ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.-

Transcription

1 -1- O.A No.1105 of 2013 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA No of 2013 Jai Narain Petitioner(s) Vs Union of India and others Respondent(s) For the Petitioner (s) : Mr. Surinder Sheoran, Advocate For the Respondent(s) : Ms Renu Bala Sharma, CGC Coram: Justice Prakash Krishna, Judicial Member Lt Gen DS Sidhu (Retd), Administrative Member ORDER This application has been filed under Section 14 of the Armed Forces Tribunal Act, The petitioner seeks disability element of disability pension and rounding off. 2. Shorn of unnecessary details, the short facts of the case are:- (a) The petitioner joined the Army on and was discharged on with 30% disability w.e.f on account of FRACTURE SHAFT LT RADIUS. He was paid disability element till (b) Re-survey Medical Board (RSMB) was held on and assessed the disability at 20% for 10 years (Annexure A-1). Claim for disability element was rejected by PCDA (P) Allahabad by reducing disability to 15% to 19% for five years vide their letter dated

2 -2- O.A No.1105 of 2013 (c) RSMB was again held on and assessed the disability as 15% to 19% for life but specifically mentioned that the disability is static since last board (Annexure A-2). 3. The learned counsel for the petitioner placed reliance on Regulation 173-A of the Pension Regulations for the Army, 1961( Part-I), and Para 7 of GoI, MoD letter No. 1(2)/97/D/(Pen-C) dated to argue that those invalided out of service before completion of terms of engagement are entitled to disability element of disability pension. These are extracted below:- 173-A. Individuals who are placed in a lower medical category (other than E ) permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who are unwilling to accept the alternative employment or who having retained in alternative appointment are discharged before completion of their engagement, shall be deemed to have been invalided from service for the purpose of the entitlement rules laid down in Appendix II to these Regulations. Note.- The above provision shall also apply to individuals who are placed in a low medical category while on extended service and are discharged on that account before the completion of the period of their extension. Para 7 of GoI, MoD letter No. 1(2)/97/D/(Pen-C) dated (j) That according to para 7 of Govt of India Ministry of Defence letter No. 1(2)/97/D (Pen-C) dated where an Armed Forces Personnel is invalided out of service under circumstances mentioned in category B and C of para 4.1 above which is accepted as attributable to or aggravated by Military Service, he/she shall be entitled to disability pension consisting of service element and disability element. 7. Disability pension on invalidment 7.1 Where an Armed Forces Personnel is invalided out of service under circumstances mentioned in category B and C of para 4.1 above which is

3 -3- O.A No.1105 of 2013 accepted as attributable to or aggravated by Military Service, he/she shall be entitled to disability pension consisting of service element and disability element as follows:- xxx xxx xxx He also quoted the Apex Court judgment in Civil Appeal No. 264 of 1991 decided on titled Ex Sapper Mohinder Singh versus Union of India wherein it was ruled that findings given by the Medical Authorities should be respected by CDA (P) Allahabad. 4. He argued that the action of PCDA (P) Allahabad to reduce disability from 20% to 15% w.e.f and rejection of disability element is against the principles of natural justice and illegal. He prayed for directions to quash impugned RSMB dated (Annexure A-2) and directions to release disability element at 20% w.e.f to as assessed by RSMB held on and thereafter 50% as against 30% disability for life with 18% annual interest. 5. In their written statement and argument, the learned counsel for the respondents stated that the initial disability of 20% of the petitioner was for two years and attributable to military service vide RSMB held on (Annexure A1). RSMB held on , assessed the disability as 30% for two years from to and accordingly be was paid disability pension. The next RSMB was held on which assessed the disability at 30% for two years w.e.f and interim period. This was accepted by PCDA (P) as 30% for final as he was granted disability pension from to The next RSMB was held on which assessed the petitioner s disability as 30% for life from and interim period and

