Naik Devendra Singh vs Union of India & Ors

,,,,

This application has been filed under Section 14 of the Armed Forces Tribunal Act, 2007. The applicant, a serving NCO with 22 years of service, a",,,,

battle casualty since 17.06.2000 having suffered a mine blast injury resulting in his leg being amputated below the knee,is aggrieved on not being paid",,,,

the authorized ex gratia amount as per policy.The applicant has made the following prayers :-,,,,

(a) Issue directions to grant Rs 5,40,000 (Rs Five lakhs and forty thousand ) as 60% of Rs 9 Lakhs ex gratia fund in the light of GoI, MoD letters dated 22 Sep 1998 and",,,,

26 Dec 2011 placed herein as Annexure-A4 read with Hon’ble Supreme Court Judgement in CA No 5591/2006 in Re KJS ButtarVsUoI dated 31 Mar 2011 as also,,,,

Hon’bleArmed Forces Tribunal Judgement in OA 336/2011 in Re Major Rakesh Kumar BhardwajVsUoI dated 07 Feb 2012 placed at Annexure-A5 in which,,,,

retrospective application of fiscal rules has been put into effect in an equitable manner to meet the ends of justice and fair play.,,,,

(b) Issue directions to exempt the applicant from Promotion cadre from Naik to Havildar in terms of Army Order 45/1980 placed as Annexure -A6 and he be,,,,

immediately promoted to the rank of Havildar and above at par with his batch mates with pay and allowances to meet the ends of equity, justice and fair play.",,,,

(c) Pass such other and further orders/directions to the Respondents by way of payment of all back wages to the applicant as also an adequate compensation in the,,,,

attendant genuine circumstances of the case , to meet the ends of justice.",,,,

Brief Facts of the Case,,,,

Brief facts of the case as per the applicant are that the applicant was enrolled on 07.04.1999 and was assigned to 15 KUMAON, an infantry",,,,

battalion. On 17.06.2000, the applicant, when posted in an operational area got injured in a mine blast incident, resulting in his left leg being amputated",,,,

below the knee with 60% disability. The applicant was declared as a ‘battle casualty’ and retained in service.,,,,

It is the applicant’s case that based on the existing policy on grant of ex-gratia payment to those who have suffered injuries attributable to,,,,

military service, he too is entitled to such ex-gratia payment. As per the applicant, since the policy states that an ex-gratia payment of Rs 9 lakhs can",,,,

be granted if the disability is 100%, and that it is proportionally reduced based on the percentage of disability. Thus, in his case, since he has 60 %",,,,

disability, he is entitled to Rs 5.4 lakhs (60% of Rs 9 lakhs). Also that under the provisions of Army Order (AO) 15/1980 which exempts an amputee",,,,

battle casualty from attending a promotion cadre, that the applicant too be considered for promotion subject to his meeting all other criteria.",,,,

The applicant has also stated that his unit, 15 KUMAON, had taken up his case with Army HQ and he had followed it up with a statutory petition",,,,

dated 31.08.2016, through his Counsel, addressed to the Chief of the Army Staff. However, since there has been no response to his applications, he",,,,

has filed this OA.,,,,

Arguments by the Counsel for the Applicant,,,,

The Counsel for the applicant initially explained the chronology of events leading to the applicant being injured in the operational area and being,,,,

declared a battle casualty. The Counsel then explained that the GoI had initially introduced the payment of ex-gratia vide its letter dated 22.09.1998,,,,

(Annexure-A4) for the families of Defence personnel who die in harness while performing their bona fide official duty. And that, later vide letter",,,,

dated 26.12.2011 (also at Annexure-A4), GoI had extended ex-gratia payment to Defence officers and personnel below officers rank who were",,,,

invalidated out of service on account of disability attributable to or aggravated by military service. Relying on the above letter, the Counsel stated that",,,,

while the maximum ex-gratia was Rs 9 lakhs for 100% disability, the amount is to be progressively reduced based on the percentage of disability and",,,,

that since the applicant had been classified with 60% disability, he was entitled to Rs 5.4 lakhs.",,,,

The Counsel then explained that based on the petition of the application, Army HQ vide their letter dated 09.10.2009 (Annexure-A2) had instructed",,,,

the applicant’s unit to forward various documents to facilitate the payment. Subsequently, Records The KUMAON Regt vide their letter dated",,,,

18.12.2009 (also at Annexure-A2) had forwarded the documents to Army HQ for sanction and payment of ex-gratia. The Counsel further added that,,,,

since the ex-gratia payment was not granted, a petition dated 31.08.2016 (Annexure-A3) through the Counsel, was submitted to the COAS.",,,,

The Counsel then took us through the relevant details of AO 45/1980 (extracts at Annexure-A6) and AG’s Branch letter dated 10.10.1997,,,,

