Sanjiv Dewan vs Union Of India And Others

Aggrieved by the action of the respondents in not grantic g disability pension, the applicant, Ex Flt Lt Sanjiv Devvan, has filed the instant GA, in

which he prays for the following reliefs:

(a) Call for the records, including the findings of the Court of Inquiry, if any, based on which the respondents have held the applicant ineligible fnr

disability pension as communicated to him in terms of communication dated 09.04.1981 and thereafter quash all such orders, including the findings as

well as the order dated 09.04.1981; and

(b) Direct the respondents to process the claim of the applicant for grant of disability pension by holding his disability as attributable and pay the same

with benefit of rounding off along with arrears with interest © 18% as expeditiously as possible.

The facts brought on record reveal that the applicant was granted commission in the Flying Branch of the Indian Air Force on 22.01.1972. He was

invalided out from service on 18.04.1981 on medical grounds, after putting in nine years and two months of service. The Invaliding Medical Board

(IMB) found the applicant to be suffering from ""Cerebral Concussion (Effects of)"". The IMB further opined that his disability is neither attributable to

nor aggravated by the Air Force Service (NANA). Therefore, the applicant was not awarded disability element of pension. The applicant was

intimated accordingly vide MoD letter dated 10.04.1981, in that he was advised to prefer an appeal, if he so desired, within six months from the date

on which it was communicated to him. However, the applicant chose not to prefer any appeal against the decision to reject his claim for disability

pension and has now approached this Tribunal for claiming disability pension, by filing the present 0.A on 09.02.2016.

Mr. Puar, learned counsel for the applicant submitted that the action of the respondents in denying disability pension to the applicant on the ground

that the disability of the applicant is neither attributable to nor aggravated by Air Force service is illegal. Learned counsel for the applicant argued that

in spite of all medical reports, which have reflected the fact that the applicant is permanently unfit for air crew duties, there was no reason for the

applicant to have there is no illegality or irregularity in the action of the respondents in denying disability element of pension to the applicant as the

competent authority found that the disability of the applicant is neither attributable to nor aggravated by Military service. He also stated that

admissibility of grant of disability pension is governed by Regulation 37 of the Pension Regulations for Air Force, 1961 (Part 1), which stipulates that

an officer who is discharged from Air Force service on account of disability, which is attributable to or aggravated by such service and is assessed at

20% or over may on retirement be awarded disability pension consisting of a service element and a disability element in accordance with the

Regulations. He further submitted that though the disability of the applicant is @20% however his disability has been opined by medical authorities as

'neither attributable to nor aggravated by military service' (NANA), hence the applicant is not eligible for grant of disability pension. He concluded by

pleading for the OA to be dismissed.

Having heard the rival submissions and perused the records, the only question that arises for our consideration is, as to whether the disability of the

applicant i.e. ""Cerebral Concussion (Effects of)"" is attributable to or aggravated by Military service?

The 0.A is contested by the respondents on the ground of delay and laches. They also asserted that they did not have any record pertaining to the

applicant's service, as it had already been weeded out, after the expiry of the statutory period for preservation of records. The other limb of the

argument, which needs examination, is that if the record is weeded out by the authorities, whether the claim for disability pension can be entertained

after the weeding of the records.

When we peruse the records in detail, the following irrefutable facts about the disability of the applicant are clear to us:

(a) After about 05 years and 08 months of service in Air Force, the applicant met with a motorcycle accident, while riding as a pillion with another

officer, on 22.09.1977 and suffered 'Cerebral Concussion' i.e. a kind of head injury.

(b) Despite sustained treatment of about three years, the applicant could not recover completely and kept reporting of frontal headache. The officer

was fina iy declared unfit for air crew duties in 1980 and was advised to opt for change of branch from flying to a non-flying branch. The 'clinical

details' contained in the IMB proceedings being relevant are reproduced as under:

This officer of F(P) branch is an old case of cerebral concussion effects of sustained as a result of motorcycle accident on 22.9.77 He is

being periodically reviewed since then. During each review he has been complaining of frontal headache which is reduced with disprin

only. He was reviewed by Additional Adviser in Psychiatry, AHDC on 10.580 and he had opined that the officer is permanently unfit for

aircrew duties. The medical board held on 14.5.80 at AF CME had concurred with the opinion of Addl. Adviser in Psychiatry. He was

therefore placed in medical categc.y A4(P)G3(T). Permanently unfit Al, A2 and A3 duties. The officer was asked to change his branch as he

was permanently unfit for flying duties. He refused. He is, therefore, required to be invalided out of service under Para 1(d) of AFI 11/75

and Air HQ letter No.Air HQ/26490/12937/Med dtd. 15 Nov 80. Hence, the officer is brought before an invalidir medical board. (emphasis

supplied)

(c) Since the applicant had refused to opt for change of his branch, as advised, he was invalided out of service on 18.04.1981.

