O.A. No. 152 of 2012. Case: E. Husain Vs Union of India, The Chief of The Army Staff Integrated Head Quarters (Army), OIC Records, Record Office and Principal Controller of Defence Accounts (Pensions) Office of The PCDA(P). Armed Forces Tribunal
| Case Number | O.A. No. 152 of 2012 |
| Counsel | For Appellant: Sri. T.R. Jagadeesh, Adv. and For Respondents: Smt. E.V. Moly, Adv., Central Government Counsel |
| Judges | Shri Kant Tripathi, Member (J) and Gen. Thomas Mathew, PVSM, AVSM, Member (A) |
| Issue | Armed Forces Tribunal Act 2007 - Section 14 |
| Judgement Date | March 22, 2013 |
| Court | Armed Forces Tribunal |
Order:
Shri Kant Tripathi, Member (J), (Regional Bench, Kochi)
1. Heard Mr. T.R. Jagadeesh for the applicant and Mrs. E.V. Moly for the respondents and perused the record. By the instant O.A. filed under Section 14 of the Armed Forces Tribunal Act, 2007, the applicant, E. Husain, Ex. No. 1375261 K, has claimed the benefit of disability pension at the rate of 20% with effect from the date of his discharge. He has further claimed for rounding off of the 20% of disability pension to the extent of 50% as per the Government of India, Ministry of Defence letter No. 1(2)/97/D (Pen-C) dated 31st January 2001.
2. The relevant facts are that, the applicant, E. Husain, Ex. Sapper No. 1375261 K, was enrolled in the Indian Army (Madras Engineering Group) on 26.3.1982. During the service he suffered primary hypertension, consequently, he was placed in low medical category, CEE (Temporary) for six months with effect from 27.7.1988 by a duly constituted Medical Board held at Military Hospital, Secunderabad. A copy of the Medical Board proceedings is on record as Annexure R1. It is also significant to mention that on recategorisation, the applicant was placed in low medical category, CEE (Permanent) with effect from 21.1.1999 by another Medical Board, vide its report, Annexure R2. However, the specialist doctors constituting the Release Medical Board opined that the applicant's disability was constitutional. So, it was neither attributable to nor aggravated by the military service. The applicant was discharged from the service on 31st March, 1999 under Army Rule 13(3)III(iv) at his own request on compassionate grounds before fulfilling the conditions of his enrolment. In view of the fact that the applicant had rendered 17 years and 5 months qualifying service, he was sanctioned service element of pension with effect from 1.4.1999 vide PPO No. S/014243/99 (Army) and is admittedly in receipt thereof along with the benefit of revision granted by the Government from time to time. A copy of the PPO is on record as Annexure R4. The applicant requested for disability element of pension with effect from the date of discharge, which was rejected by the P.C.D.A.(P), Allahabad vide letter dated 24.11.1999 (Annexure A4) on the ground that the applicant was not entitled to disability pension as he had been discharged on his own request on compassionate grounds before fulfilling the conditions of his enrolment. Learned counsel for the applicant submitted that, no doubt, P.C.D.A.(P) Allahabad rejected the applicant's claim for disability pension by the aforesaid letter dated 24.11.1999, but he was not provided any opportunity to prefer an appeal. He next submitted that the applicant's claim for disability pension was not considered in the light of the judgment of the Delhi High Court in Mahavir Singh Narwal vs. Union of India (2004 (74) DRJ 661), and the Apex Court judgment in K.J.S. Buttar vs. Union of India, (JT 2011 (3) SC 626). The learned counsel for the applicant next submitted that the rejection of the prayer for disability pension only on the ground that the applicant's discharge was on his own request, was not proper. He next submitted that the claim on merit was not examined by the P.C.D.A.(P), Allahabad. Learned counsel for the applicant further submitted that according to the Entitlement Rules for Casualty Pensionary Awards, 1982 and the various decisions of the Apex Court, the applicant was entitled to the disability pension because he was physically fit at the time of enrolment and no note of adverse physical factor was made at the time of entry into the service. The applicant's discharge was due to the aforesaid disability, therefore, according to the settled principles, the proper inference was that the applicant suffered the disability due to the service conditions. Learned counsel for the applicant next submitted that the Medical Board was duty bound to record reasons before arriving at the conclusion that the disability was constitutional, but no reason was recorded.
