armed forces tribunal, regional bench, chennai … · and he was admitted in command hospital,...
TRANSCRIPT
1
ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI
O.A.No.71 of 2013
Monday, the 17th day of February 2014
THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH (MEMBER - JUDICIAL)
AND THE HONOURABLE LT GEN K. SURENDRA NATH
(MEMBER – ADMINISTRATIVE)
E. Venkatraman, Ex L/Nk/Clk
(Service No.14911296)
S/o Late Esawaraier, aged 51 years R/o New No.29, Kathanna Pillai Street
S.S. Colony Madurai-625 010. … Applicant
By Legal Practitioner:
Ms. Tonifia Miranda
vs.
1. Union of India,
Rep. by its Secretary Ministry of Defence,
New Delhi-11.
2. The Chief of Army Staff
Army Headquarters DHQPO, New Delhi-110 011.
3. The Record Officer
Mechanised Infantry Regiment Centre
11 Mech. Inf. Ahmad Nagar.
2
4. The Principal Controller of Defence Accounts
Office of PCDA (Pensions) Allahabad, Uttar Pradesh
Pin-271014. … Respondents
By Mr. B.Shanthakumar, SPC
ORDER
(Order of the Tribunal made by
Hon’ble Justice V. Periya Karuppiah, Member (Judicial)
1. This application has been filed by the applicant for the relief to
grant disability pension from the date of his invalidment on
27.01.1988 with 9% interest per annum towards the arrears and to
order disability of the applicant at 40% pension being rounded off to
50%, in accordance with the letter of Government of India, MOD,
dated 31.01.2001 and to grant Ex-Servicemen status and the
benefits of Ex-Servicemen and also to grant other benefits.
2. The facts as stated in the affidavit would be as follows: The
applicant was recruited in the Indian Army as Lance Naik/Clerk in the
Mechanical Infantry Regiment on 07.12.1983. However, he was
invalided out of service on 27.01.1988. The applicant served with
utmost sincerity and hardwork and his tenure was an unblemished
one. While serving in the army at Ambala Unit, the applicant had a
sudden fall due to the terrible climatic conditions in snow bound area
3
and he was admitted in Command Hospital, Chandigarh on
16.07.1987 and was discharged on 25.01.1988. He was diagnosed
to be affected by “Schizophrenia ICD 295.” Thus he was invalided
out of service on 27.01.1988 and was discharged to home with
escorts. He was hale and healthy at the time of enrolment in the
army and he contracted the said disease due to stress in the army
and the environmental factors prevailing in the army. He was placed
in Permanent Low Medical Category “EEE” and was recommended
with 40% of disability element at the time of his examination. Still
the applicant is taking treatment with Dr. C.Ramasubramanian,
Psychiatrist, Madurai. The applicant was not given with any pension,
medical facilities, financial assistance nor provided with any social
rehabilitation programme for his livelihood and sustenance. Since he
is unable to take up any job, he has to depend upon his wife and
daughter. His mental status and condition cannot be predicted. He
being a pious brahmin and closely associated with religious activities,
he was assigned the duty of drawing water for the deities in the
temple of Arulmigu Sree Bhuvaneswari Amman Koil, S.S.Colony,
Madurai. The applicant made several representations to the
authorities to consider the grant of disability pension, but it evoked
no response. Therefore, he preferred an appeal against the rejection
order on 2.1.1989. Subsequently also, he preferred an appeal in the
4
year 1991 and no communication has been received regarding the
result of the appeal from the respondents. Since the applicant was
not able to approach the judiciary due to his poverty, he could not
take any action before Court. After the constitution of this Tribunal
only, he could file the present application for the grant of disability
pension. Thus the application may be allowed by setting aside the
order of rejection by the respondents.
