IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, GUWAHATI O.A. NO. 25 OF 2013 P R E S E N T

Transcription

1 Page 1 of 18 IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, GUWAHATI O.A. NO. 25 OF 2013 P R E S E N T HON BLE MR. JUSTICE H.N.SARMA, MEMBER (J) HON BLE CMDE MOHAN PHADKE (RETD.),MEMBER (A) No Y, Rank, Hav. Sri Hrishikesh Chowhan, 815 Fd Wksp SP Coy (614 EME BN), House No.1, Taltola, Village- Kalitakuchi, P.O.- Satgaon, Dist. Kamrup(M), Assam. Last Posting EME Bn, Dehradun, Clement Town...Appellant/Petitioner -Versus- Mr. S. Chauhan, Legal Practitioner for Appellant/Petitioner 1. The Union of India, Represented by the Secretary, Ministry of Defence, New Delhi The Chief of the Army Staff, Sainik Bhawan, New Delhi The Officer- in- Charge, Records, Secunderabad, C/o -56 APO, Pin The Principal Controller of Defence Accounts ( Pension) 4-3, G III Section,

2 Page 2 of 18 Allahabad, U.P. ; 5. The Appellate Committee to the Defence Minister Govt. of India, New Delhi ; 6. The Appellate Committee on First Appeal, P.S.- 4, AG s Branch, Army Headquarters, DHQ, P.O.- New Delhi Respondents Mr.N. Deka, Ld. CGSC Legal Practitioner for the Respondents. Date of Hearing : Date of Judgment : 31 st January, 2014 & Order ( Cmde Mohan Phadke) JUDGMENT & ORDER The applicant Ex-Hav. Hrishikesh Chowhan No Y was discharged from the Military Service on 31/08/2007 after having serving for 24 years and 18 days in the E.M.E. The applicant s claim is that he was placed in permanent Low Medical Category for Primary Hypertension and his disability was assessed at 30 % by the Medical Board. He claims that his disability was directly attributed to and aggravated by military service on account of stress and strain imposed by the military service whilst he was posted at

3 Page 3 of 18 Dehradun at the officers Guest House, namely, Golden Key Villa. The invaliding medical board (Ann-A), however, considered his disability neither attributable to nor aggravated by military service on the ground that it was Not connected with service. Based on the said medical opinion, he was denied disability pension vide O/C, Secunderabad, Senior Records Office letter dated 23/11/2007 ( Ann-B). THE applicant was informed that he was not entitled to disability pension in terms of Pension Regulations for the Army He was also advised to prefer 1st appeal before the Appellate Committee within 6 (Six) months from the receipt of the letter. The applicant accordingly preferred the 1 st appeal dated 14/01/2008 ( Ann-C), but this appeal was rejected by the concerned authority whilst reiterating the observation made by the pension sanctioning authority that the applicant was not entitled to disability pension as his disability was not attributed to or aggravated to military service. The order of rejection dated 08/12/2008 is at Ann-F. The applicant has submitted that this order rejecting his disability pension was bad in law as it was unjust and unreasonable. 2. The applicant submits that he did not suffer from any disease including primary hypertension before he joined the service. Primary hypertension occurred during his

4 Page 4 of 18 posting at Dehradun where he served at the Golden Key Villa, the Officers Guest House for more than 2(two) years. Since officers of the rank of Brigadier and above used to stay and he had to take care of their needs on day and night basis he suffered stress and strain which caused Primary Hypertension and resulted in his discharge from the service. The applicant, who was thus aggrieved by the rejection of his claim for disability pension, chose not to file the 2 nd appeal before the DMACP as prescribed, but instead filed a writ petition being WP(C ) No. 2085/2009 in the Gauhati High Court. This petition was transferred to the Armed Forces Tribunal, Regional Bench, Guwahati and marked as T.A. NO. 06/2010 and disposed of vide the judgment and order dated 3rd November, 2010 with direction as follows : - (3) The reason given by the petitioner in Para 20 of the petition for not preferring the second appeal as advised is, The petitioner has not preferred Second Appeal as the petitioner has reason to believe that the Second Appeal will also be rejected on the same line and hence this writ petition. It is thus apparent that the petitioner has not fully availed of the remedies available to him under the Army Act/Rule. In view thereof the petition is not tenable as section 21 of the Armed Forces Tribunal Act 2007 clearly imposes an embargo on the admission of an application unless the applicant has availed of the remedies available to him under the Army Act, 1950(46 of 1950) of the Navy Act, 1957 (62 of 1957 ) or the Air Force Act, 1950 (45 of 1950).

