“Per Hon’ble Mr. Justice Umesh Chandra Srivastava, Member (J)”
1. The instant application has been filed under Section 14 of the Armed Forces Tribunal Act, 2007, before the Armed Forces Tribunal, Principal Bench, New Delhi, which has been transferred to this Tribunal and has been renumbered as Transferred Application No. 14 of 2022, for the following reliefs:-
(a) That the composite disability percent of the Applicant is 40%. The Hon’ble Tribunal may be pleased to direct the Respondents to release/grant disability pension @40% and round off the same by broad banding it to 50% in terms of Hon’ble Supreme Court’s Judgment in the case of K.J.S. Bhuttar Vs UOI & ors. And Union of India Vs Ram Avtar w.e.f. 01 Sep 2014 i.e. his date of retirement 29 February 2016.
(b) Grant interest on the arrears to the tune of 12% per annum from his date of retirement i.e. 29 Feb 2016.
(c) Impose exemplary cost on the Respondents for such inaction on their part.
2. Briefly stated, applicant was commissioned in the Indian Army on 23.08.1986 and retired on 29.02.2016 (AN) in Low Medical Category on attaining the age of superannuation. At the time of retirement from service, the Release Medical Board (RMB) held at Military Hospital, Chennai on 29.09.2015 assessed his disabilities (i) ‘TYPE 2 DIABETIC MELLITUS’ @20%% for life and (ii) ‘PRIMARY HYPERTENSION’ @30% for life, composite disabilities @40% for life, and opined the disabilities to be neither attributable to nor aggravated (NANA) by service. The applicant’s claim for grant of disability pension was rejected vide letter dated 25.01.2016. The applicant preferred First Appeal which too was rejected vide letter dated 22.05.2017 which was communicated to the applicant vide letter dated 01.06.2017. The applicant preferred Second Appeal dated 24.08.2016 which too was rejected vide letter dated 06.05.2019. It is in this perspective that the applicant has preferred the present application.
3. Learned Counsel for the applicant pleaded that at the time of commission, the applicant was found mentally and physically fit for service in the Army and there is no note in the service documents that he was suffering from any disease at the time of commission in Army. The diseases of the applicant were contracted during the service, hence they are attributable to and aggravated by Military Service. He pleaded that various Benches of Armed Forces Tribunal have granted disability pension in similar cases, as such the applicant be granted disability pension and its rounding off to 50%.
4. On the other hand, Ld. Counsel for the respondents contended that composite disabilities of the applicant @40% for life has been regarded as NANA by the RMB, hence as per Regulations 37 and 81 of the Pension Regulations for the Army, 2008 (Part – I) the applicant is not entitled to disability element of disability pension. He pleaded for dismissal of the Transferred Application.
5. We have heard Ld. Counsel for the applicant as also Ld. Counsel for the respondents. We have also gone through the Release Medical Board proceedings as well as the records and we find that the questions which need to be answered are of two folds:-
(a) Whether the disabilities of the applicant are attributable to or aggravated by Military Service
(b) Whether the applicant is entitled for the benefit of rounding off the disability element of disability pension
6. The law on attributability of a disability has already been settled by the Hon’ble Supreme Court in the case of Dharamvir Singh Versus Union of India & Others, reported in (2013) 7 Supreme Court Cases 316 [LQ/SC/2013/667] . In this case the Apex Court took note of the provisions of the Pensions Regulations, Entitlement Rules and the General Rules of Guidance to Medical Officers to sum up the legal position emerging from the same in the following words.
"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 any 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 claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more 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)]. [pic]
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 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 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 Paras 7, 8 and 9 as referred to above (para 27)."
