to be taken into account. The said Rule reads:
“Normally the whole of disablement then caused by the disability. This Rule will apply irrespective of whether the disability is actually attributable to service, or a is merely aggravated thereby. In the latter even, part of the disablement on discharge may have been present before service and/or may have been brought about by the natural progress of the disability during service. But as it is impossible, for so long as the strain and stress of service continues, to apportion quantitatively the effect of service and non-service factors, the entire disablement at the time of discharge will be taken into account.”
15. At the end of these Rules (Old Rules), there is an annexure which deals with classification of diseases. Clause ‘A’ deals with diseases affected by climatic conditions. Clause ‘B’ deals with diseases affected by stress and strain. Clause ‘C’ deals with diseases affected by dietary compulsions and Clause ‘D’ dealt with diseases affected by training, marching etc. The petitioner relied on Clause ‘B’ and particularly entry “Hyperpiesia” appearing therein. The second edition of Butterworths Medical Dictionary gives the meaning of said disease as “essential arterial hypertension – Below it in dictionary there is a word “hyperpiesia” and its meaning is given as a condition of abnormally high pressure, especially of blood”. From this, it appears that the said disease is hypertension or blood pressure in common parlance.
16. In the affidavit filed on 22-6-2001, the petitioners have annexed 1982 Rules as Annexure R-V. At page 11 of this affidavit, respondents have stated-
“It is submitted that the individual who retire from service in normal course that is on attaining the age of superannuation and are found to be suffering from disabilities are also treated as invalided out from service on account of their disabilities in terms of para 4 of the Entitlement Rules, 1982. A xerox copy of Entitlement Rules, 1982 is annexed herewith as ANNEXURE R-V to the instant submissions. It is further submitted that this has been done to extend the benefit of disability pension to individuals who retire in normal course on attaining the age of superannuation and found in lower medical category than in which they were recruited, if otherwise eligible.”
In their subsequent affidavit dated 11-10-2001, the respondents have in para 2 against referred to 1982 Rules as applicable to the petitioner. The relevant portion reads as under :
“It is submitted that the para 4 of the Entitlement Rules for Casualty Pensionary Awards, 1982 (frequently referred to as the Entitlement
Rules, 1982), only stipulates, inter alia, that the individuals, who at the time of their release from service are found in lower medical category than that in which they were recruited will be treated as invalidated from service.”
Again in para 12, the respondents state as under :
“It is submitted that the case of the petitioner regarding grant of disability pension and consideration of his appeal for the same have been dealt in accordance with the provisions laid down in the Entitlement Rules, 1982.”
In para 15, the respondents stated as under :
“It is submitted that all the relevant provisions of the Entitlement Rules, 1982 including those stipulated in para 25 have been correctly applied in case of the petitioner.”
17. Thus, the respondents have stated that 1982 Rules are applicable to the petitioner and case of the petitioner has been considered under 1982 Rules. They have also stated that his appeal has been decided under these Rules and in para 16, the respondents have stated that the disability of petitioner has been regarded by the Government as not attributable to his Air Force Service in terms of Entitlement of Rules 1982. The officer of respondents, who was present on 6-8-2004, had communicated through his Advocate Shri Choudhari that 1982 Rules do not govern the services of the petitioner. Therefore, above pleased of respondents are required to be pointed out and the perusal of 1982 Rules is therefore, also necessary. Rule 4 stipulates that an individual who, 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 invalidated from service. Rule 5 provides certain presumptions to be valid while deciding the question of entitlement to disability pension. The first presumption which is given in Sub-clause (a) is that a member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or regarded at the time of entrance. Sub-rule (b) provides that in the event of his subsequently being discharged from service on medical grounds, any deterioration in his health which had taken place is due to service. Rule 6 provides that the disablement established is accepted as due to service if it is certified that it is on account of disease which is attributable to Military service or existed before or arose during Military service and has been and remains aggravated thereby. The Sub-clause (b) of Rule 6 also contains similar provisions in respect of death, Rule 8 provides that attributability or aggravation will be conceded if casual connection between death/disablement and military service is certified by appropriate medical authority. Rule 9 about onus of proof says that the claimant shall not be called upon to prove conditions of entitlement and he will receive benefit of any reasonable doubt. Rule 14 which deals with diseases provides that where it is established that conditions of Military Service did not determine or attribute to the onset of the disease but influenced the subsequent course of the diseases, the said cases will fall for acceptance on the basis of aggravation. Sub-rule (b) of Rule 14 provides that a disease which has led to an individual’s discharge or death will ordinarily, be deemed to have arisen in service, if no note of it was made at the time of individual’s acceptance of Military Service. However, if Medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance, such