A Must Read for All from Navdeep's Blog :Veteran Prabhjot Singh Chhatwal PLS Retd.

Tuesday, May 18, 2010
Whither landmark ? Victory or Defeat ?
More loyal than the king would be an apt expression to describe some actions of our official establishment. There are instances when instead of expressing sorrow or moving into a mode of introspection, we end up in a manner of jubilation, not realising that we are celebrating the kingdom of the dead, our graves, our loss, our defeat, and something which directly negatively affects us.I am talking of a recent communication from Delhi to all Record and legal offices, which I am told, in a manner of jubilation, celebrates the verdict of the Hon’ble Supreme Court in a case wherein it was held that an old deceased schizophrenic soldier was not entitled to disability pension that had been granted to him by a division bench of the Hon’ble Kerala High Court. Damodaran AV was the name of this solider. The communication from Delhi has termed the judgement which has declined benefits to a deceased veteran as ‘landmark’. Before coming to the judgement, I would like to know if anyone has ever seen any official communication terming a beneficial judgment as ‘landmark’ or educating the environment about any favourable judgement which may affect a large section of the service community positively, chances are close to nil. But negativity is the sign of the times I must say.Now I’ll come to the judgement. The Hon’ble Apex Court, in Union of India Vs Damodaran AV (Dead) has held that the deceased soldier was not entitled to disability pension since the medical board had termed the disability as neither attributable to, nor aggravated by service, and that the deceased had not challenged or assailed the opinion of the medical board per se. Attributability or aggravation of a disability is the primary condition for grant of disability pension. The Apex Court also held that the medical board had provided detailed opinion about the disease and how it was not attributable or aggravated by service. In other words, the Hon’ble Court has held that the deceased had not contested the correctness of the opinion of the board and hence was not entitled to relief against the said findings since those were never challenged. The verdict, though termed landmark by the official establishment, is a mere re-iteration of earlier judgements of the Hon’ble Supreme Court in cases such as Balachandaran Nair, Keshar Singh, Baljit Singh, Chinna etc holding that the opinion of the medical board shall have primacy and cannot be brushed aside lightly. True and totally correct. But what happens when the medical board does not adhere to the applicable rules and the statement of non-attributability is prima-facie perverse or in contravention of provisions of law ? This is where the Hon’ble Courts have to intervene, and they have been doing so in the greater interest of justice. In Damodaran’s case, the Supreme Court has not laid down any new law and has simply opined that since the medical board had provided complete reasons for declaring the disability as ‘neither attributable, nor aggravated’ and that the deceased had not challenged the decision or findings of the medical board, it was not proper to hold the disability attributable or aggravated by military service. Damodaran’s case hence has no application where a person challenges the fact that the medical board had not adhered to the applicable rules. The law discussed by the Hon’ble Supreme Court and the primacy of the medical board has been discussed and distinguished earlier. The following from Naveen Chandra Vs Union of India is pertinent to the cause :-“The primacy of medical opinion expressed by the Medical Board constituted in light of the above principles can hardly be disputed. The respondents have heavily relied upon the judgment of the Supreme Court in the case of Controller of Defence Accounts (Pension) and Ors v. S Balachandaran Nair to contend that the opinion of the Medical Board is final and cannot be questioned before the Court. The principle of law enunciated by the Supreme Court in this case is not a matter of controversy and in any case is binding on the Courts. Their Lordships have clearly indicated that the view expressed by the Medical Board has primacy and would be respected by the Courts. There can be no doubt to the proposition that for the opinion of the Medical Board to attain its primacy as afore-referred, it must be in conformity with the statutory provisions framed by the competent authorities. If a report is ex-facie not in conformity with the various regulations and is not supported by any investigative or diagnostic evidence and is arbitrary or ex-facie perverse then it cannot be permitted to have the same value as indicated in the various judgments of the High Courts as well as the Supreme Court”
Moreover, even in Union of India Vs Neki Ram (AIR 2004 SC 1235), the Hon’ble Supreme Court had agreed with the presumption that a disease had been aggravated by service even when the medical board had replied in the negative, the Court also held that there was no material to rebut the presumption of attributability. In Union of India Vs Ranjit Singh, a Division Bench of the Hon’ble Punjab & Haryana High Court had held that the medical board must be self contained and well reasoned and in that very case, the Hon’ble Court held the petitioner entitled for disability pension for schizophrenia. The said judgement was challenged by the Union of India before the Hon’ble Supreme Court which was pleased to dismiss the said SLP on 11-02-2010, albeit on technical grounds but much after the Damodaran AV case (20-08-2009).It is anyway time for the official establishment to trash this theory that the opinion of the medical board is supreme. It is not the medical board which has to determine attributability or aggravation but the Entitlement Rules. The said rules