(Annexure-A7) regarding criteria for promotion of JCOs/OR. The Counsel then argued that considering the medical category, disability and the",,,,

applicant’s status as a battle casualty, he may be exempted from the promotion cadre for promotion to the rank of Havildar and beyond.",,,,

In support of the argument for retrospective application of ex-gratiapayment, the Counsel has relied on the Hon’ble Supreme Court judgement",,,,

dated 31.03.2011 in the case of K.J.S. Buttar Vs. Union of India and Anr. [Civil Appeal No. 5591 of 200]6and order passed on 07.02.2012,,,,

byAFT, Principal Bench, New Delhi in the case of Maj (Retd.) Rajesh Kumar BhardwajVs. Union of India &Ors. [O.A. No. 336 of 2011]",,,,

Arguments by the Counsel for the Respondents,,,,

The Counsel for the Respondents stated that there was no dispute over the injury sustained by the applicant and his disability. The Counsel added,,,,

that initially the applicant was placed in Low Medical Category (LMC)A3(T-24) from 27.03.2001 to 10.09.2001. On subsequent review the applicant,,,,

was placed in LMC A3 (Permanent) with effect from 10.09.2001.,,,,

The Counsel took us through the Standard Operating Procedure (SOP) dated 10.09.2013 (Annexure R/1)which lays down the procedure for,,,,

disbursement of financial benefits from the Army Central Welfare Fund (Kargil) to NOK of fatal battle and physical causalities and battle casualties,,,,

boarded / invalidated out/ prematurely released from service, or retained in service based on percentage of disability. Further elaborating on GoI letter",,,,

dated 26.12.2011, referred to by the applicant, the Counsel stated that ex-gratia payment of Rs 9 lakhs was admissible only to those personnel who",,,,

have 100% disability and have been boarded out of the service, and not to those retained in service. The applicant, though a battle casualty with 60%",,,,

disability, since has been retained in service, is entitled to an ex-gratia payment of Rs 20,000 only.",,,,

The Counsel stated that on an earlier query in Aug 2014 by the Records from the unit seeking confirmation of release of ex-gratia payment to,,,,

three jawans of the unit (including the applicant), the unit had intimated that it had not been received. The Counsel then added that AG’s Branch",,,,

(Rehabilitation & Welfare Section) vide their letter dated 13.05.2015 (Annexure R/2) addressed to Records The KUMAON Regt had intimated the,,,,

details of ex-gratia admissible for battle casualty personnel with disability retained in service. This letter also reiterated that ex-gratia had been paid to,,,,

56 personnel of the KUMAON Regt and the list of personnel who had not yet been paid was also intimated, with instructions to scrutinize the list and",,,,

initiate case in respect of eligible personnel.,,,,

Referring to the judgementscited in the arguments on behalf of the applicant, the Counsel stated that both cases in K.J.S. Buttar (supra) and Maj",,,,

(Retd.) Rajesh Kumar Bhardwaj (supra)werenot relevant to the case at hand since they pertain to war injury pension, rounding off of the disability,",,,,

and the time period from which the entitlement would be effective. As such the cases do not pertain to ex-gratia payment which was the issue at,,,,

hand.,,,,

Further referring to the prayer to exempt the applicant form attending the promotion cadre, the Counsel stated that under the provisions of Para 5",,,,

of AO 45/1980, in the case of war wounded NCOs who are placed in low medical category, the CO is authorised to grant partial or total exemption",,,,

from attending a cadre course, on the recommendation of the Medical Officer. The Counsel added that considering the medical condition of the",,,,

Ser No.,Category,Period,Amount,Remarks

(a),Fatal Battle Cas.,"15 Aug 1947- 30 Apr

1999

01 May 1999 onwards","Rs. 1,00,000/

Rs. 30,000/","Rs. 50,000/- each from

ACWF(K) & NDF

(BC)

(b),"Fatal Physical Cas

(i) Death attributable

to mil service incl

t hose missing &

presumed killed.

(ii) Death not

attributable to mil

service incl those

missing presumed

killed.

 (iii) Fatal Rectcas.","01 Apr 2001 onwards

wef 01 Apr 2001 wef

15 Jan 2009 wef 01

Apr 2013

15 Jan 2012 onwards","Rs. 30,000/

Rs. 30,000/-

Rs. 1,00,000/-

Rs. 2,00,000/

Rs. 30,000/",

(c),"Disabled Soldiers (BC)

Boarded Out from

Service

Disabled soldiers (BC)

of all Ops excl OP

V I J A Y (Kargil)

invalided / boarded

out/prematurely

released from service

in Low Med Cat before

fulfilling terms of

engagement",15 Aug 1947 onwards,"Rs. 1,00,000/",

Ser No,Battle Casualties,Existing Amount (in lacs),"Approved in Principal

Amount(in lacs)",

i,Battle Casualties (Fatal),2.00,8.00,

ii,"Battle Casualties (Disability 60% and

above)",2.00,8.00,

iii,"Battle Casualties invalided out due to

Disability",2.00,8.00,

iv,"Battle Casualties (Disability less than

60%)",1.00,4.00,

,,,,

,(iii) 01 Jan 2016 to 05 May 2020,"Rs. 2,00,000/","1st  Trancheâ€"50,000/-

(Initial Grant on occurrence of

case)