disease will not be deemed to have arisen during service. Sub-clause (c) of Rule 14 provides that if a disease is accepted as arisen in service, it must also be established that the conditions of Military Service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. Rule 15 provides that the onset and progress of some diseases are affected by environment factors related to service conditions, dietic compulsions, exposure to noise, physical and mental stress and strain. Rule 18 which deals with predisposition stipulates that predisposition of inherent constitutional tendency in itself is not a disease and if there is precipitating or causative factors in service which pertains the disease, the it is attributable to service, notwithstanding the inherent predisposition. Rule 19 in relation to aggravation stipulates that if it is established that the disability was not caused by service, attributability shall not be conceded. However, aggravation of service is to be accepted unless any worsening in his condition was not due to his service or worsening did not persist on the date of discharge/claim. Rule 23 gives a right of appeal and Rules 24 prescribes procedure to be followed by Appellate Authority while Rule 25 prescribes Appellate Authorities. This comparison will show that the old Rules and 1982 Rules are more or less on same lines, except in relation to provision for appeal. The perusal of the above Rules, therefore, clearly show that in case of a person who is released at lower medical category of his health from service, if there is no note of the disability at the time of his recruitment, heavy burden lies upon the respondents to show that the disablement is not attributable to or aggravated by the services. The Rules expressly cast onus in this respect upon the respondents and benefit of doubt is given to such employee. The case of the petitioner needs to be viewed in this background.
18. The respondents have filed on record the proceedings of four Medical Boards. The first Medical Board is dated 27-7-1970, second Medical Board is 5-2-1982, third Medical Board is the review Board dated 2-6-1982 and the last one is the release Board dated 25-7-1994. It is an admitted position on record that the petitioner was in lower medical category at the time of his release from service on 31-12-1994. He was in category A-4 G-1 at the time of his recruitment and was placed in A-4 G-5 after 1969. It is here pointed out that the category A-4 G-5 denotes the lowest fitness or health category in so far as the respondents are concerned. Later on, this category A-4 G-5 has been replaced by the respondents and it has been renamed as A-4 G-4. The Release Medical Board of the petitioner proves that he was in lowest category at the time of his discharge. In these circumstances, as per the provisions of rules mentioned above, it was necessary for the Medical Board to record its finding that the disablement could not have been noticed at the time of recruitment of the petitioner. It is admitted position on record that no note of such disease/disability had been taken at the time of petitioner’s entry into service. It is not disputed that petitioner was subjected to stringent medical check up at the time of his recruitment. The medical opinion, therefore, has to state with reasons as to why this disability/disease has not been detected on medical examination conducted prior to his entry into service. The Rules prescribe that such disease, if it is related to individual’s discharge or death would ordinarily be deemed to have arisen in service. Here, though technically, the petitioner is shown as superannuated on attaining the age of 52 years on 31-12-1994 still he was in lower medical category at that time. As per the provisions of Rules, he is deemed to have been invalidated from service. The petitioner has lost practically all functions of right half portion of his body. In such circumstances, when there is no note of Medical Board that this disease could not have been detected on medical examination prior to the commissioning of petitioner into service, the said Rule and presumption will apply to his case. It is, therefore, apparent that the disease and disability of petitioner has therefore, arisen in service and further as there is no such opinion, the further presumption will have to be drawn that the conditions of services at the time contributed to onset of said disease and disability. In any case, it will have to be held that the conditions of service aggravated the said disease and resulted in disability of the petitioner. The proceedings of Medical Board conducted on 27-7-1970 only make reference to rupture of berry ancurysm on left side and resultant right side hemipegia. It also mentions that the petitioner has got the secular aneurysm. On page 2 of this Medical Board proceedings, there are columns and column No. 3 which relates to the attributability to the service and it has been answered in negative. Column No. 5 relating to aggravation is also answered in negative. However, there is no signature of petitioner on this page. Even if it is presumed that at the relevant time, the petitioner could not have put his signature, there is no thumb impression or signature of any other person on his behalf on these proceedings on this page No. 2, However, below the space provided for signature of employee on this page, the President of Medical Board and two members have placed their signatures and thereafter there is signature of Approving Authority. It is noteworthy that this Board does not make any reference to the hypertension. However, in Column No. 2 it holds that the disability has been contracted in circumstances over the petitioner has no control. It is further pointed out that the words “constitutional or contigental” are also not used in this report by the Medical experts. This Board accepts that disability has been arisen in service.
