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ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI
O.A.No.97 of 2014
Tuesday, the 7th day of April 2015
THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH
(MEMBER - JUDICIAL)
AND
THE HONOURABLE LT GEN K. SURENDRA NATH
(MEMBER – ADMINISTRATIVE)
Ex Nk K.Shanmugam, No.15391784M
Elavampatti Village, Elavampatti Post
Tirupattur Tehsil, Vellore District
Tamil Nadu State, Pin-635602.
By Legal Practitioner:
Mrs. Tonifia Miranda
vs.
1. Union of India,
rep. by its Secretary
Ministry of Defence, New Delhi-11.
2. The Chief of Army Staff
Army HQ, DHQPO, New Delhi-11.
3. Adjutant General’s Branch
Integrated HQ of Ministry of Defence (Army)
West Block III, R.K. Puram
New Delhi-110 066.
4. Officer In Charge
The Signal Records
Pin 901124, C/o 56 APO.
... Applicant
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5. The Principal Controller of Defence Accounts
Office of PCDA (Pensions)
Allahabad, Uttar Pradesh
Pin 211 014.
… Respondents
By Mr. M.Dhamodharan, SCGPC
ORDER
(Order of the Tribunal made by
Hon’ble Justice V. Periya Karuppiah, Member (Judicial)
1. The applicant has filed this application seeking following reliefs:
i) to call for records of the Invaliding Medical Board proceedings and
the records relating to the order of rejection of disability pension and
to set aside the same;
ii) to set aside the order passed in First Appeal dated 30.10.2009
confirming the order of rejection of disability pension and consequently
direct the respondents to grant disability pension from 19.12.2008 till
this date along with interest at 9% per annum for the arrears;
iii) to grant the rounding off benefits of disability pension as per letter
of GOI MOD dated 31.01.2001;
iv) to grant Service Pension after condoning the shortfall of qualifying
service or to grant Invalid Pension;
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v) to grant interest for the pension granted vide PPO D/0066/2010 for
the period from 2.12.2008 to 10.6.2010;
and
vi) to direct the respondents to produce the pay book and to pay the
outstanding pay and allowances payable to the applicant.
2.
The case of the applicant in brief would be as follows:
The applicant after graduation in Mathematics enrolled in the
Indian Army on 27.10.1995 and underwent training at 3 Military
Training Regiment, Goa.
He was posted at 15 Corps OP Signal Regt
J & K (Counter Insurgency operational Area).
Thereafter, he was
posted to various places, viz., 24 Rashtriya Rifles, 1 Corps OP Signal
Regt at Mathura, 21 Mountain Divisional Signal Regiment Assam and
so on.
The applicant submits that in the above places, he faced
difficulties in his work and much pressure from his seniors which
resulted in severe mental pressure and his health was severely
affected due to new working environment.
Though the stress and
strain of the work caused illness on him, he excelled in his work.
The
applicant, while availing his annual leave, was severely sick and
hospitalized in Command Hospital, Bangalore for his illness, “SEVERE
DEPRESSIVE EPISODE” for more than 2½ years.
Later, he was
transferred to Southern Command Hospital, Pune. He was not aware
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whether he was granted salary for 2½ years during admission into
various hospitals, i.e., from the year 2006 to 2008.
He submits that if
he was shown the Pay Book, he would have had the knowledge as to
whether he was paid with his pay till the date of discharge.
Invaliding
Medical Board was conducted on 26.11.2008 for which the applicant
was admitted in Air Force Command Hospital, Bangalore from
18.10.2008 to 10.12.2008, but the medical board proceedings were
not given to the applicant.
The Medical Board opined that the
applicant was fit for discharge and it was approved by HQ, ATNK & K
Area on 02.12.2008.
He was advised to be kept in the Unit with
escorts and was not put on military duty till discharge.
He was
discharged on 19.12.2008 under Rule 13 (3) III (iii) of Army rules,
1954.
The applicant was given a certificate that the applicant was
unfit for civil employment. Consequent to that, the applicant could not
get any job which led to untold misery and hardship.
