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Sunday, October 10, 2010

More action in the Supreme Court

There was some action in the Hon’ble Supreme Court on the disability pension front in the last few weeks. The details :

Union of India Vs Mukhtiar Singh : The Hon’ble Punjab & Haryana High Court had allowed disability pension to a soldier released in 1979 whose disability ‘Psychosis’ had been assessed as ‘neither attributable to, nor aggravated by service’ by the Release Medical Board. The Union of India had challenged the judgement before the Hon’ble Supreme Court. The Supreme Court dismissed the Special Leave Petition on 27-08-2010 on merits. Incidentally, ‘psychosis’ finds a mention in the Entitlement Rules as a disease which is affected by stress and strain of service but still it is time and again being labelled as ‘unrelated with service’ by our medical boards.

Union of India Vs Ved Prakash : The soldier was invalided out with 7 years of service on account of ‘explosive personality disorder’ and his disability was declared ‘neither attributable to, nor aggravated by service’ and ‘constitutional’ in nature. The Hon’ble Delhi High Court allowed the petition filed by Ved Prakash and directed the release of disability pension. The order of the High Court was challenged by the Union of India before the Hon’ble Supreme Court and the said SLP stands dismissed on merits by the SC on 10-09-2010. Incidentally, when a pin-pointed cause of a disability is not recognised, many-a-times our medical boards label such disabilities as ‘constitutional’. If we go by the rule book however, the Entitlement Rules clearly provide that ‘constitutional disposition’ itself is not a disease and that if no root cause of a disease is identifiable, then the benefit has to go to the soldier. But all I can say is ‘Rules propose, Our Boards dispose’.

Union of India Vs Raj Kumar Dhingra : The retired JCO was discharged on compassionate grounds after duly completing his terms of engagement with hypertension declared as ‘aggravated by service’. When the documents were sent for grant of disability pension, the PCDA(P) overruled the decision of the medical board and declared his disability ‘neither attributable to, nor aggravated by service’. When the JCO filed a writ petition in the Hon’ble Punjab & Haryana High Court, the Union of India changed its stance and stated that his disability pension had been rejected since he was discharged at his own request. During the pendency of the writ petition, the office of DGAMS also called him for another medical board which now again declared his disability as ‘neither attributable to, nor aggravated by service’ thus electing to parrot the line of the PCDA(P) rather than the Release Medical Board. The Hon’ble High Court struck down both reasons of rejection and ordered the grant of disability pension to the JCO with a detailed order discussing all relevant rules. The Union of India strangely challenged the well reasoned judgement in the Supreme Court, perhaps the amount of disability element of pension awarded by the High Court, that is, Rs 570/- per month, was too high for the Union to digest. The SLP stands dismissed on merits on 01-10-2010.

21 comments:

s.Kanthiah said...

A very good and useful informations. Similar cases may follow the guide lines.Only thing we have to confirm who is the final authority , whether Medical board or PCDA.

Sgt.S.Kanthiah,
ExwelTrust, Tirunelveli,TN.

Anonymous said...

DEAR SIR , WHATS THE CASE NO AND HOW CAN I DOWNLOAD THE JUDGEMENT

Air Mshl (retd) S.Y. Savur said...

Just waiting to see what the AG and the SG will present to the Supreme Court on 18th October 2010 - after the Bench's advice quoting Chanakya.

Medical Specialist said...

refer Union of India Vs Ved Prakash

i like to ask dear navdeep singh do u have any medical representative from army / civil (a doctor) while deciding these medical issues in court. it doesnt appear to me so though.

in above case of explosive personality disorder’ let me highlight the true picture.

A soldier doesnt do the job entrusted by his CO and becomes abusive towards officers and dont adjust well with peer group. he gets labeled as personality or adjustment disorder get refered for evaluation.

As a psyciatrist doctor keeps these case in ward observe them While many disorders vacillate in terms of symptom presence and intensity, personality disorders typically remain relatively constant.Symptoms have been present for an extended period of time, are inflexible and pervasive, and are not a result of alcohol or drugs or another psychiatric disorder. The history of symptoms can be traced back to adolescence or at least early adulthood. hence it is CONSTITUTIONAL SINCE IT STARTS MUCH BEFORE the individual joins service

if symptoms are short duration and situational then it is probably malingering/.

God save the future commanding officers in field area if these personality disorders in soldiers are granted disability pension.

and well u like to give him disability pension.... the time will not be far when soldiers will slap the CO and dont go on war front and feign a personality disorder and even earn a disability pension..!!!

Navdeep / Maj Navdeep Singh said...

Dear Medical Specialist,

Firstly, please point out any medical document or study which explains or uses the term 'constitutional'. Apart from India, no country in the world uses the terminology of 'constitutional' while determining attributability / aggravation. This is primitive to say the least.