19. The respondents have placed on record the copies of the Medical Board proceedings conducted at Pune on 5-2-1982. Along with this, the respondents have also placed on record the typed copy of said proceedings. In Column 4, while describing the principal disability, the said Medical Board mentions thus:
“Subarachnoid Haemorrhage with Spastic Hemiplegis (Rt). Cause of Hemiplegia atrodic lesion injoluing left. Left fronto Parietal area following old infarat/ Haemorrhage due to hypertension.”
The Board has expressly recorded that Haemorrhage in 1969 is due to hypertension. The category recommended by this Board is the last one i.e. A-4 G-5 though percentage of disability has been mentioned as aggravated to 60% on account of both the disabilities. It is pointed out that there is no lower category than A-4 G-5. These proceedings are signed by all the three members of the Medical Board and are approved by one A.R. Mundye, Wind Commander, Deputy Principal Medical Officer, HQ. Maintenance Commander/ IAF. The petitioner has pointed out that as per Clause (f) of para 4 of this report, the petitioner was to remain in category A-4 G-5 subject to approval of higher authorities. Shri A.R. Mundye, has given that approval and there is no other Approving Authority. This Board at Column No. 9 expressly mentions that next Medical Board will be on 5-2-1984. It further mentions that the petitioner is fit for performing sedentary duties and routine general duties only in any part of India where adequate medical facilities are available. The report at the end mentions that it supersedes the previous medical Board dated 12-5-1980, It also bears the signature of petitioner.
20. Thereafter conies the disputed Board i.e. The Review Board which has been at Delhi on 2-6-1982. the petitioner in his first appeal as also in second appeal and even in this writ petition before this Court has not made any reference to this review Board. All his pleadings reveal that he was claiming to have suffered 60% disability and was treating the Pune Board dated 5-2-1982 as the last Medical Board relevant for the issue. As already stated above, it is on record that the petitioner has stated that he did not get any intimation about the cancellation of Pune Board and that he got the knowledge of such cancellation only through the affidavit dated 11-10-2001 filed by the respondents. He has also pointed out that he has not received any letter from the respondents informing him about the result of Delhi Medical Board. The respondents have not produced on record any material to rebut this say of petitioner. If any such document or material exists, it is in custody of the respondents and for non-production thereof, adverse inference will have to be drawn against the respondents. The stand of petitioner that the cancellation of Pune Board by Delhi Board was not communicated to him seems to be correct. There is another reason for holding this. The petitioner appears to have been crying for production of all Medical papers of Pune Board through his various affidavits filed before this Court and even at the stage of argument, he made those requests and blamed the respondents for not producing the Pune Medical Board documents. Even during arguments, the Counsel for the respondents was contending that the department is trying to locate these and other medical papers. The petitioner has also in his counter affidavit pointed out that the details which the respondents have given in their submissions about his health could not have been pleaded in absence of availability of record. This Court, therefore, has questioned the respondents about the provisions under which the Medical Boards are held, the provisions of holding Review Board and as to how the documents are not available when the claim of the petitioner for disability pension is under consideration from 1994 onwards in the departmental appeals and then in writ petition. It is thereafter only that these documents are produced. The proceedings of Medical Board dated 2-6-1982 show that the said Board has not changed the Medical category and retained the petitioner in A-4 G-5 permanently. The same Board, however, has found that the disability of petitioner is only 30% and not 60%. The respondents have relied Upon these Board proceedings to show that the petitioner has himself stated that his disability cannot be attributed to conditions of service and his disability is not aggravated thereby. The signature of petitioner appears below these columns in typed copies of Board proceedings placed on record. However, xerox copies placed on record did not reveal any such signature. On last date of hearing i.e. 6-8-2004, the respondents produced the alleged original Medical Board proceedings of Medical Board dated 2-6-1982. The original papers reveal that on page No. 2 (on the reverse of page 1) is not filled in at all and was completely blank and it did not have the signatures of any members of the said Medical Board. The relevant page on which the signature of petitioner appears is typed carbon copy and it was found that it also does not bear the signatures of members of Medical Board though down below, the signatures of Approving Authority appears. If one accepts typed copy filed on record by the respondents, all this cannot be noticed. It is also apparent that the result of this Medical Board is not communicated to the petitioner.
