AFT Must Give Due Deference To Medical Board’s Opinion; Not Lightly Interfere With Or Substitute Experts’ Views: Kerala HC
The Kerala High Court held that the Armed Forces Tribunal (AFT) must give due deference to the opinion of the Medical Board and must not lightly interfere with or substitute the views of the Medical Board experts.
The Court held thus in a Writ Petition preferred by the Union of India and its officials against the Order of AFT, Regional Bench, Kochi.
A Division Bench of Chief Justice Nitin Jamdar and Justice S. Manu explained the following points –
i. As a basic premise, the AFT shall give due deference to the opinion of the Medical Board, an expert body, and will not lightly interfere with or substitute the views of the Medical Board experts.
ii. However, in justifiable circumstances, the Tribunal can set aside the department’s decision founded on medical opinion when the opinion is arrived at without considering germane factors or omitting the relevant factors. Also when the reasons for the conclusions are not discernible, interference may be permissible. The Tribunal will have to keep in mind all parameters of law in the matter of dealing with the expert opinion and merely because, a review of the finding of the Medical Board is permissible, the Tribunal shall not interfere or substitute the views.
iii. A party challenging the decision of the department taken on the basis of the opinion of the Medical Board, will have to demonstrate a strong prima facie case before the Tribunal that such decision falls within the parameters for interference by the Tribunal and it will not be advisable for the Tribunal to straight away shift the burden on the department merely on the ground that the decision is challenged.
iv. If the Tribunal comes to a conclusion that the views of the Medical Board based on which the order is passed by the department cannot be sustained, the Tribunal would direct the department to reconstitute/constitute a review Medical Board and obtain fresh opinion instead of substituting the opinion of the experts with own opinion arrived at on the basis of materials on record, unless exceptional circumstances so warrants.
v. However, in cases where the assessment by the Board called in question after a long lapse of time and a fresh assessment will be of no assistance to resolve the dispute in the nature of the disability claimed at a distant point of time such review may not be directed. In such cases Tribunal/Court may take appropriate decision with reference to the materials placed on record as well as the facts of the cases.
Senior Central Government Counsel (SCGC) R.V. Sreejith and CGC T.V. Vinu appeared for the Petitioners while Advocate James Abraham appeared for the Respondent.
In this case, the Respondent joined 122 Infantry Battalion (Territorial Army) in the year 1983 and continued for 6 years and 15 days. On 12 August, 1989 he joined Defense Security Corps at DSC Centre, Kannur. After serving at various stations, he retired on 31 April, 2016 from DSC, Kannur. He was placed in Low Medical Category with effect from July 22, 2013. The Medical Board proceedings showed that he was suffering from type-II diabetes mellitus and percentage of disablement was assessed as 20.
In the certificate, it was mentioned that the Respondent was not entitled for disability pension on account of type-II diabetes mellitus since the same was not aggravated/not attributable to service. Assessment made by the Medical Board was referred in the communication and the Respondent submitted Appeal under the relevant Rules. However, the same was rejected and the second Appeal also got rejected. The AFT disagreed with the reasoning of statutory authorities and ruled in favour of the Respondent. It also granted benefit of rounding off the disability at 50%. Resultantly, a Writ Petition was filed before the High Court.
The High Court in view of the facts and circumstances of the case, observed, “The granting of disability pension to ex- service personnel largely depends on the opinion of the medical boards. Authorities in charge either grant or deny the benefit after analysing the opinions of medical experts. When the benefit is denied, the aggrieved individual often seeks recourse by approaching the Armed Forces Tribunal (henceforth referred to as AFT). The Tribunal then proceeds to examine the impugned decision. The main issue addressed in this judgment is to what extent and in what manner the decisions made by the authorities, relying on the opinion of medical experts, can be reviewed by the AFT.”
The Court held that Rule 7 of the Entitlement Rules of 2008 does not exonerate the establishment totally from the burden of proof and in all cases in which the claim is raised within 15 years from the date of discharge/retirement/invalidment/release, the onus of proof will be primarily on the Department.
“Only in cases wherein claims are raised after 15 years, the burden will be entirely on the claimant. While holding thus, we have kept in mind the observation of the Hon’ble Supreme Court in Union of India and others v. 3989606 P, Ex-Naik Vijay Kumar (supra) that the Entitlement Rules are beneficial in nature and ought to be liberally construed”, it added.
The Court further enunciated that the employee can discharge his initial burden by pointing out the infirmities and illegalities in the procedure or conclusions of the Board and once a prima facie case is thus made out by the Applicant for scrutiny of the opinion of the Medical Board, the Department shall be bound to vindicate the same.
“Mechanically adopting the principles laid down on the basis of analysis of the provisions of the Entitlement Rules of 1982 read with Regulations of 1961, to decide cases governed by the Entitlement Rules of 2008, would be therefore improper and incorrect”, it also said.
The Court noted that under the provisions relating to granting of disability pension, the most important element is the opinion of the Medical Board and functioning of the Medical Board is guided by the guidelines issued from time to time. It added that, whether the disability has causal connection to military service is a crucial aspect which essentially depends upon the opinion of the Medical Board and in most of the cases wherein disability pension is refused by the authorities, opinion of the Medical Board is the only decisive factor.
“… we are of the view that the AFT will not be justified in rejecting the opinion of the Medical Board in a casual manner in any case. Unless the Tribunal is satisfied that the procedure adopted by the Board was not in accordance with the Rules or binding Guidelines or that the Board failed to take into account any relevant materials or facts or has not given reasons for its conclusions, the Tribunal will not be justified in rejecting the opinion of the Board. If the Tribunal finds the opinion of the Board unacceptable for any such reasons it will be proper on the part of the Tribunal, except in cases where there is long delay, to refer the applicant seeking disability pension for examination by a Review Medical Board”, it elucidated.
The Court, therefore, concluded that substituting the opinion of the Medical Board with its own conclusions by the Tribunal may not be a proper approach and the opinion of the Medical Board is only recommendatory and is subject to acceptance by Pension Sanctioning Authority and hence, its opinion does not confer any indefeasible right on the employee to claim disability pension.
Accordingly, the High Court disposed of the Writ Petition, set aside the AFT’s Order, and remitted the Original Application for fresh consideration.
Cause Title- Union of India & Ors. v. Bhaskaran N. (Neutral Citation: 2024:KER:89553)
