O.A. No. 169 of 2014. Case: Abraham A.J. Vs Union of India and Ors.. Armed Forces Tribunal

Case NumberO.A. No. 169 of 2014
CounselFor Appellant: T.R. Jagadeesh, Adv. and For Respondents: Tojan J. Vathikulam, Central Govt. Counsel
JudgesS.S. Satheesachandran, J. (Member (J)) and M.P. Muralidharan, Vice Admiral, AVSM and BAR, NM and Member (A)
IssueArmed Forces Tribunal Act 2007 - Section 14
Judgement DateSeptember 16, 2015
CourtArmed Forces Tribunal

Order:

S.S. Satheesachandran, J. (Member (J)), (Regional Bench, Kochi)

  1. Seminal questions of importance over the entitlement of a discharged soldier to claim invalid pension after rejection of his claim for disability pension arise for consideration in this application filed under Section 14 of the Armed Forces Tribunal Act, 2007 (for short 'the Act').

  2. The applicant enrolled in the Indian Air Force on 16.11.1978 was discharged on 1.4.1991 holding that he was not suitable for continuance in service. He had rendered only 12 years and 137 days of service and thus not completed the qualifying service of 15 years to become eligible for pension. The Release Medical Board (for short, the RMB) after his examination opined that he had disability of 'Schizophrenia' to the extent of 30% for two years and such disability was neither attributable to nor aggravated by the Air Force service. His appeals, both first and second, challenging the rejection of his claim for disability pension were unsuccessful and thereupon he preferred an application before this Tribunal as O.A. No. 4 of 2014. Recording the non-pressing of the claim for disability by his counsel, the application was disposed acceding to the request made to move a representation before the authorities concerned to claim invalid pension. Operative portion of the order passed in the O.A. reads thus:

    The Original Application is disposed of subject to the condition that the applicant may, if he so likes, submit a representation within one month from today to the second respondent for invalid pension. If any such representation is given, the same may be got processed and disposed of by the second respondent in accordance with law within a period of three months from the date of receipt of the representation. The decision to be taken on such representation will be communicated to the applicant within one month from the date of the decision.

  3. Pursuant to the disposal of the application, the applicant moved Annexure A6 representation setting forth a claim for invalid pension. His claim for invalid pension was turned down under Annexure A7 holding that he was not invalided out from service solely on medical ground, but was discharged from service on administrative ground i.e. 'his service no longer required - unsuitable for retention in the Indian Air Force.' Challenging Annexure A7 order the applicant has filed the present O.A. in which apart from seeking issue of direction for grant of invalid pension to him from the date of his discharge, he has sought for expunging of all the punishment entries awarded to him as illegal and unsustainable.

  4. The respondents resisted the claims canvassed in the O.A. contending that the present application is not maintainable as it is barred by principles of res judicata and constructive res judicata. In the previous application he had sought expunging of all punishment entries awarded to him, but that was given up and the case was prosecuted only to seek invalid pension, and as such, no challenge against the rejection of his claim for disability pension or punishments imposed against him can be entertained, according to the respondents. He was discharged from service as he was a habitual offender, and his conduct sheet contained entries like admonition, reprimand and severe reprimand during his service. Since his discharge was on administrative grounds i.e., 'his service no longer required - unsuitable for retention in the Indian Air Force' it cannot be treated as invalidment from service and, therefore, he is not entitled for grant of invalid pension, is the case of the respondents to contend that an individual who is invalided out of service alone is entitled to claim invalid pension as governed by Regulation 171 of the Pension Regulations for the Air Force, 1961, Part I (for short 'the Regulations').

  5. Heard counsel on both sides and perused the records.

  6. Learned counsel for the applicant, Shri T.R. Jagadeesh, relying on some judicial pronouncements argued before us as if the claim for disability pension to the applicant still survives for consideration. In the previous O.A. moved by the applicant that question was not decided upon is the basis of the argument canvassed to hold that the applicant is still entitled to prosecute such claim in the...

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