His wife made
several representations to the respondents for the grant of retiral
benefits and issuance of PPO.
However, the applicant’s claim for
disability pension was rejected on 30.10.2009 by the respondents vide
letter No.P/15391784/Bd-Sep 09/REJ-0219/DP-1/NER.
Then, the
applicant’s wife preferred a First Appeal on 19.06.2010 and the
respondents issued a reply dated 24.08.2010 returning the Appeal
unactioned.
While so, the respondents issued a letter dated
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06.09.2010 granting disability pension and service pension, but it was
only service element and not disability pension.
Therefore, the
applicant requests that this application may be allowed.
3.
The respondents filed a reply statement which would be
in brief as
follows:
The applicant was enrolled in the Army (Corps of Signals) on
27.10.1995 and was invalided out from service with effect from
19.12.2008 (A/N) under the Army Rule 13 (3) Item III (iii).At that
time he was placed in Low Medical Category for the ID “SEVERE
DEPRESSIVE EPISODE” after having rendered 13 years 02 months and
09 days service in the Army.
Invaliding Medical Board was held on
26.11.2008 at Command Hospital, Air Force, Bangalore-7 wherein his
disability “SEVERE DEPRESSIVE EPISODE” had been opined as neither
attributable to nor aggravated by military service in accordance with
the provisions of Para 54 of Guide to Military Pension 2008 with an
assessment of degree of disability at 40% for life and the net
assessment qualifying for disability pension being “NIL” for life.
Accordingly, the Invalid Pension claim along with all medical and
service documents in respect of the applicant were forwarded to PCDA
(P), Allahabad vide Signals Records letter No.P/153/NER dated
05.12.2009 for adjudication and the PCDA (P), Allahabad notified PPO
for service element of disability pension, i.e., Invalid Pension vide PPO
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No.D/0066/2010 dated 10.06.2010 and the applicant was granted
service element at Rs.6,580/- per month with effect from 02.12.2008.
This fact was communicated to the applicant’s Pension Disbursing
Authority, viz., State Bank of India, Vellore under intimation to the
applicant vide Signals Records letter dated 06.09.2010.
The
respondents submit that the applicant’s claim of disability pension
consisting of disability element was rejected by the competent
authority as per Para 173 of Pension Regulations for the Army 1961,
Part-I, since the ID was found to be neither attributable to nor
aggravated by military service.
On the advice of the respondents to
prefer an appeal before the Appellate Committee on First Appeals
(ACFA), applicant’s wife Mrs. S.Sangeetha filed First Appeal before the
Chairman Dir PS-4, Appellate Committee on First Appeal vide letter
dated 19.06.2010, but it was rejected by letter dated 24.08.2010. The
respondents submit that the disability of the applicant was considered
by the medical authority as neither attributable to nor aggravated by
military service and not connected with military service.
Therefore,
the applicant is not eligible for grant of disability element of disability
pension and as per Para 7.2 of GOI MOD letter dated 31.01.2001.
Rounding off benefits of disability pension is applicable only to those
personnel who have been invalided out from military service on
medical grounds on or after 01 January 1996, provided the disability is
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considered as either attributable to or aggravated by military service.
Further, due to the circumstances as categorized at Para 4.1 of the
said Policy Letter and also as per PCDA (P) Allahabad Circular No.529
dated 13.10.2014 read in conjunction with GOI MOD letter dated
15.09.2014, individuals invalided out from service prior to 01.01.1996
are entitled for rounding of benefit of disability pension with effect
from 01.01.1996, provided they were in receipt of disability pension on
01.01.1996.
However, in the present case, since the applicant’s
disability pension claim had been rejected as not attributable to
military service in consultation with competent Medical Authority, he is
not entitled for disability pension and when disability element of
disability pension is not granted, the question of rounding off benefit of
disability pension does not arise. Therefore, the respondents request
that this application may be dismissed.
4.
The applicant filed a rejoinder which would in brief as
follows:
The applicant reiterated the facts regarding the applicant’s
invalidation from service, and the payment of terminal benefits only
after his repeated representations.
