C. Jaya Kumar vs Union Of India And Others

Aggrieved by the order dated 30.07.2014 of Respondent No. 3 (OIC Signal Records) denying him disability element of pension on the grounds of

NANA, the applicant, a retired soldier of Sepoy rank, whose left leg was amputated in 1999 due to disability `Osteogenic Sarcoma (Lt) Tibia (Optd)',

who was discharged from service on 30.06.2014, has filed this OA seeking the following reliefs :

(a) To quash and set aside the impugned order dated 30.07.2014 issued by Respondent No. 3.

(b) To declare the disability `Osteogenic Sarcoma', as contracted by the applicant, as attributable to/aggravated by military service to enable grant of

disability pension to him, after broadbanding/rounding off and grant him ex-gratia in terms of GoI (MoD) letter dated 26.12.2011.

(c) To declare the aforesaid disability as a 'battle casualty' in terms of Army Order 1/2003 as it occurred in a counter insurgency operation, viz.,

'Operation Rhino' in Assam. Other reliefs sought in the OA were withdrawn during the course of hearing on 14.01.2020.

Heard the learned counsels on both sides and perused the pleadings and documents on record.

Learned counsel for the applicant submits that the applicant was enrolled in the Indian Army (Signal Corps) on 27.06.1997. In 1999, while the

applicant was posted at Tezpur in counter insurgency operations area in 'Operation Rhino', he started experiencing pain and swelling in his left knee.

The same was diagnosed as a form of Cancer and, as a consequence, his left leg was amputated below the knee on 29.09.1999. The applicant

continued in service thereafter, against sheltered appointments, till he completed 17 years of contractual service on 30.06.2014. Release Medical

Board (RMB) conducted prior to his discharge found him suffering from disability Osteogenic Sarcoma (Lt) Tibia (Optd)', degree of disability

assessed @ 70% for life but 'neither attributable nor aggravated (NANA)' by military service as it was stated that there was no causal connection

between the disease and service conditions with reference to Para 9 of Chapter 6 of Guide to Medical Officers (Military Pensions), 2008. The same is

reproduced as hereunder:

Cancer. Precise cause of cancer is unknown. There is adequate material both of scientific and statistical nature which brings into light

the causative factors like radiation, chemicals and viral infections. The recognized causative agents for carcinogenesis are:

(a) Viral infection'

(b) Radiation from nuclear sources

(c) Ultra violet rays

(d) Chemicals

(e) Acquired chromosomal abnormalities

(f) Trauma (chronic irritation leading to dermatological cancers eg : kangri cancer)

The service related conditions in relation to carcino genesis are as under:

(a) Occupational Hazards : All ranks working in nuclear powered submarines, doctors and paramedics working with electro- magnetic

equipment, personnel working with radars, communication equipment, microwave and also those handling mineral oils such as petrol and

diesel are exposed despite stringent safety measures.

(b) Infection: As a cause of cancer has been documented in certain malignancies. Though identification of an organism may not be possible

due to lack of facility but there is gross evidence clinically to suspect infection.

(c) The question of relationship between a malignant condition and an accepted injury is difficult to establish. The vast majority of traumatic

lesions however severe, show no tendency to be followed by cancer either immediately or remotely. However chronic irritation leading to

dermatological cancers have been documented (eg: Kangri Cancer), attributability will be conceded depending on the merit of the case.

Learned counsel has referred to the judgment dated 02.07.2013 of the Hon'ble Supreme Court in the matter of Dharanivir Singh Vs. Union of India

& Ors. [Civil Appeal No. 4949 of 2013 (arising out of S.L.P. (C) No. 6940 of 2020) reported in (2013) 7 See 3161, wherein it was observed at Para

32 that in the absence of any evidence on record to show that the appellant was suffering from the disease at the time of his acceptance into service,

it will be presumed that the appellant was in sound physical and mental condition at the time of entering the service and deterioration in his health has

taken place due to service. Counsel has averred that the ratio decidendi of this judgment was followed by this Tribunal in the matter of Chatru Guitar

Vs. Union of India & Ors. as also in the matter of Naib Subedar Hoshiar Singh Vs. Union of India through Secretary, Ministry of Defence, New

Delhi and ors. [0.A. No. 238 of 2011 - Order dated 21.05.2014] to meet the ends of equity, justice and fairplay.

Further, counsel has referred to Govt. of India (MoD) letter dated 31.01.2001 and Army Order 1/2003 to claim that the disease (Osteogenic

Sarcoma' deserves to be declared as a 'Battle Casualty' as it was contracted while the applicant was deployed in 'Operation Rhino' in an operational

area. The term operational area is defined in the AO as under:

Operational Area: Any geographical area occupied by a field force ordered to participate in specific operations/active hostilities against

enemy or insurgents. It will include all areas within which operations are intended to be conducted as well as the locations of its integral,

logistical and administrative installations providing support to the field force.

