GhanshyamPrasad
This application has been filed under Section 14 of the Armed Forces Tribunal Act, 2007 for restoration of disability pension w.e.f. 08.11.1988 @ 20% upto 31.12.1995 and thereafter @ 50% against 20% disability for life with interest.
The petitioner joined Army service on 30.05.1985 and invalided out from the service w.e.f. 04.12.1985 having 100% disability against the disease âPLEURAL EFFUSION (LT) 012(B)â The petitioner was granted disability pension consisting of service and disability element w.e.f. 05.12.1985 to 04.11.1986 for 100% disability. Thereafter, the disability of the petitioner was reduced from 100% to 80% w.e.f. 05.11.1986 to 07.11.1988 on the strength of Re-survey Medical Board dated 08.11.1986.Again the petitioner was subjected to Resurvey Medical Board on 22.09.1988 . The Resurvey Medical Board recommended disability of the petitioner @ 20% for two years vide Annexure A-3. However, the PCDA Allahabad discontinued the disability element of the petitioner w.e.f. 08.11.1988 vide their letter dated 04.01.1989 as they reduced the disability of the petitioner as Nil. The petitioner approached different authorities and filed representation for restoration of disability element but to no effect. Hence this application.
The reply has been filed by the respondents which is on record.
Heard learned counsel for both the parties and perused the record.
The admitted facts of the case are that the petitioner was getting disability pension w.e.f. 05.12.1985 to 04.11.1986 for 100% disability. Thereafter, the disability element was reduced to 80% w.e.f. 05.11.1986 to 07.11.1988. It is also admitted that on 22.09.1988, Resurvey Medical Board vide Annexure A-3 assessed the percentage of disability of the petitioner as 20% for two years. However, PCDA reduced the percentage of disability as Nil and accordingly, discontinued the payment of disability element.
In course of the submissions, learned counsel for the petitioner submitted that it has been held in several decisions of this Bench as well as the Honble Apex Court that the PCDA has no power to reduce the percentage of disability and discontinue the payment of disability element. It is further submitted that after 01.01.1996, in view of Ministry of Defence letter dated 31.01.2001 as well as the decision of Honble Supreme Court dated 31.03.2011rendered in Civil Appeal No. 5591 of 2006 (K.J.S. Bhuttar Vs. UOI and another), the petitioner is entitled to get the benefit of ârounding off disability element i.e. from 20% to 50% in the instant case.
On the other hand, learned counsel for the respondents submitted that the petitioner is not entitled to get any relief. The application of the petitioner is devoid of any merit. Since the disability of the petitioner was regarded as nil by the Medical Authority i.e. DGAFMS at PCDA (P) Allahabad, the petitioner is not entitled to get the disability element.
We considered the submissions of the learned counsel for both the parties as well as the Medical opinion of the Resurvey Medical Board dated 22.09.1988. It is quite apparent that the Review Medical Board found the disability of the petitioner as 20% for two years. However, it is the PCDA, who reduced the disability and discontinued the payment of the disability element to the petitioner. It is well settled that the PCDA has no power to reduce the percentage of the disability given by the Medical Board. Thus, the reduction of the percentage of disability of the petitioner from 20% to nil percentage by the PCDA is illegal and bad in law. The petitioner is entitled to get restoration of disability element from the date of its discontinuation.
So far as the grant of benefit of ârounding off is concerned, now the Honble Supreme Court vide its judgment dated 31.03.2011 rendered in Civil Appeal No. 5591 of 2006 (K.J.S. Bhuttar Vs. UOI and another) has held that any person who, retired/invalided out even before 01.01.1996 and is in receipt of disability pension as on 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 the 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 Union of India and Ors.) alongwith other connected matters.
Accordingly, this application is allowed and the respondents are directed to restore the disability element in favour of the petitioner from the date of its discontinuation for 20% disability till 31.01.1995 and thereafter the petitioner is entitled to get disability element for 50% disability w.e.f. 01.01.1996 in view of the Ministry of Defence letter dated 31.01.2001. The respondents are directed to complete the formalities for restoration of disability pension as well as the grant of benefit of ârounding offâ within four months from the date of receipt of copy of this order. However, petitioner is entitled to get the arrears which shall be restricted to a period of 3 years prior to filing of this application with interest @ 6% per annum.
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.