disability pension

Case BriefsHigh Courts

Armed Forces Tribunal (AFT): Justice S.V.S. Rathore (Member) and Air Marshal BBP Sinha (Member) dismissed an application by the applicant under Section 14 of the Armed Forces Tribunal Act, 2007.

The applicant was enrolled in the Army in 1984 in a medically fit condition and was invalidated out from service in 1985 in low medical category EEE by the Medical Board for “Tuberculosis Lymphadenitis” which considered the disability at 100% for a period of 2 years. The applicant was brought before Review Medical Boards in the subsequent years in which his disability was assessed at 80%, 60% and 20% and thus disability pension continued till 1993. In the year 1993, the applicant was brought before Review Medical Board and the medical board assessed the disability to be between 6 to 10% (less than 20%) for a period of 10 years and on the recommendation of the medical board, pension sanctioning authority stopped disability pension from 1993 to 2003. The next RSMB could not be carried out as the applicant did not report to the medical authority till 2008 despite repeated reminder by Records. His disability was assessed at 20% for life and accordingly, he was in receipt of the disability pension from 2008.

The applicant argues that based on the facts mentioned above, he is entitled to disability pension for the period from 1993 to 2008 also and thus, the action of the respondents stopping the disability pension of the applicant from the said dates is against the principles of natural justice.

The respondents argued that since the disability of the applicant from 1993 was re-assessed as less than 20% for 10 years by pension sanctioning and adjudicating authority (PCDA), it was stopped. The next RSMB in 2003 of the applicant was not be carried out as he did not report to the medical authority despite repeated reminders. Eventually, when the applicant reported, his disability was assessed at 20% for life and accordingly his pension was rounded off to 50% for life. Hence, the applicant is not entitled to arrears of disability pension for the period from 1993 to 2008 because his disability was less than 20% as per Regulation 173 of Pension Regulations for the Army 1961 (Part-I) and secondly for not taking any initiative to appeal, represent or appear for 2003 RSMB.

The applicant approached the Tribunal in 2017 by filing an application for grant of disability pension from 1993 to 2008. The Tribunal relied on Shiv Dass v. Union of India, (2007) 9 SCC 274 where the Supreme Court held that arrears of disability pension are restricted to three years prior to the filing of the application if the same has been filed belatedly and delay is condoned. Since the applicant approached the Tribunal after elapse of more than 11 years, he is not entitled to any arrears due to the law of limitations.[M Radha Raman Shukla v. Union of India, 2019 SCC OnLine AFT 3893, decided on 15-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Force Tribunal: A Division Bench of Justice Sunita Gupta (Member) and Lt. Gen. Philip Campose (Member) allowed an application under Section 14 of the Armed Forces Tribunal Act, 2007 to claim disability pension. The applicant was commissioned in the Indian Air Force in Logistics Branch in a sound mental condition. In the course of his service, he was diagnosed with Primary Hypertension and was superannuated with his disability which was assessed at thirty percent for life. This claim was rejected by the respondents on the ground that the disability was ‘Neither Attributable to, Nor Aggravated by Military Service’ as per the Medical Board examination, which is an expert body. The applicant relied on the Supreme Court’s judgment in Dharamvir Singh v. Union of India, (2013) 7 SCC 316 which held that the question of whether a disability is attributable or aggravated by military service is to be determined under Entitlement Rules for Casualty Pensionary Awards, 1982. Under these rules, if a member is subsequently discharged from their service on medical grounds, any deterioration on their health is presumed due to service. The logic is that if no disability or disease was detected at the time of the individual’s acceptance, it is deemed to have arisen in the service.

In the present case, the Tribunal addressed other recommendations made by the Committee of experts constituted by the Ministry of Defence. The expert committee has recommended that whenever a legal principle is settled by a High Court or Supreme Court, the same must be universally applied to all primarily placed employees for efficient redressal of grievances related to service and pension matters. The Tribunal Finally held that the disability accrued by the applicant was during the course of Military Service and he is thus entitled to disability element of pension at thirty percent for life which is liable to be broadband to 50 percent too.[S Sriram v. Union of India, 2019 SCC OnLine AFT 3490, decided on 05-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: A Coram of Justice SVS Rathore (Judicial Member) and Air Marshal BBP Sinha (Administrative Member) allowed an ex-hawaldar’s application for disability pension holding that stress and strain of military service can also happen in peace areas.

