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Ex GNR Sebastian Sahayaraj, S.No. 1142737 v/s Union of India Rep by the Secretary, Ministry of Defence, New Delhi & Others

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    O.A. No. 127 of 2016

    Decided On, 09 July 2018

    At, Armed Forces Tribunal Regional Bench Chennai


    For the Applicant: M/s. M. Muthukannan, B.A. Thayalan, Advocates. For the Respondents: V. Balasubramanian, Central Govt. Senior Panel Counsel.

Judgment Text

Lt Gen C.A. Krishnan, Member (A).

1. The applicant filed this OA challenging the impugned order dated 11.10.2004 passed by the 3rd respondent and praying to direct the respondents to grant disability pension with all consequential benefits.

2. The applicant submits that he was enrolled in Indian Army on 31.08.1955. During the service, he was sent for swimming competition held in the Nasik Road Camp. As a co-participant fell on him while diving in the swimming pool, the applicant suffered a serious injury on the right ear, due to which he lost hearing capacity. The applicant was medically invalided out from service under Army Rule 13(3) III (iii). The learned counsel for the applicant argued that since the Medical Board has recommended him to be invalided from service, it is implied that the disability was more than 20%. Otherwise, he could have continued in service on lighter and soft tasks. Regarding the attributability/aggravation aspect, the Hon’ble Supreme Court, in Dharam Vir Singh’s case has clearly laid down the law that when a person has been recruited in the Army without any medical problem, after going through the normal medical examination and if he is discharged from service with an ailment, the disability ought to be deemed to be attributable to military service. The applicant is suffering from the same disability till date ever since he lost hearing capacity due to the accident that occurred during the swimming competition organised by the Army as a part of Sports Meet. The Pension Regulations clearly lay down that any injury due to accident during an organised sports event should be considered as attributable to service and the person is eligible to get disability pension. Therefore, the applicant prays for grant of disability pension.

3. The respondents in their reply statement, submit that the applicant was enrolled in Regiment of Artillery on 31.08.1955 and was discharged on 14.09.1963. After expiry of retention period of 25 years, the service documents of the applicant have been destroyed. It was further submitted by the learned counsel for the respondents that as per Non-Effective Personnel’s Record held with them, the applicant was medically invalided out from service on 14.09.1963. The Invaliding Disease has been recorded as ‘NERVE DEAFNESS’. No further information was available. The applicant approached through an application dated 23.9.2004 seeking disability pension which was replied suitably. He further argued that it is a time barred claim as the applicant has approached this Tribunal after a lapse of 55 years. Considering this, the respondents prayed that the OA may be dismissed being devoid of any merit.

4. We have heard the learned counsel for the applicant as well as the learned Senior Panel Counsel appearing for the respondents and perused the documents placed on record. In the absence of Invaliding Medical Board proceedings or any other connected document placed on record either by the applicant or by the respondents, we are compelled to adjudicate the case on the basis of the oral submissions and careful perusal of the available documents placed on record by both the parties.

5. It is not disputed that the applicant was enrolled on 31.08.1955 and was invalided out on 14.09.1963 due to ‘NERVE DEAFNESS’. No Medical Board documents are available to ascertain the percentage of disability or the duration of the disablement declared by the Medical Board. However, from the Extract of Sheet Roll forwarded by Artillery Records to the applicant vide their letter No.1142737/RTI/361/NE Coord dated 11.5.2015 it is found that the applicant’s discharge details have been recorded as 'Having been invalided and boarded out of service on 13.9.1963 by a Medical Board under AR 13 Item III (iii) disease NERVE DEAFNESS'. The Artillery Records vide their letter No.1142737/Appeal-125/DP/NE dated 28 Mar 1972 also indicated that the applicant was not granted disability pension as it was turned down by the PCDA(P), Allahabad, stating that the disability was neither attributable to nor aggravated by military service.

6. The issue of whether the disability is attributable or aggravated is no more res integra considering the settled position of law based on the judgement of the Hon’ble Supreme Court in Union of India & Another V Rajbir Singh (civil Appeal No.2904 of 2011), wherein it is held as follows :-

15. … Last but not the least is the fact that the provision for payment of disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit those who have been sent home with a disability at times even before they completed their tenure in the armed forces. There may indeed be cases, where the disease was wholly unrelated to military service, but in order that denial of disability pension can be justified on that grounds, it must be affirmatively proved that disease had nothing to do with such service. The burden to establish such a disconnect would lie heavily upon the employer for otherwise the rules raise a presumption that the deterioration in the health of the member of the service is on account of military service or aggravated by it. A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same. The very fact that he was upon proper physical and other tests found fit to serve in the army should rise as indeed the rules do provide for a presumption that he was disease-free at the time of his entry into service. That presumption continues till it is proved by the employer that the disease was neither attributable to nor aggravated by military service. For the employer to say so, the least that is required is a statement of reasons supporting that view. That we feel is the true essence of the rules which ought to be kept in view all the time while dealing with cases of disability pension.'

7. Regarding the degree of disability and duration of disablement, it is not possible for us to ascertain the duration of disablement and whether the disability was more than 20% or not, in the absence of relevant records. However, it is seen that Rule 186 (1) of the Pension Regulations for the Army lays down :-

'186 (1). An individual who is invalided out of service with a disability attributable to or aggravated by service but assessed at below 20 per cent shall be entitled to service element only.'

8. From the foregoing, we find that the applicant is eligible for grant of service element of pension. However, based on the Hon’ble Supreme Court judgment dated 13.08.2008 in the case of Union of India & Ors Vs Tarsem Singh reported in 2008(8) SCC 648, this Bench vide its order dated 07.02.2018 in M.A.No.201 of 2016 condoned the delay in filing the OA, on the condition that relief, if any granted, will be restricted to three years prior to the date of filing of the OA. This OA has been filed on 26.07.2016.

9. In sum,

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the application is allowed to the extent of granting service element of pension to the applicant with effect from 26.07.2013. The respondents are directed to issue PPO to that effect and pay arrears of service element of pension to the applicant within a period of three months from the date of receipt of this Order. In case, the aforesaid order is not complied with within the stipulated time, the arrears shall carry 8% interest per annum till the date of realization. No costs. 10. Learned counsel for the respondents requested leave to appeal before the Hon’ble Supreme Court u/s 31 of AFT Act, 2007. In our opinion, we find no point of law of general public importance involved in the order rendered by this Tribunal. Hence, the leave requested for is not granted.