T.A. No.117 OF 2010 WP(C) NO.35353/08. Case: A.K. Isahak Kunju, Aged 66 Years, S/o. abdul Khader, Koppara House, Krishnapuram P.O., Alappuzha. Vs Union of India, Represented by Itssecretary (Defence), New Delhi, Defence Secretary, Central Secretariat, New Delhi, The Officer in Charge, Records, Signals, Jabalpur and Director General, Controller of Defence Accounts, (Pension), Allahabad, U.P.. Armed Forces Tribunal
| Case Number | T.A. No.117 OF 2010 WP(C) NO.35353/08 |
| Counsel | For Appellant: Sri. B. Harish Kumar and For Respondents: Sri. Tojan J. Vathikulam, Central Govt. Counsel |
| Judges | Mr. A.C. Arumugaperumal Adityan, Member (J) and LT. Gen. Thomas Mathew, PVSM, AVSM, Member (A) |
| Issue | Armed Forces Tribunal Act, 2007 - Section 34; Army Rule, 1954 - Rule 13(3); Entitlement Rules for Casualty Pensionary Awards, 1982 - Rule 17; Constitution of India - Article 14 |
| Judgement Date | November 17, 2011 |
| Court | Armed Forces Tribunal |
Order:
A.C.A. Adityan, Member (J), (Kochi)
1. The applicant challenging the impugned order rejecting his claim for disability pension had approached the Honourable High Court of Kerala at Ernakulam by way of filing Writ Petition (Civil) No.35353/2008, which has subsequently been transferred to this Armed Forces Tribunal, Regional Bench, Kochi under Section 34 of the Armed Forces Tribunal Act 2007, after the constitution of the same, and renumbered as T.A.No.117 of 2010.
The averments in the affidavit to the application in brief are as follows: The applicant was enrolled in the Army on 14.6.1963 and he was boarded out of service on 31.10.1984. The applicant was granted disability pension as a case of 'Acute Lumbago-203' at a degree of disablement of 20% for two years. Subsequently, the disability pension was extended to 10 years as per medical board proceedings. On appeal, the Medical Board without any clinical evidence has discontinued the disability pension stating that disability is less than 20% and hence not eligible for disability pension. The medical board examined the applicant on 20.8.2006 and recommended for surgery for the reason that his condition has worsened. On the same day another doctor diagnosed the applicant as a case of Acute Lumbago and has held that his condition remains unchanged after the first medical board. The Medical Board also conducted examination of the applicant on 25.8.2006 and diagnosed as Acute Lumbago and held that his condition has worsened since the last Board. Since there is contradiction between the opinion of the Medical Board the proceedings of the Medical Board cannot be treated as a valid evidence. In support of his contention, the learned counsel appearing for the applicant has also produced Exts.P1 to P8. Even though the applicant would state in his application that his second appeal preferred under Ext.P8 was not yet disposed of, the learned Central Government Counsel would state that the second appeal was already disposed of on 21.5.2009 and copy of the order is produced as Ext.R3(n). Hence, this application for disability pension.
2. The respondents in their counter/reply statement would contend that since the application has been preferred after inordinate delay, the same is liable to be dismissed, and would further contend that disability pension of the applicant was discontinued with effect from 19.2.1996 since the Medical Advisor (Pension) was of the opinion that medical category of the applicant is less than 20% (15-19%). The applicant was placed in low medical category, BEE (Permanent) on 26.8.1983 and was discharged from service with effect from 1.11.1984 under Rule 13(3)III(i) of the Army Rule 1954 and consequently discharge order dated 5.8.1984 vide No.2883/CA-3/3 was passed [Annexure R3(a)]. At the time of discharge, the Release Medical Board of the applicant was held at 148 Base Hospital, which opined that disability was aggravated by military service but categorised his disability at 15-19%. However, the Principal Controller of Defence Accounts (Pension), Allahabad had assessed the medical category of the applicant as 20% and paid disability pension for two years. The details are as follows:
| Sl. No. | Date of Board | Name of Board | Disability regarded by Board | % of disability recommended by Board | % of... |
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