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Judgment
Being aggrieved by twin denials of pension i.e. denial of service element of war injury pension and denial of disability element of war injury pension
@ 100 % of last pay, 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:-
(a) payable g 100 per cent along with order dated 21.07.2010 being discriminatory and contrary to the judgment of HonIlle Supreme Court in case of
KIS Buttar and Ram Avtar.
(b) Direct the respondents to pay the Applicant war injury element g 100per cent at par with what is payable for 100 per cent disablement along with
service element w.e.f the date of retirement along with entire arrears with interest g 18 per cent.
(c) Issue any other/direction as this Hon'ble Tribunal may deem fit in the facts of the case.
Brief facts of the case are that the applicant was commissioned in the Indian Army in 16 KUMAON on 8thMarch, 1997. On 12.10.2002 while
serving as 'A' Coy Cdr with 26 RR (KUMAON), in an encounter with terrorists suffered GUN SHOT injury. This injury was serious and finally
resulted in 100 % disability. On 20.12.2002, this injury was declared as 'BATTLE CASUALITY' after completing all official formalities. On
16.10.2006, the applicant opted for the alternate employment as offered to him i.e. change of Arm from 'Infantry' to 'Army Education Corps' (AEC).
Apparently due to discomfort associated with Army related duties, even after change of Arm, the applicant opted for premature retirement from
service with effect from 2nd May, 2009 after putting in about 12 years of service. His release medical Board (RMB) assessed his disabilities as (i)
LUMBAR PLEXUS INJURY (R1)- GSW @ 80% for life and (ii) B/L NOISE INDUCED HEARING LOSS @ @) 20% for life, Composite
disability 100% for life. Both the disabilities have originated on the date of receiving the gun shot injury i.e. 12.10.2002. Both the disabilities have been
opined as attributable to military service by RMB. Both these disabilities have also been classified as Battle Casualty by the respondents vide 26 RR
Part II order No 209 dated 19.12.2002. The applicant's complain is that firstly he is not being paid service element of War injury pension and secondly
he is being paid less war injury element i.e. @ 60% of last pay for 100 % disability where as it should have been @ 100% of last pay for 100%
disability. The first appeal of the applicant has already been rejected by respondents. It is in this perspective that this O.A. has been filed.
Learned Counsel for the applicant pleaded thatthe applicant was enrolled in the Indian Army in a medically and physically fit condition. It is the
contention of the applicant that in the year 2002, while serving with 26 RR (Kumaon), in an encounter with terrorists he suffered gunshot injuries on
his hip bone, spinal cord and his right kidney was also ruptured. It was further contended that as a result of the associated injuries, he permanently lost
his hearing also. It is also averred that the applicant was awarded ""PRAKARAM PADAK"" for the gun shot injury suffered during OP Rakshak III, in
Jammu and Kashmir. The casualty of the applicant, as stated in the application, was classified as Battle Casualty. Both the disabilities have been
conceded by the RMB as attributable to Military Service with composite assessment at the rate of 100 % for life. However, the respondents in a
discriminatory and unfair manner vide policy instructions dated 10th April, 2015, applicable from 1st January, 2006, fixed the maximum cap of sixty per
cent of last pay, for hundred per cent disablement in the case of those personnel who either were released on superannuation or sought premature
retirement, which in the case of invalidment is hundred per cent of last pay, the applicant contends. To substantiate his claim the applicant has relied
upon the judgment of the Hon'ble Supreme Court I n the case of Union of India and Ors. Vs Ram Avtar and Ors. (Civil Appeal No.418 of 2012
decided on 10th December, 2014).
On the other hand, learned counsel for the respondents admitted that the applicant is a case of 'Battle Casualty' with 100% composite disability for
life. He further submitted that entitlement to disability pension is governed by Regulation 81 of the Pension Regulations for the Army, 2008, Part-I
wherein it is clearly stipulated that unless specifically provided a disability pension consisting of service element and disability element may be granted
to an officer who is invalided out of service on account of disability attributable to or aggravated by Military Service and assessed at twenty per cent
or more and in the case of officer who retires in low medical category, disability pension can be granted if he fulfills the conditions enumerated in
Regulation 37 of Pension Regulations for the Army. Since the applicant sought premature retirement and was not invalided out of service, therefore he
is not entitled to the reliefs claimed in the application. In support of his contentions learned counsel for the respondents has placed reliance on para 7.2
of MoD letter dated 31st January, 2001issued with regard to revision of Disability Pension, War Injury Pension etc. pursuant to the recommendations
of the Vth Central Pay Commission and since it was not a case of invalidment, therefore, he pleaded that the O.A. be dismissed.