3. The objections raised by the respondents in the reply-statement
would be as follows: The factual aspects regarding the enrolment of
the applicant and the discharge of the applicant on his invalidation
under Army Rule 13 (3) (III) (iii) for psychological disease
“Schizophrenia” are admitted. The invaliding was primarily done by
the Invaliding Medical Board on 28.12.1987 which found the
“Schizophrenia” sustained by the applicant was not attributable to
nor aggravated by military service and therefore, disability pension
was not granted to the applicant. The appeal preferred by him
against the rejection of the disability pension was also dismissed and
the appeal preferred before the Government of India, Ministry of
Defence was also dismissed through its letter dated 17.02.1992 and
the copy was also addressed to the applicant. The present claim has
been raised after a lapse of 9245 days and the disease
“Schizophrenia” was not at all connected with military service but
5
was a constitutional disorder of the applicant. Accordingly, the
application may be dismissed.
4. On the above pleadings, the following points are framed for
consideration:
(1) Whether the impugned order of the respondents rejecting the
claim of the applicant for disability pension is liable to be set aside?
(2) Whether the applicant is entitled for the disability pension for
the disease “Schizophrenia” as claimed by him?
(3) If so, whether the disability of the applicant at 40% be rounded
off to 50% as per the letter of Government of India dated
31.01.2001?
(4) To what relief, the applicant is entitled?
5. Heard Ms. Tonifia Miranda, learned counsel for the applicant
and Mr. B.Shanthakumar, learned Senior Panel Counsel assisted by
Captain Vaibhav Kumar, learned Assistant JAG Officer appearing for
the respondents.
6. After reiterating the submissions made in the pleadings of the
applicant, the learned counsel for the applicant would insist upon the
failure of the respondents in not applying the rules and regulations in
vogue at the time of invaliding the applicant from service. She would
also submit that the applicant was hale and healthy at the time of
6
entry to Indian Army which was not disputed in any of the Medical
Board Proceedings nor the applicant was having the disease prior to
the enrolment in service. She would further submit that the medical
authorities have not explained that the disease “Schizophrenia” could
not be found at the time of enrolment nor any reason has been
mentioned in the Medical Board Proceedings to the effect that the
said disease could not be detected at the time of enrolment. She
would rely upon the provisions of Para-5 of the Entitlement Rules for
Casualty Pensionary Awards 1982 in support of her arguments and
would request us to presume that the deterioration in his health was
due to the military service. She would also insist in her arguments
that the absence of any opinion by the medical authorities would be a
failure on the part of the respondents in rebutting the presumption
drawn against them under Para-9 of Entitlement Rules for Casualty
Pensionary Awards, 1982. She would also draw our attention to
Para-423 of Regulations for Medical Regulations 1983 and would
request us to determine the cause of disability of the applicant in the
prevailing circumstances as attributable to military service. She
would also lay emphasis on the opinion of the Medical Board that
there is no past history of mental illness nor any family history of
mental illness of the applicant. According to the learned counsel for
the applicant, the said opinion would stand directly against the
7
opinion that the disability of the applicant was not attributable to or
aggravated by military service. She would also rely upon the
judgment of the Hon’ble Apex Court reported in Dharamvir Singh
vs. Union of India & Others (Civil Appeal No.4949 of 2013) in
support of her arguments. She would further submit that the
applicant is under medication due to disability and if at all the
respondents wanted to examine the prevailing medical disability, he
might be referred to Review Medical Board. She would also submit
that the respondents did not conduct any Review Medical Board all
these years and therefore, the two years’ duration as opined by the
Medical Board in respect of the disability should have been
considered as existing till the opinion of any Medical Board
Proceedings if any to be ordered by this Tribunal. Therefore, she
would request us to pass an order of disability pension as per the
quantum opined in the Medical Board Proceedings as broad-banded
by virtue of the Government of India letter dated 31.01.2001 based
upon the recommendations of the V Central Pay Commission. She
would therefore request us to allow the application.
