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Judgment
The applicant, Ex. Sgt. Vaniyan Vaiappil Pavithran, through the medium of the instant Original Application is seeking the following reliefs:
(a) Quash and set aside the impugned letters dated 9 Dec 2016.
(b) Direct Respondents to grant disability Pension @50% after rounding off from 20% for life as recommended by RMB to the applicant with effect
from 01 Apr 2006 i.e. the date of discharge from service with interest @12% p.a. till final payment is made.
(c) Any other relief which the Hon'ble Tribunal may deem fit and proper in the fact and circumstances of the case.
The facts of the case, in brief, are that the applicant was enrolled in the Indian Air Force on 05.03.1986 and was discharged from service on
31.03.2006 in low medical category. The Release Medical Board (RMB) held at HQ TC (U) on 16.05.2005 assessed his disability 'WASTED LEG
SYNDROME (LT) Z.09.0‘ @ 20% for life. However, the RMB opined that the disease of the applicant was neither attributable to nor aggravated
by military service (NANA). The applicant's claim for grant of disability pension was rejected by the respondents vide order dated 09.12.2016. Hence
the instant Original Application.
Learned Counsel for the applicant submitted that the applicant was medically fit when he was enrolled in Air Force service and any disability not
recorded at the time of enrolment 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 Hon'ble Supreme Court in 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 tests 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 service and he is entitled to get disability
pension @ 20% for life and the same is to be broad banded to 50%.
On the other hand, learned counsel for the respondents has filed the Counter Affidavit and submitted that though the RMB had assessed the
disability of the applicant @ 20%, it opined that the disability is NANA. As such his claim for disability pension has rightly been rejected by the
respondents. He submitted that the instant Original Application 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 disability has been opined as NANA by the RMB is that 'Disease is constitutional in nature'. The
disability was first detected on 14.07.2000 whereas the applicant was enrolled in Air Force on 05.03.1986 i.e. after about more than 14 years of
service. We are therefore of the considered opinion that the reasons given in RMB for declaring disease as NANA is very brief and cryptic in nature
and do not adequately explain the denial of attributability. Hence, we would like to extend benefit of doubt in favour of applicant. Thus we are of the
considered opinion that the disability `WASTED LEG SYNDROME (LT) Z.09.01 is to be considered as aggravated by military service in line with the
law settled on this matter by the Hon'ble Apex Court in the case of Dharamvir Singh (supra). Additionally, the applicant will also be eligible for the
benefit of rounding off to 50%, in terms of the decision of Hon'ble Supreme Court in Union of India and others v. Ram Avtar (Civil Appeal No 418 of
2012 dated 10.12.2014).
Resultantly, the O.A. is allowed. The impugned orders are set aside. The applicant's disability `WASTED LEG SYNDROME (LT) Z.09.01
@200/0 for life, is to be considered as aggravated by military service and his disability element of pension is to be rounded off from 20% to 50% for
life. The applicant is entitled to disability element of disability pension @ 20% for life, which shall be broad banded to 50% for life from the date of his
discharge from service i.e. 31.03.2006, but, considering the fact that the 0.A has been admitted after condoning the delay and laches, therefore, in
view of the decision of the Hon'ble Supreme Court in Shiv Dass vs. Union of India and others(2007 (3) SLR 445), the arrears will be restricted up to a
period of three years preceding the date of filing of the O.A. The date of filing of this 0.A is 19.05.2017. Ordered accordingly. To be implemented by
the respondents within four months from the date of receipt of a copy of this order. Default will invite interest @ 8% per annum.
No order as to costs.