We have heard Ld. Counsel on both sides and have also perused the material placed on record.
We find that this is a unique case where a young infantry officer has become 100 % disabled for life, due to a gunshot wound received in an
encounter with terrorists in j&K however he is not in receipt of service element of pension on the ground that he has not been invalided out and has
proceeded on voluntary retirement. Additionally, the applicant is claiming that he is being paid less war injury element of pension due to a policy letter
of 2015, which gives advantage to invalidation cases. Considering all issues related to this case, following facts are absolutely clear to us:
(a) That as a young infantry officer with about five years of service, the applicant received Gun Shot injury in the year 2002, at j&k, in an encounter
with terrorists.
(b) The gunshot wound shattered his hip bone, ruptured his kidney and caused injury to spinal cord, resulting in 100 % composite disability.
(c) After due official process, his disabilities were classified as Battle Casualty by respondents.
(d) Due to his disability, the applicant accepted alternate employment and accepted change of his arm from Infantry to Army Education Corps (AEC)
in the year 2006.
(e) However due to 100% disability and apparent difficulty in discharge of his duties, the applicant, after about 04 years of gunshot injury and about 12
years of service, took premature retirement on 02.05.2006.
(f) The RMB had conceded attributability and battle Casualty factor, hence the applicant is prima facie eligible for war injury pension which consists
of service element and war injury element. However, the respondents have denied service element to applicant on the ground that he was not
invalided out of service and has proceeded on premature retirement at own request.
(g) The respondents have justified grant of 60% of last pay as 100% disability towards for war injury pension. They have submitted that vide GoI,
Ministry of Defence letter dated 10 April 2015 (Annexure A-1), fixation of 100% of last pay towards 100% war injury pension is only for invalidment
cases. They have clarified that since applicant's case is not a case of invalidment hence his war injury pension has been fixed correctly @ GO% of
last pay for 100% disability.
In view of the above factual scenario, ends of justice can be met if we answer two fundamental questions which are important for this case i.e.:
(a) Is the applicant entitled to service element of war injury pension in addition to disability element of war injury pension?
(b) Applicant is a case of 100% disabled soldier whose disability is classified as 'Battle Causality'. In this situation does the applicant's discharge at his
own request, while working in alternative employment, come within the ambit of `Invalidment' or normal discharge?
War injury pension is primarily a disability pension which recognises the act of valor in war or war like operations and provides for higher financial
benefits in comparison with a normal disability pension. Thus, as far as the answer to first question is concerned i.e. 'Is the applicant entitled to service
element of war injury pension in addition to disability element of war injury pension', the subject matter is no more RES INTEGRA. The moment a
disability becomes attributable to or aggravated by military service and is 20% or more, a soldier becomes entitled to disability pension. As per pension
regulations disability pension consists of both 'service element' and 'disability element' hence eligibility to disability pension. prima facie means eligibility
to both the elements. Hence denial of service element on various grounds i.e. does not have qualifying service for pension or has proceeded on normal
discharge not invalidation etc fails to withstand legal scrutiny.
In the above mentioned context, Hon'ble Supreme Court, upholding the order of the Armed Forces Tribunal, Regional Bench, Kochi, in the case of
Union of India &Ors Vs. V.I?. Nan ukuttan Nair (Civil Appeal No 4714-4715 of 2012 decided on 07.11.2019), has held as under:-
The quantification of disability pension in the cases of an individual, who has not completed qualification service is dealt with in
Regulation 107. Sub-clause (a) of Clause (I) of Regulation 107 deals with the situation where the individual has rendered sufficient service
to qualify for a service pension i.e. 15 years of service in terms of Regulation 78. However, sub-clause (b) comes into play where the
individual has not rendered sufficient service to qualify for service pension. In cases where the disability was suffered while flying or
parachute jumping, the minimum service pension is appropriate to his last rank and group but in all other cases, the service pension is
restricted to minimum of two-thirds of the minimum service pension. For such reason, the disability element would he in addition to the
service pension by cumulative reading of Regulation 78, Regulation 105B and Regulation 107 of the Regulations.
