Ashit Kumar Hota vs Union Of India And Others

Being aggrieved by denial of disability pension, the applicant has filed the present Original Application under Section 14 of the Armed Forces

Tribunal Act, 2007 wherein he has sought the following reliefs:-

(c) Direct the respondents to grant disability pension to the applicant @ 75% w.e.f the date of his retirement, i.e. 01.08.2016.

(d) Direct the respondents to pay 10% interest on the arrears of disability pension w.ef 01.08.2016; and

(e) Issue such other order(s)/directions (s) as may be deemed appropriate in the facts and circumstances of the case.

Brief facts of the case are that the applicant was commissioned in the Army on 12.09.1984 and superannuated on 31.07.2016. Prior to

superannuation applicant's Release Medical Board (RMB) was held on 28.01.2016 which had assessed (1) Cervical Spondylosis with Dish @ 30% for

life 'the applicant for both of the aforesaid disabilities (@ 60% composite disability) and rounded off to the extent of 75%.

Per Contra Ld. Counsel for the respondents argued that the competent authority has the right to review findings of RMB. Since the disability

'Diabetes Mellitus Type-IF has been opined as NANA by the competent authority, therefore the applicant is not entitled to disability pension for the

aforesaid disability. He pleaded for dismissal of the O.A.

Ld. Counsel for the applicant pleaded that the applicant was commissioned in the Army in medically and physically fit condition. It was further

pleaded that a member is to be presumed in sound physical and mental condition upon entering service if there is no note or record to the contrary at

the time of entry. In the event of his subsequently being discharged from service in low medical category, any deterioration in his Heaitn is to De

presumed due to service conditions. He pleaded that the applicant was under stress and strain due to rigors of military service which has led to

occurrence of the disability and the same has correctly been reflected by RMB. However the second disability has been declared by the competent

authority as NANA after overruling the opinion of RMB. The Ld. Counsel for the applicant pleaded for disability pension to be granted to the

applicant for both of the aforesaid disabilities (@ 60% composite disability) and rounded off to the extent of 75%.

We have heard Ld. Counsel for the parties and perused the records. to assess DENOVO, the aggravation and disability percentage aspect of this

disease i.e. Diabetes Mellitus Type-II. Accordingly the respondents are required to carry out a fresh RSMB for the applicant. The reassessment will

be specifically limited to this disease only.

We have perused the RMB dated 28.01.2016 and noted that the applicant is a Medical Officer from AMC, and that as compared to similar RMBs

of Diabetes Mellitus Type-II cases, two variations in the applicant's RMB are noticeable i.e. firstly, unlike other Medical Board trends, aggravation

has been conceded despite disease originating at a peace station. Secondly, unlike other similar cases where the disability percentage is normally 20%,

in this case the disability for the disease is 40%.8. The respondents are directed to implement the orders within four months from the date of receipt of

this order.

Thus consiaering am issues involved in tms case, incivaing the objections of competent authority to the opinion of RMB and the law settled by the

Hon'ble Supreme Court in the case of Ex. Sapper Mohinder Singh in Civil Appeal No 104 of 1993 decided on 14.01.1993, we are of the opinion that

ends of justice will be met if a fresh RSMB is done for the applicant9. In view of the above, O.A. is disposed off. There shall be no orders as to costs.

Pending applications, if any, are disposed of accordingly.

The respondents are directed to implement the orders within four months from the date of receipt of this order.

In view of the above, O.A. is disposed off. There shall be no orders as to costs.

Pronounced in the open court on 6th March, 2020.