Bijendra Singh Kushwah vs Union Of India And Others

The instant Original Application has been filed on behalf of the applicant under Section 14 of the Armed Forces Tribunal Act, 2007. whereby the

applicant has sought following reliefs:-

“A. Issue directions to the Respondents to firstly quash and set aside the Rajput Records letter dated 24 Oct 2006 placed herein as

Annexure A-1 (Page 12 â€" 13) and declare the ailment of the Applicant for 'Palrno Planter Hyper Hydros's' as attributable to/aggravated

to military service in the light of judgment of the Hon'ble Supreme Court in Re Dharamvir Singh Versus Union of India the ratio decidendi

of which has been followed by the Hon'ble Armed Forces Tribunal in Re Chatro Gujjar Versus Union of India as also in Re Naib Subedar

Hoshiar Singh to meet the ends of equity, justice and fairplay.

B. Issue directions to the Respondents to adhere to the principle of rounding off to the instant case as per the Government of India, Ministry

of Defence Order dated 31 Jan 2001 which has been accepted by the Hon'ble Punjab and Haryana High Court Judgment in Re Para mjit

Singh Versus Union of India and the same has also been upheld by the Hon'ble Supreme Court.

C. Issue directions to the Respondents to grant LPG Gas Agency to the Applicant if the Disability Pension is quantified more than 20© as

per the rules of the subject placed as Annexure A-4. (Page- 18).

D. Pass such other and further orders/ directions to the Respondents for adequate compensation as may be deemed just and proper by the

Hon'ble Armed Forces Tribunal in the attendant genuine circumstances of the case.

Brief facts of the case are that the applicant was enrolled in the Indian Army on 28.10.1995 and was discharged from service on 30.04.2006 in low

medical category 'S1H1A1P2(Permt)E1. under Rule 13 (3) III (v) read in conjunction with Army Rule 13 (2A) of the Army Rules 1954. The Release

Medical Board (RMB) of the applicant opined his disability ""PaImo Planter Hyper Hydrosis (174.4)"" as constitutional in nature and Neither

Attributable to Nor Aggravated (NANA) by military service and assessed the disability at less than 20% (6%-10%) for life. His claim for grant of

disability pension was rejected vide order dated 24.10.2006. The applicant is in receipt of service pension, however he has been denied disability

pension due to his disability being as constitutional in nature and Neither Attributable to Nor Aggravated (NANA) by military service and disability

percentage being less than 20%, hence, this O.A.

The delay in filing the O.A. has been condoned vide order dated 21.04.2016.

Learned counsel for the applicant submitted that the applicant was enrolled in a medically fit condition and there is no note in the service documents

that he was suffering from any disease at the time of enrolment in Army. The disease ""Palmo Planter Hyper Hydrosis (174.4)"", was first time

detected in the year 1999 i.e. after about four years of service. Since the disease of the applicant was contacted during the service, hence it should be

considered as attributable to and aggravated by Military Service and he should be granted disability pension. He pleaded that various Benches of

Armed Forces Tribunal have granted disability pension in similar cases, as such the applicant be granted disability pension and its rounding off to 50%.

In support of his submission. Ld. Counsel for the applicant has relied upon the judgment of Hon'ble Apex Court in the case of Sukhwinder Singh vs

Union of India & Ors, (201.4) 4 SCT 163 (SC) and pleaded that the applicant is entitled to grant of disability pension and its rounding off.

Rebutting arguments of Ld. Counsel for the applicant, Ld. Counsel for the respondents submitted that the applicant is getting service element for

services pension. Disability pension claim of the applicant was rightly rejected because RMB had considered the disability of the applicant as

constitutional in nature and Neither Attributable to Nor Aggravated (NANA) by military service and assessed the disability at less than 20% (6%-

10%) for life which is less than the minimum requirement of 20% for grant of disability pension and therefore the disability pension is inadmissible to

the applicant.

We have heard Ld. Counsel for the parties and perused the material placed on record including the Release Medical Board proceedings The

questions which need to be answered are of two fold:-

(a) Whether the discharge of the applicant after about 11 years of service on medical grounds by RMB is valid or not?

(b) Whether the disability of the applicant is attributable to or aggravated by Military Service?

As for as the first question i.e. validity of applicant's discharge through RMB is concerned, the law is clear on this issue and has already been

settled by the Hon'ble Supreme Court in the case of Union of India and Ors, Vs. Rajpal Singh, Civil Appeal No 6587 of 2008 (Arising out of S.L.P.

(C) No 6037 of 2007) decided on 07 Nov 2008 Thus, considering the issue in totality, we are of the opinion that discharge of the applicant on medical

grounds could not have only been done in 2006 by a Release Medical Board (RMB) as per rules as applicable at that time. The rules as applicable at

the time permitted discharge on medical ground only through an Invaliding Medical Board (IMB). This is a case where an applicant has been

discharged before completion of his terms of engagement i.e. at about 11 years of service, on medical grounds, thus considering all issues, we are of

the opinion that ends of justice will be met if the RMB is deemed as IMB and the applicant's discharge is to be deemed as invalidation out of service.