Applicant herein was enrolled in the Indian Army in 1971 and after serving the Army for 22 years, he was discharged from service in 1973. Thereafter, the applicant was inducted in the Defence Security Corps (DSC) as Sepoy in medically fit condition and after serving for 15 years in the DSC, he was discharged therefrom in 2010. Before applicant’s discharge, the Release Medical Board (RMB) considered his disability as ‘primary hypertension’ and opined the disease as “neither attributable nor aggravated” (NANA) by military service and assessed it as 30% for life. The Medical Board further assessed the disability qualifying for a disability pension as NIL for life. Aggrieved with non-payment of disability pension, the applicant preferred representation which was rejected by the appropriate authority. Hence, the present petition.

The Tribunal noted that the only reason given by the RMB for declaring the disease as NANA was that it had not started in peace area and not in a field, high altitude area or counter-insurgency operation area. This reason was outrightly dismissed by the Tribunal opining that it amounted to saying that there is no stress and strain of military service in peace areas. Therefore, in terms of the judgment of Dharamvir Singh v. Union of India, (2013) 7 SCC 316 it was held that the applicant’s disability of ‘primary hypertension’ be considered as aggravated by military service.

The impugned order was set aside and the applicant was held to be entitled to benefit of rounding-off of disability pension. Relying on Shiv Dass v. Union of India, (2007) 9 SCC 274 he was directed to be granted disability pension at 30 percent for life which would be rounded off to 50 percent from three years prior to the filing of this application.[Ex Havildar Anand Singh v. Union of India, 2019 SCC OnLine AFT 1408, decided on 26-03-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Coram of Justice Sunita Gupta (Judicial member) and Lt. Gen. Philip Campose (Administrative Member) pronounced an order in respect to an application by the applicant with regard to refusal to grant disability pension by Air Headquarters (Directorate of Air Veterans).

The applicant was enrolled in Indian Air Force and retired in the rank of Sergeant. While going on duty the applicant’s motorcycle skidded and felt down due to which he sustained the injury and was diagnosed as ‘Shoulder Dislocation’. The applicant made the application to Air Headquarters (Directorate of Air Veterans) which was denied on the ground that the injury was less than 20 per cent. Hence, the present application.

 Learned counsel for petitioner, V.S. Kaidan submitted that applicant’s degree of disability was at the rate 20 per cent and thus the applicant meets the twin condition i.e. where any disability that has arisen subsequently during the course of the service of the applicant any disability that has arisen subsequently during the course of his service must be presumed to have been attributed by military service for grant of disability element and thus he is entitled to 50 per cent disability element. 

Learned counsel for the respondent, Shyam Narayan submitted that the disability which was assessed at the rate 20 per cent could have been cured had he not refused to undergo the surgery.  

Tribunal held that the applicant was not justified in his step of not undergoing the curative surgery as per the Para 85 (b) and (c) of the Pension Regulations, 2008. Consequently, the step taken by the respondent in reducing the degree of disablement was justified. Thus on the said ground, the application was rejected. [Sharad Piyush v. Union of India, O.A No. 833 of 2017, Order dated 16-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: The Coram of Justice SVS Rathore (Judicial Member) and Air Marshal BBP Sinha (Administrative Member) set aside the order of Principal Controller of Defence Accounts, Allahabad (PCDA-P) rejecting disability pension to an ex-sepoy.

Applicant herein, who joined the Indian Army as a sepoy in 1999, was admitted to Medical Hospital during his service period. The Invalidating Medical Board (IMB) categorized his disease as ‘Generalised Seizures –V-72 (Permanent)’ and assessed it as 20 percent for two years; holding it to be ‘neither attributable to nor aggravated by military service’ (NANA). The applicant was discharged from service in 2002, but his case for disability pension was rejected by the PCDA (P) in 2003. Hence, the instant application.

Learned counsel for the applicant, Mr Vinay Kumar Pandey, submitted that since the applicant was enrolled in medically fit condition and was thereafter discharged in ‘low medical category’, therefore his disability should be considered as attributable to and aggravated by military service and he should be granted disability pension. Further, IMB had not cited any reason for nonconnection of applicant’s disability with service in the Army.

Dr Shailendra Sharma Atal, learned counsel for the respondent submitted that as per Para 173 of the Pension Regulations (Part-I) 1961, the applicant was not entitled to any disability pension since the same is admissible only to an individual who is invalided out from service on account of disability attributable to military service.

The Tribunal noted that the applicant was enrolled in Army in a medically fit condition and discharged after 03 years and 233 days of service in low medical category. Respondent had not produced any document to prove that the disability/disease existed at the time of enrolment. The disease has started after more than two years of service, and the reason for declaring the disease as NANA was very cryptic i.e. ‘not connected with military service’. The said statement did not convey clearly as to why the disease had been declared as NANA.

