armed forces tribunal, chandigarh regional bench at … · 2019-07-18 · for the respondent(s) :...

OA 1831 of 2012 Mahabir Singh Rao Vs UOI & Ors.

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ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL

BENCH AT CHANDIMANDIR -.-

OA 1831 of 2012

Mahabir Singh Rao …… Petitioner(s)

Vs

Union of India and others …… Respondent(s)

-.-

For the Petitioner (s) : Col (Retd) NK Kohli, Advocate

For the Respondent(s) : Mr. Gurpreet Singh, Sr. PC.

Coram: Justice Surinder Singh Thakur, Judicial Member.

Lt Gen DS Sidhu (Retd), Administrative Member.

-.-

ORDER

___.09.2015

-.-

1. This application has been filed under Section 14 of the AFT Act 2007.

The applicant enrolled in the Army on 20.06.1968. He sustained injuries

during the Indo-Pak War of 1971 on 10.12.1971, was awarded the Wound

Medal and declared a Battle Casualty. He was discharged from service on

01.06.1992 in the rank of Naib (Nb) Subedar. The Release Medical Board

declared his disability CSOM (Rt) OPTD and ASOM (Lt/healed) attributable

to military service with 20% disability for two years. He was subjected to

Resurvey Medical Boards (RSMB) periodically, until his disability was

assessed as 30% for life vide Medical Board dated Jan 2002 (Annexure A-5).

He avers that, the disability pension paid to him, was at the rates applicable to

a Sepoy instead of Nb Subedar, ie the rank held at the time of discharge

(Annxexure A-6). He claims that this is in violation of Para 180 of the

Pension Regulations for the Army 1961. He further states that he has not

been paid War Injury Pension (WIP) wef 1996 in terms of MoD letter

45/22/97-P&PW (C) dated 03.02.2000 and also denied rounding off benefits.


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2. He prays for : -

`”(a) Directions to the Respondents to release the disability pension and its arrears along with interest to the Applicant with effect from the date of retirement as per the rank held by him at the time of retirement in accordance with Regulation 180 of the Pension Regulations for the Army (1961).

(b) Directions to the Respondents to release WIP and its arrears alongwith interest to the Applicant with effect from 01 Jan 1996 in accordance with Govt of India, Ministry of Defence Letter No. 45/22/97-P&PW(C) dated 03 Feb 2000.

(c) Directions to the Respondents to release broad banding benefit of disability element @ 50% wef 01 Jan 1996 with interest in accordance with Govt of India, Ministry of Defence Letter No. 45/22/97-P&PW(C) dated 03 Feb 2000.

(d) Issue any other appropriate order or direction which this Hon’ble Bench

may deem fit and proper under the circumstances of the case.”

3. On issue of notice, the respondents filed a written reply. There is no

dispute on the facts, except that the respondents state that he was transferred

to pension establishment on 30.06.1992 against the petitioner‟s claim of

01.06.1992. They state that though the Release Medical Board had assessed

his disability at 20% for two years, PCDA (P) Allahabad granted disability

pension at 20% for five years. After a number of RSMBs he was granted

disability pension @30% for life on 17 Jun 2002. They state that as per Para

179 of the Pension Regulations for the Army 1961, „disability element in

respect of JCOs and ORS who are discharged on completion of term of

engagement or on attaining the age, irrespective of their period of

engagement, shall be assessed on the accepted degree of disablement at the

time of discharge on the basis of rank held on the date on which the wound/

injury was sustained or in the case of disease on the date of the first removal

from duty on the account of the disease’. Since in the instant case, the


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petitioner sustained injury in the rank of Gunner, he was correctly paid

disability pension.

4. As regards the grant of WIP, his case was re-examined by The Artillery

Records and sent to PCDA (P) on14 Aug 2012; reply from them is still

awaited. With respect to broad banding, their stand is that, under Para 7.2 of

MoD letter 1(2)/97/D (Pen-C) dated 31.01.2010, rounding off disability

element is only applicable to those who have been invalided out of service

prior to completion of terms of engagement. In this case, the petitioner was

discharged from service and thus not eligible for rounding off. They have

prayed for the petition to be dismissed.