Secondly, nobody disputes cases where there is family history or when history of symptoms can be traced to childhood, such cases can be safely labelled as 'neither attributable nor aggravated' with mentioning of detailed reasons in AFMS-16. The problem happens when no apparent cause can be located or when a particular disease is perceived as being idiopathic and the medical specialist simply mentions 'constitutional'. This is blatantly incorrect and against both the Entitlement Rules as well as the Guide to Medical Officers (Pensions) 2002 (amended 2008).

"God save the future commanding officers in field area if these personality disorders in soldiers are granted disability pension" (sic)

Your above content is truly disturbing and disgusting, in fact, God save these unfortunate psychiatric cases from doctors like you who are totally insensitive to the profession they profess. A patient of a psychiatric disorder needs our care and sympathy, not statements like the above. And in any case, a mentally unstable soldier may be perceived as a trouble-maker by people like you, but that does not disentitle him from his service benefits if the rules provide so. That he is a trouble maker would also not ipso facto prove that his mental condition could not have been aggravated by service.

Anonymous said...

Medical specialist. navdeep has called your comments disutrbing, i would call them unfortunate. i have spent more than 30 years in AMC and can say with certainty that officers like you are the reason for this spike in litigation of disability pension in courts. read the blue book once again, if there is childhood history of an ailment in a person, it has to be reduced in writing and clearly mentioned, it cannot be assumed. if there is no proof, the benefit of aggravation has to be given to the soldier. this sadism is hurting the AMC community the most, sadism with soldiers afflicted with diseases, sadism in medical boards, sadism in study leave policy, sadism in approving PMR cases, sadism while pushing the case for DACP, sadism in everything. very very sad my friend.

Anonymous said...

this also has something to do with present day commanding officers shying away from using their disciplinary and adm powers properly and choosing the easier route of form-10 and firing from the shoulders of the psychiatrist little realising the consequences thereof. nevertheless AMC officers should take the matter of writing opinions seriously based on facts, outlining clearly how they came to the conclusions as stated in their opinion and not in a manner which would appear to the courts at a later date to be haphazard and arbitrary. also the approval and perusal of these documents needs to be more stringent, and the fact that for a busy physician writing opinions may be of least priority needs to be kept in mind.

Anonymous said...

Has Supreem Court decided a date for hearing in case of GOI SLP in case of payment of Rank pay arrears? How long shall we have to wait? Honourable Supreme court had decided the case in favour of affected officers earlier in March. More than six months and no news further...

captainjohann said...

Sir,
I am disturbed by the opinion of the psychiatrist and consoled by the opinion of Maj Navdeep.If the appointing authority at the time of appointment could NOT detect his constitutional defect, then it should be attributed to service only.
We say even when God is willing to give ; Indian Poojaries(Psychiatrists) will not open their heart or hands.

medical specialist said...

dear navdeep reply to your comment:

point 1 ..u still havent clarified to me is a specialist medical doctor present as expert witness in deciding these medical cases or not? Otherwise the judgments are bases as u (as lawer rather layman) understand and conceive about the illness by reading what ever material u get.

point 2. I agree the word constitutional needs to changed to specific things like degenrative, nutritional,metabolic,genetic, infectious, traumatic and cause unknown. DGAFMS did direct us specialist to substantiate this in our opinion. and board proceeding label it in general as constitutional except for infections and injurious causes which are clearly acquired in nature.
however in psychiatry mostly they are genetic in nature except a few like post traumatic stress disorder which are acquired and clearly attributable to service. more over during medical recruitment (i hope u visit one and see the rush and efficiency with witch the recruiting people handle it ) the medical checkup is elaborate done by atleast 3 doctors evaluating all symptoms and signs but in short span of 10 mins each recruit can be assessed only for clear cut medical problem.. the psychiatic illness can not be picked up in span of 10 mins alloted to each recruit evaluation but it can be assessed later on when he is in peer group working with them.

point 3. the point u told sic.. well this is what we actually get in our referrals esp in personality disorders. some are malinger some are actually having problem and obviously no one will give a family history about his psy illness.

Navdeep / Maj Navdeep Singh said...
This comment has been removed by the author.
Navdeep / Maj Navdeep Singh said...