7. However, the learned Senior Panel Counsel would dispute the
arguments advanced by the learned counsel for the applicant by
saying that the opinion of the medical board is final and the applicant
did not challenge the rejection of disability pension from 1992
8
onwards. Therefore, the claim of the applicant would be barred by
delay and laches. He would also submit that the disease,
“Schizophrenia” sustained by the applicant was purely a
constitutional disorder and it was also clearly opined by the Medical
Board in the year 1988 that the duration of the disability was given
only for two years and therefore, there is no reason for the grant of
disability pension after the period of duration, even if it is attributable
to or aggravated by military service in favour of the applicant. He
would also submit that the Medical Board Proceedings’ opinion has
not been challenged by the applicant and therefore, the opinion of
the Medical Board has become final and therefore not liable to be
challenged. The said principles laid down by the Hon’ble Apex Court
in A.V. Damodharan’s case regarding primacy, weight and credence
of the opinion of the Medical Boards cannot be doubted and it will
squarely be applicable to the present case and therefore, the
applicant is not entitled to any relief sought for in the application.
He would also submit that even if the applicant is entitled for
disability pension at 40% as mentioned in the Medical Board
Proceedings, it cannot be broad-banded since the applicant was a
pre-1.1.2006 retiree and the proceedings of the said letter dated
31.01.2001 would not be applicable to the applicant. Therefore, he
would pray for dismissal of the application.
9
8. Point Nos.1 and 2: The indisputable facts are that the
applicant was enrolled in the army as Lance Naik on 7.12.1983 and
he was invalided out of service for the disease “Schizophrenia ICD
295” on 25.01.1988. Invaliding Medical Board was constituted and
on that basis only, he was discharged from service on invalidation. It
is not further disputed that the applicant was placed under
Permanent Low Medical Category “EEE” and the disability was
assessed at 40%.
9. The Medical Invaliding Board Proceedings was produced as
Annexure-III along with Counter filed in M.A.No.67 of 2013. In the
said Medical Report, we could find that the applicant was found
affected by “Schizophrenia” on 4.7.1987 and was treated in
Command Hospital, Western Command, Chandimandir and was found
not fit to serve in the army. In the opinion given by the specialists in
Psychiatry, we find that the applicant was recommended to be
invalided out of service in medical category “EEE” Psychological. The
case history (summary) of the case would show that there is no past
history of mental illness for the applicant. Similarly, there is no
family history of mental illness of the applicant. In the background
of such opinion, the learned counsel for the applicant would rely upon
the guidelines laid by the Hon’ble Apex Court decided in Dharamvir
Singh vs. Union of India and others (Civil Appeal No.4949 of
10
2013, dated 02.07.2013). The relevant passage would run as
follows:
“ 28. A conjoint reading of various provisions, reproduced above,
makes it clear that:
(i) Disability pension to be granted to an individual who is
invalidated from service on account of a disability which is attributable
to or aggravated by military service in non-battle casualty and is
assessed at 20% or over. The question whether a disability is
attributable or aggravated by military service to be determined under
“Entitlement Rules for Casualty Pensionary Awards, 1982” of
Appendix-II (Regulation 173).
(ii) A member is to be presumed in sound physical and mental
condition upon entering service if there is no note or record at the time
of entrance. In the event of his subsequently being discharged from
service on medical grounds any deterioration in his health is to be
presumed due to service [(Rule 5 r/w Rule 14 (b)].
(iii) Onus of proof is not on the claimant (employee), the
corollary is that onus of proof that the condition for non-entitlement is
with the employer. A claimant has a right to derive benefit of any
reasonable doubt and is entitled for pensionary benefit more liberally.
(Rule 9).
11
(iv) if a disease is accepted to have been as having arisen in
service, it must also be established that the conditions of military
service determined or contributed to the onset of the disease and that
the conditions were due to the circumstances of duty in military
service. [Rule 14 (c) ].
(v) If no note of any disability or disease was made at the
time of individual’s acceptance for military service, a disease which has
led to an individual’s discharge or death will be deemed to have arisen
in service. [14 )b)].