5. This case had been heard and reserved for orders but due to the

untimely and unfortunate demise of late Justice Vinod Kumar Ahuja, was put

up for re-hearing. During this period, the respondents filed an application and

placed on record Artillery Records letter JC-150345/LC/62/NE-5(C) dated 24

Mar 15 (Annx R-2 at Page 73). Relevant extracts are reproduced below:-

“Tele: 0253-2415404/6229 REGD BY SDS/POST Topkhana Abhilekh Artillery Records PIN-908802 c/o 56 APO

JC-150345/LC/62/NE-5(C)

AFT Legal Cell

HQ Western Command

PIN-908543

c/o 56 APO

OA NO 1831/2012 FILED BY JC-150345M EX NB SUB

MAHABIR SINGH RAO VS UOI AND OTHERS IN THE

HON’BLE AFT CHANDIGARH BENCH FOR GRANT OF

WAR INJURY PENSION AND BENEFIT OF ROUNDING

OFF


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1. xxxxxxxxxx 2. xxxxxxxxxx 3. xxxxxxxxxx

4. xxxxxxxxxx At the time of discharge, the petitioner was

suffering from disability CSOM (Rt) OPTD ASOM (Lt) (HEALED) 382 V-67 and Release Medical Board viewed the same as attributable to military service due to Infection contracted during service, which was shown in AFMSF-15 dated 23 Feb 1974 and AFMSF-16 dated 01 Feb 1992. It means that his previous injury had been cured at the time of his discharge. Thus, this office is of the opinion that the petitioner is not entitled to War Injury Pension.

5. xxxxxxxxx

(LK Desai) Lt Col Chief Record Officer for OIC Records”

6. Heard the learned counsels and perused the record.

7. The following issues are formulated for consideration : -

(a) Issue No 1. Is the petitioner entitled to disability element

emoluments in the rank in which he sustained the injury

(Sepoy) or in the rank he retired (Nb Subedar)?

(b) Issue No 2. Is the petitioner entitled to WIP?

(c) Issue No 3. Is the petitioner entitled to broad banding of

disability?

Issue No1: Disability Pension Payable in Rank Injury Sustained or Held

at Retirement

8. The petitioner and respondents have relied on different provisions of

the Pension Regulations ie Paras 179 and 180 respectively These are

reproduced below : -


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“179. An individual retired/discharged on completion of tenure or

on completion of service limits or on completion of terms of

engagement or 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 per cent 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.

Note:- In the case of an individual discharged on fulfilling the terms

of his retirement, his unwillingness to continue in service beyond the

period of his engagement should not effect his title to the disability

element under the provision of the above regulation.”

180. The rank for the purpose of assessment of service element

and disability element of disability pension, shall be the substantive

rank or higher paid acting rank, if any held by the individual on any

of the following dates, whichever is most favourable:

(a) the date of discharge/invalidment from service, or

(b) the date on which he/she sustained the wound or injury or

was first removed from duty on account of a disease causing

his disablement; or

(c) if he/she rendered further service and during and as a

result of such service suffered aggravation of disability, the

date of the later removal from duty on account of the

disability,

Note - In the case of an individual who on account of

misconduct or inefficiency is reverted to a lower rank

subsequent to the date on which the wound or injury was

sustained or disability contracted, the rank for assessment of

service and disability elements of pension shall be the rank

held on the date of invaliding from service.”


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9. A cursory reading of the two regulations would indicate, that, there is

overlap, duplicity and dichotomy between the two provisions. Para179 deals

with „Disability at the time of retirement/discharge‟, whereas Para 180 deals

with „Rank for assessment of disability pension.‟ Whereas Para179 refers to

the issue at hand in a roundabout and imprecise manner, Para 180 deals

specifically with the issue of „Rank for Assessment of disability pension‟

clearly and directly and states that, „the rank for the purpose of assessment

of service element and disability element shall be the substantive rank or

higher paid acting rank, if any held by the individual on any of the dates,

whichever is most favourable between the date of discharge/invalidment

from service, or the date on which he sustained the wound or injury.’ No

rationale was put forward by the learned counsel for the respondents as to

why Para 179 and not Para 180 will apply. Neither do the Pension

Regulations amplify this. It is a well settled law that when faced with such a

situation, the more liberal and beneficial provision will apply. It is quite

implicit, that the rank more favourable for assessment of service and

disability element shall apply. By applying Para 179, the respondents are

placing the applicant in a disadvantageous position and interpreting the rules

and regulations within a narrow compass, to deny the applicant his rights. We

are constrained to observe that the respondents have not come out with all

fairness, while reproducing the relevant legal provision pertaining to the

assessment of disability pension they have concealed Regulation 180.