He would also submit that since
he was given a certificate that he was unfit for civil employment, he is
struggling with his family members for their sustenance and survival.
The applicant has also cited the judgments of Hon’ble Apex court made
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in Dharamvir Singh case and Sukhvinder Singh case wherein it was
observed regarding the approach over the opinion of the medical
boards on the disability cases.
The applicant has also cited another
judgment in case between DS. Nakara & others and UOI & others
for the proposition that pension is a right and not a bounty or any
gratuitous payment. The applicant submits that it may be clarified as
to whether he was paid the pay and allowances at the time of his stay
in the hospital during 2006-2008, since no clarification was pleaded in
the reply statement. The applicant submits that he may be granted
disability element of disability pension from the date of invalidation,
i.e.,
19.12.2008.
Therefore,
the
applicant
requests
that
this
application may be allowed.
5.
On the above pleadings, the following points have emerged for
consideration(1) Whether the impugned order passed in the First Appeal
dated 30.10.2009 be set aside and is the applicant entitled to
disability
pension
from
the
date
of
discharge,
viz.,
19.12.2008?
(2) If so, is the applicant entitled to the benefit of rounding off
the said disability as per the Government of India letter dated
31.01.2001?
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(3) Whether the applicant is entitled for the grant of service
pension after the condonation of deficiency in service?
(4) Whether the applicant is entitled for the grant of interest
for the alleged delayed payment of pension ordered in PPO
D/0066/2010?
(5) Whether the applicant is entitled for pay book and arrears
of salary payable to him at the time of discharge?
(6)
6.
To what relief the applicant is entitled for?
We heard the arguments of Mrs. Tonifia Miranda, learned counsel
for applicant and Mr. M.Dhamodharan, learned SCGPC
assisted by
Major Suchithra Chellappan, learned JAG Officer, appearing for
respondents.
7.
Point Nos.1 to 3:
The facts that the applicant was enrolled in
the Army on 27.10.1995 and was serving in various places and while
he was serving at Unit 9 Engineer Regiment, Tamil Nadu, he sustained
“Severe Depressive Episode” on 31.03.2008 in Command Hospital,
Bangalore are not disputed. Similarly the fact that the applicant was
invalided out of service for the said disability has also not been
disputed. However the Invaliding Medical Board found the applicant’s
ID as not attributable to or aggravated by military service despite the
degree of disability was 40% for life.
The claim of the applicant for
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the grant of disability pension was rejected and a First Appeal was
preferred against the said order and it was also dismissed. However,
on the persuasion of the applicant, the respondents have granted
service element of pension, (i.e., Invalid Pension) with effect from
02.12.2008 at Rs.6,580/- and PPO was also issued in D/0066/2010,
dated 10.06.2010.
8.
The applicant however, is not satisfied with the claim of disability
pension and therefore, he has filed the present application not only for
the grant of disability pension, but also for service pension after
condoning the deficiency of qualifying service and for an interest
payable for the delayed payment of invalid pension and for the arrears
of salary, if any.
The contention of respondents would be that the
applicant is not entitled to disability pension since the disability was
neither attributable to nor aggravated by military service as per Para
173 of Pension Regulations for the Army 1961, Part-I.
The
respondents did not apply the relevant provisions, viz., Para-81 of
Pension Regulations for the Army 2008, Part-I, especially when the
applicant was invalided out from service after the enforcement of
Pension Regulations for the Army 2008, Part-I which is applicable to
the Army personnel who were serving as on 01.07.2008.
Since the
provisions in both Paras, viz., Para-173 of Pension Regulations for the
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Army 1961, Part-I and Para-81 of Pension Regulations for the Army
2008, Part-I are similar, there could be no difficulty in adjudicating the
contents of those provisions.
approximately
12½
years
The applicant served in the Army for
before
Depressive Episode” on 31.03.2008.
contracting
this
ID
“Severe
The medical opinion in the IMB
proceedings would go to show that the disability did not exist on the
applicant before his entry into service.