21. The respondents have not placed on record any policy or regulation relating to conduct of Medical Boards and as to how and when a review Board can be ordered and who can order the said Board. The Review Board in this case has been ordered by one K.V.S. Mani, Wind Commander, by observing that the “fitness of petitioner for retention in service and as Accounts Officer does not appear favourable except on the basis of past experience/continuation on humanitarian grounds. Nevertheless, Review may be asked for at CME/IAM at the time of next Annual Medical Examination”. He has submitted this for information and ruling and the next Higher Officer has thereafter on 26-4-1982 said that disability of petitioner has remained static and how percentage increases from 30 to 60%. This Officer says that the Review Medical Board be asked for at AFCME. However, in view of the fact and circumstances mentioned above, we are not inclined to accept this Review Medical Board as genuine and authentic against the petitioner. This Medical Board, however, mentions that Pune Board has found that the petitioner is suffering from hypertension from February, 1982. If one compares the earlier Medical Boards with the Medical Board proceedings dated 2-6-1982, the absence of signatures at appropriate places becomes apparent. The same forms are used for all these Boards. The grievance of the petitioner that he was not communicated anything about the result of Medical Board dated 2-6-1982, therefore, deserves to be accepted and is accordingly accepted. The remark that this Board dated 2-6-1982 supersedes the Medical Board dated 5-2-1982 does not appear in any of the papers placed on record. Wind Commander K.V.S. Mani, on 22-6-1982, forwarded a confidential letter to HQ. Maintenance Command and in it he mentions that the Medical Board proceedings dated 5-2-1982 in respect of petitioner may please be cancelled in toto. However, this letter is not addressed to petitioner and its copy is also not given to him. Unlike Pune Board, this Board at its end does not contain stipulation that it supercedes earlier Board. In their reply affidavit dated 22-6-2001, respondents have stated that Pune Board is amended by release Board in July, 1994.
22. The Medical Board conducted at the time of release of the petitioner on superannuation is also filed on record. The report of said Board is dated 25-7-1994. It mentions two disabilities namely Subarachnoid Haemorrhage with Spastic Hemiplegia from 1969 and Hypertension from February, 1982. On the second page of this Medical Report, the petitioner appears to have answered some questions. He has said that disability mentioned in question No. 2 or anything like it was not there before he joined the armed forces. He has answered the question about incidents during his service which he thought caused or made the disability worst as not applicable. He has also answered in negative the question regarding any other information about his health. At next page, the Medical Board has given its opinion that the disabilities are not attributable to the service and are not aggravated thereby. They have stated that both these disabilities are not connected with his service. At the bottom, they have stated that disabilities are “constitutional not connected with service”. Perusal of these papers will show that though the Board found that the petitioner is in lower Medical category at the time of release, still opinion or note as to why these disabilities could not have been noticed at the time of entry of petitioner into service has not been expressed anywhere. However, in connected papers of Medical Board giving opinion about the diagnosis and diseases. Major R.G. Poduwal, Great Specialist (Medicine) as on 13-7-1994, observed thus :
“This 51 years old serving Air Force Officer is an old case of subarachnoid Haemorrhage and essential hypertension onset 1969.”
It will thus be seen that even in July, 1994 the Medical officers of respondents have found that the petitioner was suffering from hypertension since 1969. This is also the finding of Pune Board on 5-2-1982.
23. Thus, the medical papers of petitioner, produced by the respondents do not reveal the satisfactory state of affairs. The hypertension which, according to petitioner, he suffered from 1969 itself has not been reflected in some of the medical papers. The opinion as required by Rules has not been expressed by the Medical Board. The petitioner has given the details of his blood pressure mentioning that he has suffered from high blood pressure at the time of stroke. The perusal of the description of berris aneuryms, in the text book produced by the respondents, says that hypertension is frequently present in persons suffering from berris aneurysm than in general population but aneurysm frequently occur in persons with normal blood pressure. The Appendix 2 in its Annexure also says that strain and stress may cause hypertension (hyperpiesia). The provisions of Rules governing the grant of disability pension expressly say that effect of stress and strain caused by service factors or otherwise cannot be apportioned while assessing the disability. In this background, even if it is presumed that the petitioner already had aneurysm at the time of his entry into service, still due to stress and strain caused by service, he suffered hypertension which ultimately resulted in its rupture and right side hemoplegia. The arguments of respondents that the burden in this respect lay upon the petitioner, cannot be accepted and it is held that the respondents failed to show that the disabilities suffered by petitioner are not attributable to or aggravated by his service.