5 Page 5 of 18 (4) The petition is accordingly dismissed with a direction to the petitioner to prefer, if he so chooses, a second appeal in terms of the order at Annexure 1 to the petition. On disposal of the appeal the petitioner is at liberty to file an application before this Tribunal in case he is still aggrieved by the order in the second appeal. There will be no order as to costs. 3. The applicant then filed the 2 nd appeal dated (Annexure-1) against non grant of disability pension before the Defence Minister s Appellate Committee. Paragraphs 6 to 8 of his appeal are extracted below. 6. That while I entered in Armed Service I was not suffering from any disease including Primary Hypertension. My parents also never suffer from Primary Hypertension. 7. That on 10 Mar/2006, during routine checkup Doctor found me suffering from Primary Hypertension. My primary hypertension attributed to Military Service. As observed prior to entry in service I was not suffering from Primary Hypertension. It is also not caused by my negligence or misconduct. It is directly attributed to my service and aggravated during Military Service to the extent of 30 % disability. The Opinion of Medical Board that disability neither attributed to nor aggravated by military service is absolutely incorrect and I do not accept the same. 8. In fact; I remained tense as I had to attend Officers day and night and look after their difficulties. The

6 Page 6 of 18 nature of duties caused me stress and strains causing Primary Hypertension rendering me disable to the extent of 30 % for which I was discharged from service. I may be awarded disability pension. Had I not been suffered from Primary Hypertension I would have been promoted to the post of Nb Subedar and thereafter to Subedar and Could have completed 32 years of service and would have been benefited. First Appellate authority illegally rejected my appeal. 4. The aforesaid second appeal was examined and disposed of by the competent authority vide order No. B/38046A/114/2011/AG/PS-4(2 nd Appeal) dated 11 Jan 2013 (Annexure L). The said order which rejected the appeal is extracted below:- Your appeal dated 05 Jan 2011 for grant of disability pension submitted to the Second Appellate Committee on Pension (SACP) has been examined based on your service/medical documents in the light of the relevant rules/instructions on the subject and it has been decided that your disease Primary Hypertension held as neither attributable to nor aggravated (NANA) by mil service, since there is no close time association of the diseases with service in field, high-altitude or in Counterinsurgency operations and your nature of duties did not involve severe/exceptional stress and strain. Moreover, no deterioration of condition was

7 Page 7 of 18 seen due to service at the time of release. It is, therefore, regretted that you are not eligible for disability pension and your appeal has been rejected. 5. Aggrieved by the rejection of his 2 nd appeal the applicant has filed the present Original Application i.e. OA- 25/2013 praying for the setting aside of the orders dated 23/11/2007 which rejected grant of disability pension to him, 08/12/2008 which rejected his first appeal on this issue and 17/01/2013 which rejected his 2 nd Appeal and consequently for a direction to the Respondents to pay disability pension to the applicant with effect from 01/09/ The Respondents have, on the other hand, resisted the claim of the applicant by contending, the relief sought by the petitioner for grant of disability pension cannot be acceded to as he is not fulfilling the primary conditions for the grant of same as laid down in Para 173 of the Pension Regulations for the Army 1961 as revised by Para 81 of the Pension Regulations 2008 (Part I). The respondents have also contended that opinion of the Medical Board, which is an expert body, has to be given due credence, value and weight on the question of attributability to, and aggravation of, the disability to the military service. In support of their contention the Respondents have submitted that the applicant, who was enrolled in the Army on 30 June 83 in the Carpenter s trade

8 Page 8 of 18 was discharged from service on fulfilling the conditions of his enrolment item III (i) of the table annexed to Rule 13 (3) of Army Rules In March 2006 the petitioner was placed in low medical category P2 (Temporary) on account of his disability Primary Hypertension & Obesity. Subsequently, at the time of release from service on completion of his contracted service of 24 years he was examined by a duly constituted Release Medical Board, which assessed his disability at 30% for life but considered it to be neither attributable to nor aggravated by the military service. On retirement he was given Service pension for life along with all other terminal benefits vide PPO No S/040270/2007 (Army) dt 01 Sep 2007 as amended vide Corrigendum PPO No a/corr/070236/2007 (Army) dt 27 Jan 2008, S/CORR/147521/2010 ( Army) dt 21 Oct 2010 and S/CORR/149330/2013 ( army) DT 15 Apr However, his first as well as second appeals against rejection of his disability pension claim were rejected on due examination as he did not meet the primary conditions for the grant of disability pension as laid down in Para 173 of the Pension Regulations for the Army,1961 (Part-I) as revised vide Para 81 of the Pension Regulations for the Army,2008 (Part-I). With reference to the contention as in Para 4.4 of the OA the