Relying on the judgment of Dharamvir Singh v. Union of India, (2013) 7 SCC 316 it was held that benefit of doubt must be in favour of the applicant and his disease be considered as attributable to military service.

Since IMB had assessed applicant’s disability as 20 percent for two years, therefore, in view the judgment of Veer Pal Singh v. Ministry of Defence, (2013) 8 SCC 83, applicant’s case was recommended for the reassessment of further element of disability pension by Re-survey Medical Board, if any. The application was partly allowed holding the applicant entitled to disability pension at 20 percent for two years from the date of his discharge.[Satyendra Kumar Singh v. Union of India, 2019 SCC OnLine AFT 1029, Order dated 27-03-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: The Coram of Justice SVS Rathore (Judicial Member) and Air Marshal BBP Sinha (Administrative Member) allowed an application filed under Section 14 of the Armed Forces Tribunal Act, 2007 for grant of disability pension.

Applicant herein, who joined the Indian Army in 2003, was admitted to the Military Hospital for psychiatric treatment in 2011. He was diagnosed with alcohol dependence syndrome (ADS), alcohol-induced psychosis, and deliberate self-harm; and was subsequently invalided out of service in 2013. Release Medical Board considered his disability as ‘neither attributable to nor aggravated by military service’ (NANA). Consequently, he was denied a disability pension. Hence, the present application.

Learned counsel for the appellant, Mr Vinay Pandey, submitted that the applicant was discharged in low medical category after putting in 09 years 11 months and 08 days of service. As such, he was entitled to get disability pension by condoning the shortfall of a few days for completion of 10 years of regular service. Whereas Mr VPS Vats, learned counsel for the respondent, contested this claim on the ground that the applicant’s disability was self-induced.

It was noted that the applicant had been invalided for a disability which was primarily induced by excessive alcohol consumption. The Tribunal recorded its displeasure at the rising incidence of ADS cases being invalided for pension in the Army. It observed that since ADS cases were invalided on medical grounds as NANA, legally there was no bar for an invalid pension.

In the present case, the applicant was short of 10 years’ of service by 22 days. In such a situation, where the livelihood of an individual was getting adversely affected, it was expected from a government organization to be magnanimous and considerate to its employee by delaying his discharge by 22 days.

In the interest of substantial justice, the impugned order was set aside and respondent was directed to treat applicant to be notionally in service till he completes 10 years of service, and grant him invalid pension for life.[ Jadhav Nilesh Dinkar v. Union of India, 2019 SCC OnLine AFT 1028, Order dated 26-03-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: The Bench of S.V.S. Rathore, J. and Air Marshal BBP Sinha (Member) allowed the application filed by a member of Indian Army’s Electronics and Mechanical Engineers Corps, directing grant of disability pension to him.

Applicant herein was enrolled in the Indian Army and discharged from service in ‘low medical category’. The Release Medical Board (RMB) located at Base Hospital, Lucknow assessed his disabilities as: (i) ‘Obesity’ at nil percentage which was ‘Neither Attributable to Nor Aggravated’ (NANA) by military service; and (ii) ‘Primary Hypertension’ at 30 per cent for two years which was found to be aggravated due to stress and strain of military service. 

The applicant filed an application for a disability pension with the Principal Controller of Defence Accounts (Pensions), Allahabad – PCDA (P) – but the same was rejected without carrying out his physical examination, by declaring his disease of hypertension as NANA. Aggrieved thereby, the instant application was preferred under Section 14 of the Armed Forces Tribunal Act, 2007.

The Court relied on the judgment in Ex. Sapper Mohinder Singh v. Union of India, Order dated 14-01-1993 in Civil Appeal No. 104 of 1993, where it was held that medical board’s decision cannot be overruled by a higher chain of command without physical medical examination of the patient. In view thereof, the decision of PCDA (P), Allahabad declaring the second disability of hypertension as NANA was set aside, and it was held that the applicant was entitled to a disability pension at 30 per cent for two years.[Hav Raj Bhan Singh v. Union of India, Original Application No. 700 of 2017, Order dated 18-02-2019]

Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of P.R. Ramachandra Menon and Devan Ramachandran, J. while hearing an appeal against the order of a Single judge held that denial of pension benefits to a person residing in a particular State, vests him with the locus standi to file the writ petition challenging such denial in that State.

The appellant, who worked in the Assam Rifles in Shillong, was discharged from service on medical grounds which entitled him to disability pension. However, when he was not sanctioned full pension, he made a representation to competent officials but the same was rejected. The appellant submitted that after he was discharged from service, he had no financial resources to continue to live in Meghalaya and therefore he was constrained to come to Kerala.

