Umesh Chandra Srivastava, J. (Member (J))

1. The instant Original Application has been filed under Section 14 of the Armed Forces Tribunal Act, 2007 for the following reliefs:-

i. This Hon'ble tribunal may graciously be pleased to set aside Part VII and Column 3 Page 8 of the RMB dated 01.04.2021 (Annexure A-1 to present OA) to the extent the denial of disability pension to applicant.

ii. This Hon'ble Tribunal may graciously be pleased to set aside AIR HQ/99789/11/690360/10/21/DAV (DP/RMB) dated 15.11.2021 (Annexure A-2 to present OA).

iii. This Hon'ble Tribunal may graciously be pleased to Grant Disability Pension for life @40% disability to be rounded off to 50%, since the date of discharge i.e. 31.10.2021 to applicant.

iv. This Hon'ble Tribunal may graciously be pleased to direct Dy CDA Subroto Park New Delhi to issue the PPO for disability granting disability pension to applicant from 01.11.2021 and for life @50%.

v. This Hon'ble Tribunal may graciously be pleased to direct Respondents to pay the entire arrears which accrued after grant of disability pension since 01.11.2021 till actual payment.

vi. this Hon'ble Tribunal may grant any other and further relief to applicant as it deem fit, just and proper in the facts and circumstances of the case.

vii. This Hon'ble Tribunal may award the cost of the petition to applicant.

2. Briefly stated, applicant was enrolled in the Indian Air Force on 17.09.1983 and discharged on 31.10.2021 in Low Medical Category on fulfilling the conditions of his enrolment. At the time of discharge from service, the Release Medical Board (RMB) held at Air Force Station, New Delhi on 01.04.2021 assessed his disabilities (i) 'PERIPHERAL ARTERIAL OCCLUSION DISEASE RIGHT LOWER LIMB (OLD)' @20% for life and (ii) 'IMPAIRED GLUCOSE TOLERANCE (FRESH)' @20% 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 15.11.2021. The applicant preferred Appeal dated 14.03.2022 but of no avail. It is in this perspective that the applicant has preferred the present Original Application.

3. Learned Counsel for the applicant pleaded that at the time of enrolment, the applicant was found mentally and physically fit for service in the Air Force and there is no note in the service documents that he was suffering from any disease at the time of enrolment in Air Force. The diseases of the applicant were contracted during the service, hence they are attributable to and aggravated by Air Force 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 have been regarded as NANA by the RMB, hence in terms of Regulation 153 of the Pension Regulations for the Indian Air Force, 1961 the applicant is not entitled to disability pension. He pleaded for dismissal of the Original 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 Air Force 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 disability 'PERIPHERAL ARTERIAL OCCLUSION DISEASE RIGHT LOWER LIMB (OLD)' and 'IMPAIRED GLUCOSE TOLERANCE (FRESH)' are neither attributable to nor aggravated (NANA) by service on the ground of onset of disabilities in January, 2011 and February, 2021 respectively while posted in Peace locations (Bangalore and New Delhi), 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 element of 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 Air Force training and associated stress and strain of Air Force service. The applicant was enrolled in Indian Air Force on 17.09.1983 and the disabilities have started after more than 28 and 38 years of Air Force service respectively i.e. in January, 2011 and February, 2021. 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 Air Force 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 discharge.

11. In view of the above, the Original Application No. 685 of 2022 deserves to be allowed, hence allowed. The impugned order, rejecting the applicant's claim for grant of disability element of disability pension, is set aside. Both the disabilities of the applicant are held as aggravated by Air Force 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 discharge. 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 discharge. 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.