9 Page 9 of 18 Respondents have submitted That the petitioner did not have to take care of the Senior Officers in the Golden Key Villa, as claimed. The officers staying in the Guest Rooms were taken care of by the Officers Mess Committee, comprising of a President, a Secretary and various members like, Food, Property etc. The responsibility of the petitioner was to supervise the cleanliness of the room. During his service of 24 years, his name never came up for promotion, being a carpenter and, the petitioner is asked to substantiate his claim that in his service was rejected for promotion on medical ground. It is pertinent to mention the disability of the petitioner was considered by the Release Medical Board (RMB) as neither attributable to nor aggravated by military service, as the petitioner had not served in HAA/CI Ops/Fd Area/ active op area in the recent past, prior to being diagnosed as a case of Primary Hypertension, in terms of Annexure R2. Details of his service of immediate past are as under:- a) to Kapurtala ( Punjab) Peace Station. b) to Yol Camp (HP) Peace Station c) to Dimapur (Nagaland) - do d) to Narangi (Assam) Peace Station e) to Dehra Dun (Uttarakhand) - do -

10 Page 10 of 18 [7] Heard Mr. Sudama Chauhan, learned counsel appearing for the applicant. Also heard Mr. N. Deka, learned CGSC appearing for the respondents. [8] We have given our anxious consideration to the facts and circumstances of this case. In the present case, it is not in dispute that the applicant was discharged from service on after he completed 24 years of service. The respondents submitted in para 4 of the Counter Affidavit that he was discharged on fulfilling his term of enrollment and completing 24 years of contracted service. The applicant has relied upon the Medical Board proceedings which are at Ann-A of the counter affidavit. It is seen that the proceedings are entitled Medical Board Proceedings/Invalidment/Release in Low Medical Category. The said Release Medical Board had assessed the disability of the applicant at 30 % for life. In Column 2 of page 5, the Board observed that the disability exist before entering service. Similarly, in Col. 5, the Board has commented that the disability was not attributable to the individual s own negligence. At page 4, the Board has considered the disability of Primary Hypertension to be neither attributable to nor aggravated by the military services. The reason given in support of this finding is Not connected with service. The reason to differ from opinion of the initial Medical Board

11 Page 11 of 18 dated 23/03/2006 is that the individual not served in HAA/CI Ops/Fd Area/Active Op area as per service profile. Prior to being diagnosis as a case of Primary Hypertension. This prima facie showed that there was difference of opinion between two Medical Boards on this issue. The Respondents were accordingly directed to produce the proceedings of the earlier Medical Board for perusal. On examination, it was seen that in the earlier Medical Board proceedings dated 22/03/2006, the disability Primary Hypertension was considered aggravated by Military service due to stress and strain of service. The 2 nd disability, viz., obesity was however not considered either attributed to or aggravated by the military service. [9] The rules governing grant of pension as applicable to the present applicant who was discharged in 2007, are contained in the Army Pension Regulations, Regulations 173, 179 along with Appendix-II of the said regulation which is referred in regulation 173 are relevant. These regulations are accordingly extracted below :- Primary conditions for the grant of disability Pension *173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated -by military service in non-battle casualty and is assessed at 20 per cent or over.

12 Page 12 of 18 The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II. Disability at the time of retirement/discharge 179. An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 percent or more, and service element if the degree of disability is less than 20 per cent. The service pension/service gratuity, if already sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be. (2) The disability element referred to in clause (1) above shall be assessed on the accepted degree of disablement at the time of retirement/discharge on the basis of the rank held on the date on which the wound/injury was sustained or in the case of disease on the date of first removal from duty on account of that disease. APPENDIX II (Referred to in Regulations 48, 173 & 185) ENTITILEMENT RULES FOR CASUALTY PENSIONARY AWARDS, 1982 (Promulgated vide Ministry of Defence letter No.1 (1)/81/Pen-C, dated , as amended vide Corrigendum No. 1(1)/81/Pen-C dated 21st August, 1984). 1.The Entitlement Rules set out below apply to service personnel, who became non- effective on or after 1 st January The cases arising on or after Ist January 1982 may be considered under these rules provided that such a case is still outstanding on the date of issue of these rules. For the purpose of defining whether a case will be treated as outstanding or not, it may be clarified that where such a case has already been decided even at the initial stage, the same will be treated as having

13 Page 13 of 18 been decided. Such cases will not be reopened. These rules shall be read in conjunction with the Guide to Medical Officers (Military Pensions) 1980; as amended. 2. Pending decision on a general case to give pay and allowances to probationary nurses and cadets undergoing training at NDA/IMA and ether pre-commissioned and probationary commission training institutions/academies of the Defence Services, they will continue to be governed under the existing instructions for casualty pensionary awards. 3. These rules do not apply to the cases where disablement or death, on which the claim to casualty pensionary award is based, took place- (i) during the period from to , which will be dealt with in accordance with the entitlement criteria laid down in Annexure 1. (ii) during the period from to ,, which will be dealt with in accordance with the entitlement rules promulgated vide Ministry of Defence (Pensions Branch) letter No /1/PC, dated 18th April 1950, as amended from time to time; (iii) during the post periods of emergency, which will be dealt with in accordance with Annexure II 4. Invaliding from service is a necessary condition for grant of disability pension. An individual who, at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service. JCO/OR and equivalents in other services who are placed permanently in a medical category other than A and are discharged because no alternative employment suitable to their low medical category can be provided, as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have been invalidated out of service. 5. The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions: PRIOR TO AND DURING SERVICE (a) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance.

