T.A. No. 37 of 2010. Case: A. Shihabudeen Under The Rajput Regiment of The Indian Army Vs Principal Controller of Defence Accounts and Ors.. Armed Forces Tribunal

Case NumberT.A. No. 37 of 2010
CounselFor Appellant: B. Harishkumar, Adv. and For Respondents: A.D. Raveendra Prasad, Govt. Counsel
JudgesK. Padmanabhan Nair, J. (J) and Thomas Mathew (A), Members
IssueArmy Act - Section 20; Army for Pension Regulations, 1961 - Regulations 16, 16(1), 16(3), 50, 125, 173, 173A and 179; Casualty Pensionary Award for Entitlement Rules, 1982 - Rules 4 and 5; Constitution of India - Article 148(5), 309, 366
Judgement DateMarch 22, 2010
CourtArmed Forces Tribunal


Padmanabhan Nair, J. (Member (J), (Regional Bench, Kochi)

1. Petitioner, an Ex-Naik, is challenging Exts.P6, P11 and P12 and also seeks a direction to grant him War Injury Pension and other consequential reliefs to which he is entitled. This Transferred Application was filed as Writ Petition (Civil) No. 991 of 2006 before the Honourable High Court of Kerala and the same was transferred to this Tribunal consequent to its formation.

2. Petitioner was enrolled in Indian Army on 16.12.1982 and discharged on 31.3.2004. According to the petitioner, he participated in 'Operation Parakram' and while the operation was going on, he sustained a multiple splinter injury on Right Shoulder with Axilary Nerve Injury (right) on 4.2.2003. This injury was due to the enemy attack and is war injury. Petitioner underwent treatment and was examined by a Medical Board, which initially fixed the disability at 25%. Subsequently, it was enhanced to 40%. The injury was attributable to military service. It was contended that on account of the disability, the health of the petitioner deteriorated and he made a representation for discharge from service on compassionate grounds and he was discharged on 31.3.2004 after including him as low medical category A-3(P). It was also averred that two years prior to the date of filing of the discharge application, he had filed another discharge application, which was rejected. It was further averred that the Commanding Officer recommended and sanctioned the disability pension and forwarded it to the Competent Authority for issuing the Pension Payment Order. But, the claim was rejected on the sole ground that as the petitioner's discharge was on his request on compassionate grounds, he is not entitled to disability pension. Petitioner was not aware of any such provision in the Pension Regulations for the Army and the Regulation does not contain a provision to the effect that Personnel Below Officer Rank ("PBOR" for short,) is not entitled to get pension if the discharge is on own request on compassionate grounds. Petitioner made several representations but all of them were rejected. Petitioner is entitled to get War Injury Pension as he sustained injuries during the course of "Operation Parakram", it is contended. Petitioner submitted another representation before the Ministry of Defence on 20.12.2005. The request for disability pension was rejected on the ground, that, in view of Regulation 50 of the Pension Regulations for the Army, Part I, 1961, the petitioner is not entitled to get War Injury Pension. It is averred that Regulation 50 applies only to Officers and it does not apply to PBOR and there is no provision in the Regulations restraining payment of disability pension/War Injury Pension to a PBOR if the discharge is on own request. Hence this application claiming War Injury Pension and other benefits.

3. The respondents have filed a counter affidavit. It was contended that petitioner was discharged from military service on his request in terms of the Army Rule 13(3) III (IV) and not on medical grounds as stated in paragraph 1 of the Writ Petition/TA. It was contended that the petitioner submitted an application stating that his wife was sick and there was no one to look after his wife. He had given a declaration that he would not withdraw his application for discharge after sanction by the competent authority. He had also signed and submitted a certificate in which he had admitted that he is not entitled to disability pension.

4. It is admitted that disability was assessed by the Medical Board at 40%. Petitioner is granted service pension as he had completed minimum service. It is further contended that petitioner was not invalided on account of war injury but on compassionate grounds. It is admitted that the petitioner had made a claim for disability benefits under the Army Group Insurance Scheme, but the same was not processed and forwarded as he was not eligible for the same, for the reason that he was discharged from service on compassionate grounds at his own request. Hence, it is contended that the petitioner is not entitled to disability pension or War Injury Pension as stipulated in Paragraphs 50, 173-A and 179 of the Pension Regulations for the Army, Part I, 1961.

5. Petitioner has filed a reply affidavit reiterating the averments made in the Writ Petition. It is admitted that the petitioner was discharged on his request, but his specific case is that he was included in low medical category, which is permanent. It is averred that when a person is discharged with low medical category, he is to be treated as discharged on invalidment as per the Entitlement Rules. It is admitted that petitioner entered in service not in the year 1982 but in the year 1987. It is specifically averred that as per the Entitlement Rules laid down in Appendix II of the Pension Regulations for the Army, an individual who at the time of his release is under a low medical category than the one in which he was recruited, will be treated as invalided from service. It is contended that when he was enrolled in service, he was included in Medical Category "Shape 1". It is contended that, initially he submitted an application for discharge on compassionate ground in the year 2001, but no action was taken on that request. After he sustained battle injury, the application was traced out and considered by the authorities. It is further averred that before the discharge, petitioner was asked to sign many papers purported to be very essential for his speedy discharge. It is also contended that Ext.R6(c) and R6(d) are of no force and the same cannot be used to defeat the rightful claim of the petitioner for a statutory right. It is reiterated that there is no statutory restriction for a PBOR to get War Injury Pension/Disability Pension, even if he has got a discharge from service on compassionate grounds. It is further contended that petitioner is not served with any reply rejecting his claim for insurance benefits. It is also contended that the insurance agency need not verify the reasons for discharge and they have to disburse the amount as and when a member is discharged from service due to disability. It is reiterated that petitioner is entitled to the...

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