9.
According to the learned counsel for the applicant he was not
having any disability prior to his service and the said disability did set
in after he completed more than 12 years of service and presumption
under Rules 5 and 9 of “Entitlement Rules for Casualty Pensionary
Awards, 1982” has to be taken in his favour and the respondents shall
be under an legal obligation to rebut the same by giving valid reasons.
She would further submit that Para-423 (a) of the “General Rules of
Guide to Medical Officers (Military Pensions) 2002 would also enable
the Court to presume that the disability was due to the stress and
strain caused by military service.
She would also point out the
principles laid down by the Hon’ble Apex Court in Dharamvir Singh
case and Sukhvinder Singh case and submitted that the mere
opinion of the Medical Board as to non-attributability or nonaggravability need not be taken as final opinion, since they have not
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given any reason in the Invaliding Medical Board for not detecting the
disability at the time of enrolment of the applicant.
She would further
submit that the applicant was granted invalid pension after a long
delay whereas he should have been given with disability pension.
Therefore, she would request that the disability pension be granted
with interest from the date of the applicant’s invalidment.
10.
Per contra, the learned SCGPC would submit that the disability
was set in only in peace station and the opinion of the doctor would
go to show that it was a constitutional one which would mean that it
could not be detected at the time of his enrolment and therefore, the
applicant is not entitled for disability pension.
He would also submit
that the opinion given by the doctors would be sufficient to dispel the
presumption as to the attributablity and aggravability for the disability
of the applicant .
11.
As we have seen already, the medical opinion of Invaliding
Medical Board would show that the applicant did not have the disability
prior to his enrolment of service.
Admittedly, the doctors have not
explained as to why the same could not be detected and if so, why it
was not recorded at the time of his enrolment.
The applicant had
contracted the disability “Severe Depressive Episode” after a period of
13
12½
years of service.
No doubt, the disability was set in only in a
peace station. The principle laid down by the Hon’ble Apex Court in
Dharamvir Singh’s case would go to show that there cannot be any
distinction between peace station or field station to decide about the
attributability or aggravability of any disability.
The relevant passage
would be,
“ 32. In spite of the aforesaid provisions, the Pension Sanctioning
Authority failed to notice that the Medical Board had not given any
reason in support of its opinion, particularly when there is no note
of such disease or disability available in the service record of the
appellant at the time of acceptance for military service.
Without
going through the aforesaid facts the Pension Sanctioning authority
mechanically passed the impugned order of rejection based on the
report of the Medical Board.
As per Rules 5 and 9 of “Entitlement
Rules for Casualty Pensionary Awards, 1982”, the appellant is
entitled for presumption and benefit of presumption in his favour.
In absence of any evidence on record to show that the appellant
was suffering from “Generalised Seizure (Epilepsy)” at the time of
acceptance of his service, it will be presumed that the appellant
was in sound physical and mental condition at the time of entering
the service and deterioration in his health has taken place due to
service.
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33.
As per Rule 423(a) of General Rules for the purpose of
determining a question whether the cause of a disability or death
resulting from disease is or is not attributable to service, it is
immaterial whether the cause giving rise to the disability or death
occurred in an area declared to be a field service/active service
area or under normal peace conditions. “Classification of diseases”
have been prescribed at Chapter IV of Annexure I; under
paragraph 4 post traumatic epilepsy and other mental changes
resulting from head injuries have been shown as one of the
diseases affected by training, marching, prolonged standing etc.
Therefore, the presumption would be that the disability of the
appellant bore a causal connection with the service conditions. “
(Emphasis supplied by us)
12.
The provisions of Para 423 (a) of the “General Rules of Guide to
Medical Officers (Military Pensions) 2002 would also say that the
disabilities contracted in peace stations could also be considered for
fixing the attributability or aggravability.