have been discussed in detail on this blog earlier. If medical boards are to be given a free run then there is no requirement of regulatory clauses in the rule book. We in India still have a long way to go, our system of attributability and aggravation determination is still stuck in the primitive times, or else what else could justify the basis of determining say heart diseases on the basis of a paper called the ‘14 days charter of duties’ ? The attributability / aggravation of complicated heart problems in the Indian military is determined by what activities a person had indulged in the last 14 days prior to the onset / discovery of the disease ? Is this medical science or some tantric mumbo-jumbo ? Does the medical establishment feel that the cause of heart diseases could be made out from two weeks in a person’s life ? It is common knowledge that heart diseases manifest over a long period of time, isn’t it time to shun these outdated practices and deal with such situations with a more scientific and humane approach ? Medical boards have been rejecting attributability and aggravation with words such as ‘constitutional’ or ‘idiopathic’ and this is what the Principal Bench of the Armed Forces Tribunal had to say about this practice in a recent case :-“There is mandate to the medical board to provide cogent reason for it and not cryptic, slipshod or vague reasons by a covering expression ‘not applicable’ or ‘constitutional’ ”Then there is the tendency to thrust one’s thought process on others in the system and on to the affected parties without deep analysis of issues. An officer wakes up one day, drafts a letter which he or she thinks is the epitome of intelligence, floats a minute sheet, gets it approved on file and viola we have a ‘policy decision’ which is imposed on others who sadly have no say in the arrangement. Or else what could explain letters from the office of DGAFMS asking medical boards not to grant attributability or aggravation to disabilities such as hypertension if the onset is not in a field / high altitude area, when on the contrary, the rule governing the issue states the below mentioned :-“For the purpose of determining whether the cause of a disability or death is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions”So what should prevail over medical boards, the bright-morning idea of the gentleman who signed the policy letter or the rule extracted above ? It is sad but it is such illegal letters which are prevailing over our system than the actual rules.Which brings me back to the subject on celebrating the judgement in Damodaran’s case. The official communication circulated all over the country calls upon record offices and others to file appeals and reviews in cases where the medical board has held a disability as ‘neither attributable to, nor aggravated by service’ and still Hon’ble Courts have granted disability pension. The approach is wrong, misconceived, misplaced and misdirected. The Apex Court has not given any blanket chit for acceptance of medical boards in the said judgement, it has simply stated that in that particular case, medical opinion had to be accepted since no infirmity or non-adherence to rules was pointed out by the Petitioner. The judgement has no universal application and is not even intended to be ‘landmark’ for it lays down no new law.When there are truly landmark judgements rendered, we see no affirmative action. When in the year 1993, the Hon’ble Supreme Court, in Sapper Mohinder Singh’s case, had held that administrative bodies such as the Medical Advisor(Pensions) or PCDA(Pensions) Allahabad shall have no power to sit over the opinion of a medical board or reverse attributability / aggravation granted by a medical board or to reduce the percentage granted by a medical board, the official establishment took 12 years to change the system and the powers of PCDA(P) were finally abrogated in 2005, it is another matter that the powers were then instead granted to the govt – from Caesar to Caesar’s wife. We never heard the term ‘landmark’ for this progressive judgement then and for 12 years nobody acted on the same when time and again Courts deprecated this practice of govt, and here we are, a judgement is pronounced when benefits granted to a disabled veteran are set aside and our own people jump with joy in their seats and term it ‘landmark’ ? I repeat, more loyal than the king.I for one feel that it is this remark by the Hon’ble Supreme Court rendered on 31-03-2010 in Union of India Vs Capt C S Sidhu, which truly reflects the state of affairs today : “Before parting with this case, we regret to say that the army officers and army men in our country are being treated in a shabby manner by the government. In this case, the respondent, who was posted at a high altitude field area and met with an accident during discharge of his duties, was granted a meagre pension as stated in Annexure-P3 to this appeal. This is a pittance (about Rs. 1000/- per month plus D.A). If this is the manner in which the army personnel are treated, it can only be said that it is extremely unfortunate. The army personnel are bravely defending the country even at the cost of their lives and we feel that they should be treated in a better and more humane manner by the governmental authorities, particularly, in respect of their emoluments, pension and other benefits.”No one from the officialdom circulated the above remarks, even for the sake of introspection. We should all realise that we, particularly the ones serving the govt, uniformed and civilian, shall retire one day and would be a part of these very retirees whose small little defeats we are celebrating. In fact, to put it the other way round, it is not a celebration of victory of the mighty Union over a dead solider of the lowest rate, it is the celebration of our own defeat. The current state of affairs is landmark in that sense for sure.