Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Division Bench of Justice Umesh Chandra Srivastava (Chairperson) and Vice Admiral Abhay Raghunath Karve, Member (A) held that there is no barometer that can assess the disability percentage to the extent of 1% and therefore, the percentage of disability which has been assessed as 15-19% may be 20% also and there may be variation of at least two percent plus.

Briefly stated facts of the case were that the applicant was enrolled in the Indian Air Force on 14-11-1995 and was discharged on 30-11-2015 in Low Medical Category (Permanent). At the time of his retirement, the Release Medical Board (RMB) assessed his disability ‘SEVERE OBSTRUCTIVE SLEEP APNOEA (OLD)’ at 15-19% for life and opined the disability to be neither attributable to nor aggravated (NANA) by service. The applicant approached the respondents for grant of disability pension but the same was rejected, pursuant to which the applicant had preferred the present Original Application.

The applicant pleaded that he was enrolled as Radio Fitter (Electronics & Telecommunication) trade and was working in advance defence ground environmental system which deals with Radar and Radio equipments and such units are usually at High Altitudes, thus environmental condition leads to stress and strain which had affected his health badly. He submitted that in the year Dec 1998, he was posted at High Altitude Area i.e. Dalhousie (H.P.) located above 10,000 feet and to protect from cold large heating blowers were used. Due to high altitude there was lack of oxygen and due to use of blowers there was lack of moisture content which resulted in breathing problems. In the last phase of his three years tenure, he started having breathing problems at High Altitude due to Nasal Blockage. He further submitted that claim for the grant of disability pension was wrongly rejected on the ground of disability percentage being less than 20% and NANA.

Regarding the issue of disability being assessed as less than 20%, the Tribunal stated that various Tribunals and Courts had found that,

“The assessment of disability to the tune of 15-19% itself is a doubtful assessment and cannot be final for the simple reason that there is no barometer which can assess the disability percentage to the extent of 1% and therefore, the percentage of disability which has been assessed as 15-19% may be 20% also and there may be variation of at least two percent plus also. In case of doubt as the benefit should always be given to the applicant.”

Noticeably, the applicant was enrolled in Indian Air Force in fully fit condition after rigorous medical examination and the disability was detected for the first time in January 2008 after more than 12 years of Air Force service. Therefore, the Tribunal held that disability of the applicant must be presumed to have arisen in the course of service which must, in the absence of any reason recorded by the Medical Board, be presumed to had been attributable to or aggravated by service. Further, there was neither any note in the service record of the applicant at the time of his entry nor was any reason been recorded by the RMBoard that the disease which the applicant was found to be suffering from, could not have been detected at the time of his entry into service hence the reasoning for denying disability pension to applicant was not convincing and did not reflect the complete truth on the matter. The Tribunal remarked,

“The opinion that ‘SEVERE OBSTRUCTIVE SLEEP APNOEA (OLD)’ is caused by obesity and included anatomical variations resulting in airway collapse and apnoea is an good opinion, but nowhere rules out that this may not occur due to conditions of service.”

In the backdrop of above, the Tribunal held that the benefit of doubt in should be given to the applicant and the disability of the applicant should be considered as aggravated by military service. Accordingly, the impugned orders rejecting claim for grant of disability element to the applicant were set aside. The respondents were directed to grant disability element of the pension at 15-19% to the applicant, which was directed to stand rounded off to 50% from the date of discharge.[Rohitash Kumar Sharma v. Union of India, 2021 SCC OnLine AFT 1413, decided on 18-01-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Tribunal:

For the Applicant: Rohitash Kumar Sharma (In-person)

For the Union of India: Govt. Counsel Kaushik Chatterji

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Division Bench of Justice Umesh Chandra Srivastava (Chairperson) and Vice Admiral Abhay Raghunath Karve (Member) allowed an application for disability pension filed under Section 14 of the Armed Forces Tribunal Act, 2007.

