BABY Vs. UNION OF INDIA

JUDGEMENT

(1.) Who has to prove that the disability, which resulted in an individual being invalided from service, was attributable to or aggravated by military service. Does the onus lie on the authority or the individual A Full Bench of this Court in Director General, B.S.F. v. Vijoy, 2000 (2) KLT 509 , had taken the view that the claim is made by a person claiming disability pension. Therefore, the initial burden is on him to establish that the injury sustained while in service was due to military service or was aggravated which contributed to invalidation from military service. However, when some of the present set of cases were posted before a Division Bench, it was contended that R.9 of the Entitlement Rules for Casualty Pensionary Awards, 1982 contained in Appendix II of the Pension Regulation for the Army, 1961 had not been brought to the notice of the Bench. The rule clearly provides that the claimant shall not be called upon to prove the conditions of entitlement. Thus, it was contended by the counsel for the respondent that the view taken by the Full Bench needs to be re - examined in the light of the said Rule. Hence, this reference by the Division Bench for consideration of the matter.

(2.) To answer the question in the abstract, a brief reference to the statutory provisions is essential. The Parliament enacted the Army Act, 1950 to make the provisions self sufficient and to ensure that these were in conformity with the new constitutional set up and present day requirements. The purpose was to bridge the gap between the army and civil laws as far as possible in the matter of punishments for offences and, on the other, to eliminate the disparity between the corresponding provisions of the law governing the Army and the Air Force. So far as the present case is concerned, we are concerned with the provisions contained in Chap.15. S.191 of the Act empowers the Central Government to make rules for the purpose of carrying into effect the provisions of this Act. The Rules can inter alia provide for the removal, retirement, release or discharge from the service of persons subject to this Act. Similarly, under S.192 the Central Government can make regulations for all or any of the purposes of this Act other than those specified in S.191. S.193 requires that the Rules and Regulations shall be published in the Official Gazette and, on such publication, shall have effect as if enacted in this Act. S.193(a) requires that every rule and every regulation made by the Central Government shall be laid as soon as may be, after it is made, before each House of Parliament while it is in session, for a total of 30 days which may comprise in one session or in two or more successive sessions and if, before the expiry of the session immediately following the session, or the successive sessions aforesaid, both Houses agree in making any modifications in the rule or regulation or both Houses agree that the rule or regulations should not be made, be of no effect, as the case may be.......

(3.) In exercise of the power under S.191, the Army Rules, 1954 were promulgated on November 27, 1954. R.13 enumerates the authorities, which shall be competent to discharge persons from service on the grounds mentioned in the table. The table inter alia provides for the discharge of persons enrolled under the Act, who have been attested ......... can be discharged on fulfilling the conditions of enrolment or on completion of a period of Army service. They can also be discharged on having been found medically unfit for further service. The order of discharge can be passed by the Commanding Officer on the basis of the recommendation of an Invaliding Board. The power of discharge can also be exercised in case of persons who have not been attested. R.15 deals with the termination of service by the Central Government on grounds other than misconduct. The provision deals with officers. Their services can be terminated on account of inefficiency or physical disability. The reason for termination along with the particulars of the matters adverse to the officer has to be communicated. He is entitled to an opportunity to urge any reasons he may wish to put forward in favour of his retention in service. Thus, the provision postulates the grant of opportunity to the officer before any adverse order is passed. However, in case the Central Government finds for reasons to be recorded in writing that it is not expedient or reasonably practicable to comply with the provisions, the requirements of opportunity etc. can be dispensed with. R.15(a) deals with the release of officers on medical grounds. R.16 provides as under: