Union of India & Ors. Vs Wg Cdr Kameshwar Prasad Mishra Retd

1. This petition assails order dated 16 May 2024 passed by the Armed Forces Tribunal¹ in OA 2347/2019 whereby the respondent’s application for grant of disability pension on the ground that he suffers from Diabetes Mellitus Type II with 20% disability, rounded off to 50% for life, have been allowed by the AFT.

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2. The issue is covered by a recent decision rendered by us in UOI

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1 “the AFT” , hereinafter

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W.P.(C) 3447/2025

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v Ex Sub Gawas Anil Madso² .

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3. Nonetheless, we have heard Dr. Vijendra Singh Mahndiyan, learned CGSC for the petitioners, and have perused the record.

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4. The respondent was released in Low Medical Category on his being found to be suffering from Diabetes Mellitus Type II. From the record, including the proceedings of the Release Medical Board³ , the following facts emerged:

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(i) The respondent had served in the Indian Air Force for over 37 years before he was diagnosed as suffering from Diabetes Mellitus Type-II.

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(ii) The respondent, in his self-declaration, specifically declared that he had not been suffering from Diabetes Mellitus Type-II prior to joining the Air Force. The declaration reads thus:

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Did you suffer from any disability before joining the Armed Forces? If so give details and dates: NO

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The correctness of this declaration is not doubted either by the RMB or by the petitioner before the AFT or before this Court.

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(iii) The reason regarding the Diabetes Mellitus Type-II and

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W.P.(C) 3447/2025

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Primary Hypertension suffered by the respondent has not been attributable to military service, as entered by the RMB reads thus:

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“Type II DM (OLD) Z.09.0: This is a metabolic disease characterized by hyperglycemia due to absolute / relative deficiency of insulin and there was no delay in diagnosis and no close time association of stress and strain of service in field/HAA/CIOPs area is established. Hence NANA as per para 26 of Ch-VI of GMO 2008.”

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(iv) We have already held, in our judgment in Gawas Anil Madso , that where the applicant was not suffering from the ailment at the time of entry into service, the RMB is required to positively identify the cause for the ailment, to justify a finding that it is not attributable to military service. The Commanding Officer’s certificate specifically states that the respondent was not responsible, owing to any act or omission of his, for the ailment from which he was suffering. The entry in that regard reads as under:

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(a) Was the disability attributable to the individual’s own negligence or misconduct? If Yes, in what way. No, N/A

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(v) Regarding para 26 of the Chapter VI of the GMO 2008, we have, in our judgment in UOI v EX MWO HFO Bharat Tiwari⁴ , observed thus:

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3 “RMB”, hereinafter

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“11. Para 26 of the Chapter VI of the GMO 20087, vivisected into its individual components, specifies that, while dealing with diabetes mellitus:

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(i) DM is a metabolic disease,

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(ii) DM is characterised by hyperglycaemia,

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(iii) DM is of two types, Type I and Type II with the physiological and pathological reason for the arising of the disease,

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(iv) Secondary diabetes is stated to be also attributable to drugs or trauma to pancreas or brain surgery or otherwise, as well as to diseases of the pituitary, thyroid and adrenal gland,

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(v) DM Type II would be conceded aggravated if onset occurs serving in Fields/CIOPS/HAA and prolonged afloat service, and

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(vi) Diabetes secondary to chronic pancreatitis due to alcohol dependence and gestational diabetes should not be considered attributable to service.”

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(vi) The RMB has certified the respondent as suffering from 20% disability rounded off to 50% on account of Diabetes Mellitus Type-II, lifelong.

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5. In such circumstances, we have held in the decision in Ex Sub Gawas Anil Madso that the respondent would be entitled to disability pension.

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6. We do not deem it necessary to reproduce the findings in the said decision, so as not to burden this judgment.

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W.P.(C) 3447/2025

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7. We have also been conscious of the fact that we are exercising oatce ri jurisdiction over the decision of the AFT and are not sitting in appeal over the said decision.

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8. The parameters of oa ce ri t jurisdiction are delineated in the following passages of Syed Yakoob v K.S. Radhakrishnan⁵ :

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“7. The question about the limits of the jurisdiction of High
Courts in issuing a writ of certiorari under Article 226 has been
frequently considered by this Court and the true legal position in
that behalf is no longer in doubt . Aw rito f cea nb iued s
for cetin g sudm j
tribunals: ths are ca e e wh s r o e des are pa r s ed by o ri nfe
courts i b n alwhjd , eso xcfitr
result of failure to xrcis jur e i sdcton. A writ can s i m l ary be
d whri s u e i n e xrcs o f ju ri s dc t no f e ni t , heCourt
o r Tibun a lcts iegay lor p ely,as forace, in s t cis a de
question wi t hou gi vn an op r t uniy, be heard to the party
ctd by the oa fe r de, or whr the p e du a r oc e d opte in dealing
with t he dispuei s op edt ncles of n p r i turl justic a . Thr e
is, howvr, no doubt e t ha the jur i sdcton to iue a writ of s
r t i ceoa sa suior vyjpe d ct n a t he Cou rei sng txc
is not n t ild to act as an e apel t Court. This limitation
necessarily means that findings of fact reached by the inferior
Court or Tribunal as result of the appreciation of evidence cannot
be reopened or questioned in writ proceedings. An e r o of law