(vi) If medical opinion holds that the disease could not have
been detected on medical examination prior to the acceptance for
service and that disease will not be deemed to have arisen during
service, the Medical Board is required to state the reasons. [14 (b)];
and
(vii) It is mandatory for the Medical Board to follow the
guidelines laid down in Chapter-II of the “Guide to Medical (Military
Pension), 2002-“Entitlement : General Principles”, including paragraph
7,8 and 9 as referred to above. “
10. The Hon’ble Apex court had extracted various provisions
culled out from Entitlement Rules for Casualty Pensionary Awards,
1982 and the Guidelines laid down in para-2 of the Guide to Medical
Officers (Military pensions) 2002. In the light of the said provisions
12
when we approach the present case, we could see from the
Invaliding Medical Board’s report that there was no mention about
any reason for not noting the disease, ”Schizophrenia” at the time of
applicant’s acceptance for military service. No service record of the
applicant has been produced by the respondents to show that the
said disease “Schizophrenia” was found noted at the time of his
enrolment in the military service. Per contra, we could find from the
Medical Board Proceedings that there was no past history of
“Schizophrenia” nor any family history of the applicant. It was also
opined that the disability was not due to the individual’s own
negligence or misconduct. In the said circumstances, we could find
that Rule 423 of Regulations for the Medical Services 1983 would
squarely apply. According to the said Rule, the applicant’s disability
“Schizophrenia” should have been treated as having causal
connection to the service of the applicant since no note of it was
made at the time of the applicant’s entry in the army. The medical
opinion regarding that the disease could not have been detected on
medical examination prior to acceptance for service in the case of the
applicant and therefore it has to be construed that the disease
“Schizophrenia” would have been arisen only in service.
13
11. At this stage, whether the opinion of the Medical Board given
as not attributable or aggravated by Military Service must be given
primacy, value, weightage and credence is a question. According to
Paras-5 and 9 of Entitlement Rules for Casualty Pensionary Awards,
1982, the onus is on the respondents to prove that the disease
“Schizophrenia” sustained by the applicant was not attributable to
nor aggravated by military service. The applicant shall not be called
upon to prove the conditions of the entitlement of disability pension
arisen out of the disease, “Schizophrenia”. The opinion given by the
Medical Board was to the effect that the disease “Schizophrenia”
sustained by the applicant was to the extent of 40% and duration
would be for two years and the same was not attributable to or
aggravated by military service. As we discussed earlier, the
respondents did not produce any record to show that the said
disease, “Schizophrenia” was detected at the time of his enrolment
and was noted by the Medical Team or Board. No reason has been
forthcoming in the Invaliding Medical Board report to the effect for
such omission of noting the disease at the time of his enrolment.
The extracts of Paras-5 and 9 of Entitlement Rules for Casualty
Pensionary Awards, 1982 would be helpful in deciding the case at this
stage. It reads:
14
“ “ 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.
(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. “
………
Onus of proof
9. The claimant shall not be called upon to prove the conditions of
entitlement. He/She will receive the benefit of any reasonable
doubt. This benefit will be given more liberally to the claimants in
field/afloat service cases. “ “
12. According to Para-5(a), the applicant shall be presumed to
have sound physical and mental condition since his disabilities were
not recorded at the time of entrance. As per Para 5(b), presumption
of charge of the applicant would be that it was due to the medical
grounds caused by the deterioration of the disease, “Schizophrenia”.
15
However, the opinion of the Medical Board would say that it is not
attributable to or aggravated by military service. Since there is no
reason given by the Medical Board towards rebuttal of the
presumption under Para-5 of the Entitlement Rules, the mere opinion
given without substance, that this is a constitutional disorder and not
attributable to or aggravated by military service would not be
adquate. This would not form a rebuttal to the presumption drawn
under Para-5 of the Entitlement Rules. This is explained in the
following passage (Para-27) of the judgment in the case between
Dharamvir Singh vs. Union of India and others (Civil Appeal
No.4949 of 2013, dated 02.07.2013).
