Original Application No. 285 of 2011. Case: Bhagwan Singh Vs Union of India and Ors.. Armed Forces Tribunal

Case Number:Original Application No. 285 of 2011
Party Name:Bhagwan Singh Vs Union of India and Ors.
Counsel:For Appellant: K.B. Singh, Advocate and For Respondents: Ishraq Farooqui, Learned Counsel
Judges:V.K. Dixit, J. (Member (J)) and Gyan Bhushan, Member (A)
Issue:Armed Forces Tribunal Act 2007 - Section 14
Judgement Date:September 10, 2015
Court:Armed Forces Tribunal
 
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Order:

Gyan Bhushan, Member (A), (Regional Bench, Lucknow)

1. The instant Original Application has been filed on behalf of the applicant under Section 14 of the Armed Forces Tribunal Act, 2007, and he has claimed the reliefs as under:--

"(i) That the Hon'ble Tribunal may kindly be pleased to order to opposite parties that the claim of the applicant regarding disability pension to give the arrear of dues of disability pension from Year 2004.

(ii) That the Hon'ble Tribunal may kindly be please to order to the opposite party to provide the medical treatment authorized Medical Board pension.

(iii) That allow the application of the applicant with costs.

(iv) That impugned order dated 16.06.2005 in O.A. Annexure No. -1 and dated 29.11.2006 (CR-5) in appeal respectively vide Annexure No. 1 & 2 kindly be quashed in the interest of justice as being illegal orders."

2. The admitted and undisputed facts of the case are that the applicant was enrolled in the Indian Army on 28.05.1982 and was discharged from service in medical category "SHAPE-I (P2 Permanent) on 31.12.2004 with 20% disability for life. The applicant put forth his claim for disability pension, which was rejected vide order dated 16.06.2005 (Annexure No. 1 to the O.A.), because it was considered neither attributable to nor aggravated by military service. The first appeal of the applicant was also rejected vide order dated 29.11.2006 (Annexure No. CR-5 to the counter affidavit). The applicant did not file any second appeal, rather he preferred writ petition No. 17982 of 2011 before the Hon'ble High Court, which was dismissed with direction to the applicant to avail the remedy before the Armed Forces Tribunal. Therefore, the applicant has filed the instant O.A.

3. Heard Shri K.B. Singh, Learned Counsel for the Applicant, Shri Ishraq Farooqui, Learned Counsel for the respondents and perused the record.

4. Learned Counsel for the Applicant assailed the impugned order on the ground that at the time of recruitment, the applicant was medically fit. Prior to joining the military service, the applicant was medically examined and no such disease was noticed by the medical authorities. He completed 17 years of service, when he suffered from Complex Partial Seizures. The Applicant was admitted to M.H. Kirkee on 06.08.1999 and thereafter, he was admitted to Command Hospital, Pune and after completing 22 years of service, he was discharged on 31.12.2004 in medical category SHAPE-1 (P2 Permanent) with 20% disability for life. His disability claim was rejected because the Medical Board considered it neither attributable to nor aggravated by military service. There is no note of such a disease or disability in the service record of the applicant at the time of acceptance in service, as such this has to be considered as attributable to and aggravated by service. The Applicant's Counsel placed reliance on the judgment of Hon'ble the Apex Court in the case of Dharamvir Singh reported in (2013) 7 SCC 316, and the subsequent judgment of the Hon'ble Apex Court in the case of Sukhvinder Singh v. Union of India reported in (2014) STPL (WEF) 468 SC. Lastly, the Learned Counsel for the Applicant made an oral submission, though not contained in the pleadings, that as per Government Order dated 31.01.2001 the disability pension be rounded off to 50%.

5. Per contra Learned Counsel for the Respondents submitted that the applicant was discharged in medical category SHAPE P-2 (Permanent) due to Complex Partial Seizures. The Medical Board has assessed the disability as 20% for life but it was considered neither attributable to nor aggravated by military service. Since the applicant was not meeting the primary conditions for grant of disability pension as laid down in Para 173 of Pension Regulations for the Army, his claim was rightly rejected by the competent authority. First Appeal was also rejected on 29.11.2006, the...

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