3. Counsel for the respondents, on the other hand, submitted that the Medical Board's opinion was binding and no inference could be drawn contrary to the opinion of the Medical Board, according to which, the disability was constitutional. It was next submitted that the applicant was posted at a peace station at the time of onset of the disease, therefore, the service conditions were not instrumental in causing the disability. More so, it was also submitted on behalf of the respondents that the applicant had himself requested for discharge and in such matters, disability element was not payable.
4. In O.A. No. 3 of 2012, We had occasion to consider the question whether or not the disability pension is payable in a case where the individual seeks discharge on compassionate grounds and had arrived at the relevant conclusions recorded in Para 4 to 9 of the order rendered in the said O.A. which may be reproduced as follows:
4. The learned counsel for the applicant submitted that no doubt the applicant was discharged on his own request but he had a disability which was aggravated due to the military service, therefore, his request for the disability pension was tenable as per the judgment of the Delhi High Court in Mahavir Singh Narwal v. Union of India and Others (2004 (74) DRJ 661). It was also submitted that the judgment of the Delhi High Court remained in tact even before the Apex Court, as the Special Leave Petition filed by the Union of India and others was dismissed.
5. Regulation 173 of the Pension Regulations for the Army, 1961 (hereinafter referred to as 'the Regulations'), which deals with the disability pension of P.B.O.Rs, being relevant in the present case, is reproduced as follows:
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 disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 per cent or over.
The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II.
6. A perusal of the aforesaid Regulation 173, therefore, reveals that the disability pension is payable to an individual who is discharged from service on account of a disability which is attributable to or aggravated by military service and assessed at 20% or more. The question whether the disability is attributable to or aggravated by military service is to be determined under the rules contained in Appendix II. The said Appendix II contains the Entitlement Rules for Casualty Pensionary Awards, 1982 as amended from time to time. Prior thereto, there had been other Entitlement Rules for Casualty Pensionary Awards. Rule 4 of the Entitlement Rules for Casualty Pensionary Awards, 1982, being relevant on the point, is re-produced as follows:
4. Invaliding from service is a necessary condition for grant of disability pension. An individual who, at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service. ICO/OR and equivalents in other services who are placed permanently in a medical category other than 'A' and are discharged because of alternative employment suitable to their low medical category can be provided, as well as those who having been retained in alternative employment out are discharged before its completion of their engagement will be deemed to have been invalidated out of service.
The aforesaid rule 4 inter alia provides that an individual who, at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited, will be treated as invalidated from service. It may not be out of context to mention that a similar provision had been incorporated even in the Entitlement Rules for Casualty Pensionary Awards, 1948 as rule 1. Therefore it is crystal clear that rule 1 of the Entitlement Rules for Casualty Pensionary Awards, 1948 was in pari materia with rule 4 of the Entitlement Rules for Casualty Pensionary Awards, 1982. The case of Mahavir Singh Narwal (supra) had arisen under the aforesaid 1948 Entitlement Rules. The Division Bench of the Delhi High Court examined the extent and scope of Regulation 173 of the Regulations as also rules 1 and 2 of the Entitlement Rules for Casualty Pensionary Awards, 1948 and held as follows:
6. On careful perusal of the aforesaid rule it is manifestly clear that invalidated from service is necessary condition for grant of disability pension. What has to be seen for entitlement for disability pension is whether an individual at the time of his release was in a low medical category than that in which he was recruited if it was so then such person will be treated as invalidated from service. It is the admitted case of the parties that at the time of recruitment the petitioner did not have any disability. It is also admitted case of the parties that the petitioner got disability on account of stress and strain of military service and his category was initially lower down temporary (sic) to CEE on 21st September, 1978 for a period of 6 months and after the Release Medical Board examined the petitioner on 11th April 1979 it...
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