Jai Chand vs Union Of India And Others

M.A. No. 130 of 2014:

Heard learned counsel for the parties on the point of delay. Delay of 1737 days in filing the OA has been explained by the applicant. Keeping in

view the averments made in the MA and finding the same to be bonafide and in the light of the decisi )fl in Union of_ India and others Vs. Tarsem

Singh [2008 (8) SCC 648], we allow the instant MA and condone the delay in filing the OA.

M.A. No. 130 of 2014 stands disposed of accordingly.

O.A. No. 123 of 2014:

Vide separate order pronounced today, OA stands disrosed of.

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

applicant has sought following reliefs:-

A. Issue directions to quash and set aside the 44 Wing Air Force. Nagpur letter dated 03 Aug 2007 and order dated 27 Nov 2008 passed

by General Officer Commanding in Chief Southern Command, both placed as Annexure A-1 (Cony) being legally unsustainable in the light

of Army Rule 13 read with Army Headquarters Policy letter dated 20 Dec 1988 and in the light of Hon'ble Delhi High Court Judgment in

Re- Sepoy Sube Singh Versus Union of India both placed as Annexure A-6 (Golly).

B. Issue directions to physically reinstate the Applicant back in military service in DSC with full back wages of pay allowances, service and

ante dated seniority and promotion if due at par with his batch mates so that he could serve up to superannuation,

AND/OR

C. Issue directions to the Respondents to convene a Release Medical Board so that the quantification for the ailment of 'Adjustment

Disorder being attributable to military service in accordance with the Honble Supreme Court Judgment in Re-Dharamvir Versus Union of

India the Applicant could be granted Disability Pension from the date of discharge till date with penal interest @ 13% to meet the ends of

equity, justice and fair-play,

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

Honble Armed Forces Tribunal in the attendant genuine circumstances of the case.

Record reveals that at the time of admission of O.A. on 12.03.2014, this Tribunal has ordered that his dismissal has attained finality on 03.08.2007

which does not give continuous cause of action to the petitioner hence, his petition challenging the order of discharge was dismissed. Notice of O.A.

was given on limited ground of claim of pension. hence his prayer will be restricted to his medical disability and related pension issue only. Thus in

view of the above mentioned order the prayer of the applicant is restricted to the relief 'C and D' as prayed for.

Brief facts of the case are that the applicant was enrolled in the Indian Army on 07 02 1980 and was prematurely discharged from the Army on

05.07.1989 on compassionate grounds after rendering about nine yerirs of service. Thereafter. he was again re-enrolled in the Defence Security

Corps (DSC) on 27.09.1989 and was discharged from there with full service on 30.09.1999 after completion of ten years of service. He was further

re-enrolled in DSC for a second time on 18.12.2000 and he was discharged from service on 03.08.2007 on administrative grounds under Rule 13 (3)

III (v) of the Army Rules 1954 being a undesirable soldier. The applicant had filed CWP No. 61417 of 2007 in the Hon'ble High Court of Allahabad

vide Annexure R-1 with the prayer to re-instate him in service which was dismissed with the observation that ""since the applicant had not availed a

statutory remedy of filing appeal as contemplated under Section 26 of Army Act, his Writ Petition was dismissed without entering into the merits of

the writ petition'. Then the applicant approached this Tribunal with the prayer to reinstate him in service and grant him disability pension The Tribunal

vide its order dated 12.03.2014 stated that the dismissal of the applicant has attained finality hence his prayer will be limited to his disability and related

pension. It has also emerged that the applicant had refused to undergo Release Medical Board, hence on orders of the Tribunal a Release Medical

Board of the applicant was held on 26.03.2018 which assessed the disability 'Adjustment Disorder (With mixed disturbance of emotion and conduct)

(F-43.2) as 40% for life and considered it as neither attributable to nor aggravated (NANA) by military service. The claim of the applicant for grant of

disability pension has, however, been rejected on the aforesaid-ground.

Learned Counsel for the applicant pleaded that at the time of enrolment, the applicant was found mentally and physically fit for service in the Army

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 of the applicant

was detected during the service, hence it is attributable to and aggravated by Military Service. He pleaded that various Benches of Armed Forces

Tribunal have granted disability pension in similar cases. as such the applicant be granted disability pension as well as arrears thereof. He verbally

pleaded that disability pension be rounded off to 50% in terms of the judgment of the Hon'ble Supreme Court in Civil Appeal No. 418 of 2012 titled

Union of India and others Vs Ram Avtar and Ors, decided on 10.12.2014.

