Burden Of Proving That Disease Is Not Attributable To Or Aggravated By Military Service Rests Entirely On Employer: Supreme Court

The Supreme Court held that the burden of proving that the disease is not attributable to or aggravated by military service rests entirely on the employer.

The Court held thus in Civil Appeals preferred against the Order of the Armed Forces Tribunal (AFT), Chandigarh.

The two-Judge Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan observed, “… the burden of proving that the disease is not attributable to or aggravated by military service rest entirely on the employer. Further, any disease or disability for which a member of the armed forces is invalided out of service would have to be assumed to be above 20% and attract grant of 50% disability pension.”

The Bench said that if there is no note or report of the Medical Board at the time of entry into service that the member suffered from any particular disease, the presumption would be that the member got afflicted by the said disease because of military service.

AOR Manoj C. Mishra represented the Appellant while AOR N. Visakamurthy represented the Respondents.

Facts of the Case

The Appellant was enrolled in the army in 1985 and was invalided out from service in 1989 on account of law medical category for the disease generalized tonic clonic seizure old 345 V-67 assessed at less than 20% on the recommendations of the Invaliding Medical Board. He had filed an Application before the AFT under Section 14 of the Armed Forces Tribunal Act, 2007 (AFT Act), contending that he was entitled to the disability element of disability pension on account of his disability attributable to military service, rounding off of his disability to 50%.

The AFT held that disability of the Appellant was less than 20% and therefore, no relief could be granted to him. Resultantly, his Application was dismissed. Thereafter, he filed a Review Application under Rule 18 of the Armed Forces Tribunal (Procedure) Rules, 2008 and the AFT held that there was no ground to review the Order and accordingly, dismissed the same. Request made by the Appellant for grant of leave to Appeal was declined. Being aggrieved, he filed an Appeal before the Apex Court.

Reasoning

The Supreme Court after hearing the contentions of the counsel, noted, “Examples of disabilities or diseases attributable to or aggravated by military service would be diseases contracted because of continued exposure to a hostile work environment, subject to extreme weather conditions or occupational hazards.”

The Court enunciated that in the event of subsequent discharge from service on medical ground, any deterioration in health would be presumed to be due to military service.

“The burden would be on the employer to rebut the presumption that the disability suffered by the member was neither attributable to nor aggravated by military service. If the Medical Board is of the opinion that the disease suffered by the member could not have been detected at the time of entry into service, the Medical Board has to give reasons for saying so”, it added.

The Court further remarked that a soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same.

“The very fact that upon proper physical and other tests, the member was found fit to serve in the army would give rise to a presumption that he was disease free at the time of his entry into service. For the employer to say that such a disease was neither attributable to nor aggravated by military service, the least that is required to be done is to furnish reasons for taking such a view”, it observed.

The Court was of the view that the Tribunal did not examine the issue as to whether the disability was attributable to or aggravated by military service.

“As a matter of fact, the Invaliding Medical Board was quite categorical that no disability of the appellant existed before entering service. … Thus having regard to the discussions made above, we are of the considered view that the impugned orders of the Tribunal are wholly unsustainable in law”, it concluded.

Accordingly, the Apex Court allowed the Appeals and directed the Respondents to grant the disability element of disability pension to the Appellant at the rate of 50%.

Cause Title- Bijender Singh v. Union of India & Ors. (Neutral Citation: 2025 INSC 549)

Appearance:

Appellant: AOR Manoj C. Mishra and Advocate Himanshu Gupta.

Respondents: AOR N. Visakamurthy

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