The service pension is to he assessed on the basis of the minimum service pension laid down for an able individual of the same group in Regulation
107 of the Regulations.
In view of the above and the ruling set out on admissibility of service pension by the Hon'ble Supreme Court in the case of V.R. Nanukuttan Nair
(supra), we are of the considered opinion that the applicant shall be entitled to receive his due service element of disability pension i.e war injury
pension, w.e.f. his date of discharge i.e.2nd May, 2009.
As far as the second question is concerned i.e. 'with 100% disability and being a battle causality, does the applicant's discharge at his own request,
while working in alternate employment, come within the ambit of 'Invalidment' or normal discharge', we are of the opinion that a soldier who has
fought with militants in Jammu and Kashmir, in the prime of his youth and has become 100% disabled due to Gunshot injuries surely deserves liberal
interpretation of rules and regulations.
This is the case of a young officer who has participated in a fire fight with militants with 05 years' service, and at the age of 26-27 years of age
and become 100% disabled due to bullet injuries in 2002. After prolonged treatment and recovery, in the year 2006, he has accepted alternate
employment and change of Arm from Infantry to AEC. Apparently, due to problems related to his 100% disability, the applicant has applied for
premature discharge and has been granted the same with effect from 02 May 2009. It appears to us that in the normal course, Army invalidates
soldiers, who are 100 % disabled however in this case despite the applicant being 100% disabled for life, there has been a delay in Army making up its
mind . Apparently, in the mean time finding himself unfit and unable to cope up with even the basic military duties, the applicant has opted for
premature retirement. Here we are of the opinion, that the Army should have helped and advised this young and inexperienced officer about the
correct course of action and should have invalided the officer out of service on grounds of being 100 % disabled. However, by failing to invalidate the
officer out and by permitting the officer to proceed on premature retirement, the Army has unwittingly caused huge financial loss to this 100 %
disabled officer. No country can afford to ignore the welfare of the soldiers who have put their life on line to protect the sovereignty of this country
and therefore the famous legal Quote that 'the law must bend, to give way to justice' squarely applies in this case.
In the above scenario, we are of the opinion that benefit of doubt if any must go in favour of the applicant. In this context we have noted that in
chapter IV of Entitlement rules for Causality pensionary awards1982, invalidation has been clearly defined i.e.:
Invalichng from service is a necessary condition for grant of a disability pension. An individual who, at the time of his release under the
release regulations, is in lower medical category than that in which he was recruited will be treated as invalided from service. JC0s/Ors&
equivalents in other services who are placed permanently in a medical category other than 'A' and are discharged because no alternative
employment suitable to their low medical category can be provided, as well as those who having been retained in alternate employment but
are discharged before the completion of their engagement will be deemed to have been invalided out of service.
Thus, in view of the principles of law set by the above clarification, on invalidation, and after considering the totality of circumstances, we are of
the opinion that for the purpose of deciding war injury pension in terms of service element and disability element, the applicant is to be deemed to have
been invalidated out of service w.e.f 02 May 2009.
In view of the above, the OA is allowed. The applicant is eligible for service element of pension with effect from 02 May 2009. Similarly, he is
deemed to have been invalided out of service and is entitled to re-fixation of his disability element of war injury pension with effect from 02 May 2009.
However the applicant has approached this tribunal after a large delay hence due to law of limitations as clarified by Hon'able Supreme Court in the
case of Union of India and Ors., Vs Tarsem Singh [2008 (8) SCC 648] the arrears of service element and disability element will be restricted to three
years before the date of filing of this OA. The date of filing this OA is 31.12.2015. This order is to be implemented within four months from the date
of receipt of a certified copy. Default will invite interest @ 6%.
No order as to costs.
Pending applications, if any, are disposed of accordingly.
Pronounced in the open court on 7th July , 2020.