Jayanta Kumar Swain vs Union Of India And Others

Through the medium of the instant 0.A filed under Section 14 of the Armed Forces Tribunal Act 2007, the applicant is seeking the following reliefs:

(i) Quash and set aside the impugned letter No. LC/PEN/600/Legal Notice/130937 dated 29.03.2017; and/or

(ii) Direct the respondents to treat the disability of the applicant as attributable to or aggravate by military service and grant him disability element of

pension with benefits of rounding off/broad banding of the disability element @ 50%; and/or

(iii) Direct the respondents to pay the due arrears of disability pension with interest @ 12% per annum from the date of his discharge.

The facts leading to the case are that the applicant was enrolled in the Indian Navy on 04.08.2001 and was discharged from service on 31.08.2016

after completion of 15 years of service, in low medical category for the disease ""SYNCOPE ICD NO R 55 Z09"". The Release Medical Board

(RMB) assessed the disability of the applicant © 20% and Nil for life-long, being neither attributable to nor aggravated by military service.

Therefore, his claim for disability pension was rejected by the competent authority vide letter dated 07.07.2016, with an option to appeal against the

rejection within six months, which he did not choose. The applicant was, however, sanctioned service pension vide PPO dated 11.08.2016 for

qualifying service of 15 years and 28 days. On 13.01.2017, the applicant sent a notice through his lawyer claiming disability element of pension, which

was rejected by the competent authority. Hence the instant O.A.

Learned counsel for the applicant contended that at the time of entry into service, the applicant was subjected to thorough medical examination by a

board of doctors and he was found fit in all respects and there is no note in his service record to the effect that the applicant was suffering from any

disease. He drew our attention to the order in SqnLdr Kashitij Kumar (Retd) V. Union of India and others (0.A No. 349 of 2015 decided on

08.09.2015), wherein it was held that the petitioner's disability i.e. ""Neuro Cardiogenic Syncope"" has direct connection with the petitioner's Air Force

Service and petitioner is entitled to disability 50%. In the light of the aforesaid decision of this Tribunal, the learned counsel contended that the

applicant is also entitled to disability pension.

On the other hand, learned counsel for the respondents contended that the competent authority had rejected the claim of the applicant since the

RMB had considered the disability of the applicant ""Syncope ICD-R55 Z09"" as NANA with assessment © 20%, but the net assessment qualifying

for disability pension was recorded as ""Nil"" for life. Therefore, his claim for disability pension was rightly rejected by the competent authority. The

instant 0.A is to be dismissed with costs.

We have heard the learned counsel for both the parties and gone through the RMB proceedings as well as the records.

The only question that needs to be answered is whether the disabilities of the applicant are 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 v. Union of India

and others (2013) 7 SCC 316, wherein the Hon'ble Supreme Court took note of the provisions of the Pensions Regulations, Entitlement Rules and the

General Rules of Guidance to Medical Officers. The Hon'ble Supreme Court held that 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 and 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. 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. Further, it is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Gide to

Medical Officers (Military Pensions), 2002 -Entitlement: General Principles). Relying on the aforesaid law, the Hon'ble Supreme Court inU nion of

India and another v. Rajbir Singh (2015) 12 SCC 264 held that the legal position as stated in Dharamvir Singh case (supra) is in tune with the Pension

Regulations, the Entitlement Rules and the Guidelines issued to the Medical Officers.

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

disability 'Syncope ICD No.R55 Z09' is neither attributable to nor aggravated (NANA) only on the ground that the onset of the disability was while

posted ashore and not while AFLOAT, hence disability is considered NANA. We are of the opinion that this reasoning of RMB is not convincing and

does not reflect the complete truth on this matter. The applicant was enrolled in Army on 04.08.2001 and the disabilities have started after more than

12 years of Army service i.e. in August 2013. We are, therefore, of the considered view that the benefit of doubt in these circumstances should be

given to the applicant in view of the decision in Dharamvir Singh (supra) and the disability of the applicant should be considered as aggravated by

military service. Additionally the applicant is also entitled to the benefit of broad binding from 20% to 50% in the light of the decision in Union of India

and others v. Ram Avtar (C.A No. 418 of 2012 decided on 10.12.2014).

Resultantly, the instant 0.A is allowed. The impugned order is set aside. We hold that the applicant is entitled to disability element @ 20% from the

date of his discharge i.e. 31.08.2016, with the rounding off benefit © 50% for life. The respondents are directed to give effect to this order within

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

No order as to costs.