GhanshyamPrasad
This application under Section 14/15 of the Armed Forces Tribunal Act, 2007 has been filed for grant of disability pension and benefit of ârounding offâ.
The petitioner joined the Army on 24-07-1962. At that time he was found medically fit. In the year 1966 he fell ill and was admitted in the Military Hospital, where he was diagnosed as a case of ALLERGIC RHINITIS (517) and was placed in low medical category.
Ultimately, he was discharged from service on 16-05-1969. At that time, he was brought before the Release Medical Board and was found suffering from the aforesaid disease. His percentage of disability was assessed as 20% for two years by the Medical Board. The petitioner was informed vide letter dated 8-11-1969 that his claim for disability pension was rejected on the ground that his disability was found as neither attributable to nor aggravated by military service and was constitutional in nature. Thereafter he preferred an appeal and also served a legal notice dated 21-6-2010, but of no avail. Hencethis application.
Reply has been filed on behalf of the respondents which is on the record.
Heard the learned counsel for both the parties.
In course of the submissions, it is submitted by the learned counsel for the petitioner that the petitioner was medically fit in all respects when he was enrolled in the Army service. At the time of entry into service, no Note with regard to the aforesaid disease was recorded by the Medical Authority. It is further submitted that the petitioner was diagnosed as the case of âALLERGIC RHINITIS (517)â in the year 1966 after rendering of about four years of service. In view of rule 14 (b) of Entitlement rules, it is deemed to be attributable to or aggravated as a result of military service as it arose during service and no reasons have been given in the opinion of the Release Medical Board. Apart from it in para 76 at page 53 of the Medical Guide to Medical Officers, 2008 this disease is normally considered as aggravated due to alteration of temperature, humidity and anxiety. The percentage of disability has been assessed as 20% for two years. Annexure A-1 is the Medical Board proceedings. Therefore, he is entitled to get disability pension from the date of his invalidation.
It is further submitted by the learned counsel that the petitioner is also entitled to the benefit of ârounding offâ from 01-01-1996 as per Govt. of India letter dated 31-01-2001 as well as the latest decision of Honble Supreme Court dated 31-03-2001 in Civil Appeal No. 5591 of 2006 (K.J.S. Buttar vs. UOI and others) holding that any individual, who retired/invalided out even before 01-01-1996 is entitled to the benefit of ârounding offâ w.e.f. 01-01-1996. Following that decision, this Bench has already given relief of ârounding offâ in a bunch of 85 cases vide order dated 06-04-2011 passed in TA No. 1077 of 2010 (Jai Singh vs UOI and Ors.), along with other connected matters.
On the other hand, the only objection raised by the learned Counsel for the respondents is that since the disability of the petitioner was found as neither attributable to nor aggravated by the military service and was constitutional in nature, he is not entitled to get disability pension and the benefit of ârounding offâ. However, the percentage of disability at 20% for two years as assessed by the Release Medical Board has not been disputed.
Considered the submissions of the learned counsel for both the parties and perused the documents on record as well as the decision of the Apex Court cited by the learned counsel for the petitioner.
A perusal of the Release Medical Board proceedings would go to show that no reasoning has been assigned in the opinion of the Medical Board as to why the disability be not considered as attributable to or aggravated by military service. Thus, in the absence of any reasoning, the opinion of the Release Medical Board cannot be accepted so far as its attributability or aggravation is concerned. This Bench in number of cases has already held that the disability having arisen in the course of service is deemed to be attributable to or aggravated by military service if no note is recorded by the Medical Authority at the time of enrollment of an individual into military service. The percentage of disability at 20% for two years as assessed by the Release Medical Board has not been disputed by the respondents.
Thus, having regard to the facts and circumstances of the case, we are of view that the petitioner is entitled to get disability pension for 20% disability from the date of his invalidation i.e. 15-05-1969. However, In view of the Govt. of India letter dated 31-01-2001 as well as the latest decision of the Supreme Court referred to above, he is also entitled to the benefit of ârounding offâ w.e.f. 01-01-1996.
Accordingly, this application is allowed. The respondents are directed to assess and release the disability pension in favour of the petitioner for 20% disability from the date of his invalidation within six months from the date of receipt of this order. The petitioner shall also be entitled to get the benefit of ârounding offâ w.e.f 01-01-1996. However, the arrears shall be restricted to a period of three years prior to this application with interest @ 10% per annum.
However, It is made clear that the respondents shall be at liberty to hold Re-survey Medical Board for grant of future disability pension to the petitioner.