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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. ... Applicant

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.

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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) To what relief the applicant is entitled for?

6. 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. The applicant served in the Army for

approximately 12½ years before contracting this ID “Severe

Depressive Episode” on 31.03.2008. 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 non-

aggravability 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

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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 treatment for any disabling disease

hereditary or otherwise. 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 non-

payment 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/ Sd/ LT GEN K. SURENDRA NATH JUSTICE V.PERIYA KARUPPIAH

MEMBER (ADMINISTRATIVE) MEMBER (JUDICIAL)

07.04.2015

(True copy)

Member (J) – Index : Yes/No Internet : Yes/No Member (A) – Index : Yes/No Internet : Yes/No

VS

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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