T.A. No. 38 of 2010. Case: Badri Koteshwar Rao S/o. Kasaiah Vs The Union of India (UOI) through the Secretary Ministry of Defence, Government of India, The Officer-in-Charge, Madras Engineers Group, The Chief Controller of Defence Accounts (Pension) and The Commanding Officer 3 Engineers Regiment. Armed Forces Tribunal

Case Number:T.A. No. 38 of 2010
Party Name:Badri Koteshwar Rao S/o. Kasaiah Vs The Union of India (UOI) through the Secretary Ministry of Defence, Government of India, The Officer-in-Charge, Madras Engineers Group, The Chief Controller of Defence Accounts (Pension) and The Commanding Officer 3 Engineers Regiment
Counsel:For Appellant: B. Venkataswamy, Adv. and For Respondents: G. Jehanathan, CGSC
Judges:A.C. Arumugaperumal Adityan, J. (J) and S. Pattabhiraman (A), Members
Issue:Armed Forces Tribunal Act, 2007; Army Rules, 1955 - Rules 13 and 13(3); Entitlement Rules, 1982 - Rules 14 and 123; Pension Army Regulations, 1961 - Regulations 197 and 198
Judgement Date:June 23, 2010
Court:Armed Forces Tribunal
 
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Order:

A.C. Arumugaperumal Adityan, J. (Member (J)), (Regional Bench, Chennai)

1. The unfortunate petitioner, who had undergone left nephrectomy while in service and according to the respondents, refused to accept the sheltered appointment offered by the respondents, has challenged the order of discharge passed on 31.05.1998 under Rule 13(3)(III)(v) of the Army Rules, by way of filing W.P. No. 23820 of 1999 before the Honourable High Court of Andhra Pradesh at Hyderabad. Subsequent to the constitution of the Armed Forces Tribunal, Regional Bench at Chennai, under the Armed Forces Tribunal Act, 2007, the said Writ Petition has been transferred to this Tribunal and reassigned T.A. No. 38 of 2010.

2. The pleadings of the petitioner in the affidavit in brief sans irrelevant particulars are as follows: The petitioner had joined Indian Army as a Sapper on 21.09.1989 and after undergoing required training he was attested as a Soldier on 11.01.1992 in the trade of Mech Transport Driver (Heavy Duty). After serving in the northern borders of the country, the petitioner in the year 1997 had developed some pain in the abdominal region, which was persistent resulting him referring to Military Hospital for treatment wherein it has been diagnosed that there was an excess growth on his left kidney. The petitioner underwent left nephrectomy in the Military Hospital and after recovery, he joined duty in his Unit i.e. 3 Engineers Regiment. The petitioner informed his Commanding Officer about his inability to cope up with the stress and strain in the duty assigned to him due to major surgical operation he had undergone, which was not considered by the Commanding Officer. A show cause notice was issued to the petitioner on 03.10.1997 by the Commanding Officer directing the petitioner to show cause why he should not be discharged from service under Rule 13(3)(III)(v) of the Army Rules. In his reply to the show cause notice the petitioner has specifically mentioned that the 'unwillingness certificate' had been obtained from him by putting him under duress and he revoked the 'unwillingness certificate'. Further in his reply the petitioner had requested the Commanding Officer to allow him to complete the qualifying service period of 15 years, which will entitle him for pension. But the petitioner was discharged from service on 31.05.1998 without considering the request made by him in his reply to the show cause notice. At the time of discharge the petitioner was advised to approach the Controller of Defence Accounts (Pension), Allahabad (UP), for disability pension, since the petitioner had developed kidney problem during service and it was attributable to service. The claim for disability pension by the petitioner before the Chief Controller of Defence Accounts (Pension), Allahabad (UP), was rejected on the ground that the disease under which...

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