10. In a similar case, Amar Chand Vs Union of India CWP No 5041 of

2006 in the Punjab and Haryana High Court, the court vide its judgement

dated 11.08.2006 ruled in favour of the petitioner and held, that, disability


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pension will be paid as per the rank at the time of retirement. Relevant

extracts are given below: -

“A bare perusal of Regulation 180 of the Regulations indicates that the disability element has to be assessed on the basis of the rank held by Army personnel at the time of his retirement/discharge. It is further clear that the regulation is to be applied in such a manner which is most favourable for the grant of disability pension. Even otherwise it is well settled that all legislations in the area of socio economic discipline are required to be construed in favour of the individual and contra proferentem. We are also unable to understand the novel theory of calculating disability in the rank such disability was suffered or discovered by the petitioner. It defies any logic as the question of pension at the stage of incurring the disability or its discovery was not alive. The aforementioned questions only arose when the petitioner was compulsory retired in the rank of JCO. Moreover when the condition of disability persisted while he was working as JCO and on the basis of downgrading the petitioner medically he was compulsory retired, we fail to understand as to how his pension is to be assessed on the basis of his rank when he discovered the disability or it was discovered for the first time. The stand taken by the respondents is wholly unreasonable and therefore unsustainable in the eyes of law.”

“In view if the above discussion, the writ petition deserves to be allowed. Accordingly the impugned orders dated 21.5.1999 ( Annx P-3) decreasing the disability pension of the petitioner and order dated 19.1.2001 (Annx P-5) rejecting the claim of the petitioner for enhancement of disability pension are set aside. We direct the respondents to grant the disability pension to the petitioner permissible to the rank of JCO from the due date and release all the consequential benefits including the arrears of pension form the date of receipt of a copy of this order. The petitioner shall be entitled to his costs, which are assessed at Rs 10,000/-.

11. We observe that in the case cited (supra), the petitioner was

compulsory retired, where as in the instant case, the petitioner retired after

completing his terms of service. We have pondered over the matter and are

of the view that, it makes no difference if the individual was compulsory

retired or was discharged on completion on terms of service, he will in

both cases, be entitled to disability pension as provided for in Regulation

180.


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Issue No 2: Entitled to WIP or Not

12. The respondents at Para 1 of Page 10 of their written statement,

have admitted that the petitioner sustained injury while on duty during

Indo- Pak Conflict 1971 and occurrence to this effect was published vide

78 Med Regt Part II order No 2/78/med/136/22/1988. They have also

stated that his case for grant of War Injury Element was submitted to

PCDA (P), Allahabad vide Arty Records letter No JC-150345/WIP/Pen -

2A (J) dated 14 Aug 2012. A reply dated 24 Mar 15 (Annexure R-2) has

now been received from Artillery Records. Vide this the respondents

argued that “the petitioner at the time of discharge was suffering from

disability CSOM (Rt) OPTD ASOM (Lt) Healed 382 V-67 and the

Release Medical Board viewed the same as attributable to military service

due to infection contracted during service, which was reflected in AFMSF-

15 dated 23 Feb 1974 and AFMSF-16 dated 01 Feb 1992. It means that

his previous injury had been cured at the time of his discharge. Thus this

office is of the opinion that the petitioner is not entitled to War Injury

Pension”.

12. The learned counsel for the petitioner argued that in 1972, the

medical specialist had issued a certificate that the petitioner is a battle

casualty and his disability is not less than 50% (taken on record as Exhibit

1). He also brought to our notice that the injury has been held to be

attributable to military service in the Invaliding Medical Board. The

learned counsel for the respondents however drew our attention to Para

2(b) of Part III of the Invaliding Medical Board where the Board has


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remarked “(b) In respect of each disability shown as attributable under

A, the Board should state fully, the specific condition and period in

service which caused the disability. - Due to infection contracted during

service (Ref AFMS-15 dated 23 Feb 74)”. He argued that it was only an

infection, not related to war injury per-se which had been cured and hence

the petitioner was not entitled to WIP. The learned counsel for the

petitioner ventilated that even if the injury is healed, it does not mean that

there is no disability.