On the other hand, Ld. Counsel for the respondents contended that the applicant is already in receipt of service pension for the services rendered

by him. Disability pension claim of the applicant was rightly rejected because RMB has considered his disability as neither attributable to nor

aggravated by military service and net disability has been assessed as 'NIL Hence, applicant is not entitled to disability pension. He pleaded for

dismissal of the O.A.

We have heard Ld. Counsel for the applicant as also Ld. Counsel for the respondents. We have also gone through the RMB report as well as the

complete records of the applicant. Following facts about the applicant are clear to us:-

(a) That the applicant has three stints of service i.e. initially 09 years and 04 months and 27 days service in Army (1980-1989), thereafter he got

enrolled in DSC on 27.12.1989 and exercised the option of counting former service of Army towards DSC pension.

(b) After about 10 years of service in DSC. he was transferred to pension establishment w.e.f. 30.09.1999 after rendering a combined service of 19

years 05 months and 01 days between army and DSC. Accordingly he was granted service pension vide PCDA (P). Allahabad PPO No S/005523/99

(c) He voluntarily got re-enrolled in DSC for a second time on 18.12.2000. In this second spell, he opted not to count his former service for pension

towards second spell of DSC service and continued to draw his former service pension.

(d) He was discharged from DSC service on 03.08.2007 as undesirable soldier due to the extant policy on the subject and the number of minor

punishments resulting in red ink entries.

(e) That the applicant filed Writ Petition in Hon'ble High Court of Allahabad in 2007 for quashing the discharge order but did not get relief.

(f) He agitated the matter in this Tribunal which ruled vide its order dated 12.03.2014 that his discharge has attained finality, hence his prayer towards

disability and related pension only will be considered by the Tribunal.

In the above back drop, the only question which needs to be considered by us is straight and simple i.e. is the disability of the applicant attributable

to or aggravated by military service?

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 non-entitlement 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).

In view of the settled position of law on attributability, we find that the RMB has denied attributability to the applicant only on the ground that the

onset of this disease was in a peace area and has no close time association with Field/HAA/CI Ops tenure. We are of the opinion that stress and

strain of military service is in built in the nature of military duties and therefore it is unfair to restrict attributability of a disease only to Field/HAA/CI

Ops. The stress and strain of military service is equally present in areas which are categorised as peace. Thus the reasoning of RMB is not convincing

and does not reflect the complete truth on this matter. The applicant was initially enrolled in Indian Army on 07.02,1980 and he has done back to back

tenures in DSC. thus when his disability first started on 26.07.2006, he had more than 26 years of combined Army/DSC service. We are, therefore, of

the considered opinion that in the above circumstances the benefit of doubt goes in favour of the applicant Therefore in line with the law settled on the

matter vide Hon'ble Supreme Court judgment in view of Dharamvir Singh vs Union of India & Ors (supra). We consider the disability of the applicant

as aggravated by military service and he is entitled to disability pension.

The law on the point of rounding off of disability pension is no more RES INTEGRA and has been settled by the Hon'ble Supreme Court judgment

in the case of Union of India and Ors vs Ram Avtar & ors (Civil Appeal No 418 of 2012 decided on 10th December 2014) Hence, we are of the

opinion that the disability of the applicant 'Adjustment Disorder' @ 40% for life is to be rounded off to 50% for life.

It is also observed that the applicant has approached this Tribunal very late for claiming disability pension. Hence his arrears of disability pension

will have to be restricted to three years before the date of filing this OA, in line with the law settled by Hon'ble Supreme Court in the case ofU nion of

India and Ors. Vs. Tarsem Singh, reported in 2009 (1)AISLJ 371

In view of the above, the Original Application No.123 of 2014 deserves to be partly allowed. The disability 'Adjustment Disorder (With mixed

disturbance of emotion and conduct) (F-43.2)' of the applicant is to be considered as aggravated by military service. The respondents are directed to

grant disability pension to the applicant @ 40% for life which would stand rounded off to 50% for life w.e.f. three years preceding the date of filing of

this Original Application i.e. 07.03.2014. The respondents are directed to give effect to this order within a period of four months from the date of

receipt of copy of this order. Default will invite interest © 6% per annum till actual payment. No order as to costs.

Pronounced in open Court on this the 31st day of January, 2020.