4 -4- O.A No.1105 of 2013 granted disability pension from to The next RSMB was held on which assessed his disability as 20% for 10 years w.e.f CDA (P) while processing his claim for disability pension, assessed his disability as 15% to 19% for 10 years and rejected his claim vide letter No.G3/RA/2/95/1922 dated The same was communicated to the petitioner and he did not prefer any appeal within is stipulated period. 6. The last RSMB was held on which assessed his disability as static and 15% to 19% for life. The learned counsel argued that CDA (P) who is the competent Pension Sanctioning Authority, rejected the petitioner s claim of disability element being less than 20% which is as per policy. 7. Thus, the issues before us are:- (a) Is the petitioner s claim for disability pension after a lapse of 17 years admissible? (b) Was the rejection of the petitioner s claim for disability element by PCDA (P) by reducing his disability to 15% to 19% from 20% as assessed by RSMB on valid and legal? (c) Validity of the RSB held on which has assessed the petitioner s condition as static but reduced the disability from 20% by the previous board to 15% to 19%. (d) Rounding off w.e.f Heard the learned counsel for the petitioner and the respondents and scrutinized the record.

5 -5- O.A No.1105 of 2013 Admission of the Petition 9. We note that the petitioner has never appealed to the Appellate Authority against the decision of the impugned RSMB. However, since the petitioner is aged and non-payment of pension is a recurring cause of action, we are admitting the petition. Jurisdiction of PCDA (P) to Reduce Disability Assessed by RSMB on It is not in doubt that after discharge on , the petitioner was paid the assessed disability element till A scrutiny of the documents show that the RSMB held on assessed the petitioner s disability at 30% from to and not for life as claimed by the respondents. RSMB held on (Annexure A-1) assessed his disability as 20% for 10 years which was reduced by CDA (P) to 15% to 19% for five years. 11. There is nothing on record to show that CDA (P) ever referred the case of the petitioner to any higher Medical Board for the assessment of disability. Hence in the absence of any other medical opinion, the interference by the CDA (P) in the opinion of the RSMB held on was unwarranted. In this connection a reference may be made to the judgment of the Hon ble Punjab and Haryana High Court in Ex Hav Babu Singh v. Union of India and others, CWP No. 96 of 2003 decided on , in which after referring to the judgment of Hon ble the Supreme Court in the case of Ex Sapper Mohinder Singh v. Union of India in Civil Appeal No.164 of 1993 decided on , the following has been held

6 -6- O.A No.1105 of 2013 From the above narrated facts and the stand taken by the parties before us, the controversy that falls for determination by us is in a very narrow compass viz. whether the Chief Controller of Defence Accounts (Pension) has any jurisdiction to sit over the opinion of the experts (Medical Board) while dealing with the case of grant of disability pension, in regard to the percentage of the disability pension, or not. In the present case, it is nowhere stated that the petitioner was subjected to any higher Medical Board before the Chief Controller of Defence Accounts (Pension) decided to decline the disability pension to the petitioner. We are unable to see as to how the accounts branch dealing with the pension can sit over the judgment of the experts in the medical line without making any reference to a detailed or higher Medical Board which can be constituted under the relevant instructions and rules by the Director General of Army Medical Core. 12. In view of the above judgments of Hon ble the Supreme Court and High Court, we are satisfied that the claim for the disability element was wrongly interfered with by CDA (P) Allahabad and as per the findings of the RSMB, the petitioner, Ex Gdsm Jai Narain is entitled for disability element of 20% for 10 years i.e. from to Validity of Assessing Condition as Static but Reducing Disability by RSMB held on Giving effect to Para 12, the next RSMB would have been due in the later half of We find that a RSMB has been held on , and given disability for life, thus its findings were effective as on , the date on which the next board was due. We have no hesitation in stating, that, since the disability w.e.f was for life, this assessment of the medical board was effective on and can be applied with effect from this date. The RSMB held on assessed the disability of the petitioner as 15% to 19% for life but however noted his condition as static vis-a-vis the last board which had