14 Page 14 of 18 (b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health, which has taken place, is due to service. 6. Disablement or death shall be accepted as due to military service provided, it is certified by appropriate medical authority that: - (a) the disablement is due to a wound, injury or disease which (i) is attributable to military service, or (ii) existed before or arose during military service and has been and remains aggravated thereby. This will also include the precipitating/hastening of the onset of a disability. (b) the death was due to or hastened by- (i) a wound, injury or disease which was attributable to military service; or (ii) the aggravation by military service of a wound, injury or disease which existed before or arose during military service. 7. Where there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of that fact may be accepted. 8. Attributability/aggravation shall be conceded if causal connection between death/disablement and military service is certified by appropriate medical authority. [10] It is further seen from Ann- I to Chapter IV entitled Classification of Diseases, as in Guide to Meidcal Officers ( Military Pensions-1980), that Hypertension ( BP) is listed at Sl. NO. B, which is entitled Diseases affected by stress and strain. It is also seen from Chapter VI of the aforesaid Guide to Medical Officers ( Military Pension-1980), which deals with clinical aspects of certain diseases that

15 Page 15 of 18 Hypertension has been dealt with in paras 28, which read as under :- 28. The first consideration should be to determine whether the hypertension is primary (essential) or secondary. If secondary, entitlement considerations should be directed to the underlying disease process ( eg Nephritis), and it is unnecessary to notify hypertension separately. It is better to clearly indicate whether it is a case of essential hypertension, giving the evidence in support. As in the case of atherosclerosis, entitlement of attributability is never appropriate, but where disablement for essential hypertension appears to have arisen or become worse in service, the question whether service compulsions have caused aggravation must be considered. Each case should be judged on its merits taking into account particularly the physical condition on entry into service, the age, the amount and duration of any stress and whether any other service compulsion has operated. [11] In addition to the above, entitlement rules also require the resolution of benefit of doubt in favour of the claimant. [12] In the instant case, we find that there is a difference of opinion between the two medical boards.

16 Page 16 of 18 Whereas the first medical board had considered the disability Primary Hypertension as aggravated by the military service, the Release Medical Board disagreed with the said findings. The only reason given for disagreement is that the applicant had not served in HAA/CI Ops/Fd Area/Active Op area as per service profile prior to be diagnosed as a case of Primary Hypertension. This statement does not justify the different finding that is recorded by the Release Medical Board. [13] As per Guide to Medical Pension, Primary Hypertension is one of the diseases listed under the heading Classification-1 of diseases as a disease that is affected by the stress and strain of military services. It is therefore not necessary that a person should serve in HAA/CI Ops/Fd Area/Active OP area to become entitled to disability pension. Even in peace area the stress and strain of military service has been accepted as a cause. In the instant case, the applicant was serving in the Guest House which was meant for senior officers of the rank of Brigadier and above. Serving in such circumstances can be taken to induce stress and strain in the minds of a person like the present applicant on account of the wide disparity in the ranks of the applicant and the persons being served by the

17 Page 17 of 18 applicant. Contention taken by the respondents that Guest House is looked after by President/Secretary of the Mess Committee along with Food Member etc., is not fully correct, because these persons would not be present in the Guest House all the time whereas the applicant would be so present and at the beck and call of the Senior guests at all times, whether it be day or night. [14] In the above circumstances, we are in agreement with the findings of the first Medical Board that the disability in question, viz., Primary Hypertension was aggravated by military service. The simplistic explanation given by the Release Medical Board that the applicant did not serve in HAA/CI Ops/Fd Area/Active OP area is thus considered not tenable as the disease has been classified as disease that is affected by stress and strain of service and the nature of job performed by the applicant was prima facie such as to induce certain amount of stress and strain. [15] In view of the above discussion and whilst agreeing with the first Medical Board, we hold that the disability in question, viz., Primary Hypertension was aggravated by military service and the applicant is accordingly considered entitled to disability pension as

18 Page 18 of 18 admissible under the rules based on the assessment made by the Medical Board at 30 % for life. [16] The Original Application is accordingly allowed with a direction to the respondents to grant disability pension as admissible under the rules to the applicant as early as possible and not later than 90 days from the date of passing of this order, failing which the amount shall carry 9 % per anum. [17] There will be no order as to costs. MEMBER (A) MEMBER (J) Mishra