7. In view of the settled position of law on attributability, we find that the RMB has denied attributability to the applicant only by endorsing that the disabilities ‘TYPE 2 DIABETIC MELLITUS’ @ and ‘PRIMARY HYPERTENSION’ are neither attributable to nor aggravated (NANA) by service on the ground of onset of disabilities on 30.03.2010 and 25.09.2012 respectively while posted in Peace locations (Jodhpur and Barrackpore respectively), therefore, applicant is not entitled to disability element of disability pension. However, considering the facts and circumstances of the case, we are of the opinion that this reasoning of Release Medical Board for denying disability pension to applicant is not convincing and doesn’t reflect the complete truth on the matter. Peace Stations have their own pressure of rigorous military training and associated stress and strain of military service. The applicant was commissioned in Indian Army on 23.08.1986 and the disabilities have started after more than 25 and 27 years of Army service i.e. on 30.03.2010 and 25.09.2012 respectively. We are therefore of the considered opinion that the benefit of doubt in these circumstances should be given to the applicant in view of Dharamvir Singh vs Union of India & Ors (supra), and both the disabilities of the applicant should be considered as aggravated by military service.
8. The law on the point of rounding off of disability pension is no more RES INTEGRA in view of Hon’ble Supreme Court judgment in the case of Union of India and Ors vs Ram Avtar & ors (Civil appeal No 418 of 2012 decided on 10th December 2014). In this Judgment the Hon’ble Apex Court nodded in disapproval of the policy of the Government of India in granting the benefit of rounding off of disability pension only to the personnel who have been invalided out of service and denying the same to the personnel who have retired on attaining the age of superannuation or on completion of their tenure of engagement. The relevant portion of the decision is excerpted below:-
“4. By the present set of appeals, the appellant (s) raise the question, whether or not, an individual, who has retired on attaining the age of superannuation or on completion of his tenure of engagement, if found to be suffering from some disability which is attributable to or aggravated by the military service, is entitled to be granted the benefit of rounding off of disability pension. The appellant(s) herein would contend that, on the basis of Circular No 1(2)/97/D (Pen-C) issued by the Ministry of Defence, Government of India, dated 31.01.2001, the aforesaid benefit is made available only to an Armed Forces Personnel who is invalidated out of service, and not to any other category of Armed Forces Personnel mentioned hereinabove.
5. We have heard Learned Counsel for the parties to the lis.
6. We do not see any error in the impugned judgment (s) and order(s) and therefore, all the appeals which pertain to the concept of rounding off of the disability pension are dismissed, with no order as to costs.
7. The dismissal of these matters will be taken note of by the High Courts as well as by the Tribunals in granting appropriate relief to the pensioners before them, if any, who are getting or are entitled to the disability pension
8. This Court grants six weeks’ time from today to the appellant(s) to comply with the orders and directions passed by us.”
9. Additionally, consequent upon the issue of Government of India, Ministry of Defence letter No. 17(01)/2017(01)/D(Pen/Policy) dated 23.01.2018, Principal Controller of Defence Accounts (Pensions), Prayagraj has issued Circular No. 596 dated 09.02.2018 wherein it is provided that the cases where Armed Forces Pensioners who were retired/discharged voluntary or otherwise with disability and they were in receipt of Disability/War Injury Element as on 31.12.2015, their extent of disability/War Injury Element shall be re-computed in the manner given in the said Circular which is applicable with effect from 01.01.2016.
10. As such, in view of the decision of Hon’ble Supreme Court in the case of Union of India and Ors vs Ram Avtar & ors (supra) as well as Government of India, Ministry of Defence letter No. 17(01)/2017(01)/D(Pen/Policy) dated 23.01.2018, we are of the considered view that benefit of rounding off of disability element of disability pension @40% for life to be rounded off to 50% for life may be extended to the applicant from the next date of his retirement.
11. In view of the above, the Transferred Application No. 14 of 2022 deserves to be allowed, hence allowed. The impugned orders, rejecting the applicant’s claim for grant of disability element of disability element of disability pension, are set aside. Both the disabilities of the applicant are held as aggravated by Army Service. The applicant is entitled to get disability element @40% for life which would be rounded off to 50% for life from the next date of his retirement. The respondents are directed to grant disability element to the applicant @40% for life which would stand rounded off to 50% for life from the next date of his retirement. The respondents are further directed to give effect to this order within a period of four months from the date of receipt of a certified copy of this order. Default will invite interest @ 8% per annum till the actual payment.
12. No order as to costs.