13. We then went through the medical boards and observed the

following:-

(a) In the Invaliding Medical Board dated 01.02.1992, the word

HEALED has been added later and is in a different

handwriting. There is no signature of the Presiding Officer to

authenticate this addition. It refers to AFMS-15 dated

26.10.72 for the specific condition and period in service which

caused the disability.

(b) AFMS-15 dated 26.10.72 has the following remarks:-

1. Was the disability contracted in

in service ? Yes

2. Was it contracted in in

circumstances over which he had

no control ? Yes

3. Is it directly attributable to to

condition of service ? Yes

4. If so, by what

specific conditions?

Infection during service.

5. If not directly attributable to to

service, was it aggravated

thereby, and if so, by what

specific condition?

And Aggravated during

INDO PAK WAR DEC 1971

6. Medical category

recommended

„BEE‟


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This categorically notes that the infection occurred during

service and was aggravated during Indo-Pak War Dec 1971. It is also

noted that the injury occurred in „Jessore Sector‟.

(c) Part II order stating that the injury was sustained while on duty

during Indo-Pak War 1971 has been published.

(d) Exhibit 1, a certificate from the medical specialist is reproduced

below:-

“C E R T I F I C A T E

Certified that No. 1246484 Rank Sep Name MAHABIR

SINGH Unit: 78 Med Regt is a battle casualty of the Indo-Pak

conflict 1971 and is a case of Blast Injury Deafness of both ear,

Epiphara both eyes. His disability as is usually assessed under

the rules is not less than Fifty percent(50%) etc as the case may

be as on (date) 24.7.72 for consideration of ex-gratia payments.

(Auth:- Army HQ letter No. 11641/DMS-5(a) dated 2 May 72)

Sd/- A C ROY

Sqn Ldr

E.N.T. SPECIALIST

Officer Commanding

(SEAL)

Army Hospital

Delhi Cantt-10

24.7.1972”

14. From the perusal of the above documents and viewed as above we are

of the opinion that there is no merit in the stand of the respondents that the

petitioner is not entitled to war injury pension. In fact their contention is

misplaced and mischievous. In view of the above discussion we accept that

the petitioner is entitled to WIP.


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Issue No 3: Entitlement to Broad Banding

15. The issues of broad banding has been recently settled by the Apex

Court in the case of Union of India Vs Ram Avtar in Civil Appeal No. 418

of 2012 decided on 10.12.2014.

16. In view of this, the petitioner is entitled to rounding off, of his

disability from 20% to 50% with effect from 1.1.1996. At this stage the

learned counsel for the petitioner made a case for the benefits to be allowed

from 1.1.1996 and not to be restricted to three years prior to filing the

application. He made the plea that the petitioner‟s case was rejected

unauthorisedly. The petitioner did not challenge that order, or it may be due to

his ignorance or unawareness about his right. Be that as it may, he submits,

that, this has been granted in a number of cases from 1.1.1996. In support he

placed before us order dated 30.04.2015 given by the Principal Bench in the

case of Nb/Sub Clk Mahender Singh Vs Union of India and others. This is a

case where the PCDA (P) took a opinion contrary to that of the medical

board. Relevant portions are extracted below : -

“5. Be that as it may, learned counsel for the petitioner submits that in number of cases this benefit has been granted from 01.01.1996 because of the reason that the position was made clear by Union of India also as late as on 15.09.2014 when the Government of India issued letter No. 12(16/2009/D(Pen/Policy). The said letter 12(16/2009/D(Pen/Policy) was considered by the Principal Bench of the Tribunal in OA 160/2015 – Nb Sub(Retd) Arjun Singh Chauhan Vs Union of India & Ors decided on 18.03.2015. In the said case the enhanced disability pension was allowed from 01.1.1996 to the said petitioner. It is also submitted that the letter dated 31.01.2001, allowing the benefit in question, was also a subject matter before the Hon’ble Supreme in Civil Appeal No. 418/2012-Union of India & Ors Vs Ram Avtar decided on 10.12.2014. The Hon’ble Supreme Court rejected more than 800 civil appeals and upheld the judgment of the Tribunal granting the relief on the basis of the Government of India letter dated 31.01.2001. In another case i.e. OA 103/2015 Ex Naik Rulia Ram