24. The respondents have relied upon the judgment of the Apex Court in the case of Union of India v. Dheer Singh China, reported in A.I.R. 2003 S.C. 1197. In that case, the employee superannuated from service on 31-8-1994 as Lieutenant Colonel and suffered heart-attack on 11-8-1994 and was required to undergo bye-pass surgery. He also suffered from Open Angle Glaucoma in both eyes. He claimed disability pension on 3-9-1997 and it was rejected by the respondents. The employee, therefore, filed writ petition before the High Court seeking disability pension. There the report of Medical Board revealed that employee has suffered disability to the extent of 60% on account of Angina Pectoris and Primary Open Angle Glaucoma in both eyes. The Medical Board there opined that neither of these diseases were attributable to or aggravated by military service and diseases were constitutional in nature. The opinion of the Medical Board was not assailed in these proceedings and was, therefore, accepted. The facts in the present case are totally different. The petitioner here has assailed the opinion of the Medical Board and has further contended that he suffered these disabilities which are attributable to and aggravated by his service. The law laid down by the Hon’ble Apex Court has, therefore, no application here.
26. The petitioner has also made a grievance that on account of these disabilites, the Senior Medical Officer, at the time of his release found that his average duration of life is reduced by one year and the Medical Board recommended that his age should be taken one year more than his actual age for the purpose of calculation of retirement benefits. The respondents have placed said certificate of Senior Medical Officer Wg. Cdr. T.K. Mookherjee on record. The petitioner has pointed out that this loading of age has been done only on account of his disabilites. Along with their written notes of arguments, the respondents have also produced the provisions relating to loading of age, on 6-8-2004. The provision 5-4-67 relates to commutation certificate (loading of age). The relevant portion of said provision is reproduced below for ready reference.
“5-4-67 – Commutation Certificate (Loading of Age). – While furnishing this certificate, medical Board should bear in mind that the recommendation for commutation or otherwise of pension is not related to the diagnosis as such, but the likely effect which disease/disability has on the individual’s longevity and life expectancy. Disability, which does not affect longevity, should invariably be recommended full commutation of pension, as admissible. However, where the disability is likely to affect the longevity of an individual, the medical Board should consider whether commutation should be recommended at all or recommended with loading of age. In other words, if the disability is so severe that longevity of the individual may be seriously curtailed, it should not recommend commutation of pension at all. If on the other hands it feels that the longevity of the individual has diminished, but not severely, it may determine a probable age of the individual, which according to his existing condition, would correspond to the residual longevity, and recommend that the age of the individual be reckoned as such.”
26. It will thus become clear that the ailment of hypertension suffered by the petitioner is not reflected in Medical records of respondents till 1982. The petitioner has in his affidavit filed in rejoinder on 21-7-2001 in para 3 stated that his blood pressure shot up to 210/170 mm. of Hg. at the time of haemorrhage on 18/19-9-1969. The respondents have filed their reply, dated 11-10-2001 and in para 3, they have stated that blood pressure of petitioner during medical check up on 5-6-1969 was 130/80 mm. and further stated that it was normal. The reply states that thereafter, during subsequent medical Boards and examination, petitioner was found to have mild hypertension for which medication was prescribed. The respondents further stated that at no stage Medical Board endorsed hypertension as disability along with Subarachnoid Haemorrhage. Thus, it becomes clear that from 1969 at least the respondents accept that the petitioner is suffering from hypertension. In their reply dated 22-6-2001, the respondents have pointed out that February, 1982 Medical Board of petitioner was amended by release Board conducted in July, 1994. The respondents ought to have produced their release Board policy to show in what situation employee can be Boarded out or invalidated from service. In short, all the discussion above shows that the respondents are not making clean breast of the matter. In such circumstances, we are left with no option but to accept the finding of 60% disability as recorded by Medical Board conducted at Pune on 5th February, 1982.
