GhanshyamPrasad:
This case has been received on transfer from Honble Punjab and Haryana High Court and it has been treated as application under Section 14/15 of the Armed Forces Tribunal Act, 2007.
This application has been filed for grant of disability pension to the husband of the petitioner and thereafter family pension to the petitioner.
The husband of the petitioner joined the military service on 21-12-1987 in a medically fit condition. Ultimately he was discharged w.e.f. 26-01-1995 in Medical Category âEEE (P)â with 30% disability.
However, his prayer for disability pension was rejected by the PCDA. The husband of the petitioner became missing since 30-01-2000 for which FIR was lodged in the Police Station, Panipat. The Police ultimately submitted its report on 14-03-2007 declaring him as dead. The husband of the petitioner had also filed an appeal against the rejection of his disability pension, but the same was rejected.
Written statement on behalf of the respondents has been filed which is on record.
It is stated in the written statement that the petitioner was enrolled in the Military Service w.e.f. 19-12-1987. While serving, he was down-graded in the low medical category âCEE (T)â w.e.f. 9-06-1993 for a period of six months for the disease â âUNSPECIFIED PSYCHOSISâ. The same was reviewed on 9-6-1994. In view of the condition of the petitioner, his retention in service was not found proper and hence he was recommended to be invalided out of military service in Low Medical Category. Accordingly, he was brought before a duly constituted Medical Board, which was held at Military Hospital, Jalandhar Cantt. on 26-12-1994. The Medical Board opined that the husband of the petitioner was having disease of âUNSPECIFIED PSYCHOSISâ, which was neither attributable to nor aggravated by military service. His prayer for disability was rejected and the same was communicated to him on 19-06-1997 with an advice to prefer an appeal. Accordingly, the appeal was also filed by the petitioner against the rejection of disability pension which was forwarded to Government of India, Ministry of Defence. The Appellate Committee rejected the appeal on the same ground.
It has further been averred that since the husband of the petitioner was not entitled to get any pension, the petitioner is not entitled to get the Ordinary Family Pension.
Heard the learned counsel for both the parties.
It is submitted by the learned counsel for the petitioner that rejection of the disability pension of the petitioners husband was wholly illegal and bad in law. The disease -UNSPECIFIED PSYCHOSIS is one of the classified diseases mentioned in Appendix III to Annexure II of Entitlement Rules, 1982. The petitioner was enrolled in the Military Service in the year 1987 and was discharged from the service after more than seven years. The reason assigned in the Medical Board opinion is not correct as no specific reason has been mentioned as to why the disease which occurred in the course of service of an individual be not deemed to be attributable to or aggravated as a result of military service. The husband of the petitioner was enrolled in the Army in a medically fit condition and at that point of time he was not found suffering from any disease and no note was recorded by the Military Authority regarding the said disease. Therefore in view of rule 14 (b) of Entitlement Rules, 1982, it is deemed to be attributable to or aggravated as a result of military service.
It is further submitted that in number of cases this Bench has already held that UNSPECIFIED PSYCHOSIS is attributable to military service.
On other hand, the learned counsel for the respondents submitted that the husband of the petitioner was not entitled to get disability pension as onset of the disease was not found to be attributable to or aggravated by military service by the competent Medical Board. The PCDA (P) has also rejected the claim of the petitioner for disability pension. The disease was actually constitutional in nature. It was not related with the conditions of military service. However, so far as the percentage of disability is concerned, admittedly it is more than 20%.
We considered the submissions of the learned counsel for both the parties as well as the decision of Division Bench of Punjab and Haryana High Court dated 02-07-2010 rendered in LPA No. 751 of 2010 (Union of India and others vs Smt. Chander Kanta), decision of Delhi High Court reported as 2001 (3) SCT 883 (Smt. Harnandi vs UOI), Rajashtan High Court reported as 2007 (4) SLR 262 (Phoola Devi vs. UOI and Ors) as well as the decision of this Bench dated 07-09-2010 passed in TA No. 59 of 2010 (Santosh Rani @ Santosh Kumari vs. UOI and ors.) cited by the learned counsel for the petitioner as also the relevant provisions of Entitlement Rules. On consideration, we are of the view that the disease in question, if not attributable to, it deemed to be aggravated as a result of military service as it occurred after seven years of service.
Here we would like to mention that we have come across large number of cases of Mental and Neurotic diseases in respect of PBORs. It goes to show that it is actually the service condition in general for lower rank military personnel which gives rise to Mental or Neurotic problems. But the Medical Board against the provisions of Entitlement Rules and without assigning any detailed reasons gives findings as non-attributable and non-aggravation and constitutional in nature in order to deny the benefit to poor soldiers (PBORs).
In the facts and circumstances of the case, we are of the view that the husband of the petitioner was entitled to get disability pension from the date of his invalidation. As far as the claim of the petitioner for grant of ordinary family pension is concerned, as per Regulation 212 of Pension Regulations for the Army, 1961, the ordinary family pension is admissible when an individual dies after retirement/discharge from the service and was on the date of death in receipt or eligible for retiring/special/reservist/disability/invalid/war injury pension.
In this very case, as discussed above, it is quite apparent that the husband of the petitioner was entitled to get disability pension at the time of his invalidation. So far as the death of the husband of the petitioner is concerned, it has been stated that he became missing prior to the year 2000. The police investigated the case and found him as dead vide its report dated 14-03-2007.
For the reasons stated above, we are of the view that the petitioner is entitled to get family pension, but only from the date of submission of the Police report i.e. 14-03-2007, which is deemed to be the date of death of petitioners husband.
Accordingly, this application is allowed to the above extent. The respondents are directed to assess and release the disability pension in favour of the petitioner from the date of his invalidation till the date of missing and thereafter Ordinary Family Pension to the petitioner from the date of submission of the police report i.e. 14-03-2007, within six months from the date of receipt of this order. The petitioner is entitled to get arrears, both of her husbands disability pension and her family pension, with interest @ 10% per annum.