HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPAOW No. 261 OF2002Union of India, Through Station Commander, 23 Wing, AF C/O56APO Petitioners Chano Devi widow of Late NC(E) Ram Chander Bhagat, R/o Village Chaprial, P.O. Palwala, Distt. Jammu. Respondent !Mr. Sindhu Sharma ASGI, Advocate ^Mr. Rajinder Singh, Advocate Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice Honble Mr. Justice Dhiraj Singh Thakur, Judge Date:
08. 04.2015 :
JUDGMENT
: N. Paul Vasanthakumar, CJ1 The Union of India has filed this appeal against the order made in OWP No.630/2000 dated 17.05.2001 wherein the claim made by the respondent, who is widow of the army personnel seeking family pension, was allowed with 12% interest for the arrears of pension to be calculated.
2. Brief facts necessary for disposal of this appeal are as follows:- (a) The respondent is a widow of deceased Ram Chander Bhagat who was enrolled in Indian Air Force on 25.08.1951 as Group D Civilian (Cook) and was 2 assigned enrolment No. 805840 NC (E). He had rendered 18 years and 225 days service as Group D Civilian (Cook) in Indian Air Force. Thereafter he was enrolled as Non Combatant on 01.05.1970. He was medically boarded out from service due to multiply-mynimo (203) with 80% disability for one year with effect from 14.01.1978. Due to the said illness he died on 23.10.1978. (b) Since the respondents husband was discharged from service on 14.01.1978, only 1/3rd of his previous civilian service was counted towards his pension and gratuity. The NC(E) drawn from Group D civilian were permitted to count their entire service for pensionary benefits only with effect from 01.01.1980 as per Government of India, Ministry of Defence letter dated 19.07.1982 and 19.09.1983. The services rendered by the respondents husband being less than 23 years, he was denied the pension even though he was discharged on medical disability.
3. The contention of the respondent was that as per Regulation 183 of the Army Pension Regulations the disability pension is bound to be sanctioned from the date of discharge of her husband and after his demise she is entitled to get the family pension. According to the respondent a similar issue was 3 considered by this Court in OWP no. 317 of 2000 decided on 30.03.2001and in OWP no. 647/2000 decided on 29.12.2000. Following the said judgments the learned Single Judge allowed the writ petition as stated supra.
4. The said order is challenged by the appellant on the ground that the respondents husband having served as Group D Civilian (Cook) for 18 years and 225 days, that was from 25.08.1951 to 30.04.1970 and thereafter he was enrolled as Non Combatant on 01.05.1970 and was boarded out under Air Force Rules, 1969, Chapter III, Rule 15, Clause (k), as he was found medically unfit for further service in Air Force. It is contended that there is no proof that the disability suffered was attributable to or aggravated by Air Force Service, therefore, the disability pension was denied and the said decision was communicated to the husband of the respondent with an advice to prefer an appeal latest by 23.10.1978 in case he is not satisfied with the decision of Chief Controller of Defence Accounts (Pensions) and he having died on 23.10.1978, the family pension request was also rejected by said authority by order dated 03.06.1981. The appeal preferred was also rejected by the Ministry of Defence vide order dated 12.02.1987.
5. It is contended that as per Regulation 153 of the Pension Regulations for the Air Force, 1961 (Part-I), for grant of 4 disability pension, a person must have been invalidated from service on account of disability which is attributable to or aggravated by Air Force service and is assessed at 20% or over and there is no proof that the disability of 80%, as noticed, was attributable to or aggravated by Air Force service.
6. The primary contention of the appellant was that the disease due to which the husband of the respondent was suffering, was not attributable to the Group D services rendered in Air Force. The said plea is made in the grounds of appeal, however, no proof to substantiate the said contention has been produced by the appellant. The learned counsel further submitted that there was unreasonable delay in filing the writ petition on the part of the first respondent, as the writ petition was filed only on 25.08.2000 and the learned Single Judge was not justified in allowing the writ petition with a direction to pay the family and pay the arrears along with 12% interest without mentioning the date from which the arrears are payable and in any event award of interest is un-sustainable as the eligibility to get pension was determined by this Court only on 17.05.2001.
7. The learned counsel appearing for respondent, on the other hand, submitted that when the husband of the respondent was appointed as Group D Civilian (Cook), he was subjected to physical and medical tests and after noticing the fact about 5 his physical as well as medical fitness assessed by the Medical Board, he was appointed and he served for over 18 years. If the husband of the respondent was having the illness of Multiple Mynima (203), (which is commonly known as bone cancer) at the time of entry into service, he could not have been selected as Cook and he having served for more than 18 years without any complaint during his service, the discharge was attributable to his service. It is also beyond doubt that the person having bone cancer disease cannot discharge normal duties of a cook for over 18 years. The learned counsel further submitted that the disability having been assessed at 80% by the Medical Board, the husband of the respondent having died due to said disease which has occurred and aggravated during service and the respondent being widow, she is entitled to get the family pension from the date of death of her husband.
8. We have considered the rival submissions.
9. The facts in this case are not in dispute that the husband of the 1st respondent was enrolled in Indian Air Force as Group D Civilian (Cook) and he has rendered 18 years and 225 days of service in the Indian Air Force. He was medically boarded out from service due to multiple Mynima (203) with 80% disability for one year with effect from 14.01.1978 and he died due to the said disease on 27.10.1978. At the time of his enrolment he was hale and healthy and there is no medical 6 report available to prove that the disease of the writ petitioner, namely, Ram Chander Bhagat was not developed during the military service or aggravated during military service. In the absence of such material there is a presumption in favour of the 1st respondent that at the time when her husband was enrolled in the Indian Air Force on 01.05.1970 as Group D Civilian (Cook), he was not suffering from any disease and in particular the disease of Multiple Mynima (203).
