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Ex-POR(TAC) 128289, T. Aniruddha Talukdar v/s Union of India, Represented by the Secretary Govt. of India, Ministry of Defence, New Delhi & Others

    O.A. No. 197 of 2017

    Decided On, 09 July 2018

    At, Armed Forces Tribunal Regional Bench Chennai

    By, THE HONOURABLE MR. JUSTICE V.S. RAVI
    By, JUDICIAL MEMBER & THE HONOURABLE LT GEN C.A. KRISHNAN
    By, ADMINISTRATIVE MEMBER

    For the Applicant: D. Solomon Pandian, Advocate. For the Respondents: V. Balasubramanian, Central Government Sr. Panel Counsel.



Judgment Text

1. This application was filed under Section 14 of the Armed Forces Tribunal Act, 2007 to direct the Respondents to sanction disability pension duly brandbanding the same.

2. The applicant has stated in the O.A. and also the learned Counsel for the applicant has stated that the applicant has joined the Indian Navy as Sailor on 04.08.2000 and has been discharged on 31.08.2015 after serving for 15 years and 28 days. In the Medical Board proceedings dated 17.03.2015 the applicant has been assessed with disability of ‘PRIMARY HYPERTENSION’ with 30% disability for life. The applicant submitted that the afloat services is the reason for the onset of the ailment of the applicant herein.

3. The applicant’s First Appeal dated 13.10.2015(AnnexureA3) for grant of disability pension has been rejected by the respondents on 18.07.2016(Annexure-A4) and the Second Appeal of the applicant dated 03.11.2016(Annexure-A5) has been rejected by the respondents on 26.05.2017 (Impugned Order). Hence the applicant has prayed this Tribunal to direct the respondents to sanction disability pension to him duly broadbanding it.

4. The learned Central Government Senior Panel Counsel for the respondents has submitted that the applicant is not entitled to get any disability pension as the disability has been found neither attributable to nor aggravated by the milita

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ry service. Hence the applicant is not entitled to get disability pension and also the applicant is not entitled to get broadbanding benefits and the First and Second Appeals of the applicant have been rejected by the respondent authorities after taking into consideration the relevant rules and medical/administrative provisions. In the circumstances, the respondents have submitted to the Tribunal to dismiss the O.A.

5. Perused the materials on records and also the submissions made on behalf of both the sides. The following pertinent point arises for consideration in the present matter :-

Whether the applicant is entitled to get disability pension with broadbanding benefit for the reasons and grounds stated in the O.A on a careful consideration of the materials on record in proper perspective?

6. POINT :- In the opinion of the medical Specialist enclosed at page-5 and also page-7 of Annexure-A1 it has been clearly pointed out that the applicant has got the disability of ‘PRIMARY HYPERTENSION’ with the composite assessment of 30% disability for life'. Further, it is stated in the Certificate for Commutation of Pension for the applicant at page-10 of Annexure-A1, that the applicant is suffering from ‘PRIMARY HYPERTENSION’. Further, as per details enclosed along with the O.A., the Second Appeal preferred by the applicant herein has been rejected on 26.05.2017 and thereafter the applicant has filed the present O.A. on 18.09.2017 itself praying the Tribunal for the grant of disability pension with broadbanding benefit.

7. The purpose of giving disability pension is that during the tenure of military service, disability is suffered and the same is attributable to military service, or the disability is aggravated by military service, and hence the applicant herein is entitled to pension on that account, i.e., acquiring disability. Any differentiation, such as the one suggested by the respondents would clearly be unreasonable and arbitrary. The Army Instructions should be understood in a reasonable manner and denial of disability pension to a person who has suffered disability attributable to military service does not appear to be reasonable.

8. Further the learned counsel for the applicant relied upon the judgment of the Hon’ble Apex Court in the case of Union of India and Anr Vs Rajbir Singh reported in JT 2015(2) SC 392. The legal position on the subject is summed up in para 11 as follows:

'11. From a conjoint and harmonious reading of Rules 5, 9 and 14 of Entitlement Rules (Supra) the following guiding principles emerge:

'i) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noticed or recorded at the time of entrance;

ii) in the event of his being discharged from service on medical grounds at any subsequent stage it must be presumed that any such deterioration in his health which has taken place is due to such military service;

iii) the disease which has led to any individual’s discharge or death will ordinarily be deemed to have arisen in service, if no note of it was made at the time of the individual’s acceptance for military service; and

iv) if medical opinion holds that the disease, because of which the individual was discharged, could not have been detected on medical examination prior to acceptance of service, reasons for the same shall be stated.'

9. Further, the said judgment takes note of the judgment rendered by the Hon’ble Apex Court in Dharambir Singh Vs Union of India and others reported in JT 2013 (12) SC 44 wherein the Hon’ble Apex Court summed up the legal position emerging from the Pension Regulations, Entitlement Rules and the General Rules of Guidance to Medical Officers as under:

'29.1. Disability pension to be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable to or aggravated by military service to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II (Regulation 173).

29.2. A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds as deterioration in his health is to be presumed due to service {(Rule 5 read with Rule 14 (b)}.

29.3. The onus of proof is not on the claimant (Employee), the corollary is that onus of proof that the condition for non entitlement is with the employer. A clamant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit for liberally.(Rule 9)

29.4. If a disease is accepted to have been as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service {(Rule 14 (C)}.

29.5. If no note of any disability or disease was made at the time of individual’s acceptance for military service, a disease which has led to an individual’s discharge or death will be deemed to have been arisen in service {Rule 14 (b)}.

