M.N. Mukherjee vs Union Of India And Others

M.A No. 453 of 2017:

There is a delay of 3557 days in filing the instant 0,A. As we are disposing of the 0.A itself, it is appropriate to condone the delay in filing the 0.A,

especially in view of the decision of the Hon'ble Supreme Court in Union of India and others v. Tarsem Singh (2008) 8 SCC 648.

M.A is allowed, condoning the delay of 3557 days.

0.A No. 525 of 2017:

Ex Nk (TS) M.N. Mukherjee, the applicant herein has filed the instant 0.A under Section 14 of the Armed Forces Tribunal Act 2007 seeking the

following reliefs:

(i) Quash and set aside the impugned letter dated 10.11.2016;

(ii) Direct the responc:2nts to grant disability pension © 50% after rounding off from 30% for life as recommended by the Release Medical Board to

the applicant with effect from 01.06.2007 i.e. the date of discharge from service, with interest 12% per annum till final payment is made.

The facts of the case, in a nutshell, are that, the applicant was enrolled in the Indian Army on 24.09.1987 and discharged from service three months

before the completion of his terms of engagement, on 31.05.2007. He was discharged from service because he was in permanent low medical

category (LMC) and had submitted his unwillingness to continue in service, as per the provisions of Army Order No. 46 of 1980. His Release Medical

Board has opined him to be suffering from 'Primary Hypothyroidism' @11-14% for life and considered it as NANA being constitutional in nature. The

applicant made a claim for disability pension on 07.07.2016 through his counsel, which was rejected vide the impugned letter dated 10.11.2016 stating

that the applicant was not entitled for disability pension in terms of Regulation 179 of the Pension Regulations for the Army 1961 (Part I). It was also

stated in the impugned letter that under the provisions laid down in Para 7.2 of the Government of India, Ministry of Defence letter dated for 24 weeks

and kept under observation. However, after about six months i.e. on 18.01.2006, he was diagnosed to be suffering from `Primary Hypothyroidism' and

in the Re-categorisation Medical Board held in July 2006, the applicant was upgraded to shape-I for Essential Hypertension and downgraded to the

low medical category Shape-2 for Primary Hypothyroidism. He submitted that the required Medical Board copies indicating these facts have been

filed as Annexure 'R II' to the counter affidavit. He further submitted that thus, at the time of his discharge in 2007, the applicant had only one

disability i.e Primary Hypothyroidism. He concluded by stating that the applicant is not entitled to any disability pension in accordance with Para 173 of

the Pension Regulations, which clearly states that disability pension is admissible to an individual who is invalided out from service on account of

disability, which is attributable to or aggravated by military service and whose disability percentage is 20% or more. The learned counsel for the

respondents has concluded that the RMB regarded the percentage of disablement @ 11-14% for life and considered the disability as NANA,

therefore, the applicant is not entitled for disability pension. In this regard, he relied on the decision of the Hon'ble Supreme Court in Bachchan Prasad

V. Union of India and others (C.A No. 2259 of 2012 decided on 04.09.2019), wherein disability pension was denied stating that the appellant therein

was not entitled for disability element of pension as his disability was less than 20%.

Having heard the learned counsel for the parties and perused the medical records, the following facts are clear to us:

(a) That the applicant was discharged from service as a Naik after completing about 19 years and 08 months of service with service pension.

(b) That he was discharged about three months before completion of his term of engagement, because he submitted his unwillingness to continue in

service after becoming LMC as per the procedures specified in Army Order No. 46/1980.

(c ) That his Release Medical Board specifies only one disability Le Primary Hypothyroidism © 11-14%, which has been opined as NANA,

(d) That in July 2005, the applicant was temporarily put in LMC and under observation for 24 weeks for 'Essential Hypertension'. However within 24

weeks i.e. in January 2006, his disability was diagnosed as 'Primary Hypothyroidism' by Col ikS Kashyap, a classified specialist in Medicine and

Endocrinology. We have noted that the doctor has specifically opined in the Re Categorisation Medical Board held in January 2006 that the

Hypertension of the applicant was a part of Hypothyroidism. We have also noted that the blood pressure of the applicant, as recorded by the doctor, is

120/76 and pulse-78 regular. Accordingly, the ReCategorisation Medical Board has upgraded the applicant to Shape-1 for earlier disability 'Primary

hypertension"" and downgraded him to low medical category Shape-2 (Permanent) for 'Primary Hypothyroidism'. Accordingly, his Release Medical

Board held in 2007 has opined only about 'Primary Hypothyroidism'.

In the above background, the questions that we need to answer are as follows:

(a) Did the applicant have both disabilities i.e. 'Essential Hypertension' and 'Primary Hypothyroidism' at the time of release from service?

(b) Is the applicant entitled to disability pension for his disability 'Primary Hypothyroidism'?

As far as the first question is concerned, we went through the medical literature and found that 'Primary Hypothyroidism' is known to generate

secondary 'Essential Hypertension'. This fact is further corroborated by the opinion of the specialist doctor in the Re-Categorisation Medical Board

held in January 2006, hence we do not agree with the contention of the learned counsel for the applicant that 'Primary Hypertension' is incurable and

hence he should be considered for disability pension for this disability. We are of the opinion that the secondary 'Essential Hypertension"" can be

caused by 'Primary Hypothyroidism' and hence we cannot find fault with the medical authorities of the respondents in this matter, because it is purely

related to diagnosis of a disease by qualified military doctors. Thus, it is clear to us that the applicant had only one disability at the time of his discharge

from service i.e. 'Primary Hypothyroidism"" hence, we find no reasons to interfere with the opinion of the RMB in this matter.

As far as the second question related to the entitlement of the applicant for disability pension is concerned, we find that in order to become entitled

for disability pension, the twin requirements of Para 173 of the Pension Regulations for the Army has to be met i.e. the disability should be either

attributable to or aggravated by military service and it should be 20% or above. In this case, the applicant does not meet both the criteria i.e. his

disability 'Primary Hypothyroidism' @ 11-14% is opined as NANA and is below 20%. In this respect, we find relevance in the decision relied on by

learned counsel for the respondents in Bachchan Prasad (supra), wherein the Honble Supreme Court has made it clear that even if a disability is

attributable, an assessment of disability below 20% by the Medical Board makes an individual ineligible for disability element of disability pension.

Additionally, since 'Hypothyroidism' relates to an underactive Thyroid, a condition in which the Thyroid gland does not produce enough of certain

crucial hormones, therefore, this disease can happen at any stage of life and normally tends to happen more towards middle ages. This disease is

widely prevalent in civil society and normally relates to life style. Further, there is no evidence to suggest that it is caused due to stress and strain of

military life. Thus, considering all issues, we find no valid reasons to interfere with the opinion of the RMB.

This being the position, we are not inclined to grant any relief to the applicant in this case. The 0.A fails and is dismissed.

No order as to costs.

Any other Miscellaneous Application(s) pending in this 0.A shall stand closed.

Pronounced in open Court on this the 18th day of February 2020.