It is worthwhile to extract
the Para 423 (a) of the “General Rules of Guide to Medical Officers
(Military Pensions) 2002 which reads as under:
“For the purpose of determining whether the cause of a
disability or death resulting from disease is or is not attributable
to service, it is immaterial whether the cause giving rise to the
disability or death occurred in an area declared to be a Field
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Service / Active Service area under normal peace conditions. It
is, however, essential to establish whether the disability or death
bore a causal connection with the service conditions.
All
evidence, both direct and circumstantial will be taken into
account and benefit of reasonable doubt, if any, will be given to
the individual. The evidence to be accepted as reasonable doubt
for the purpose of these instructions should be of a degree of
cogency, which though not reaching certainty, nevertheless
carries a high degree of probability. In this connection, it will be
remembered that proof beyond reasonable doubt does not mean
proof beyond a shadow of doubt.
If the evidence is so strong
against an individual as to leave only a remote possibility in
his/her favour, which can be dismissed with the sentence “of
course, it is possible but not in the least probable” the case is
proved beyond reasonable doubt.
If on the other hand, the
evidence be so evenly balanced as to render impracticable a
determinate conclusion one way or the other, then the case
would be one in which the benefit of the doubt could be given
more liberally to the individual, in cases occurring in Field
Service/ Active Service areas.”
13. The above referred judgment of Hon’ble Apex court in Dharamvir
Singh’s case would also emphasis the said rule in drawing presumption
of attributability or aggravability in favour of the applicant. In the said
circumstances, there is no other option except to presume that the
applicant’s disability of “Severe Depressive Episode” set on him on
31.03.2008 at the Unit 9 Engineer Regiment could be presumed as
attributable to or aggravated by military service.
No doubt, it is clear
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through the judgments of Sukhvinder case and in Srinivasa Reddy
case that any medical opinion without supported by materials towards
their opinion need not be relied upon.
The relevant passage from the
judgment rendered in Civil Appeal No.5140 of 2011 in between
K.Srinivasa Reddy and UOI & Others filed against a judgment of this
Tribunal made in T.A.No.100 of 2010, would read thus:
“ Applying the above tests to the case at hand we find that no
disease had been recorded or detected at the time of the
appellant’s acceptance for military service.
The respondent has
also failed to bring on record any document to suggest that the
appellant
was
under
hereditary or otherwise.
treatment
for
any
disabling
disease
In the absence of any such disabling
disease having been noticed at the time of recruitment of the
appellant, it was incumbent on the part of the Medical Board to
call for the records to look into the same before coming to the
conclusion that the disease subsequently detected could not have
been detected on medical examination prior to the appellant’s
acceptance for military service.
More importantly in para 29.2 of
Dharamvir Singh’s case (supra) it is stated on principle that a
member is presumed to be in sound physical and mental
condition at the time of entering service if there is no note or
record to the contrary and in the event of his subsequently being
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discharged from service on medical grounds any deterioration in
his health is presumed to be due to service. “
14.
According to the said judgment, the opinion of medical expert
may be relied upon and need not be worshipped.
Since we find no
explanation for the disability “Severe Depressive Episode” could not be
detected at the time of enrolment and the said disability was found to
have set in after a long period of 12½ years of service in the Army,
we need not rely upon the opinion of the Invaliding Medical Board as
to the non-attributability and non-aggravability of the disability.
The
presumption taken under Rules 5 and 9 of “Entitlement Rules for
Casualty Pensionary Awards, 1982”, is still holding good and therefore,
the applicant be deemed as affected by the disability “Severe
Depressive Episode” which was only due to stress and strain caused in
the military service.
15.
The grant of invalid pension by holding that the said disability
was not attributable to nor aggravated by service is not correct.
Per
contra, the applicant should have been granted with the disability
pension from the date of his discharge.
As per the opinion of IMB, the
disability was 40% and the duration was throughout his life and
therefore, the disability pension for the applicant should have been
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given by the respondents from the date of his discharge. Accordingly
this point is decided in favour of the applicant.
16.
As regards the broad banding, the applicant has asked for the
broadbanding of his disability as per the letter of Government of India
dated 31.01.2001.The said contents of the letter have been subscribed
in Para-98(c) of Pension Regulations for the Army 2008, Part-I.
