Bhajan Singh vs Union Of India And Others

The applicant, Ex. Sep. Bhajan Singh, through the medium of the instant Original Application is seeking the foilowing reliefs:

(a) To direct the respondents to grant disabi!ity pension w.e.f, from the date of his release i.e, 01.12,2004 alongwith 9% interest on the arrears thereof,

(b) Direct the Respondents to allow broad banding of disability pension to @75% lAt.e.f, the date of discharge/ invalidation from the DSC alongwith

9% interest on the arrears thereof.

(c) That the applicant be awarded cost of the litigation 75 ,000/-.

(d) To pass any such other and/or further orders as this Honbie Tribunal may deem fit and proper in the interest of justice and in the facts and

circumstances of the case.

The facts of the case, in brief, are that the applicant was enrolled in the Indian Army on 13.02.1969 and was discharged from service on

01.03.1993. Thereafter, the applicant re-enrolled in the Defence Security Corps (DSC) on 30.11.1994 and was invalided out from DSC service on

30.11.2004, in low medical category on account of amputation of left leg below knee, The Release Medical Board (RMB) held at Military Hospital,

Ambala on 23.07,2004 assessed his disability 'PERIPHERAL VASCULAR DISEASE LUMBER SYMPATHECTOMY (LT) OPTD

AMPUTATION BEFORE KNEE (LT) M46.2 M51.9 L92.132090 1P30% for life. However, the RMB opined that the disease of the applicant was

neither attributable to nor aggravated by military service (NANA). The applicant's ciaim for grant of disability pension was rejected by the

respondents vide order dated 25.05.2007. The applicant's first and second Appeals were also rejected by the respondents vide orders dated

26.03.2008 and 09.03,2009 respectively, Hence the instant Original Application.

Learned Counsel for the applicant submitted that the applicant was medically fit when he was enrolled in DSC service and any disability not

recorded at the time of re-enrolment should be presumed to have been caused subsequently. The action of the respondents in denying disability

pension to the applicant is illegal. In this regard, he relied on the decision of the Honrble Supreme Court Ill Dharanivir Singh v. Union of India and

others, (2013) 7 SCC 316 and submitted that for the purpose of determining attributability of the disease to military service, what is material is whether

the disabilty was detected during the initial pre-commissioning medical tests and if no dfsability was detected at that time, then it is to be presumed that

the disability arose while in service, therefore, the disability of the applicant is to be considered as aggravated by service and he is entitled to get

disability pension @ 30% tor life and the same is to be broad banded to 50%.

On the other hand, learned counsel for the respondents has not filed the Counter Affidavit, however, submitted that though the RMB had assessed

the disability of the applicant300/c, it opined that the disability is NANA. As such his claim for disability pension has rightly been rejected by the

respondents He submitted that the instant Original Application does not have any merit and the same is to be dismissed.

In this case though the Counter Affidavit has not been Ned by the respondents, but the Learned Counsel for the respondents has not disputed the

Release Medical Board Proceedings which have been filed by the applicant along with the Original Application. Hence, with the consent of learned

Counsel for both the parties we proceed to decide the case.

Having heard the learned counsel for both the parties and perused the records, the oniy question that needs to be answered is, whether the disability

of the applicant is attributable to or aggravated

We have noted that the only reason for which the disability has been opined as NANA by the RMB is that the di!;ease is an idiopathic disorder, has

originated in peace area and there is no close time association with Fdi CI Ops/HAA tenure and there were no other service related aggravating

factors. The disability was first detected on December 2002 whereas the applicant was re-enrolled in DSC on 30.11.1994 le after about more than 07

years of DSC service. We are therefore of the considered opinion that the reasons given in RMB for declaring disease as NANA is very cryptic in

nature and do not adequately explain the denial of attributabiiity. We have also noted that the applicant was operated for his disease arid after post

operation infection and gangrene; his leg was amputated before Knee This disease relates to ack of adequate blood supply in the legs and in an effort

to cure the problem, the operation was done. Thus considering all issues we are of the view that benefit of doubt goes to the applicant., Thus we are

of the considered opinion that the disability 'PERIPHERAL VASCULAR DISEASE LUMBER SYMPATHECTOMY (LT) OPTD

AMPUTATION BEFORE KNEE (LT) M46,2 M51.9 L92.02090' is to be considered as aggravated by military service because of stress and strain

of military service in line with the law settled on this matter by the Nimble Apex Court in the case of Dharanivir Singh (supra). Additionally, the

applicant will also be eligible for the benefit of rounding off to 50%$ in terms of the decision of Fiorillole Supreme Court in Union of India and others

vr Ram A vtar (Civi I Appeal No 418 of 2012 dated 10,12.2014).

Resultantly, the OVA, is allowed. The impugned orders are set aside. The applicant's disability PERIPHERAL VASCULAR DISEASE LUMBER

SYMPATHECTOMY (LT) OPTD AMPUTATION BEFORE KNEE (LT) M45.2 M51.9 L92.02090r @Hi% for life, is to be considered as

aggravated by milftary service and his disabllity is to be rounded off from 30% to 50% for li(e. The applicant is entitled to disability pension from DSC,

Considering the fart that the 0.A has been admitted after condoning the delay and laches, therefore in view of the decision of the Horible Supreme

Court in Shiv Dass vs. Union of India and cithers(2007 (3) SLR 115), the arrears of disability pension will be restricted up to a period of three years

preceding the date of filing of the O.A. The date of filing of this OA is 25.04.2017 Ordered accordingly. TD be implemented by the respondents within

four months from the date of receipt of a copy of this order. Default will invite interest @8% per annum,

No order as to costs.