O.A. No. 93 of 2016. Case: Jadhav Maruti Bhau Vs Union of India and Ors.. Armed Forces Tribunal

Case Number:O.A. No. 93 of 2016
Party Name:Jadhav Maruti Bhau Vs Union of India and Ors.
Counsel:For Appellant: V.K. Sathyanathan, Adv. and For Respondents: C.B. Sreekumar, Senior Panel Counsel
Judges:S.S. Satheesachandran, Member (J) and M.P. Muralidharan, Vice Admiral, AVSM and BAR, NM and Member (A)
Issue:Defence
Judgement Date:January 25, 2017
Court:Armed Forces Tribunal
 
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Order:

M.P. Muralidharan, Vice Admiral, AVSM and BAR, NM and Member (A), (Regional Bench, Kochi)

  1. The Original Application has been filed by Jadhav Maruti Bhau, Ex. Naib Subedar No. JC 404396 A, of Brigade of Guards, seeking disability element of disability pension with the benefit of rounding off. The applicant has also sought that Regulation 53(b) of the Pension Regulations for the Army, 2008, be quashed, as it does not provide benefit of Regulation 98(c) of the Pension Regulations.

  2. The applicant was enrolled in the Army (Brigade of Guards) on 26 April 1985 and was discharged from service on completion of his terms of engagement under Army Rule 13(3)I(i)(a) with effect from 01 May 2011, after rendering 26 years and 05 days of service. The Release Medical Board held at the time of his discharge assessed him to have disability "CAD (DVD) (OPTD), which was assessed at 30% for life, but was considered as neither attributable to nor aggravated by Military Service (Annexure-R2). The applicant was granted service pension (Annexure-R1), but his claim for disability element of pension was rejected by the competent authority (Annexure-R3).

  3. Shri VK Sathyanathan, learned counsel for the applicant submitted that the applicant was medically fit at the time of joining the Army in 1985 and remained so during his various postings in the Army, which included field areas as well. After more than 24 years in the Army, in Aug 2009, the applicant was admitted in a Military Hospital and underwent surgery for total Arterial Revascularisation in Oct 2009. The applicant was placed in low medical category and the Categorisation Medical Board held that the applicant's disease "Coronary Artery Disease" was attributable to service. The subsequent re-categorisation Medical Board also held that the disease was attributable to service (Annexure-A1). The Release Medical Board held at the time of his discharge from service, assessed him to have disability of 30% for life for Coronary Artery Disease, but held that it was neither attributable to nor aggravated by service conditions (Annexure-A3).

  4. The Learned counsel further submitted that the applicant was informed that he was not entitled to disability element of pension (Annexure-A4), and therefore, as advised, he preferred an appeal to the First Appellate Committee, who rejected his claim stating that 14 days prior to the onset of the disease he was performing routine duties in the unit and there was no stress/strain, severe or exceptional, and the onset of disability was in peace station (Annexure-A8). The applicant, thereafter preferred a Second Appeal, which was also rejected, essentially stating that the disability was due to hereditary predisposition aggravated by unhealthy life style. It was also observed that 14 days prior to the onset, his charter of duties did not reveal any service related stress. Therefore the disability was considered as neither attributable to nor aggravated by service (Annexure-A12).

  5. The learned counsel further submitted that in accordance with the Entitlement Rules for Casualty Pensionary Awards, an individual, who at the time of his release was in lower medical category than in which he was recruited, is to be treated as invalided out from service. Further, an individual is presumed to be in fully fit condition while entering into service, unless there was any observation made at the time of his enrolment and therefore, any subsequent deterioration in health at the time of his discharge should be presumed to have been due to service. The claimant is also not be called upon to prove the conditions of entitlement. Therefore the applicant was eligible for disability element of pension at the time of his discharge from service. The learned counsel submitted that in a number of cases the Hon'ble Apex Court had held so. The learned counsel also submitted that in addition the applicant was also entitled to the benefit of rounding off of the disability element. However, Regulation 53(b) of the Pension Regulations for the Army, 2008, stipulates that personnel, who are discharged on completion of the terms of engagement, are not entitled such benefit. This the learned counsel submitted, was against the principles laid down by the Hon'ble Apex Court in UOI & Ors. v. Ram Avtar, Civil Appeal No. 418 of 2012, wherein any person who is granted disability pension was also entitled to the benefit of rounding off. The learned counsel therefore prayed that the applicant be granted disability element of pension with the benefit of rounding off.

  6. The respondents in their reply statement submitted that the applicant, who was discharged from service on completion of his term of engagement with effect from 01 May 2011, was granted service pension. The Release Medical Board held at the time of his discharge assessed him to have disability "CAD (DVD) (OPTD) at 30% for life, but held the same as neither attributable to nor...

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