“….Further, we find that the question as raised in the present case
that in case no note of disease or disability was made at the time
of individual’s acceptance for military service, the Medical Board is
required to give reasons in writing for coming to the finding that
the disease could not have been detected on a medical
examination prior to the acceptance for service was neither raised
nor answered by this Court in those cases. Those were the cases
which were decided on the facts of the individual case based on
the opinion of the Medical Board.”
16
13. In the said circumstances, we find that the respondents have
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, viz., “Schizophrenia” available in the service record of the
applicant at the time of acceptance of military service. After going
through the said opinion of Medical Board, the pension sanctioning
authority passed an order of rejection which is not correct.
14. Apart from that, when we consider the Rule 423 (a) in the
light of Dharamvir Singh case, the cause of disability resulting the
disease “Schizophrenia” as attributable to service, it is immaterial for
an area declared to be field service/active service area or an area
under normal peace conditions. Therefore, the presumption would
be that the disability of the applicant bore a causal connection with
the service conditions. However, in the opinion given by the Medical
Board, the duration of the disability was mentioned for two years
from 28.12.1987. The said duration would be over by 27.12.1989.
During the said period, the appeals preferred by the applicant were
pending and according to the respondents, the appeal before
Appellate Committee was disposed of on 17.02.1992 only. The said
duration of two years as opined by the Medical Board was not
considered in the said appeals and if they were considered, the First
Appellate Authority or the Second Appellate Committee would have
17
ordered for Review Medical Board for considering the further
continuance of the disability. It was not done so. In the said
circumstances, the applicant cannot be an affected party for the
default of the respondents. Therefore, it is further presumed that the
disability is still continuing. It is for the respondents to constitute a
Review Medical Board to assess the duration of disability so as to
continue or discontinue the future disability pension payable.
15. For the reasons discussed above, we are of the considered
opinion that the applicant is entitled for disability pension for the
disability, “Schizophrenia” at 40% from the date of his discharge.
But the applicant did not take up the matter before the appropriate
authority against the order of rejection passed by the Appellate
Authorities. Therefore his claim could be allowed only for three years
prior to the date of filing of this application as per the principles laid
down in Tarsem Singh Case. However, the respondents are at
liberty to constitute a Review Medical Board to ascertain future
percentage of disability and duration of the disability for payment of
disability pension in favour of the applicant. With the foregoing
findings, both the points are decided in favour of the applicant.
16. Point No.3: As regards the broad-banding of the disability of
the applicant from 40% to 50% in accordance with the Government
of India MOD letter dated 31.01.2001, it has become necessary for
18
us to peruse the provisions of the said letter. Paragraph 2.1, 2.2 and
7.2 of the letter runs as follows:
“ Part I – Date of effect and Definitions
2.1 The provisions of this letter shall apply to the Armed Forces personnel
who were in service on 1.1.1996 or joined/join service thereafter unless
otherwise specified in this letter.
2.2. Where pension has already been sanctioned provisionally or otherwise
in cases occurring on or after 1.1.1996 the same would be revised in terms
of these orders. In cases where pension has been finally sanctioned under
the pre-revised orders and if it happens to be more beneficial than the
pension becoming due under, these orders, the pension already sanctioned
shall not be revised to the disadvantage of the pensioners.”
7.2. Where Armed Force personnel is invalided out under circumstances
mentioned in para 4.1 above, the extent of disability or functional incapacity
shall be determined in the following manner for the purposes of computing
the disability element:-
Percentage of disability as assessed by invaliding medical board
Percentage to be reckoned for computing of disability element.
