Anil Kumar vs Union Of India And Others

Arguments heard

Vide separate order, OA stands disposed of.

Feeling aggrieved by the order dated 21.09.2012, vide which the applicant was held as not entitled to disability pension, in terms of Regulation 48 of

Pension Regulations for the Army, 1961, Part-1(henceforth referred to as PRA) on the ground that the disabilities. i.e 'PRIMARY

HYPERTENSION' was found to be neither attributable to nor aggravated by military service, the present OA has been filed by the applicant under

Section 14 of the Armed Forces Tribunal Act. 2007.

The facts germane to the filing of the present OA are that the applicant was commissioned in Army on 17.03 1979 and was discharged from

service on 31.08.2008. During his entire service. he was posted at various places in different environment and climatic conditions. In October 2001,

the applicant was diagnosed with the disability of Primary Hypertension and was placed in medical category S1H1A1P2(Perm). He was brought

before the Release Medical Board (RMB) on 30.05,2008. The Medical Board assessed the disability of the applicant as 30% but opined that the

disability was neither attributable to nor aggravated by military service as the same was contracted in peace area. The first and second appeals

preferred by the applicant were rejected,

3 .The applicant's plea is that, at the time of entry into service, he was subjected to thorough medical examination conducted by a duly constituted

Board and when found medically fit at the Selection Centre in all respect, he was commissioned in the Army as an officer. He was again put through

medical examination at the Training Centre and was found medically fit. The disease PRIMARY HYPERTENSION assessed © 30% was

diagnosed during his service as the applicant faced tremendous work pressure and had to work in adverse conditions. The disease was further

aggravated due to frequent transfer to various places. and because of stress and strain, social environment and emotional distress. Hence the denial of

disability pension to the applicant is alleged to be contrary to the regulations and judicial pronouncements, as such. OA has been filed for setting aside

the impugned order No. B/38046A/46/2011/AG/PS-4(2nd Appeal) dated 21.09.2012 and grant of disability pension @ 30% assessed as not

attributable to nor aggravated by military service with effect from 07 Oct 2010 and thereafter granting the benefit of broad-banding g 50% along with

interest over the arrears © 12%.

The assessment of disabilities @ 30% for PRIMARY HYPERTENSION for life is not disputed by the respondents. However, it is contended that

the disability was assessed as neither attributable to nor aggravated by service because onset of the disease was in peace area. There is no delay in

diagnosis and no close time association with stress/strain of Field/CIOPS/HAA service. Hence NANA as per para 43 Chapter VI GMO 2002

(Arndt.)

We have heard learned counsel for the parties. perused pleadings and Medical Board Proceedings. It is not in dispute that the extent of disability for

hypertension has been assessed to be above 20% which is the bare minimum for grant of disability pension in terms of Regulation 173 of the Pension

Regulations for the Army.1961. The only question that arises in the above backdrop is: whether disability suffered by the applicant was attributable to

or aggravated by military service.

It is not in dispute that when the applicant was enrolled in Army in September, 1979, he was not suffering from any disease It is the case of the

respondents that the onset of disability PRIMARY HYPERTENSION was in October 2001 and as such, it was considered as neither attributable to

nor aggravated by military service.

Substantially similar plea was taken Capt DPS Tomar versus Union of India in the case of Gp and others OA 482/2014 decided on 09.07.2015,

where it was observed as under:-

We are of the considered opinion that the courts and thereafter Tribunal and almost all Benches of the Tribunal have come across the

large number of cases of rejection of disability pension in the case primary hypertension itself. Before us, the courts and thereafter the

Tribunal in the larger number of cases, exactly same grounds were taken as a defence to the petitioner's claim with the plea that above

reasons are sufficient reasons for denial of the disability pension and such objections have been rejected by the Courts and thereafter, by the

Tribunal. Not only this, but Hon'ble Supreme Court in the case Union & Ors Vs. Manjit Singh, JT 2015 (5) SC 25 5has given list of the

judgments of The Hon'ble Court wherein each and every issue like contacting disease in peace area and close time association with stress

and strain have been considered. The ratio of all the judgments, one after another, rendered by the Hon'ble Supreme Court negate all these

pleas which have been taken by the respondents repeatedly and that too which are not in consonance with para 423 of Regulations for the

Medical Services which has been considered in the case of Dharamvir Singh Vs UOI & Ors Jt 2009 (12) SC 180. Not only this, the primary

hypertension is one of the diseases included in the list of disease prescribed under the Schedule of the Guide to Medical Officer as well as

mentioned in Annexure 3 to Appendix 2 of the Pension Regulation for the Army, 1961. The reasons given by the Medical Board have

already been considered and have been rejected up to the Honble Supreme Court repeatedly.

