S.C. Sharma vs Union Of India And Others

M.A. No. 1116/2017

For the reasons carved out in the Application, the delay of 7653 days in filing the Original Application is hereby condoned.

M.A. stands disposed off.

O.A. No. 1498/2017

Aggrieved by the impugned order, denying him disability pension, the applicant has filed the instant 0.A seeking the following reliefs:

(I) To call for the records of all the medical Board proceedings for your lordships' perusal.

(ii) To direct the Respondents to pay the Applicant the disability pension at the rate of 100% for life with effect from the date of his retirement, 31

Aug 1996.

(iii) To direct the respondents to pay the Applicant constant attendant allowance with effect from date of his retirement.

(iv) To direct the Respondents to pay the arrears of disability pension and constant attendant allowance with 18% interest with effect from the next

day of release of the Applicant.

(v) To grant any other relief as the Hon'ble Members of the Tribunal may deem appropriate.

The facts of the case, in brief, are that the applicant was commissioned in the Indian Army on 17.12.1961 and was retired from service on

31.08.1996, in low medical category after having rendered more than 34 years of service. The Release Medical Board (RMB) has assessed his

disabilities (i) 'CA OESOPHAGUS (OPTD)' @ 80% for two years and (ii) 'SUBACUTE INTESTINAL OBST (OPTD)' @ 20% for two years,

composite @ 100% for two years and considered it neither attributable to nor aggravated by military service (NANA). Disability pension claim of the

applicant was rejected by the respondents and first appeal was also rejected vide order dated 28.06.2017. Hence the instant O.A.

Learned Counsel for the applicant submitted that the applicant was medically fit when he was commissioned in the service and any disability not

recorded at the time of recruitment should be presumed to have been caused subsequently. The action of the respondents in denying disability pension

to the applicant is illegal. In this regard, he relied on the decision of the Hontle Supreme Court in the case of Dharamvir Singh v. Union of India and

others, (2013) 7 SCC 316, and submitted that for the purpose of determining attributability of the disease to military service, what is material is

whether the disability was detected during the initial pre-commissioning medical board and if no disability was detected at that time, then it is to be

presumed that the disability arose while in service, therefore, the disability of the applicant is to be considered as aggravated by military service and he

is entitled to get disability pension @ 100%.

4, Though the counter affidavit has not filed by the respondents but on the basis of RMB records, learned counsel for the respondents submitted that

though the RMB had assessed both the disabilities of the applicant @ 100% for two years, it opined that the disabilities are NANA and not connected

with service. As such his claim for disability pension has rightly been rejected by the respondents. He submitted that the instant O.A. does not have

any merit and the same is to be dismissed.

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

of the applicant is attributable to or aggravated by military service?

We have noted that the only reason for which the disabilities have been opined as NANA by the RMB is that the diseases are not connected with

service. However, on further scrutiny, we have observed that the applicant's first disability i.e. 'CA OESOPHAGUS (OPTD)' @ 80% for two years

was first detected in October 1994 i.e. after about 32 years of service and prior to that the applicant was not suffering from any ailment. Additionally

we have noted that this disease has a relationship with dietary habits. We have also noted that few years prior to onset of this disease the applicant

was posted abroad in CHINA and in NAGALAND, India. Hence considering the totality of circumstances, we are of the opinion that benefit of doubt

must be given to the applicant. Thus we are of the considered opinion that first disability i.e. 'CA OESOPHAGUS (OPTD)' of the applicant is to be

considered as aggravated by military service in line with the law settled on this matter by the Honible Apex Court in the case of Dharamvir Singh

(supra). Additionally we have noted that RMB has opined that the second disability of the applicant i.e. 'SUBACUTE INTESTINAL OBST

(OPTD)1 is a secondary disability caused because of first disability. Hence considering all issues, we agree with the opinion of RMB in declaring

applicant's second disability as NANA.

We have noted that the applicant has proceeded on retirement in 1996 in less than two years after onset of 1st disability i.e. 'CA OESOPHAGUS

(OPTD)i. We have also noted that the Release Medical Board, in its wisdom, has recommended the disability @ 80% for two years only. Therefore,

as per Ministry of Defence letter No. 1(2)/97/D (Pen-C) dated 07.02.2001, para 10, a fresh RSMB for life will have to be conducted by the

respondents. In this connection we are of the opinion that a Medical Board is the best agency to take a call on the duration after which the disease

needs review. Additionally, the opinion of Medical Board and the percentages of disability in the Medical Board have direct correlation with financial

benefits accruing out of a disability, hence, it is important that Medical Board reaches a final opinion.

Resultantly, the 0.A is partly allowed. The impugned order is set aside. The applicant's disability 'CA OESOPHAGUS (OPTD)' is to be considered

as aggravated by military service. The applicant is entitled to disability element of disability pension @ 80% for two years from the date of his

discharge from service. However, the applicant has approached this Tribunal after a huge delay, hence, due to law of limitations settled by the Hon'ble

Supreme Court in the case of Union of India vs. Tarsem Singh reported in 2009 (1) AISLJ 371, the arrears of disability element will be restricted to

three years before the date of filing of the instant O.A. The date of filing of this 0.A is 25.08.2017. Thus, in sum and substance, the applicant will not

be entitled to any arrears on his disability element for the period of two years after his discharge. The applicant is already in receipt of service element

for life. The respondents are directed to conduct a Re-Survey Medical Board (RSMB) for the applicant and his future entitlement to disability element

will depend upon the outcome of the RSMB. Respondents are directed to give effect to this order within four months from the date of receipt of a

certified copy of this order. Default will invite interest @ 6% per annum.

No order as to costs.

Pending application(s), if any, also stand disposed off.

Pronounced in the open Court on 13th March, 2020.