Less than 50 50
Between 50 and 75
75
Between 76 and 100
100
19
17. According to para 7.2, the entitlement of broad-banding
below 50% shall be rounded off to 50%. However in Part-1 of the
letter, application of such benefits would be accrued only to the
retirees who retired on and after 1.1.1996. The learned counsel for
the applicant drew our attention to a judgment rendered by the
Hon’ble Apex Court in the case between K.J.S. Buttar vs. Union of
India and another (2011) 2 Supreme Court Cases (L&S)
224870 and argued that even though the applicant retired prior to
1.1.1996, he would get the benefit of the said letter as conferred to
the appellant in the said case by the Hon’ble Apex Court. The
relevant paras read as follows:
“ 15. As per Para 6 of these Instructions/Letter dated
16.05.2001, any person, who is in receipt of disability pension as
on 1.1.1996 is entitled to the same benefit as given in Letter dated
31.1.2001. Further as per Para 7 of this letter w.e.f. 1.1.1996, the
rates of war injury element shall be the rates indicated in the
letter dated 31.1.2001. Thus, in our opinion in view of the
Instructions dated 31.1.2001 read with (sic the Instructions) dated
16.5.2001, the appellant was entitled to the war injury pension. It
is pertinent to state that reading of Paras 6,7 and 8 of the
Notifications/Circular dated 16.5.2001 makes it absolutely clear
that the said benefits were available to pre-1996 retirees also but
the rates were revised on 31.1.2001 and the revised rates were
20
made applicable to post-1996 retirees only. But subsequently by
means of the Notification dated 16.5.2001 the revised rates were
extended to pre-1996 retirees also.
16. At any event, we have held that there will be violation of
Article 14 of the Constitution if those who retired/were invalided
before 1.1.1996 are denied the same benefits as given to those
who retired after that date. “
18. In the light of the aforesaid judgment of the Hon’ble Apex
Court, we find that there is no distinction between pre-1.1.1996 and
post-1.1.1996 retirees towards the grant of the benefit of the said
letter dated 31.1.2001. We have already found in the previous
paragraphs that the applicant was entitled to 40% disability for the
disease “Schizophrenia” sustained by him during military service.
The said percentage of disability at 40% would be rounded off to
50% as per para 7.2 of the letter of Government of India, MOD dated
31.1.2001. Accordingly, the applicant is entitled to the relief of
broad-banding from 40% to 50% as claimed in the application. This
point is also decided in favour of the applicant.
19. Point No.4: In view of the discussions held by us in the
earlier paragraphs and the findings reached therein, we are of the
considered view that the application filed, seeking for the grant of
21
disability pension at 50%, is allowable. However, the applicant is
entitled to such disability pension payable from 10.06.2010 onwards,
namely, three years prior to the date of filing of this application.
Accordingly, the respondents are directed to pay the disability
pension payable to the applicant at 50% from 10.06.2010 and also to
issue PPO to that effect within a period of three months from today.
In default to comply, the arrears shall be paid with 9% interest from
today till the date of realization. The application is thus allowed as
indicated above. No order as to costs.
Sd/ Sd/ LT GEN K. SURENDRA NATH JUSTICE V.PERIYA KARUPPIAH
MEMBER (ADMINISTRATIVE) MEMBER (JUDICIAL)
17.02.2014
(True copy)
Member (J) – Index : Yes/No Internet : Yes/No Member (A) – Index : Yes/No Internet : Yes/No
VS
22
To:
1. The Secretary
Ministry of Defence, New Delhi-11.
2. The Chief of Army Staff
Army Headquarters DHQPO, New Delhi-110 011.
3. The Record Officer
Mechanised Infantry Regiment Centre
11 Mech. Inf. Ahmad Nagar.
4. The Principal Controller of Defence Accounts
Office of PCDA (Pensions) Allahabad, Uttar Pradesh
Pin-271014.
5. Ms. Tonifia Miranda Counsel for applicant.
6. Mr. B. Shanthakumar, SPC
Counsel for respondents.
7. OIC, Legal Cell, ATNK & K Area, Chennai.
8. Library, AFT, Chennai.
23
HON’BLE MR.JUSTICE V. PERIYA KARUPPIAH
MEMBER (JUDICIAL)
AND
HON’BLE LT GEN K. SURENDRA NATH
MEMBER (ADMINISTRATIVE)
O.A.No.71 of 2013
Dt: 17.02.2014