The applicant was enrolled in Army on 28-02-1994 and was discharged on 29-02-2016 in Low Medical Category on completion of service limits under Rule 13 (3) Item III (i) of the Army Rules, 1954. The Release Medical Board (RMB) assessed his disabilities (i) Obesity (E-66) at 5% for life, (ii) Type II Diabetes Mellitus (E-11) at 20% for life, (iii) Dyslipidemia (E-78.0) at 5% for life and (iv) ACL Tear Complete (RT) OPTD (S-83.5) at 20% for life, composite at 40% for life and opined the disabilities to be neither attributable to nor aggravated (NANA) by service. The applicant approached the respondents for grant of disability pension but the same was rejected.

The questions before the Tribunal were of two-fold:

(a) Whether the disabilities of the applicant were attributable to or aggravated by Military Service?

(b) Whether the applicant was entitled to the benefit of rounding off the disability pension?

The Tribunal, while relying on Dharamvir Singh v. Union of India, (2013) 7 SCC 316, held that reasoning of RMB for denying disability pension stating that injury (i) to (iii) were lifestyle disease and injury (iv) occurred when the applicant was on leave, was not convincing and did not reflect the complete truth on the matter. Since, injury (i) to (iii) started after the applicant had served 20 years of service the benefit of the doubt should be given to the applicant and second and third disabilities of the applicant should be considered as aggravated by military service. Regarding injury (iv), the Tribunal observed that applicant suffered an injury while going to join on permanent posting, hence, it should be treated to have causal connection with military service and the same should be considered attributable to or aggravated by military service.

On the point of rounding off of disability pension, the Tribunal cited Union of India v. Ram Avtar, 2014 SCC OnLine SC 1761, wherein the Supreme Court held that, “an individual, who has retired on attaining the age of superannuation or on completion of his tenure of engagement, if found to be suffering from some disability which is attributable to or aggravated by the military service, is entitled to be granted the benefit of rounding off of disability pension.”

In view of the above, the Tribunal set aside the impugned order holding that benefit of rounding off of disability pension at 40% for life should be rounded off to 50% for life and be extended to the applicant from the date of his discharge. The disabilities of the applicant were held as aggravated by Service and the respondents were directed to comply with the order within a period of four months from the date of receipt of a certified copy of this order. Further, the interest of 9% per annum was awarded for default till actual payment. [Krishna Kumar v. Union of India, O.A. No. 14 of 2019, decided on 09-12-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: A Division Bench of Justice Rajendra Menon (Chairperson) and Lt. Gen Phillip Campose (Member) A, allowed the application.

In the instant case, the respondents has prayed for revision of pension in accordance with the last rank held by him before retirement as a Junior Warrant Officer vide Government circular dated 09-02-2001 which states that ten months continuous service in the last rank is not required for grant of pension in such rank.

Counsel for the petitioners, Manoj Kumar Gupta has relied on the judgment titled Pramod Kumar Singh v. Union of India (O.A. 1166 of 2017) and Ashok Kumar Tanwar v. Union of India (O.A. of 882 of 2016) which waived on 10 months pension. He further submitted that pension cannot be deprived to an individual to a rank for which he has already rendered service and earned pension in the rank of JWO and is entitled for the same.

Counsel for the respondents, Avdhesh Kumar Singh submitted that holding the last rank before retirement for calculating pension has been dispensed with and the present calculation to give pension for the lower rank is financially beneficial.

After hearing both sides, the Tribunal relied on the judgment titled P. Gopalakrishnan v. Union of India (O.A. No. of 62 of 2014) and held that after going through various circulars presented it was found that the calculation made for the respondents was detrimental. He further observed that pension is a statutory right and the respondents cannot be denied the entitlement of the same. It was directed to recalculate the pension based on the relied judgment.

In view of the above, the application was allowed.[JWO Meghnath Majumdar v. Union of India, 2020 SCC OnLine AFT 1601, decided on 05-08-2020]


*Arunima Bose, Editorial Assistant has put this story together