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w hi c s n t oth ap re e f aco th erc od anb e c o r tdby a
wri t , bu n ot ae ro f act, how evr ga itm pa yerto be.
In egad to a f r in dg of fact co d by the Tribunal, a writ of re
r t i ceoa can be iued if it is shown s t ha in ecoding the said r
f in dg, theTribun a l hdly fd ero n us t o admis ble
and mteril a vidnc, or had e nusly a ero d mi t e ble i nadm s
idnc v e w ha s flu t m p gin d. Sry,a
fin dg ofact i s baed on e vidnc, t ha wouldb e r g ad s
an e ro f la wh i c anb e c o r tdby awrit o fce r t i a. In
deal i ng w th sry f cae g os, vr muho wes t a lwy ber
in mind t ha adg ofa fin c t re o d by theTribu na l cotbe

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W.P.(C) 3447/2025

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5 AIR 1964 SC 477

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ngd in proccha le dings for a writ of ce e oa on the ground r t i
t ha the rlvant and m e teril a vidnc a e d uce bfor the e
Tribunal was cet or in in su f qut to a d e s utain the impugned
find g. Th eaucyo qrsvl d na
th e rco faci nf t o bed r awn fomthe sa i df n dig arew i thn
the xclusiv jur e i sdcton of the Tribunal, and the said points
anot be cg i df rw Cou t .I ish n e lm t
t he ju ri s dcone font h e HigCo ur ts nd e Articl 2 6to
ue a writ i s f o n be r t ia e c may exrcsd le g it ( vide Hari
Vishnu Kamath v Syed Ahmad Ishaque 6 , Nagandra Nath Bora v
Commissioner of Hills Division and Appeals Assam 7
Kaushalya Devi v Bachittar Singh 8 .

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It is, of course, not easy to define or adequately describe
what an error of law apparent on the face of the record means.
Wh a t cnb e c o r tdby awrit hasto bean e ro f law;hu t
must besuch ane ro fl a w scan b erad gsone w hi cs
rent on the face of the ap ecod. Wh r r it is manifest or clear e
t ha the lusi of law con by an co dre r o Court or i nfe
Tr i bunal s baed o n a oi u s bv - inter pa o f t h e rlvan
s t auory pr i sn, or o v ti in igo mes orace of it, or may be, n
vn in e ega of it, or is d is r s ly founxpr e d e on rea s on w h ic
are won g il , t h sdc u be or yawitf
certioa . I nlhs ,mp du g
p l ainy e with the r in co st lvant s e t auory pr i sn o v t ha no
difc ulty sxprnby eth H i gC nho urldig ta esid
ro eflaw is n t oth ap re e f aco th er cod . It may also be
that in some cases, the impugned error of law may not be obvious
or patent on the face of the record as such and the Court may need
an argument to discover the said error; but r canbe nth e o dubt
tha wcnbeor dy if s a lw
and the said e r o must, on the whole, be of such a te as h arc
would sati fy he is anero f lw pt nh e
of th er cod . If a statutory provision is reasonably capable of two
constructions and one construction has been adopted by the inferior
Court or Tribunal, its conclusion may not necessarily or always be
open to correction by a writ of certiorari. In our opinion, it is
neither possible nor desirable to attempt either to define or to
describe adequately all cases of errors which can be appropriately
described as errors of law apparent on the face of the record.
Whether or not an impugned error is an error of law and an error of

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7 AIR 1958 SC 398

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8 AIR 1960 SC 1168

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6 (1954) 2 SCC 881

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law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.”

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(Emphasis supplied)

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9. Within the limited parameters of the oa tce ri jurisdiction and keeping in view the facts of the case outlined hereinabove, we find no cause to interfere with the impugned judgment of the AFT, which is affirmed in its entirety.

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10. In addition, we find that our view stands fortified by paras 45.1, 46 and 47 of the judgment of the Supreme Court, rendered on 23 April 2025 in Bijender Singh v UOI⁹ , which may be reproduced thus:

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“45.1. Thus, this Court held that essence of the Rules is that a member of the armed forces is presumed to be in sound physical and mental condition at the time of his entry into the service if there is no note or record to the contrary made at the time of such entry. 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. This Court highlighted that the provision for payment of disability pension is a beneficial one which ought to be interpreted liberally. 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

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aggravated by military service, the least that is required to be done is to furnish reasons for taking such a view.

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Referring back to the impugned order dated 26.02.2016, we find that the Tribunal simply went by the remarks of the Invaliding Medical Board and Re-Survey Medical Boards to hold that since the disability of the appellant was less than 20%, he would not be entitled to the disability element of the disability pension. Tribunal did not examine the issue as to whether the disability was attributable to or aggravated by military service. In the instant case neither has it been mentioned by the Invaliding Medical Board nor by the Re-Survey Medical Boards that the disease for which the appellant was invalided out of service could not be detected at the time of entry into military service. As a matter of fact, the Invaliding Medical Board was quite categorical that no disability of the appellant existed before entering service. As would be evident from the aforesaid decisions of this Court, the law has by now crystalized 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. Therefore 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.

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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. That being the position, impugned orders dated 22.01.2018 and 26.02.2016 are hereby set aside. Consequently, respondents are directed to grant the disability element of disability pension to the appellant at the rate of 50% with effect from 01.01.1996 onwards for life. The arrears shall carry interest at the rate of 6% per annum till payment. The above directions shall be carried out by the respondents within three months from today.”

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11. The present petition is, accordingly, dismissed in mne i l

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12. Compliance with the impugned judgement of the AFT, if not

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already ensured, be ensured within a period of four weeks from today.

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C. HARI SHANKAR, J.