27. Bare perusal of provisions for grant of disability pension show that the respondents have placed employee “deemed to be invalidated” from service at an advantageous position and it is the respondents who have to fulfil all obligations and requirements of these provisions for denying the said pension who at the time of his release is in “lower medical category”. These provisions and Rules are welfare measure to compensate the defence force disabled employees and knowingly no burden is cast upon such employee. On the contrary, in all possible contingencies, there are provisions for drawing presumptions in his favour and giving benefit of doubt to him. Thus the provisions are to be more illiberally interpreted and applied in favour of an employee. Respondents have to scrupulously adhere to each and every requirement of Rules before coming to any conclusion against such employee. The Rules deliberately direct the respondents to discharge this obligation. In breach thereof or lacuna therein will further the case of claimant. Here from the discussion above, it is apparent that there are several such breaches and lacunae. None of the medical Boards on record show that they have taken into account any direct or circumstantial evidence while considering the issue of attributability or aggravation of petitioner’s disabilites. On the contrary, hypertension appears to be deliberately ignored in 1970 and 1994 Boards. The presence of hypertension since 1969 is sought to be suppressed by the respondents. The respondents have not shown as to how they can get over the presumptions prescribed in Rule 5(a), (b) of 1982 Rules as it squarely governs the facts of present case. Even if it is presumed that berris aneurysm is constitutional or congenital defect, the respondents have not considered whether stress and strain in service and resultant hypertension could cause its rupture. It is apparent that stress and strain to which petitioner was exposed in service, influenced the subsequent course of disease in terms of Rule 14(a) of 1982 Rules. Stress and strain suffered by petitioner is also a precipitating and causative factor and respondents ought to have shown that they have considered the case of the petitioner in the light of requirements of Rule 18 of 1982 Rules. Respondents have also not shown that they have considered the aggravation or worsening of petitioner’s disability in the light of Rule 19 of 1982 Rules. None of the Medical Boards held by respondents satisfy there requirements. The respondents have total ignored the spirit of Rule 9 of these Rules. The Scheme of “Old Rules” is same and there also the respondents have not shown compliance with Rules 4, 7 or 9. Rule 9 is the important rule and respondents have not considered effect of stress and strain accordingly. The fact that “Hyperpiesia” is expressly mentioned in Annexure to these Old Rules and its significance in the case of petitioner is also overlooked by the respondents. The observations of 1982 Medical Board at Pune and Release Board of petitioners in July, 1994, prove that petitioner was old patient of hypertension and ‘stress and strain’ from service is its cause. It is also clear that Subarachnoid Haemorrhage is caused due to rupture of blood vessel on account of blood pressure. The petitioner, therefore, suffered the disabilities which are on account of his service. Both his disabilities are attributable to his service. In any case, right side hemiplegia is the aggravation thereof due to service.
28. The respondents have in their arguments asserted that the petitioner has not pointed out that he was over burdened during his entire service. Their contention is that the petitioner has only pleaded that he was over burdened after 1982-83, They have further contended that the petitioner has accepted the findings recorded by all Medical Boards and he has admitted that his disability cannot be attributed to his service and is not aggravated thereby. As already stated in the opening paras of the judgment, the petitioner has appeared in person and he has filed petition and thereafter affidavits in the shape of counter affidavits from time to time. Before filing petition, he has filed two appeals departmentally as required by the provisions of the Rules. However, from pleadings in para 8, in his appeal memos and thereafter even from his subsequent affidavits, it is apparent that the petitioner has complained in so many words about the fact that he was over burdened and that not only with the work of accounts department but the work of Court Martial was also got down from him. In his memo/appeal addressed to Under Secretary against the order dated 26-9-1994, in para 6 the petitioner has specifically pointed out this aspect. Even in para 7 thereof, he has pointed out that in October-November, 1967 because of embezzlement of public funds by Fit. Lt. G.G. Nayar, he was required to work from morning to midnight to compile the cash accounts to locate the irregularities and reconcile, He has stated that all this has cast him great stress and strain, mentally and physically. He stated that this routine continued for 5-6 months and he was required to work till late hours and to submit the reports daily. He has also pointed out that thereafter summary of evidence ordered to be recorded against Nayar and thereafter Shri Nayar was Court martialled and he was the primary witness. He submitted