2nd  Tranche â€" 1,50,000/-

(On receipt of final documents)",

,(iv) 06 May 2020 onwards,"Rs. 8,00,000/","1st  Trancheâ€"1,00,000/-

(Initial Grant on occurrence of

case)

 2nd  Tranche â€" 7,00,000/-

(On receipt of final documents)",

(b),"Fatal Physical Caswhere death is

attributable to/ not attributable to

mil service incl those missing &

presumed killed,where Central Govt

Ex gratia is not paid to the NOK

 (i) 01 Apr 2001 â€" 14 Jan 2009

(ii) 15 Jan 2009 â€" 31 Mar 2013

(iii) 01 Apr 2013 â€" 31 Mar 2016

 (iv) 01 Apr 2016 â€" 05 May 2020

 (v) 06 May 2020 onwards","Rs. 30,000/-

Rs. 1,00,000/

Rs. 2,00,000/

Rs. 2,50,000/

Rs. 2,50,000/","(1st Trancheâ€"30,000/-)

(2nd Tranche â€" 70,000/-)

(1st Trancheâ€"30,000/-) (2nd

Tranche â€" 1,70,000/-)

(1st Trancheâ€"50,000/-) (2nd

Tranche â€" 2,00,000/-)

(1st Trancheâ€"1,00,000/-) (2nd

Tranche â€" 1,50,000/-)",

(c),"Fatal Physical Casin respect of Re-

empOffrs during their reemployment

periodwef :-

(i) 21 Apr 2015 â€" 31 Mar 2016 (ii)

01 Apr 2016 onwards","Rs. 30,000/

Rs. 50,000/-",,

(d),"Fatal Rectcas (PC)wef :-

 (i) 15 Jan 2012 â€" 31 Mar 2016

(ii) 01 Apr 2016 onwards","Rs. 30,000/-

Rs. 50,000/-",,

(e),"Disabled soldiers (BC)of all Ops excl

OP VIJAY (Kargil) invalided/

boarded out/ prematurely released

from service in Low Med Cat before

fulfilling terms of engagement wef :-

 (i) 15 Aug 47 to 31 Dec 15

(ii) 01 Jan 2016 to 05 May 2020 (iii)

06 May 2020 onwards","Rs. 1,00,000/-

Rs. 2,00,000/

Rs. 8,00,000/",One Time Grant,

(f),"Disabled soldiers

(BC)ofallOperations retained in

service (based on % of disability)

 (i)Wef 01 May 99 to 14 Jan 09:-

(aa) Below 60%

 (ab) 50 - 74%

 (ac) 75% & above","Rs 10,000/-

Rs 20,000/-

Rs 30,000/-",,

,"(ii)Wef15Jan09 to31Dec15:-

 (aa) Below 50%

(ab) 50 - 74%

(ac) 75% & above","Rs 20,000/-

Rs 40,000/-

Rs 60,000/",,

,"(iii)Wef01Jan2016to05May20 (aa)

Less than 60 %

(ab) 60% and above","Rs1,00,000/-

Rs 2,,00,000/-",,

,"(iv) Wef 06 May 2020 onwards : (aa)

Less than 60 %

(ab) 60% and above","Rs 4,00,000/-

Rs 8,00,000/",One time grant,

(g),"Rs. 400/- per month per child (max

two children) studying in classes upto

XII and equivalent towards

education grant to NOK/legal

guardian of all Fatal Physical

Casualties (Not attributable to

Military Service) wef 15 Jan 2011",--,"The grant is payable wef actual

date of death of the deceased",

(a),For Acquiring Dwelling Unit,Rs 5 Lacs,,

(b),Children Education (Rs 1 Lac per child),Rs 2 Lacs,,

(c),"Financial Assistance to Dependent Parents who are not NOK of

the deceased soldier",Rs 2 Lacs,,

Invalidated Out Cases,,,,

(d),Based on % of Disability.,,,

,(i)For disability 50% or less,Rs. 3 Lacs,,

,(ii) For disability between 50% to 75%,Rs 4.5 Lacs,,

,(iii)For disability more than 75%,Rs. 6 Lacs,,

(e),For Acquiring Dwelling Unit,Rs. 5 Lacs,,

(f),Children Education (Rs 1 Lac per child),Rs 2Lacs,,

,,,,

,"(iv) Wef 06 May 2020 onwards :

(aa) Less than 60 %

(ab) 60% and above","Rs 4,00,000/

Rs 8,00,000/-",One time grant,