(d) The IMB opined that the disability of the applicant is neither attributable to nor aggravated by military service (NANA). It is important to note that

as an organizational norm while 'attributability' of a disability, caused by a disease is decided by a Medical Board consisting of doctors, howe\,er, the

attributability of a post- accident disability, is normally decided by a CoI based on evidence. The opinion of IMB/RMB on attributability, merely

reflects the findings of the Col in accident cases. In this case, the following remarks on 'attributability' is annotated in the IMB:

Disability caused by motorcycle accident on 22.09.77 and is considered neither attributable nor aggravated by military service vide IAF(P)

28 dated 06 Dec 77 rendered by O.C. and subsequently concurred by SOA dated 26 Dec 77

(e) It is important to understand here that IAF (P) 28 is an official form of Indian Air Force, on which a Col is ordered. The findings of the CoI are a

part of this form IAF (P) 28. The findings of court of inquiry has been perused by the Officer Commanding (OC) of the applicant and he was in

agreement with CoI findings that the applicant's injury due to the accident, is NANA. The OC's recommendation on tl--e Col that the injury of the

applicant is NANA, has been perused and finally concurred by the Senior Officer Administration (SAO) at Command Headquarters after which the

findings of CoI have attained finality on 26 Dec 77. It is also important to note that in a CoI, the accident victim as well as all other relevant witnesses

give their signed statements and only after evaluating the complete evidence, the COI arrives at it's findings.

On an earlier query from us, the learned counsel for the respondents had submitted that the documents of the applicant and the associated CoI had

been destroyed after the mandatory preservation period and that the documents in question are 43 years old and that the applicant himself has raised

this issue after about 35 years of his discharge through this 0.A, hence they are not in a position to comment on his belated claim that his injury is

attributable to military service. He further added that as per limited records available, the injury of the applicant was NANA in the COI findings and

as per the opinion of the Officer Commanding of the applicant and the same had been concurred by SAO at Command HQ in 1977. This fact is

reflected in the IMB proceedincis of the applicant held on 22.12.1980. against the decision of the CoI in

After considering the above mentioned irrefutable facts, we have noticed that the only evidence produced by the applicant, in support of his claim

that he was on duty when he met with the motorcycle accident, is an affidavit from his colleague, a brother officer who has already retired from

service. The affidavit states that the applicant was going along with him, to attend an official briefing when he met with the accident. We, however,

find it difficult to give credence to this kind of evidence due to following reasons:

(a) Once a Col has been finalized in 1977 after considering the evidence as given by all relevant witnesses including the applicant, the findings of the

Cal cannot be questioned after 35 years, with additional evidence, especially so when the relevant records have already been destroyed after the

expiry of the statutory period for preservation.

(b) The Officer Commanding is a father figure of all officers of the Squadron. There is no reason for us to disbelieve the judgment of the then Officer

Commanding of the applicant, for recommending his injuries to be NANA, in line with the findings of Col.

(c) The officer has never challenged or appealed 1977 or the opinion of the IMB in 1980, hence his belated action to challenge the findings of 'NANA'

after 35 years, does not inspire confidence.

(d) It is trite that the benefit of doubt cannot be extended to a Government servant for no:1-availability of documents after they have been destroyed

after the statutory period of preservation.

10, The primary evidence related to the circumstances of injury to the applicant in a motorcycle accident as available in CoI have already been

destroyed, hence the mere contention of the applicant is not conclusive to record a finding that his disability was either attributable to or aggravated by

military service. The long silence of the applicant for not lodging a claim of disability pension can be said to bar the remedy, though we are not oblivios

of the fact that such bar is not absolute. It would be a question of fact in each case. However, if no detailed record is available in respect of cause and

nature of injury, the applicant cannot draw any adverse inference against respondents and claim his disability as being attributable to or aggravated by

military service. In this regard, it would be appropriate if we refer to a Division Bench judgment of the Delhi High Court in Ex. Nalk ('hander Singh v.

Union of India and others (CWP No.16792 of 2009 decided on 04.11.2006), wherein the claim of the petitioner was rejected for the reason that

service record of the petitioner had been destroyed after the retention period of 25 years from the date of discharge, The High Court also made

reference to the order decided on 15.02.2008 in WP(C) No.6141 of 1999 (Shri Deo Prakash v. Union of India and others), wherein the Court held that

if the record was destroyed, it cannot be said that there was any wrong by the respondents.

Taking all these aspects into consideration, we find rio merit in any of the contentions raised by the learned counsel for the applicant. The 0.A thus

fails and is dismissed, without any order as to costs.

Pronounced in open Court on this the Tz-? day of S.October, 2020.