7 -7- O.A No.1105 of 2013 assessed his disability at 20%. Paras 6(a) and 8 of the RSMB held on are reproduced below:- 6. Variation of disability (ies) since previous board (a) Has the condition of the Pensionable disability(ies) since the last board improved or deteriorated? STATIC 8 (a). Assessment of Disability Disability Whole disablement Separate assessment Combined assessment Part to non service factors Worsening due to natural progress of the disability Net Assessment properly referable to service Duration of assessment FRACTURE SHAFT (LT) RADIUS (OPTD) (15-19%) (15-19%)... Static (15-19%) (Fifteen to Nineteen percent Less than twenty percent For life Note : In order to arrive at the net assessment in Col 6 deduction of percentage shown in col 4 will be made in all cases. Whether accepted as Attributable or Aggravated and deduction of percentage shown in col 5 will be made in addition in cases accepted on the basis of Aggravation. (a) (b) Hereenter Permanent if the disability is incapable of improvement If the re-survey board is held after the expiry of the previous board award, Assessment for the intervening period will be clearly stated.

8 -8- O.A No.1105 of 2013 (b) The board will record here details of evidence justifying the assessment in col 4 or 5 of Items 8(a) (Information as to whether and if so, what extent, individual habits, occupation in civil life, accident, climatic environment after discharge, etc. were responsible for the deterioration in the disablement of the pensioner will be recorded here. ) 14. In normal circumstances we would be loath to interfere with the findings and assessment of any medical board and respect the opinion of the medical specialists. However, in this case a doubt has arisen, as the medical board has noted that the condition is static vis-a-vis the last RSMB (which assessed the disability at 20%) and then assessed the present disability as 15% to 19%. The two assessments i.e. Static and then figurative lowering of disability are conflicting and create a doubt as to which one of them is correct. The difference between the two assessments, though seemingly marginal i.e. only one percent, is the difference between allowance or rejection of disability element of disability pension. In the instant case, we are of the view that the medical board should have recorded reasons for assessing the petitioner s condition as static and yet reducing the disability from 20% to 15% to 19%. Para 8(b) of the RSMB provides for recording the details of evidence justifying the assessment in Col 4 and 5 of Para 8(a). In view of this, we can only infer, that, the RSMB may have been influenced by the earlier reduction of the disability from 20% to 15% to 19% by PCDA (P). 15. We have two choices before us, either to order a RSMB which would carry out a fresh assessment of present disability and for the intervening period or in view of the medical condition being static set aside the figurative disability assessment of 15 to 19% and replace it by the earlier disability of 20%. Since the individual is aged, the case over 10 years old and the disability assessment already for life, we are of the view that no purpose would be served by ordering a fresh

9 -9- O.A No.1105 of 2013 RSMB. In such a case, the benefit of doubt should go in favour of the petitioner. Thus, Ex-Gdsm Jai Narain would be deemed to be assessed at a disability of 20% for life in the RSMB held on Rounding off 16. The petitioner s request for rounding off from 20% to 50% w.e.f for life is allowed as it is in consonance with a number of judgments passed by the Hon ble Supreme Court and this Tribunal. 17. The petition is allowed as follows:- (a) CDA (P) letter No. 63/RA/2/95/1922 dated is quashed and Ex Gdsm Jai Narain is entitled to 20% disability for 10 years w.e.f till , as assessed by RSMB dated Thereafter his disability would be treated as 20% for life and necessary amendment made in the RSMB dated (b) Rounding off from 20% to 50% is allowed w.e.f for life. The arrears would, however, be restricted to three years prior to the filing of this petition i.e , and carry an interest of 10% per annum. CDA (P) will calculate and pay the arrears within four months of this order beyond which the arrears will carry an interest of 15% per annum. 18. No order as to costs. [Justice Prakash Krishna] RS [Lt Gen DS Sidhu (Retd)]