1. 10. The issue as to whether a person discharged on medical grounds from military service is entitled to get disability pension was considered by Honble the Supreme Court in 2015 (2) Scale 371 (Union of India and ors. V. Rajbir Singh). It is held that if on the date of enlistment no disability was noticed by the selecting authority (Medical Board) there is a presumption that the person selected was not suffering from any disability and if the disability was noticed during the period of service there is a presumption that during the course of the service only the disability/ illness has arisen. In para 15 it is held thus:- .a member of the armed forces is presumed to be in sound physical and mental condition at the time of his entry into service if there is no note or record to the contrary made at the time of such entry. More importantly, in the event of his subsequent discharge from service on medical ground, any deterioration in his health is presumed to be due to military service. This necessarily implies that no sooner a member of the force is discharged on medical ground his entitlement to claim disability pension will arise unless of course the employer is in a position to rebut the presumption that the disability which he suffered was neither attributable to nor aggravated by military service. From Rule 14(b) of the Entitlement Rules it is further clear that if the medical 7 opinion were to hold that the disease suffered by the member of the armed forces could not have been detected prior to acceptance for service, the Medical Board must state the reasons for saying so. Last but not the least is the fact that the provision for payment of disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit those who have been sent home with a disability at times even before they completed their tenure in the armed forces. There may indeed be cases, where the disease was wholly unrelated to military service, but, in order that denial of disability pension can be justified on that ground, it must be affirmatively proved that the disease had nothing to do with such service. The burden to establish such a disconnect would lie heavily upon the employer for otherwise the rules raise a presumption that the deterioration in the health of the member of the service is on account of military service or aggravated by it. A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same. The very fact that he was upon proper physical and other tests found fit to serve in the army should rise as indeed the rules do provide for a presumption that he was disease-free at the time of his entry into service. That presumption continues till it is proved by the employer that the disease was neither attributable to nor aggravated by military service. For the employer to say so, the least that is required is a statement of reasons supporting that view. That we feel is the true essence of the rules which ought to be kept in view all the time while dealing with cases of disability pension. 11. Regulation 183 of pension Regulations contemplates payment of disability pension which reads as follows:- 183. The disability pension consists of two elements viz. service element and disability element, which shall be assessed as under: - (1) Service element (2) Disability element For 100 percent disablement the rates of disability element will be as follows:- W.e.f. 1/1/86 Ran k Disability element 8 JCOs granted Honorary Commission while on the effective list. JCOs Other Ranks/NCs (E) Rs. P.M. 750/- 550/- 450/- For lower percentages of disablement down to 20 percent the rates will be proportionately reduced. Provided that where permanent disability is not less than 60%, the disability pension (i.e., total of service element and disability element) shall not be less than the special family pension admissible vide Regulation 227 (b) i.e., it shall not be less than 60% of the reckonable emoluments Subject to a minimum of Rs.750/-P.M. and maximum of Rs.2, 500/- p.m. [Auth- MD letter No 1(5)/87/D- (Pension/Services) dated 30/10/871 In case where an individual is invalided out of service before completion of his prescribed engagement/service limit on account of a disability which is attributable to or aggravated by military service and is assessed below 20 percent, he will be granted an award equal to service element of disability pension determined in the manner given in Regulation 183 Pension Regulations for the Army Part I (1961), read with Appendix 'A' to Al I/S/75 and Annexure I & II to Al 3/S/75. This benefit will also be allowed in all cases where an individual is granted disability pension but whose degree of disablement subsequently falls below 20 percent. 12. As per the said Regulation, the disability pension is payable if the disability is assessed more than 20%. Here the assessment of disability is 80% at the time of invalidation, therefore, the claim of the respondent in seeking the disability pension on behalf of her late husband from the date of his discharge till his death and family pension from the date of death of her husband is fully fortified.
13. The learned Single Judge has allowed the writ petition without mentioning the date from which the 1st respondent is entitled to claim pension. Admittedly there is delay on the part of the 1st respondent in approaching this Court for redressing her grievance. The claim was rejected by the appellant in the year 1992 and the writ petition was filed only on 25.08.2000. Hence the arrears of family pension payable to the 1st respondent can safely be restricted to three years prior to the 9 filing of the writ petition i.e. 25.08.1997 in terms of the judgment of Honble the Supreme Court reported in 2007 (1) Supreme 455 ( Shiv Dass v. Union of India and ors). In paragraph 10 it is held thus:- 10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition in that score alone.
14. In light of the above finding the order of the learned Single Judge is modified by holding that the appellant shall sanction the family pension from 25.08.1997 i.e. three years prior to the filing of the writ petition that was on 25.08.2000 and pay the family pension to the 1st respondent. The appellants are directed to pay 9% interest from the date of judgment of the learned Single Judge till the actual payment is made. The appellants are directed to calculate the arrears of family pension and pay the same as directed above within a period of two months from the date of receipt of copy of this order.
15. The appeal stands disposed of. No costs. (Dhiraj Singh Thakur) (N. Paul Vasanthakumar) Judge Chief Justice Jammu, 08.04.2015 Anil Raina, Secy