@Medical Specialist

Your queries and my comments :

Point No 1. There is no question of any 'witnesses' in cases being dealt under the Constitutional Writ jurisdiction by High Courts and the Supreme Court. The Court is an 'expert' over 'experts' and is to render justice on the basis of law and not on facts. You may appreciate that each and every case being dealt by the higher judiciary involves some question or the other which may have been dealt with by experts below. Tomorrow, someone may say that Courts do not have the expertise to deal with engineering issues since an engineer is not a part of the bench, or that a Court cannot sit in appeal over tax matters since a taxman is not a part of the adjudication process. This is not how things work in a democracy. The rules provide certain presumptions which are provided in the statute and the doctors, or for that matter any other expert, have to work within the four corners of those rules irrespective of personal opinions. If the rules provide that 'psychosis' is a disability which is affected by stress and strain of military service, then a military medico cannot substitute it with his/her own opinion by stating on AFMS-16 that 'Psychosis' is a psy problem which is constitutional and does not get affected by service conditions. Any such comment is a nullity.

Point No 2. Your observation about psychiatric illnesses is wrong even if you go by the Guide to Medical Officers (Pensions). In fact, that is why I feel that Psychiatrists are not fully equipped to handle this function even in cases of PTSD without the active help of a clinical psychologist which is missing in the military set up. You are right, psychiatric problems cannot be picked up by recruiting medical officers, but if a symptom appears much after recruitment and is affected by rigours of military service, then aggravation has to be conceded. And for your kind information, even diseases and illnesses existing prior to recruitment are eligible for disability benefits if they get aggravated or worsened in service. Please go through the entitlement rules, 1982. Also diseases with unknown causes as referred by you are to be accepted as attributable according to rules and not otherwise.

Point No 3. If this is the pre-conceived notion doing the rounds, then Court intervention is bound to increase with time. Even if a person is feigning his psy illness, that is what psychiatrists are sitting for - to evaluate the problem and look for the actual basis. To broad-brush, like you suggest, would not only be unfortunate but also illegal.

AKSA said...

Meanwhile, the expected action on the "Transfer Petition(Civil) 56/2007", regarding the IV CPC Rank Pay matter, appears to have been put off till 08 November 2010 as that is the next date of listing now shown under 'Case Status' on the web site of the Hon'ble Supreme Court.
One wonders what transpired today, as originally the date of listing was 18 October. Perhaps, those in the know could enlighten others.

Anonymous said...

@Aksa,

Check this for the latest update on the Rank pay case.

http://rdoaindia.blogspot.com

Air Martial said...

So once again the SG (Hon'ble Gopal Subramanian) has bought time, many times ad nauseum, not to take decision for a separate Pay Commission for the Armed Forces.

What is your opinion, sir?

Rajan the Chopper Guy said...

Dear Medical Specialist,
When I joined IAF as a flyer, I was tested comprehensively. Later, I was posted to Leh, Jaisalmer and Barmer successively (all of them being field/hard areas). I developed Psoriasis and Hypothyroidism which went undetected till I was posted (next posting) to J&K again.
A good doc told me that I should get my thyroid profile done up (in civil) since the facilities were not available even in North Com CH. I, in other words, had been flying with inadequate T3-T4 for years. I was tired, overweight and "malingering" as per your kind. The SMO (when I met him for my monthly consulation for being overweight) threw a fit when I showed him a civil report. He had the cheek to ask me how dare I get the test done in Civil and promptly sent me to AFCME, who put me medically down for 5 yrs (terming it constitutional each and every time, doing a board after obtaining my signatures on a blank board), until I fought it out and got my medical category to a full flying category. Any comments? Was I malingering or had an actual medical issue which could not be detected by your AMC pundits? Was the reason for my medical unfitness due to 4 postings one after another in field / hard areas or is it "Constitutional"? Do you do a Tyroid Test on pilots or later (if it turns up) term it "Constitutional" and deny him even the pittance he gets as disability pension based on your 20% quota?
I think AMC is also fighting the same war against Babudum but you guys convince yourselves about what you are doing under the circumstances is the best you can do. Nothing against the AMC:- you have stopped fighting for those you must fight for because you guys cannot take on the bureaucracy and hence victimise the soldiers hiding behind your books and bureaucratic shenigans.

Anonymous said...

This is from Col NR. Kurup



I doubt whether you had a look at the file notings of the Defence Secretariat file on the issue. Anyway, I had a look at it. In case you have not seen it so far, kindly go through it. If you seek inspection of the file under RTI Act, you will get it. Let me point out
following:

1. As per Defence Ministry's note, dated 22-12-2009 the financial implications were estimated t be Rs.433 cores without taking into account financial implications on pensionary benefits in respect of army and navy officers.