Additionally we have noted that the applicant's medical board has assessed his disability as 6-10%. However, this being a case of deemed invalidation,

the law on minimum percentage of disability required for invalidation has already been settled by Hon'ble Supreme Court in case of Sukhvinder Singh

Vs. Union of India, reported in (2014) STPL (WEB) 468 SC. Relevant extracts are as under.-

We are of the persuasion, therefore, that firstly, any disability not recorded at the time of recruitment must be presumed to have been

caused subsequently and unless proved to the contrary to be a consequence of military service. The benefit of doubt is rightly extended in

favour of the member of the Armed Forces; any other conclusion would be tantamount to granting a premium to the Recruitment Medical

Board for their own negligence. Secondly, the morale of the Armed Forces requires absolute and undiluted protection and if an injury leads

to loss of service without any recompense, this morale would be severely undermined. Thirdly, there appears to be no provisions authorizing

the discharge or invaliding out of service where the disability is below twenty percent and seems to us to be logically so. Fourthly, wherever

a member of the Armed Forces is invalided out of service, it perforce has to be assumed that his disability was found to be above twenty

percent. Fifthly, as per the extant Rules/Regulations, a disability leading to invaliding out of service would attract the grant of fifty percent

disability pension.

Thus in view of the law settled on the issue of minimum percentage of disability required for invalidation, the applicant's disability ""Palmo Planter

Hyper Hydrosis (174.4)"" is deemed to be 207c

Now coming to the second question which is related to the attributability of the disability, we find that as per medical literature this disease relates to

'profuse perspiration (excessive sweating) of the palms. Palmo Planter Hyper Hydrosis (174.4)"" is one form of focal hyperhidrosis. meaning profuse

perspiration affecting one area of the body. Sweaty palms may be accompanied by profuse perspiration of the feet, forehead, cheeks. armpits

(axillae). The cause of this disease is not clearly known. Additionally besides, genetic factors certain infections are also known to trigger this disease.

The law on attributability of a disability has already been settled by the Hon'ble Supreme Court in the case of Dharamvir Singh Versus Union of

India & Others, reported in (2013) 7 Supreme Court Cases 316. In this case the Apex Court took note of the provisions of the Pensions Regulations,

Entitlement Rules and the General Rules of Guidance to Medical Officers to sum up the legal position emerging from the same in the following

words:-

29.1. Disability pension to be granted to an individual who is invalided from service on account of a disability which is attributable to or

aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable to or

aggravated by military service to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II

(Regulation 173).

29.2. A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of

entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be

presumed due to service [Rule 5 read with Rule 14(b)].

29.3. The onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for nonentitlement is with the

employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally (Rule 9).

29.4. If a disease is accepted to have been as having arisen in service, it must also be established that the conditions of military service

determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service [Rule

14(c)]. [plc]

29.5. If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led to

an individual's discharge or death will be deemed to have arisen in service [Rule 14(b)]

29.6. If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and

that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons [Rule 14(b)]; and 29.7. It

is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions), 2002 -

Entitlement: General Principles"", including ParaS 7. 8 and 9 as referred to above (para 27).

11 In view of the settled position of law on attributability, we find that the Medical Board has denied attributability to the applicant only by endorsing

that the disability ""PaImo Planter Hyper Hydrosis (174.4)"" is of an unknown constitutional disorder and is not connected to service. However we have

noted that the disability was first detected in the year 1999 whereas the applicant was enrolled in the year 1995 i.e. after about four years of military

service when the applicant was deployed in Counter Insurgency Ops in J&K. We have noted that the applicant was enrolled as a general duty soldier

in Infantry. Infantry soldiers have to perform various duties in adverse circumstances, hence considering all issues we are of the opinion that the

benefit of doubt in this case must extend in favour of the applicant.

We are therefore of the considered opinion that the reasons given in Medical Board for declaring disease as NANA are brief and cryptic in

nature. Therefore, benefit of doubt in these circumstances should be given to the applicant in view of Dhararnvir Singh vs. Union of India & Ors

(supra) and the disability of the applicant is to be considered as aggravated by military service.

Additionally since it is a case of deemed invalidation in light of Hontle Supreme Court judgment in the case of Sukhvinder Singh (supra). Therefore

the minimum percentage of disability cannot be less than 20% and hence the same is required to be rounded off to 50% in light of Hon'ble Supreme

Court judgment mentioned above i.e. Sukhvinder Singh (supra). Additionally. vide Govt of India letter dated 31 01.2001, the applicant is entitled to the

benefit of rounding off of his disability to 50%.

It is also a well settled law that the claim for pension is based on continuing wrong and the relief can be granted if such continuing wrong creates a

continuing source of injury. In the case of Union of India and Ors. Vs. Tarsem Singh, reported in 2009 (1)AISLJ 37,1 the law settled by the Hon'ble

Apex Court held that if such cases of continuing injury are filed beyond a reasonable period, the relief prayed for may be restricted to a reasonable

period of three years from the date of filing of the 0.A.

In view of the above, the Original Application No. 520 of 2014 is

partly allowed. The impugned order dated 24.10.2006 rejecting the disability pension is set aside. The applicant is deemed to have been

invalided out of service. His disability ""PaImo Planter Hyper Hydrosis (174.4)"" @ 20% for life. His disability is to be considered as aggravated by

military service. The disability is to be broad banded from 20% to 50% for life. However since the applicant has approached the Tribunal after a huge

delay, hence the arrears of disability element of disability

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pension shall stand restricted to three years prior to the filing of the present Original Application. The date of filing of O.A. is 13.10.2014. The entire

exercise shall be completed by the respondents within four months from the date of production of a certified copy of this order, failing which the

respondents shall be liable to pay interest @ 6% to the applicant on the amount accrued till the date of actual payment

No order as to costs

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Pronounced in open court on this the `11 day of February, 2020.