Pilli Sivaiah vs Union Of India And Others

The applicant, Ex. Red. (OK) PiIli Sivaiah, through the medium of the instant 0.A, is seeking the following reliefs:

(a) To direct the respondents to grant disability pension to the applicant with effect from 09,09.2011.

(b) To grant the broad banding of disability pension from 20% to 50% with effect from 09,09.2011.

(c) To direct the respondents to pay 12% interest on the arrears of pension and other benefits.

(d) To grant such other relief appropriate to the facts and circumstances of the case as deemed fit and proper.

The factual matrix of the case is that the applicant was enrolled in the Army on 30.09.2009 and was invalided out from service on 09.09.2011 in low

medical category. At the time of joining the Army, the applicant was medically examined and found him fit In all respects. The Release Medical

Board (RMB) hed at Military Hospital, Namkum on 22.08.2011 assessed his disability 'PULMONARY TUBERCULOSIS A-15' 100% for two years

and Attributable to Military Service and the reason for the disease is infection contracted while in service. The applicant's claim for grant of disability

pension was rejected by the respondents vide orders dated 14.12.2011, 15.02.2013 and 20.09.2013 stating that this is a case of fraudulent enrolment,

Being aggrieved, the present OA is filed.

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

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 contracted during the service and the IN1B has opined that the disease of the applicant is attributable to military service due to infection

contracted white in 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, as such the applicant is entitled to disability pension.

On the other hand, Ld. Counsel for the respondents contended that disability of the applicant i.e. 'PULMONARY TUBERCULOSIS A-15' has

been conceded as aggravated @100% for two years by IMB However, his claim for grant of disability pension was rejected on the ground that the

disease has existed prior to his enrolment and could have been detected at the time of enrolment_ He pleaded for dismissal of the Original Application.

Having heard the learned counsel for both the parties and perused the records, the only question that needs to be answered is whether the applicant

is entitled for disability pension?

This is a case where the IMB had conceded the disease of the applicant as Aggravated by military service @100% for two years. However the

respondents based on an Audit reiatef.i. letter of P.A.O. have rejected the disability pension claim of the applicant on the ground that the disease has

existed prior to his enrolment and could have been detected at the time of enrolment. We have tried to understand this peculiar situation wherein the

[nvalid Medical Board has opined the disease to bu contracted in service and has called it 'Attributable to service'. However, when the disability

pension papers went for processing to PAC (OR) AAD, the same was returned with an observation by PAD (OR) MD vide their letter dated

1412.2011 highlighting that the IM13 (AMSF-16) has stated in SI No 3 of PT IV ""that the disability in respect of the individual existed prior to

enrolment, hence could have been detected at the time of enrolment. Hence, this is a case of fraudulent enrolment.

However, we have noted that in answer to specific question in Column 2 of Part V ""Did the disability exist before entering service?"" the IMB has

answered 'could be. Additionally in column of Part IV the IMB has opined infection contracted while in service. Thus it is clear that the IMB had

considered the disabikty to have been contracted while in service, that is why they have ccrisidere,e to be same as 'Attributable to military service_ In

these circumstances we are of the opinion that the remark of SI. 3 ir Part IV is an over sight and a clerical mistake. Additionally we are of the opinion

that the Audit Authorities in PAO (OR) have gone over board to declare it as a case of fraudulent enrolment and a case of failure of entry medical

check-up to detect this disease.

8, In this whole episode we take a very grim view of the concerned Record Office for merely g ng in to an aggressive Audit observation and not

caring to protect the interests of an invalided soldier. We are clear that with this disease it is not possible for a recruit to complete his basic training_

With T_ B. 01 Lungs no physical activity can be passed in training. Thus the whole episode is a poor reflection on the system in general and the

concerned Record Office in particular.

The law on overruling of the opintn of a Medical Board has been well 5ettled by the Honble Supreme Court in the case of Ex Sapper Mohinder

Singh v. Union of India and others (Civil Appeal Nci 104 of 1993 decided on 14,01.1993). Hence, in the light of this judgment, we set aside the

impugned orders of the respondents and agree with the opinion of the IMB, whereby the disability of the applicant 'PULMONARY

TUBERCULOSIS A-15' © 100% for two years has been opined as 'aggravated by military service. Hence. we are clear that the audit authorities

can't overrule it, without the opinion of another higher I'Vledica Board Hence. we set aside the objection and observations of PAO (OR) MD vide

their fetter dated 14A2_2011 and concur with the opinion of !MB conceding the disease @100% for two years as Attributable to military service.

Since the applicant's rMB was valid for two years w.e.f. 09.09.2011. hence, the respondents will now have to conduct a fresh RSMB for him to

decide his future entitlement to disability element.

In view of the above, the Odak is partly allowed. The impugned orders are set aside. The disability of the applicant ""PULMONARY

TUBERCULOSIS A-15"" 100% for two years is to be considered as Attributable to by military service, as recommended by the RIB. The applicant is

held to be entitled to disability pension @100% for two years from the date of invalidation of the applicant Le. 09.09.2011, but considering the fact that

the 0.A has been admitted after condoning the delay and !aches, therefore, in view of the decision of the Honible Supreme Court in Shiv Dass vs.

Union of India and othets (2007 (3) SLR 445), the arrears of servic-e element shall however be restricted to three years before the date of filing this

Original Application i.e. 15.11.2016. Hence, the applicant will riot be entitled to any arrears of disability element for the period of two years from his

discharge. The respondents are further directed to conduct a Re-Survey Medical Board for the applicant to assess his further entitlement of disability

element. Respondents are required to give effect to the order within four months from the date of receipt of a certified copy of this order 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.