2. It was referred to Legal Adviser (Def)

3. The Legal Advisor was of the opinion that review can be done on following grounds:

a. Discovery of new facts.

b. Mistake or error apparenton face of record and

c. Any other sufficient reason

4. It has gone to the solicitor General

5. The Joint Secretary(L) Anand Misra had pointed out that "In view of the huge financial implications and importance of the case, it is proposed to get it assessed by a High Power Committee consisting of Defence Secretary, Secretary, Dept of Expenditure and Secretary (Defence Finance)

6. The RM has approved constitution of the above Committee

7. This Committee has worked out the expenditure as - Arrears on account of pay and pension to be around Rs.426 crores and Rs.83 crores
respectively. Interest @ 6% per annum on these arrears as ordered by the SC to be Rs.1.114.71 crores and the total financial liability comes to around Rs.1,623.71 crores

8. The case was pursued purely on taking of the above mentioned one-time financial implication and enhanced recurring implication.

9. In nutshell it may be seen that only the financial im0plication was the criteria for the government to seek the review/recall and not the merit of case

10. Now we should recollect following

a. The arrears was resulted due to the misinterpretation of the 4 PC orders by the babus

b. The mistakes were corrected and the correction has been ratified by the HC and SC

c. Now the position is that the above amount is due to officers. ie. amount due to the employees of government. It is legally incumbent on the employer ie. the government to pay this due to its employees.,

d. Government cannot absolve from this liability on a plea that the amount is too high.

e. If the government is not capable of discharging its liability, it has no choice other than declaring itself 'INSOLVENT'. After becoming insolvent, the employees are entitled to seek their dues by REVENUE RECOVERY.



I therefore request the concerned to bear in mind the requirement of the government becoming INSOLVENT to escape the payment and our entitlement to get our dues by REVENUE RECOVERY. I also request the concerned to impress all concerned that the interest of Rs.1,114.71 crores cannot be considered as the expenditure as the entitled interest has always been more than 6% and more than Rs.1114,71 has already gained by government by withholding the dues from us. This is as good as returning our DSOP deposit. This can never be considered as an additional burden. In fact, we should insist payment of interest at market rate from 8-3-2010

Col NR Kurup (Retd)

Anonymous said...

1. As per Defence Ministry's note, dated 22-12-2009 the financial implications were estimated t be Rs.433 cores without taking into account financial implications on pensionary benefits in respect of army and navy officers.

2. It was referred to Legal Adviser (Def)

3. The Legal Advisor was of the opinion that review can be done on following grounds:

a. Discovery of new facts.

b. Mistake or error apparent on face of record and

c. Any other sufficient reason

4. It has gone to the Solicitor General

5. The Joint Secretary(L) Anand Misra had pointed out that "In view of the huge financial implications and importance of the case, it is proposed to get it assessed by a High Power Committee consisting of Defence Secretary, Secretary, Dept of Expenditure and Secretary (Defence Finance)

6. The RM has approved constitution of the above Committee

7. This Committee has worked out the expenditure as - Arrears on account of pay and pension to be around Rs.426 crores and Rs.83 crores respectively. Interest @ 6% per annum on these arrears as ordered by the SC to be Rs.1.114.71 crores and the total financial liability comes to around Rs.1,623.71 crores

8. The case was pursued purely on taking of the above mentioned one-time financial implication and enhanced recurring implication.

9. In nutshell it may be seen that only the financial im0plication was the criteria for the government to seek the review/recall and not the merit of case
The mistakes were corrected and the correction has been ratified by the HC and SC

Now the position is that the above amount is due to officers. ie. amount due to the employees of government. It is legally incumbent on the employer ie. the government to pay this due to its employees.,

Government cannot absolve from this liability on a plea that the amount is too high.

If the government is not capable of discharging its liability, it has no choice other than declaring itself 'INSOLVENT'. After becoming insolvent, the employees are entitled to seek their dues by REVENUE RECOVERY.

Col NR Kurup (Retd)

Anonymous said...

Dear Medical Specialist

I have been a victim of AFMS-10, so I know what really goes on in the psy ward and can write pages and pages. But I would request you to answer only few questions if you may please:
1. Do the psychiatrist investigate the case honestly or just go by the commanding officer report?
2. Even when friends and relatives are protesting 'there is nothing wrong' still the He rules in line with CO. Why?
3. If the acts narrated by CO, are purely of admin / corruption / legal in nature, do they refer back the case as not a medical case?
4. On the Labels of MDP is there any recourse, where one goes for justice?
5. If the board writes 'MDP, constitutional and not attributable to service', and does not reply to right to appeal then what one do? More so when he has been a fit Pilot and flown for 15 years, where in civil he goes for a job to take care of his family, with that Label?

Hope you understand Maj Navdeep Singh's point of view see the pain of real sufferer and not just one odd nut case which CO should have dealt otherwise. Thanks

sgt.shanmugam said...

sir, i am ex-sgt s.shanmugam of iaf.i want to get the guide to medical officer military pension 2002 amended 2008. please tell me in web site i will get it. thank you sir.

Amish said...

Could anyone please post a link to the abovementioned judgments of the apex court. Did a futile google search to no avail.