Lt Gen C.A. Krishnan, Member (A).
1. The applicant filed this OA seeking a direction to the respondents to grant disability pension and broadbanding benefits thereto or to conduct Resurvey Medical Board and grant disability pension with broadbanding benefits.
2. The applicant submits that he was enrolled in the Indian Army (Army Air Defence) on 2.3.1978, after thorough medical examination. While he was under military training at 28 AD regiment, Ambala, he developed giddiness and was given medical treatment. He was put in medical category C-EEE for six months and later put in C-EEE Permanent. Due to this, the disability got aggravated. Later on, he was invalided out from service in medical category E-EEE assessing the disability @ 40% on 30.07.1984. The applicant submits that he has made several representations, the last being made on 29.03.2016 and has not received any reply. Therefore, he prays for
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a direction to dispose of his representation dated 29.03.2016 by granting disability pension with the benefit of rounding off.
3. The respondents in their reply statement submit that the records pertaining to the applicant, being a non-pensioner has been destroyed after 25 years and that the Long roll reflects that he was enrolled on 2.3.1978 and was invalided out from service on 30.7.1984 under Item III (iii) of the table annexed to Army Rule 13(3), 1954, after 6 years and 150 days of service as a non-pensioner. The respondents submit that the applicant’s claim for disability pension was rejected by Medical Advisor (Pension), PCDA (P) Allahabad on the ground that the disability is neither attributable to nor aggravated by military service. Therefore, the respondents pray for dismissing the OA. The learned counsel for the respondents further argued that the disability pension is granted to an individual consisting of service as well as disability element who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed @ 20% or above. In the instant case, disability pension claim of the petitioner was already rejected by Medical Advisor (Pension) (MAP), PCDA (P), Allahabad. Moreover, the petitioner’s service and medial documents have already been destroyed by burning after expiry of its compulsory retention period of 25 years being non-pensioner. Therefore, the disability of the petitioner, whether attributable to or aggravated by military service or not, cannot be ascertained at this belated stage due to non-availability of medical documents. Moreover, the petitioner is also well aware about non-entitlement of his service as well as disability pension due to policy constraints. The learned counsel for the respondents submitted that if the petitioner was entitled to disability pension since 30 Jul 1984, he cannot remain silent for more than three decades. He argued that it can be clearly seen that the applicant had knowingly waited till destruction of his original documents to extort the sympathetic benefits from this Hon’ble Tribunal. In these matters, it is essential that persons who are aggrieved by the orders of the Government should approach the court of law or represent their case well in time so that material evidence of the case can be produced to the court of law. The petitioner is well aware of the provisions that after 25 years of retention, his documents have been destroyed. It indicates that the petitioner deliberately wants to take advantage of non-availability of his factual service and medical documents and seems to be deliberately misleading the Hon’ble Tribunal. Therefore, he is not entitled for disability pension and the OA is liable to be dismissed.
4. During his oral submission on 20.6.2018, Shri M.Selvaraj, learned counsel for the applicant, submitted that the applicant’s prayers may be 'restricted to grant of service element of pension alone'. Consequent to this, the applicant’s prayer has been considered for grant of service element of pension only.
5. 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.
6. It is not disputed that the applicant was enrolled into the Army on 2.3.1978 and was discharged from service on 30.07.1984. There are no records available in the form of Medical Board proceedings to ascertain the invaliding disease, degree of disability or the duration for which the disability was assessed. However, the copy of Long roll placed on record by the respondents clearly indicates the cause of discharge of the applicant from service has been recorded as 'Having been invalided, medically boarded out under the Army Rule 13 Item III (iii).' It is evident from the above that the applicant was medically invalided out from service on 30.07.1984 after serving 6 years and 150 days. In the absence of Medial Board proceedings or any other medical documents, we are unable to ascertain the applicant’s invaliding disease and details of the disability.
7. It is apparent that either the disability element of the late soldier was assessed at below 20% or if higher, it was considered as neither attributable to nor aggravated by service and hence he was not granted any disability pension. While in the absence of records it is difficult to ascertain the invaliding disease and degree of disability, in our view, the benefit of doubt should go to the late solider in that the disability was attributable to/aggravated by service, but was assessed at below 20%. This would be in keeping with the principles enunciated by the Hon’ble Apex Court in Union of India & Another V Rajbir Singh (civil Appeal No.2904 of 2011), where the Apex Court 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.'
8. It is also seen that Rule 186 (1) of the Pension Regulations for the Army states that :-
'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.'
9. From the forgoing, we find that the applicant is eligible for grant of service element of pension. However, based on the Hon’ble Supreme Court judgement 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 08.02.2018 in M.A.No.274 of 2017 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 04.09.2017.
10. In sum, the application is allowed to the extent of granting service element of pension to the applicant with effect from 04.09.2014. 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.
11. 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.