that Fit. Lt. G.G. Nayar was found guilty and was dismissed from service. Thereafter, he has narrated about his marriage in 1968 and in para 10, he has pointed out that since beginning of 1969, he was moved to Wing No. 7- Ambala, No. 24 Wing Chandigarh and No. 12 Wing Chandigarh for conducting Court Martials and doing accounting duties simultaneously. He stated that he did double duties at all stations and he did all this within a period of three months. Thereafter he was brought back to Palam where he resumed his duties in August, 1969. He was then sent to No. 25 Wing AF Rajokri for conducting Court Martial which he did till 16-9-1969. He has stated that in normal course the Accounts Officer is not required to move out of station and his duties are confirmed to only Accounting section and accounting work. He has pointed out that he was required to travel on account of his legal duties and was gradually become subject to immense mental stress and lot of physical stain. These pleadings and facts are repeated by him and therefore, the argument of respondents that there was no sufficient details or pleadings in relation to stress and strain on record, cannot be accepted. Not only this, but if one reads the representation made in furtherance to his second appeal by the petitioner on 24-4-2000, the petitioner has questioned as to why the Medical Board papers of Command Hospital, Pune, were not put up before the Appellate Committee appointed in his case for considering release of disability pension. He has also pointed out that his disability got aggravated due to hazards of service and it was agreed in Medical Board, Pune. The deterioration in disability has been shown in Medical Board, Pune. All this therefore, clearly shows that cancellation of Pune Board was not communicated to petitioner at any point of time and he relied upon Pune Board for the purposes of contending that his disability is 60%. In the very same reminder, he has also pointed out he was not suffering from any congenital disorder. All these aspects, therefore, clearly show that the petitioner is also challenging the findings recorded by Release Medical Board in 1994. The contention of respondents that the petitioner has not challenged these findings, therefore, cannot be accepted. In view of our comments on the opinion expressed by various Board and state of affairs existing herein, it is apparent that the alleged admissions about attributability or aggravation given by the petitioner also cannot be accepted as final and binding against the petitioner. The duty to come out clean was cast upon the respondents and the respondents have failed to discharge it.
29. The respondents have also contended that the petition as filed, challenges a stale cause. This argument cannot be accepted because the petitioner was subject to disability till his retirement and immediately after his Release Board in July, 1994, he has staked his claim for disability pension. He could not have claimed it before. The said claim was rejected on 28-9-1994 and the petitioner was given time to prefer appeal within six months. Accordingly, the petitioner filed First Appeal which came to be rejected on 13-5-1999 and thereafter he filed Second Appeal which was also came to be rejected on 8-3-2001. As already stated above, the petition is filed on 22-1-2001 itself. Cancellation of Pune Board was not even communicated to him and he got its knowledge only through reply affidavit of respondents dated 11-10-2001. So in view of these discussion and the facts which clearly show that the petitioner was constantly agitating his grievance in the matter, argument about delay or laches addressed by respondents cannot be accepted and is accordingly rejected.
30. Thus, it is apparent that the Release Board found the disability of petitioner severe and that his longevity has been affected thereby. In such circumstances, we feel that the respondents ought to have granted disability pension to the petitioner and rejection of claim of the petitioner is unwarranted. The reasons given by the first Appellate Authority or the Second/ Final Appellate Authority for rejection of appeal of petitioner reveal total non-application of mind as to requirement of rules in this respect and are unsustainable.
31. Hence, we
(i) quash and set aside the order dated 28-9-1994 at Annexure IV, rejecting the claim of petitioner for disability penaion, the order dated 13-5-1999 at Annexure V of First Appellate Committee and the order dated 8-3-2001 (at Annexure VIII with affidavit of petitioner dated 31-3-2001 passed by Defence Ministry, Appellate Committee on pensions, and declare that petitioner is entitled to grant of disability pension;
(ii) direct the respondents to compute disability pension of petitioner and release the amount of arrears of disability pension in his favour within a period of four months from the date of this judgment with 9% interest from 31-12-1994 till payment and to continue to pay him the said disability pension in addition to his normal pension regularly, in accordance with law;
(iii) if this direction is not complied with within four months, respondents shall pay simple interest at 12% per annum to the petitioner on entire amount;
(iv) respondents to pay amount of Rs. 5,000/- to the petitioner towards costs of this petition.
32. In the result, writ petition is allowed. Rule is made absolute in the above terms.