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NO. 14485087L Ex Nk K.A. Chengappa v/s Union of India Represented by the Secretary to the Ministry of Defence Department of Ex-Servicemen Welfare Department, South Block, New Delhi & Others

    O.A. No. 153 of 2017

    Decided On, 28 November 2017

    At, Armed Forces Tribunal Regional Bench Koch

    By, THE HONOURABLE MR. JUSTICE BABU MATHEW P. JOSEPH
    By, JUDICIAL MEMBER & THE HONOURABLE MR. VICE ADMIRAL M.P. MURALIDHARAN
    By, AVSM & BAR
    By, NM
    By, ADMINISTRATIVE MEMBER

    For the Applicant: C.R. Ramesh, Advocate. For the Respondent: S. Prasanth, Central Government Counsel.




Judgment Text

VAdm M.P.MURALIDHARAN, MEMBER (A)

1. The Original Application has been filed by K.A.Chengappa, Ex Naik No. 14485087L of the Regiment of Artillery, for grant of disability pension with the benefit of rounding off.

2. Sri. CR Ramesh, the learned counsel for the applicant, submitted that the applicant was medically fit at the time of his enrolment in the Army on 30 June 1983. On completion of his training, he was posted with his unit at various places across the country. In June 1999, while preparing to move with his unit for Operation Vijay, the applicant was injured while towing a Battle Tank. The learned counsel also submitted that the Court Of Inquiry held (Annexure A1), had assessed that the injury suffered by the applicant was attributable to military service (Annexure A2). The learned counsel further

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ubmitted that the applicant was discharged from the Army with effect from 01 January 2001, after rendering 17 years 06 months and 01 day of service, under Army Rule 13(3)III(i) (Annexure A3). The learned counsel further submitted that while the applicant was granted service pension (Annexure A4), he was denied disability element of pension, holding that he was not eligible for it as he had been discharged at his own request (Annexure A6). Learned counsel further submitted that the applicant was eligible for grant of disability pension in accordance with the decision of the Honourable Apex Court in Sukhvinder Singh vs. Union of India & Others, (2014)(8) SCALE 619. The learned counsel therefore prayed that the applicant be granted disability element of pension with the benefit of rounding off.3. The respondents in their reply statement submitted that, the applicant who was enrolled in the Army (Artillery) on 30 June 1983, submitted an application on 15March 2000, requesting for premature discharge from service due to personnel problems (Annexure R1). The applicant's request was granted and he was discharged with effect from 01 January 2001. At the time of discharge the applicant was in permanent low medical category CEE, due to an injury in his Abdomen which had been operated upon. The Release Medical Board assessed the applicant's disability as attributable to military service with degree of disablement assessed at 20% for two years. The respondents further submitted that in accordance with the policy then in force, an individual who sought discharge of his own accord, was not eligible for grant of disability element of pension even if the disability was attributable to or aggravated by service. Therefore, the applicant was not granted disability element of pension.4. The respondents further submitted that the policy had since been revised and vide Ministry of Defence Letter No.16(05)/2008/D(Pension/Policy) dated 19 May 2017 (Annexure R2), personnel who were retained in service despite disability and who subsequently sought discharge voluntarily prior to 01 January 2006, were eligible for grant of disability element of pension, provided their disabilities were attributable to or aggravated by military service, with effect from 01 January 2006, if they were still suffering from such disability. The respondents further submitted that due to lack of clear cut instructions/guidelines on the revised policy from PCDA (P) eligible cases have not yet been processed. The respondents further submitted that the applicant, who was discharged from service with effect from 31 December 2000, preferred an appeal for grant of disability pension only in December 2006 and in view of the then existing policy he was not granted disability pension.5. Heard rival submissions and perused records.6. It is not disputed that the applicant at the time of his discharge from service on 01 January 2001 was assessed to have the disability of Blunt Injury Abdomen OPTD with post operative intestinal obstruction (reOPTD), which was held as attributable to service and assessed at 20% for two years. From the submission of the applicant and as observed from Certificate of Discharge of the applicant (Annexure A3), the applicant was discharged from service under Army Rule 13(3)III(i), which indicates that he was discharged from service on fulfilling the conditions of his enrolment. However, the respondents have submitted that the applicant was prematurely discharged at his own request (Annexure R1). The respondents have further submitted that the applicant, whose disability was assessed at 20% and held as attributable to service, was not granted disability element of pension as he had been discharged from service at his own request making him ineligible for grant of disability element of pension based on the policies then in existence.7. While the respondents have submitted that the applicant was not granted disability element of pension, as he had discharged from service at his own request, it is observed that the Honourable High Court of Delhi in the case of Mahavir Singh Narwal vs. Union of India and Others, (2004) 74 DRJ 661, had held that even personnel who were discharged at their own request, were eligible for grant of disability element of pension, provided the disability was attributable to or aggravated by military service. The Special Leave Petition, SLP(C) No.024171 of 2004, filed against the said judgment was dismissed by the Honourable Supreme Court by order dated 04 January 2008. The respondents have conceded that in view of the changed policy of the Government promulgated vide Ministry of Defence Letter No.16(5)/2008/D(Pen/Policy) dated 29 September 2009, personnel, who had retired on or after 01 January 2006, were eligible for grant of disability element of pension even if their discharge was premature, based on the request of the individual. The respondents have also conceded that the policy has been further revised vide letter No. 16(05)/2008/D(Pension/Policy) dated 19 May 2017 (Annexure R2), wherein even those who were discharged prior to 01 January 2006 would be eligible for disability pension provided they were suffering from the disability as on 01 January 2006.8. In our view therefore, based on the principles enunciated by the Honourable Delhi High Court in the case of Mahavir Singh Narwal (supra), the applicant would have been eligible for grant of disability element of pension at the time of his discharge even though he had sought premature discharge. In view of the revised Government policy at Annexure R2, the applicant would be eligible for grant of disability element after 01 January 2006 provided he is still suffering from the disability. However as observed earlier, the disability of the applicant while held as attributable to service, was assessed at 20% only for a period of two years. No medical papers have been placed before us to indicate whether the disability still exists and if so at what percentage, and therefore, a Reassessment Medical Board would be necessary.9. In view of the foregoing, the Original Application is disposed of directing the respondents to conduct a Reassessment Medical Board of the applicant, within a period of three months from the date of receipt of a copy of this order, to assess whether the disability of the applicant viz., Blunt Injury Abdomen OPTD with post operative intestinal obstruction (reOPTD), observed at the time of his discharge from the Army, still persists and if so at what percentage. If on Reassessment, the disability still persists and is assessed at 20% or more, the applicant would be eligible for grant of disability element of pension. The applicant would also be eligible for the benefit of rounding off of the disability element in accordance with the principles laid down by the Honourable Apex Court in Union of India vs. Ram Avtar, Civil Appeal No.418 of 2012 and connected cases. If found eligible, the respondents are directed to sanction and issue necessary PPO for grant of disability element of pension with the benefit of rounding off, to the applicant within a further period of three months from the date of Reassessment Medical Board. It is however made clear that arrears of disability element, if so granted, would only be from the date of the Reassessment Medical Board in accordance with the Order dated 31 October 2017.10. There will be no order as to costs.11. Issue free copy to the parties.
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