We also had an occasion to deal with similar issue in OA 1492/2017- Ex. JWO Mukhtyar Singh Gulia versus Union of India and others decided on

03.07.2018 and by placing reliance on the judgment rendered by Hon'ble Supreme Court of India in Dharamvir Singh versus Union of India (2013) 7

SCC 316 and Union of India and Anr. Versus Rajbir Singh (2015) 12 SCC 264, the disability pension was granted to the applicant.

In the instant case also, we are of the view that the law laid down in Dharamvir Singh's case (supra) was re-affirmed in Rajbir Singh(supra), where

Hon'ble Supreme Court observed that the legal position laid down in Dharamvir Singh's case (supra) is in tune with the Pension Regulations, the

Entitlement Rules and Guidelines issued to the Medical Officers. Relevant excerpt from the said judgment is contained in paras (14) and 15), which

read as under:

The legal position as stated in Dharamvir Singh's case (2013) 7 SCC 316 is, in our opinion, in tune with the Pension Regulations, the

Entitlement Rules and the Guidelines issued to the Medical Officers. The essence of the rules, as seen earlier, is that a member of the armed

forces is presumed to be in sound physical and mental condition at the time of his entry in to service if there is no note or record to the

contrary made at the time of such entry. More importantly, in the event of his subsequent discharge from service on medical ground, any

deterioration in his health is presumed to be due to military service. This necessarily implies that no sooner a member of the force is

discharged on medical ground his entitlement to claim disability pension will arise unless of course the employer is in a position to rebut the

presumption that the disability which he suffered was neither attributable to nor aggravated by military service.

From Rule 14(b) of the Entitlement Rules it is further clear that if the medical opinion were to hold that the disease suffered by the

member of the armed forces could not have been detected prior to acceptance for service, the Medical Board must state the reasons for

saying so, Last but not the least is the fact that the provision for payment of disability pension is a beneficial provision which ought to be

interpreted liberally so as to benefit those who have been sent home with a disability at times even before they completed their tenure in the

armed forces. There may indeed be cases, where the disease was wholly unrelated to military service, but, in order that denial of disability

pension can be justified on that ground, it must be affirmatively proved that the disease had nothing to do with such service. The burden to

establish such a disconnect would lie heavily upon the employer for otherwise the rules raise a presumption that the deterioration in the

health of the member of the service is on account of military service or aggravated by it. 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 he was upon proper physical and

other tests found fit to serve in the army should rise as indeed the rules do provide for a presumption that he was disease-free at the time of

his entry into service. That presumption continues till it is proved by the employer that the disease was neither attributable to nor aggravated

by military service. For the employer to say so. the least that is required is a statement of reasons supporting that view. That we feel is the

true essence of the rules which ought to be kept in view all the time while dealing with cases of disability pension.

10 The view was reiterated by Hon.ble Supreme Court in Civil appeal No.2633 of 2017 Ex Gnr. Laxmanram Poonia (Dead) through L/Rs Vs Union

of India & Ors. decided on 22 Feb., 2017.

Applying the above parameters to the case at hand. we are of the view that the applicant has been discharged from service on account of medical

disease/disability, the disability must be presumed to have arisen in the course of service which must. in the absence of any reason recorded by the

Medical Board. be presumed to have been attributable to or aggravated by military service. There is admittedly neither any note in the service record

of the applicant at the time of his entry in the service nor has any reason been recorded by the Medical Board that the disease which the applicant

was found to be suffering from, could not have been detected at the time of his entry into service. The initial presumption that the applicant was

physically fit and free from any disease and in sound physical and mental condition at the time of entering into service thus remains unrebutted.

The main reason for classifying the disabilities as neither attributable to or aggravated by military service is that the onset of the disease is in peace

area. Hontle Supreme Court in Dharamvir Singh's (supra) referred to Rule 423 (a) of General Rules and observed that for the purpose of determining

a question whether the cause of a disability or death resulting from disease 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.

In view of the above, impugned order dated 21.09.2012 passed by second Appellate Committee on Pension is set aside and the OA is allowed.

The opinion of the Release Medical Board dated 30.05.2008 qua attributability aspect is also set aside. The applicant is granted disability element of

disability pension @ 30% as assessed by Release Medical Board which is required to be rounded off to 50% in terms of Govt. of India, Ministry of

Defence Letter No.1(2)/97/D(Pen-C) dated 31.01.2001 and law settled by Hon'ble Supreme Court in Civil Appeal No.418/2012 titled U01 & Ors Vs

Ram Avtar vide judgment dated 10.12 2014, along with interest. However, keeping in view the fact that the applicant has approached the Tribunal

after a substantial delay. the arrears are restricted to three years prior to the filing of OA. i.e.. 28 06.2017. The respondents are directed to calculate

sanction and issue necessary PPG to the applicant within a period of four months from the date of receipt of this order. failing which it shall carry

interest @ 8 % p.a.

No order as to costs.