Accordingly, as the field force at Tezpur, including his unit, was involved actively in counter insurgency operations (Operation Rhino), his disability

should be treated as a battle casualty. Reliance in this regard is placed on the order dated 04.04.2013 of this Tribunal (Principal Bench) in the matter

of Hay Rajvir Vs. Chief of Army Staff & Ors. 10.A. No. 228 of 20111 in support of the applicant's case.

The applicant also claims ex-gratia compensation @70% of Rs.9 lakhs in keeping with the contents of Goi (MoD) letter No. 2(2)/2011/Pen/Pol

dated 26.12.2011 as he claims to have contracted a serious disease leading to amputation of his left leg while in performance of bonafide official

duties.

Per contra, learned counsel for the respondents contends that the applicant cannot claim disability element of pension as the disease Osteogenic

Sarcoma (a form of cancer)' is neither attributable nor aggravated by military service. Counsel has contended that, despite the applicant being

amputated and fitted with an artificial limb thereto, the respondents, in all fairness, allowed him to continue in service till he completed pensionable

service, and thus, is in receipt of service pension.

Further, the disability/disease does not qualify as a 'battle casualty' .as it was not contracted, 'in action' in an operational area or in extreme climatic

conditions prevalent in Operation Meghdoot (Siachen Glacier).

Counsel has averred that the applicant cannot be granted ex-gratia payment as per GoI (MoD) circular of 26.12.2011 as such a payment is

authorized only in case a military personnel is invalidated out of service on account of disability attributable to or aggravated by military service, which

conditions are not relevant in the case of the applicant. Thus, the OA deserves to be dismissed.

Consideration:

We have given careful consideration to the arguments made by the counsels on both sides and find that the primary issues before us are:

(i) Whether the applicant, whose left leg below the knee was amputated in 1999 due to cancer, can be granted disability element of pension @ 75%

(after broadbanding) after declaring his disability Osteogenic Sarcoma' as attributable/aggravated by military service?

(ii) Whether he can be granted war injury pension due to his disease having been contracted while he was serving in counter insurgency operations in

Tezpur at the time of detection of the disease? and

(iii) Whether the applicant is entitled for payment of ex-gratia amount as per Govt. circular dated 26.12.2011?

With regard to the first question, we find that the applicant's case is covered by the judgment of the Hon'ble Apex Court in Dharamvir Singh's

case (supra). There is no evidence on record that the applicant was suffering from the said disease Osteogenic Sarcoma' at the time of his medical

examination prior to his enrolment into the Army. Further, the respondents have referred to Para 9 of Chapter VI of the Guide to Military Officers

(Military Pensions), 2008 to deny attributability/aggravation of his disease with relation to military service. In this regard, we find that the first line of

Para 9 states 'Precise cause of cancer is unknown'. It is also stated that device related cancer can occur due to a number of occupational hazards like

working with radars or communication equipment or due to infections, including viral infections. On the other hand, at Para 12, the said document

states that malignancies are 'Not Attributable and Not Aggravated' in cases of tobacco related cancers or when cancers are due to congenital

chromosomal abnormalities e.g. CML where Ph chromosome is identified. These are clearly not relevant to the applicant's case.

Further, we find that at Para 22 in 'Chapter IV - Entitlement Rules' in Guide to Military Officers (Military Pensions), 2002 it is stated that in cases

of unknown aetiology, like in the applicant's case, if nothing at all is known about the cause of the disease and the presumptions of entitlement in

favour of the claimant is not rebutted, attributability should be conceded. Thus, in our opinion, the applicant's cancer disability which resulted in

amputation of his left leg below the knee is attributable/aggravated due to military service and he is entitled to disability element of pension@70% for

life, which is roiunded off/broadbanded to 75% for life.

However, we find that he is not entitled to grant of war injury pension as his disease/disability does not meet the specific criteria for grant of battle

casualty status, as it was neither contracted 'in-action' with the enemy or insurgencies or in extreme climatic conditions on the border/line of control.

Further, he is not entitled to ex-gratia payment in accordance with Govt. circular of 26.12.2011 as he was not invalidated out from service as a

result of his disability but continued in military service till he completed pensionable service.

In the result, the OA is partially allowed. The applicant is granted disability element of disability pension @70%, which is broadbandeci /rounded

off to 75% in view of the judgment of the Hon'ble Supreme Court in Union of India and Ors. Vs. Rain Avtar [Civil Appeal 418 of 2012] decided on

10.12.2014, with effect from the date of his discharge. However, keeping in view the inordinate delay in approaching this Tribunal, his arrears will be

restricted to three years prior to filing of this OA, viz. 11.07.2016. Fresh PPO to be issued and arrears to be paid within a period of four months from

the date of this order, otherwise, it will attract interest @ 6% per annum.

No order as to costs.

Pronounced in open court on this 29th day of January, 2020.