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Vs Union of India & Ors, Chandigarh Bench of the Tribunal, vide order dated 05.02.2015 allowed the benefit of broad-banding of disability percentage from 01.01.1996. Learned counsel for the petitioner also brought to our notice the order passed by the Hon’ble Supreme Court in Civil Appeal D 35125/2014 Union of India & Ors Vs Ganpat Ram, dated 12.12.2014 wherein the Hon’ble Supreme Court directed the respondents to release the disability pension in terms of the direction of the Tribunal w.e.f. 01.01.1996 and issued notice to the respondent(petitioner) with respect to the award of the benefit for the period prior to 01.01.1996. According to the learned counsel for the petitioner, even the Hon’ble Supreme Court did not interfere in the award of disability pension from 01.01.1996, allowed by the Tribunal in the case of Ganpat Ram.”

17. There are other judgments which support such a view point. In

S.R. Bhanrale Vs Union of India, 1997 AIR (SC) 27 = 1996(10) SCC

172, Civil Appeal No. 9489 of 1996, decided on 19.07.1996 it was

observed that “the petitioner had claimed retiral benefits including

encashment of earned leave, increment arrears, special pay due, LTC etc.

which remained unsettled. His numerous representations to the

department also evoked no response. It was held that it amounts to

wrongfully withholding the amount from the applicant for more than 12

years. It was also observed that in the circumstances it ill behoved the

Union of India to plead bar of limitation against the dues of appellant and

the appellant was also held entitled to a sum of Rs. Two lacs towards

interest, compensation, litigation expenses for amounts wrongfully

withheld in addition to the claim amount already paid”. In S.K. Mastan

Bee Vs The General Manager, South Central Railway, 2003(1) SCC

184 = 2002(7) SLR 1, Civil Appeal No. 8089 of 2002, decided on

04.12.2002 it was held that “the delay in claiming family pension was

restricted to 38 months only preceding the filing of the writ petition. It

was held that it was not justified since it is the mandatory duty and

obligation of the employer to compute and disburse the family pension


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available to the dependents of deceased employee. The claim of the

petitioners cannot be restricted for the fault of the employer itself”.

18. This is a case where the petitioner was wounded in the Indo-Pak

Conflict of 1971 and retired on 30.06.1992. It is an admitted fact, that it

was a Battle Casualty and he was entitled to WIP on the date of his

retirement. Not only was he denied this for no reason whatsoever, he was

also paid disability pension in the rank of a Sepoy instead of Nb Subedar.

In a half hearted manner, the respondents initiated the process of payment

of WIP on the applicant filing this OA, but again slept over the matter.

This is a case where though no fault of the applicant, he has been

unlawfully denied his rights. In such a case, we are of the view that the

applicant deserves to get his benefits from the date they became due.

19. Our soldiers are serving in very difficult areas, sustaining great

hardships to protect our borders and territorial integrity. Recognising

these hard and difficult conditions, the Government has made certain

provisions to compensate them for the injuries sustained and the difficult

life. It is a matter of great regret and shame, that departments which are

supposed to implement these provisions are doing so in a perverse manner

and denying legitimate dues to the ex-soldiers. This is the least, the

nation can do to repay the debt they owe to the veterans. With a view to

obviate the hardships being suffered by the soldiers at the time of their

retirement, we hold that this order with reference to the rank in which

disability and service element will be assessed at the time of retirement,

will be observed in rem and not in personam, even where the petitioners


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have not approached the Tribunal to obviate untold miseries and

unnecessary wastage of time and money.

Summation

20. In the instant case we are of the considered opinion that, the

petitioner is entitled to War Injury Element of Disability Pension in the

rank of Nb Subedar with effect from the date of his discharge, i.e

01.07.1992, and rounding off of his disability from 20% to 50% with

effect from 1.1.1996. The respondents are also directed to pay interest at

the rate of 10% per annum for the last three years only, prior to filing of

his petition. Rest of the amount of the arrears be paid to the petitioner

without interest. In addition, cost of Rs. 25,000/- is also awarded to the

applicant.

21. The respondents are accordingly directed to calculate and pay the

above amount within a period of three months of the receipt of this order

by the learned counsel for the respondents. Failure to do so will attract an

interest of 10% per annum from the date of this order till the date of

payment.

(Justice Surinder Singh Thakur)

(Lt Gen DS Sidhu (Retd))

04.09.2015 „pl‟

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