As
per the said provisions, the percentage of disability element as finally
accepted was at 40% which is less than 50% shall be
reckoned as
50%. Therefore, the applicant is entitled to 50% disability pension.
17.
So far as the grant of service pension after condoning the delay
of deficiency in service is concerned, we could see that the applicant
has completed service of 13 years 1 month.
As per the rules, the
condonation of deficiency in service can be ordered by the respondents
if the deficiency is found upto 12 months.
Since in this case the
deficiency of service is more than 12 months, the claim of the
applicant is ex facie not maintainable. All the points are thus decided.
18.
Point Nos.4 and 5:
The applicant in his pleadings has not
explained as to what period he was not paid with his pay. He has also
not specifically asked for any sum towards the arrears of salary.
Therefore, we cannot determine as to what amount the applicant is
entitled towards his pay and allowances payable by the respondents.
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However, we are directing the respondents to verify as to any nonpayment of pay and allowances or any non issuance of pay book to the
applicant and to pass appropriate orders with regard to the claim of
the applicant.
We also find that the service element of pension
(without naming as invalid pension) was granted and was paid to the
applicant after a series of representations made by the applicant and
his wife.
However, a PPO has been issued in the year 2010 in favour
of the applicant, who was discharged in the year 2008.
Now we find
that the applicant is entitled for disability pension from the date of his
discharge, viz., 02.12.2008 at 50% for his disability.
In view of the
delayed payment of eligible pension to the applicant, we find it
appropriate to grant an interest at 7% per annum on the arrears of
disability element of pension payable to the applicant from the date of
his discharge till this date.
Since the service element of pension was
paid even though belatedly, we are not inclined to grant any interest
on the service element of pension as asked for by the applicant.
Accordingly, these points are decided.
19. Point No.6: In view of the discussions held above, the applicant
is found entitled to disability pension from the date of his discharge,
viz., 02.12.2008 at 50% ,on his disability broadbanded from 40%.
Since the applicant was already granted service element of pension,
the respondents are directed to issue Corrigendum to the PPO already
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issued to the applicant in respect of the disability element of pension
at 50% from the date of his discharge and to pay arrears with interest
at 7% per annum from the said date.
Time for issuance of
Corrigendum PPO and the payment of arrears is three (3) months.
In
default to comply with the said payment or issuance of Corrigendum
PPO, the respondents are further liable to pay interest at 9% per
annum from the date of default till the date of realization.
With the
aforesaid observations and directions, the application is ordered to that
effect. In other respects, the application is dismissed. No costs.
Sd/
LT GEN K. SURENDRA NATH
MEMBER (ADMINISTRATIVE)
Sd/
JUSTICE V.PERIYA KARUPPIAH
MEMBER (JUDICIAL)
07.04.2015
(True copy)
Member (J) – Index : Yes/No
Member (A) – Index : Yes/No
VS
Internet : Yes/No
Internet : Yes/No
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To:
1. The Secretary
Ministry of Defence, New Delhi-11.
2. The Chief of Army Staff
Army HQ, DHQPO, New Delhi-11.
3. Adjutant General’s Branch
Integrated HQ of Ministry of Defence (Army)
West Block III, R.K. Puram
New Delhi-110 066.
4. Officer In Charge
The Signal Records
Pin 901124, C/o 56 APO.
5. The Principal Controller of
Defence Accounts
Office of PCDA (Pensions)
Allahabad, Uttar Pradesh
Pin 211 014.
6. Mrs. Tonifia Miranda
Counsel for applicant.
7. Mr. M. Dhamodharan, SCGPC
For respondents.
8. OIC, Legal Cell,
ATNK & K Area, Chennai.
9. Library, AFT, Chennai.
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HON’BLE MR.JUSTICE V. PERIYA KARUPPIAH
MEMBER (JUDICIAL)
AND
HON’BLE LT GEN K. SURENDRA NATH
MEMBER (ADMINISTRATIVE)
O.A.No.97 of 2014
Dt: 07.04.2015