29.6. If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have been arisen during service, the Medical Board is required to state the reasons {Rule 14 (b)}; and

29.7. It is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions), 2002 – 'Entitlement: General Principles' – including para 7, 8 and 9 as referred to above (Para 27).'

10. The issue relating to the grant of rounding off benefit of the disability element of pension is no longer res integra in view of the order passed by the Hon’ble Supreme Court in Union of India & Ors Vs. Ram Avtar whereby the Hon’ble Supreme Court has directed the respondents to grant the said benefit also to the personnel who have not only been invalided out from service but to other categories also. The Government of India has also decided to implement the aforesaid direction of the Hon’ble Supreme Court to grant the benefit of ‘broadbanding’ of the disability element of pension to the Armed Forces Personnel, who have retired or been discharged on completion of the terms of engagement with disability aggravated by or attributable to military service from the date mentioned in the respective Court Orders, which has been communicated by the Under Secretary to the Government of India, Ministry of Defence, Department of Ex-Servicemen Welfare D(Pension/Legal) vide letter F.No.3(11)2010-D(Pen/Legal) Pt. V dated 18.04.2016 to the Chiefs of all three services. The relevant portions of the letter are set out below:

'(a) The Hon’ble Supreme Court vide order dated 10.12.2014 dismissed more than 800 Civil Appeals tagged with Civil Appeal NO.418 of 2012 filed by the Union of India Vs Ram Avtar challenging grant of broadbanding of disability element by AFTs to Armed Forces Personnel other than invalided out from service. The Hon’ble Supreme Court ruled that an Armed Force Personnel retired on completion of tenure with disability aggravated by or attributable to Military Service is eligible for broadbanding of disability pension/element.

(b) Accordingly, approval of competent authority is hereby conveyed for implementation of Court/AFTs orders granting broadbanding of disability element to an Armed Force Personnel retired or discharged on completion of terms of engagement with disability aggravated by or attributable to Military Service from the date mentioned in respective Court orders.'

11. It is seen that no disease that has been recorded at the time of the applicant’s entry into service. No documentary proof has been brought on record by the respondents to establish that the applicant has undergone treatment for 'PRIMARY HYPERTENSION', at the time of his entry or that the disease has been in hereditary in nature. In the absence of any record to that effect, the applicant would be entitled to claim disability pension as the applicant’s claim to disability pension arises at the time of discharge on medical grounds. The respondents have failed to discharge the onus of proof that the said disease has got nothing to do with military service. The presumption that the applicant has been found fit and free from disease, at the time of entry into service has not been dislodged by the respondents, therefore, the applicant, having been invalidated from service, the disease is presumed to have arisen in the course of service and also presumed to have been attributable to or aggravated by military service. In view of the above mentioned facts and circumstances, it is held that the applicant is entitled to get disability pension with rounding off benefits from 30% to 50% with effect from 01.09.2015, based on the judgment of the Honourable Full Bench of the Principal Bench, New Delhi in O.A.1439/2016 decided on 01.12.2017 in the case of Ex Sergeant Girish Kumar Vs Union of India and Ors wherein it is clearly held as follows :-

'After having fully discussed the issue involved before us and to set the controversy at rest vis-a-vis arrears of broadbanding of the disability/war injury element of disability pension on the ground of delay in filing application(s) by the individual/applicant(s), we conclude thus :

(i) Armed Forces personnel who have been invalided/ superannuated/completed terms of service/discharged under normal circumstances with disability, pre or post 01.01.1996 (including the applicant) will be entitled to broadbanding of disability/war injury element. Armed Forces personnel who retired pre 01.01.1996 will be entitled to the arrears of broadbanding with effect from 01.01.1996 and in the case of those who retired on or after 01.01.1996 will be entitled to arrears with effect from the date of their retirement;

(ii) Armed Forces personnel who were premature retirees/proceeded on premature discharge with disability will be entitled to broadbanding of disability/war injury element of pension with effect from either 01.01.2006 or the date of their retirement. There will, however, be no restriction of date for premature retirees to be eligible for disability/war injury benefits since the earlier restriction on pre 01.01.2006 premature retirees has been struck down.

(iii) In all cases at (i) and (ii) preceding, there will be no restriction of three years of arrears and arrears will be paid according to eligibility (as stated preceding)

The other salient conclusions are :

(a) Restriction of arrears can be applied to applicant(s) wherein he is not held entitled to disability/war injury element of pension, and such entitlement only gets established post adjudication by AFT/courts; however, exception apart where the vested right of an individual is held to be denied the issue will be decided by AFT Benches, on its own facts.

(b) All premature/voluntary retirees will remain eligible only for disability/war injury element of pension, their service element will need to be earned independently, based on years of service rendered and held as qualified for service pension;

12. Following the ratio of the judgment rendered in Dharambir Singh as well as in the Larger Bench case of Principal Bench, AFT (supra) the applicant is entitled for disability pension at 30% for life with effect from 01.09.2015. Further, in the above mentioned facts and circumstances, the respondents are also directed to grant benefits of broadbanding of the disability element of the pension from 30% to 50% from 01.09.2015. Thus, the point is answered accordingly.

13. In the result, the respondents are directed to grant the disability pension at 30% duly broadbanded to 50% to the applicant with effect from 01.09.2015, within four months from today. In default thereof, the arrears shall carry interest at 8% per annum till the date of actual payment.

14. The O.A is ordered accordingly. No costs.
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