Transferred Application No. 1045 of 2010. Case: Bishnu Prasad Thapa Vs Union of India and Ors.. Armed Forces Tribunal

Case NumberTransferred Application No. 1045 of 2010
CounselFor Appellant: K.K. Mishra, Advocate and For Respondents: Prakhar Kankan, Learned Counsel
JudgesV.K. Dixit, J. (Member (J)) and Lt. Gen. Gyan Bhushan, Member (A)
IssueService Law
Judgement DateOctober 15, 2015
CourtArmed Forces Tribunal

Order:

Lt. Gen. Gyan Bhushan, Member (A), (Regional Bench, Lucknow)

1. Initially, the applicant had filed writ petition No. 76892 of 2005 before the Hon'ble High Court of Judicature at Allahabad, which after constitution of the Armed Forces Tribunal has been transferred to this Bench of the Tribunal and registered as T.A. No. 1045 of 2010. The applicant has claimed the reliefs as under:--

"A- Issue a writ order/in the nature of certiorari quashing the impugned orders dated/communicated dated 23-8-96 and 29-10-98 passed by respondent No. 3 and 2 respectively to the effect of rejecting the claim of the disability pension of the poor petitioner.

B- Issue a writ order/direction in the nature of mandamus directing the respondent authorities to re-consider the case of claim of the disability pension of the petitioner in accordance with law under the relevant provision regulation 173 of disability Pensionary awards.

C- Issue any other writ order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

D- Award cost of the petition in favour of the petitioner."

2. The factual matrix of the case is that the applicant was enrolled in the Indian Army on 24.11.1977 and was discharged from service with effect from 30.11.1994 under the provisions of Rule 13(3) III (i) of the Army Rules, 1954. Release medical board was conducted on 18.06.1994, wherein his disability was assessed @ 90% for 05 years and it was considered neither attributable to nor aggravated by military service. Claim for disability pension of the applicant was rejected vide order dated 23.08.1996 and subsequently, his appeal against the rejection of claim for disability pension was also rejected vide orders dated 29.10.1998. Aggrieved, the applicant filed writ petition No. 76982 of 2005 before the Hon'ble High Court of Judicature at Allahabad, which stood transferred to this Tribunal vide Court's order dated 31.03.2010 and has been registered as Transferred Application.

3. Heard Shri K.K. Mishra, Learned Counsel for the applicant, Shri Prakhar Kankan, Learned Counsel for the respondents and perused the record.

4. Learned Counsel for the applicant has submitted that the applicant joined the Indian Army in a medically fit condition on 24.11.1977 and after completing his basic training, he was posted at various places and performed adventurous and challenging duties assigned to him with full sincerity. He submitted that in July, 1981, the applicant felt pain in his shoulder and thereafter there was some swelling, as such he was not able to perform his official duties. He was treated and ultimately was transferred to Pune hospital, where the doctor informed the applicant about cancerous symptom of disease as Osteo Sarcoma (Lt) Humerous and advised removal of left arm, for which no consent was given by the applicant and he asked for medical treatment, but no treatment was given. The disease became serious and ultimately on 07.01.1982, the applicant's left arm was removed and the applicant was discharged from service on 01.12.1994. He further submitted that since at the time of enrollment, proper medical examination was carried out and the applicant was found medically fit and there is no note of any disease at the time of enrollment, as such the disability should be considered as attributable to and aggravated by military service and disability pension should be granted to the applicant. The applicant's counsel also submitted orally, though not contained in the pleadings, that as per Government Order dated 31.01.2001 the disability pension be rounded off to 100%.

5. Per contra, the learned counsel for the respondents submitted that the medical board had assessed the disability as 90% for 05 years and it was considered neither attributable to nor aggravated by military service, as such the applicant was not fulfilling the primary conditions for grant of disability pension as laid down in Para 173 of Pension Regulations for the Army, 1961 (Part -I), which clearly states that pension may be granted to an individual who is invalided from service on account of disability, which is attributable to or aggravated by military service. The applicant had suffered with disease "Osteo Sarcoma (Lt) Humerous (OPTD)", which is a type of bone cancer. Disability of the applicant was assessed by medical authorities as neither attributable to nor aggravated by military service. The applicant was given ample opportunity to complete his normal terms and condition and was finally discharged from service and was awarded service pension. His claim for disability was rejected. His appeal was also rejected, therefore, the applicant is not entitled for grant of disability pension.

6. Learned Counsel for the respondents further submitted that the applicant's claim for disability pension had been rejected, because the disability was considered neither attributable to nor aggravated by service.

7. Before dealing with the rival submissions, it would be appropriate to examine the relevant Rules and Regulations on the point. Relevant portions of the Pension Regulations for the Army 1961 (Part I), and the provisions of Rules 4, 5, 9, 14 and 22 of the Entitlement Rules for Casualty Pension Award, 1982 are reproduced below:--

(a) Pension Regulations for the Army 1961 (Part I)

Para 173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 percent or over.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II.

(b) Entitlement Rules for Casualty Pensionary...

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