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No.1372595N EX Hav S.C. Thimmaiah v/s Union of India, Represented by the Secretary to the Ministry of Defence, Department of Ex-Servicemen Welfare Department, South Block, New Delhi

    O.A.No. 154 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 SC Thimmaiah., Ex Havildar No.1372595N, seeking disability element of pension with the benefit of rounding off.

2. The applicant was enrolled in the Army (Madras Engineer Group) on 08 September 1980 and was discharged from service on his own request with effect from 31 March 1997, after rendering 16 years, 06 months and 22 days of service (Annexure A1). The Release Medical Board (RMB) held at the time of his discharge, assessed him to have the disability of Bronchial Asthma, aggravated by service, at 30% for two years (Annexure R6). While the applicant was granted service pension, the disability element of pension was not granted to him, in accordance with the orders then prevalent, as he was discharged on his own request (Annexure A3).

3. S

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ri.Ramesh CR., the learned counsel for the applicant, submitted that the applicant was fully fit at the time of joining the Army. During his tenure in the Army, he had served in extreme climatic conditions and under heavy stress and strain, which resulted in contracting his disability viz., Bronchial Asthma. The applicant should therefore have been granted disability pension on his discharge, but was not granted the same, as per the then existing policy as those who were discharged from service at their own request were not eligible for disability pension. The learned counsel further submitted that, in accordance with the Entitlement Rules for Casualty Pensionary Awards, a member of the Armed Forces is presumed to be in fully fit medical condition at the time of enrolment, unless there was any disability noted at the time of entry. Therefore any subsequent deterioration in his health should be presumed to have been due to his service, making him eligible for grant of disability pension. The learned counsel further submitted that the above principles were upheld by the Hon'ble Apex Court in Sukhvinder Singh vs. Union of India & Ors., (2014) 14 SCC 364. The learned counsel therefore prayed that the applicant be granted disability pension from the date of his discharge with the benefit of rounding off.

4. The Respondents in their reply statement submitted that the applicant, who was enrolled on 08 September 1980, had requested for premature discharge from service in June 1996 (Annexure R5). He was accordingly discharged from service with effect from 31 March 1997 under Army Rule 13(3)III(iv), on completion of 16 years, 06 months and 23 days of service. The Release Medical Board held at the time of his discharge, assessed him to have the disability of Bronchial Asthma, aggravated by service, at 30% for a duration of two years (Annexure R6). The Disability pension claim of the applicant was rejected by the PCDA(P), Allahabad on the ground that the applicant was discharged at his own request on compassionate grounds before fulfilling the conditions of his enrolment. This was in accordance with the policy in force at the time of discharge of the applicant.

5. The respondents further submitted that the policy was revised in September, 2009 and those who were discharged from service on or after 01 January 2006, were granted disability pension, if otherwise eligible, even if they sought voluntary discharge. The benefit has since been extended even to pre 2006 retirees, with effect from 01 January 2006, subject to the condition that their disability was accepted as attributable to/aggravated by military service, vide Ministry of Defence letter No.16(05)/2008/D(Pension/Policy) dated 19 May 2017 (Annexure R2). However the disability should be persisting and at 20% or more as on 01 January 2006 (Annexure R3). The respondents further submitted that Record Office, Madras Engineer Group had sought clarifications from Army Headquarters on the aspect of conduct of personnel whose disabilities were assessed only for limited periods (Annexure R4) and clarifications were awaited. Based on clarification, the case of the applicant whose disability was assessed only for a period of two years would be processed.

6. Heard rival submissions and perused records.

7. It is not disputed that the applicant was discharged from service in accordance with Army Rule 13(3)III(iv), at his own request, with a disability. While the applicant was granted service pension, no disability element of pension was sanctioned to him.

8. As observed, the disability of the applicant viz., Bronchial Asthma, was assessed at 30% and held as aggravated by military service, for a period of two years, by the Release Medical Board. Therefore in accordance with the Pension Regulations and the Entitlement Rules for Casualty Pensionary Awards, the applicant would have been eligible for grant of disability element of pension for a period of two years, had he been discharged on completion of his term of engagement or had he been invalided out of service. In the instant case, the respondents have contended that the applicant was not sanctioned disability element of pension, in accordance with the then prevalent Regulations/Rules.

9. The Honourable Delhi High Court in Mahavir Singh Narwal vs. Union of India and Others, (2004) 74 DRJ 661, had examined the aspect of eligibility of personnel who sought discharge on compassionate grounds for grant of disability pension. It was held that even personnel who were discharged on compassionate grounds, were eligible for disability element of pension, provided the disability was attributable to or aggravated by military service. The appeal preferred by Union of India against the above decision was dismissed by the Honourable Apex Court by order dated 04 January 2008 in SLP(C) No.24171 of 2004. Therefore, in our view, the applicant was also eligible for grant of disability element of pension at the time of his discharge, albeit for a period of two years. The respondents have submitted that the Rules which were modified granting the benefit of disability pension even to those who sought voluntary discharge, on or after 01 January 2006, have since been extended to pre 01 January 2006 retirees like the applicant, but with effect from 01 January 2006, provided the disability was persisting at or more than 20% as on 01 January 2006 (Annexures A2,A3).

10. Therefore, in our view, based on the revised policy, the applicant would be eligible for grant of disability element of pension for his disability Bronchial Asthma, which was assessed as aggravated by service at 30%, provided the disability exists on or after 01 January 2006. It is however observed that the disability was assessed only for a period of two years from the date of his discharge and no medical records have been placed before us to indicate whether it still persists, and if so at what percentage. Therefore a Reassessment Medical Board would be necessary to examine the same. We also note the submission of the respondents that they are awaiting clarifications on conduct of Resurvey Medical Board.

11. 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 Bronchial Asthma, observed at the time of his discharge from the Army, still persists and if so at what percentage. We make it clear that the finding entered by the Release Medical Board that the disability of the applicant was attributable to/aggravated by military service is binding on the Reassessment Board and all the other authorities concerned. If on reassessment, the disability still persists and is assessed at or more than 20%, 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 Hon'ble Apex Court in Union of India vs. Ram Avtar, Civil Appeal No.418/2012 and connected cases. If found eligible, the respondents are directed to sanction and issue 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 the Reassessment Medical Board. It is however made clear that arrears of disability element, if so granted, would only be from the date of the Re-assessment Medical Board, in accordance with order dated 31 October 2017.

12. There will be no order as to costs.

13. Issue free copy to the parties.
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