The only issue involved in the matter was as to whether this Court had territorial jurisdiction to entertain the appellant’s writ petition.

Relying on the dictum of  Apex Court in Nawal Kishore Sharma v. Union of India, (2014) 9 SCC 329, the  High Court observed that when a party residing within the jurisdiction of a court was denied the benefit of pension by an authority, a part of cause action could be said to have arisen within the jurisdiction of that Court. It is settled law that under Article 226 of the Constitution of India, writ jurisdiction can be exercised by any High Court, if any part of the cause of action, wholly or in part, arises within its territorial limits.

The Court noted that the request for disability pension was made from Kerala and its rejection was communicated to the petitioner in Kerala. Thus, the appeal was allowed holding that this Court was vested with territorial jurisdiction to entertain the present matter. [K.T. Sudharshanan v. Union of India,2018 SCC OnLine Ker 4003, decided on 28-09-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Judge Bench comprising of Rajiv Sharma, ACJ and Manoj Kumar Tiwari, J. disposed of a PIL for the rights of people with disabilities.

The petitioner through his letter sought to draw the attention of the court towards the grievances of the people who had faced problems under the Aadhaar regime whereby the aadhaar cards could not be accessed by them due to their disability.

Considering it to be a sensitive matter the Court took suo motu cognizance of the same by appraising the principle of lex non cogit ed impossibilia (law does not enforce impossibilities) and stated that the approach of the entire machinery should be humane plus it should evolve a process itself taking into consideration the difficulties faced by the disabled persons.

Accordingly, the Court directed the District Magistrate, Almora to ensure that the Aadhaar Cards of the said persons were prepared within three days from this date and, thereafter, respondent shall release the disability pension to them within seven days along with arrears.[Laxman Singh Negi v. State of Uttrakhand, 2018 SCC OnLine Utt 794, Order dated 29-08-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal, Lucknow Bench: The Bench comprising of S.V.S Rathore J. and Air Marshal BBP Sinha, Member dismissed an original application filed under Section 14 of the Armed Forces Tribunal, 2007.

In the present application, the applicant was enrolled in the Army Medical Corps and was invalidated from service after a span of 3 months and 16 days of his joining on account of being diagnosed with a disability as ‘Complex Partial Seizure’ as detected by the medical board. The applicant claimed compensation for the same but was denied on the grounds that the disability was neither attributable to nor aggravated by military service and it was constitutional in nature.

The applicant claims to have been admitted in the Indian Army in a physically fit condition and states that the disability occurred during the army service, therefore, he is entitled to disability pension.

Further, on due consideration of the facts and circumstances of the case, it was observed that ‘Seizure’ is a disease that cannot be detected at the time of enrolment. Therefore, going by the medical opinion that ‘the disease is constitutional in nature and is neither attributable to nor aggravated by military service’, is correct which eventually leads to the dismissal of the Original Application. [Raj Kumar Singh v. Union of India,  2018 SCC OnLine AFT 3885, dated 17-05-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal, Regional Bench, Lucknow: Hon’ble Justice DP Singh and Hon’ble Air Marshal BBP Sinha, pronounced an order in respect to an application being filed in regard to refusal to grant disability pension under Section 14 of the Armed Forces Tribunal Act, 2007.

The applicant was commissioned in the Indian Army in Corps of Electrical and Mechanical Engineering (EME). He was posted at Jabalpur when the annual medical examination took place in which he was subjected to Medical Board proceedings and was put under the category of “primary hypertension i-10”, when further the re-categorisation was held applicant was placed in Medical category P2 (Permanent). Release Medial Board opined that the disability was neither attributable nor aggravated by military service and assessed the disability to be 30% for life.

The question of attributability of disability was considered to be no longer “res integra”, by citing the case of Dharmvir Singh v. Union of  India, (2013) 7 SCC 316, and further the proposition of law stated in the cited case declared that the applicant’s disability is considered as “attributable to military service”.

Next, the question of rounding off of disability pension was settled by citing the case of Union of India v. Ram Avtar (CA No. 418 of 2012 ), which explained the ratio and helped in concluding the judgment by entitling the applicant to the benefit of “rounding off” of his disability element of pension from 30% to 50%.

The Tribunal concluded its order by stating that the applicant was enrolled in the Indian Army in a medically fit condition and was discharged from service in low medical category. Since the applicant entered in Military service in a medically fit condition, disability will be considered as attributable to military service. Therefore, respondents are directed to grant disability pension to the applicant @ 30% for life which shall be rounded off to 50% for life from three years prior to filing of the original application. [Bimal Kishore Charan v. Union of India, OA No. 277 of 2016, decided on 04-1-2018]