K.T. Joy Vs. the Union of India Through the Secretary Ministry of Defence (Army) and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1116579
CourtArmed forces Tribunal AFT Regional Bench Kochi
Decided OnJan-14-2013
Case NumberO.A. No. 88 of 2011
JudgeSHRIKANT TRIPATHI, MEMBER (J) & THE HONOURABLE MR. LT. GE. THOMAS MATHEW, PVSM, AVSM, MEMBER (A)
AppellantK.T. Joy
RespondentThe Union of India Through the Secretary Ministry of Defence (Army) and Others
Excerpt:
shrikant tripathi, member (j): 1. by this original application filed under section 14 of the armed forces tribunal act, the applicant has claimed disability element of pension. 2. the relevant facts are that the applicant joy k.t. no.6374403 y was enrolled as sepoy in asc (at) on 30th january, 1979 and was discharged therefrom on 31st december 1995. he had rendered 16 years 11 months 01 days service and was accordingly sanctioned service pension which is admittedly being received by him. the applicant was examined by a release medical board which placed him in medical category bee (p) with the disability 'lichen planus hypertrophicus (old)' at 20%. the applicant's claim for the disability element of pension was denied by the respondents on the ground that he was discharged at his own request on extreme compassionate grounds on fulfilling the condition of enrollment but before completion of the tenure. 3. the learned counsel for the applicant submitted that the applicant was entitled to disability element of pension as per the judgment of a division bench of the delhi high court in mahavir singh narwal v. union of india and others (2004 (74) drj 661). it was also submitted that the judgment of the delhi high court remained in tact even before the apex court, as the special leave petition filed by the union of india and others was dismissed. 4. mr. tojan appearing for the respondents argued that the disability element of pension was not payable in a case where discharge is granted on the request of the individual considering his compassionate grounds. 5. we have already examined aforesaid question recently in o.a.no.3 of 2012 (anilkumar b. v. union of india and others) and had answered the question in favour of the applicant holding that the person discharged even on his own request was entitled to disability pension if the disability was 20% or more and was attributable to or aggravated by the military service. the decision rendered in the aforesaid o.a squarely covers the instant case also. observations made in the aforesaid o.a, being relevant on the point, are being re-produced as follows: “4. the learned counsel for the applicant submitted that no doubt the applicant was discharged on his own request but he had a disability which was aggravated due to the military service, therefore, his request for the disability pension was tenable as per the judgment of the delhi high court in mahavir singh narwal v. union of india and others (2004 (74) drj 661). it was also submitted that the judgment of the delhi high court remained in tact even before the apex court, as the special leave petition filed by the union of india and others was dismissed. 6. regulation 173 of the pension regulations for the army, 1961 (hereinafter referred to as 'the regulations'), which deals with the disability pension of p.b.o.rs, being relevant in the present case, is reproduced as follows: “173. unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 per cent or over. the question whether a disability is attributable to or aggravated by military service shall be determined under the rule in appendix ii.” 7. a perusal of the aforesaid regulation 173, therefore, reveals that the disability pension is payable to an individual who is discharged from service on account of a disability which is attributable to or aggravated by military service and assessed at 20% or more. the question whether the disability is attributable to or aggravated by military service is to be determined under the rules contained in appendix ii. the said appendix ii contains the entitlement rules for casualty pensionary awards, 1982 as amended from time to time. prior thereto, there had been other entitlement rules for casualty pensionary awards. rule 4 of the entitlement rules for casualty pensionary awards, 1982, being relevant on the point, is re-produced as follows: “4. invaliding from service is a necessary condition for grant of disability pension. an individual who, at the time of his release under the release regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service. ico/or and equivalents in other services who are placed permanently in a medical category other than 'a' and are discharged because of alternative employment suitable to their low medical category can be provided, as well as those who having been retained in alternative employment out are discharged before its completion of their engagement will be deemed to have been invalidated out of service.” the aforesaid rule 4 inter alia provides that an individual who, at the time of his release under the release regulations, is in a lower medical category than that in which he was recruited, will be treated as invalidated from service. it may not be out of context to mention that a similar provision had been incorporated even in the entitlement rules for casualty pensionary awards, 1948 as rule 1. therefore it is crystal clear that rule 1 of the entitlement rules for casualty pensionary awards, 1948 was in pari materia with rule 4 of the entitlement rules for casualty pensionary awards, 1982. the case of mahavir singh narwal (supra) had arisen under the aforesaid 1948 entitlement rules. the division bench of the delhi high court examined the extent and scope of regulation 173 of the regulations as also rules 1 and 2 of the entitlement rules for casualty pensionary awards, 1948 and held as follows: “ 6. on careful perusal of the aforesaid rule it is manifestly clear that invalidated from service is necessary condition for grant of disability pension. what has to be seen for entitlement for disability pension is whether an individual at the time of his release was in a low medical category than that in which he was recruited if it was so then such person will be treated as invalidated from service. it is the admitted case of the parties that at the time of recruitment the petitioner did not have any disability. it is also admitted case of the parties that the petitioner got disability on account of stress and strain of military service and his category was initially lower down temporary (sic) to cee on 21st september, 1978 for a period of 6 months and after the release medical board examined the petitioner on 11th april 1979 it found the disability to be 30% aggravated by stress of military service and he was down graded to permanent low medical category. once the petitioner was in low medical category according to rules 1 and 2 of appendix ii of pension regulations 173 he shall be treated as invalidated from service. it seems that on careful consideration of the pension regulations 173, read with rules 1 and 2 of appendix ii, the respondents themselves have recommended for grant of disability pension to the petitioner ............” (emphasis supplied) 8. the delhi high court further held that merely because a person has been discharged from service on compassionate ground, although his disability has been acquired on account of his stress and strain of military service, will not be a ground to reject the claim of disability pension, if he has been invalidated as per the appendix ii of entitlement rules for casualty pensionary awards, 1948. 9. the aforesaid view of the delhi high court which was affirmed by the apex court still holds good on the point. 10. in our view, invalidment from service is one of the main conditions for grant of disability pension. according to the rule 4 of the entitlement rules for casualty pensionary awards, 1982 if an individual, at the time of his release, was in a low medical category than the medical category he had been placed at the time of his recruitment, it is to be treated that the individual was invalided out of service. in such matters the disability pension cannot be denied on the ground that the individual himself requested for his discharge. invalidment from the service cannot be inferred only when the individual is discharged by the authorities due to the disability. it can also be inferred in a case where discharge is sought for by the person suffering from the disability. what is material in such matters, is to see as to what was the medical category of the person at the time of his entry and also at the time of his discharge. if the medical category which was at the time of the recruitment, is found downgraded at the time of the discharge, it is to be treated that the person was invalidated from the service and in such matter the question whether the discharge was granted by the authorities themselves at their own or it was granted due to the request made by the concerned person, does not appear to be material at all.” 11. it may not be out of context to mention that the release medical board had opined that the applicant's disability aggravated due to 'adverse climatic condition' while in service and was accordingly aggravated by the military service. the release medical board further opined that the disability was for 5 years only. it is also significant to mention that the applicant was fit at the time of his entry in the army and release medical board placed him in the low medical category than that in which he had been recruited. 12. in view of the aforesaid, the applicant's claim for the disability element of pension for a period of 5 years from the date of discharge is liable to be allowed. however the question for further disability pension on expiry of the aforesaid period of 5 years may be given due consideration after a re-survey medical board is held. 13. the original application is allowed. the respondents are directed to sanction and pay the applicant disability element of pension also for a period of 5 years from the date of his discharge. they are directed to pay the entire arrears to the applicant within four months from today failing which the unpaid amount will carry a simple interest at the rate of 8% per annum to be paid by the respondents to the applicant. 14. with regard to the claim for the disability pension after the expiry of the aforesaid period of 5 years, the respondents are directed to constitute a re-survey medical board to assess the continuance of the applicant's disability as expeditiously as possible, preferably within four months from today and fix a date, time and place for the same and inform the applicant well in advance requiring him to attend the re-assessment medical board. in case the re-survey medical board finds the disability continuing even after the aforesaid period of 5 years and is 20% or more, the applicant's claim for disability pension even beyond 5 years may be given due consideration in accordance with law. 15. there will be no order as to costs. 16. issue copy of the order to both side.
Judgment:

Shrikant Tripathi, Member (J):

1. By this Original Application filed under section 14 of the Armed Forces Tribunal Act, the applicant has claimed disability element of pension.

2. The relevant facts are that the applicant Joy K.T. No.6374403 Y was enrolled as Sepoy in ASC (AT) on 30th January, 1979 and was discharged therefrom on 31st December 1995. He had rendered 16 years 11 months 01 days service and was accordingly sanctioned service pension which is admittedly being received by him. The applicant was examined by a Release Medical Board which placed him in medical category BEE (P) with the disability 'Lichen Planus Hypertrophicus (Old)' at 20%. The applicant's claim for the disability element of pension was denied by the respondents on the ground that he was discharged at his own request on extreme compassionate grounds on fulfilling the condition of enrollment but before completion of the tenure.

3. The learned counsel for the applicant submitted that the applicant was entitled to disability element of pension as per the judgment of a Division Bench of the Delhi High Court in Mahavir Singh Narwal v. Union of India and Others (2004 (74) DRJ 661). It was also submitted that the judgment of the Delhi High Court remained in tact even before the Apex Court, as the Special Leave Petition filed by the Union of India and Others was dismissed.

4. Mr. Tojan appearing for the respondents argued that the disability element of pension was not payable in a case where discharge is granted on the request of the individual considering his compassionate grounds.

5. We have already examined aforesaid question recently in O.A.No.3 of 2012 (Anilkumar B. V. Union of India and Others) and had answered the question in favour of the applicant holding that the person discharged even on his own request was entitled to disability pension if the disability was 20% or more and was attributable to or aggravated by the military service. The decision rendered in the aforesaid O.A squarely covers the instant case also. Observations made in the aforesaid O.A, being relevant on the point, are being re-produced as follows:

“4. The learned counsel for the applicant submitted that no doubt the applicant was discharged on his own request but he had a disability which was aggravated due to the military service, therefore, his request for the disability pension was tenable as per the judgment of the Delhi High Court in Mahavir Singh Narwal v. Union of India and Others (2004 (74) DRJ 661). It was also submitted that the judgment of the Delhi High Court remained in tact even before the Apex Court, as the Special Leave Petition filed by the Union of India and others was dismissed.

6. Regulation 173 of the Pension Regulations for the Army, 1961 (hereinafter referred to as 'the Regulations'), which deals with the disability pension of P.B.O.Rs, being relevant in the present case, is reproduced as follows:

“173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 per cent or over.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II.”

7. A perusal of the aforesaid Regulation 173, therefore, reveals that the disability pension is payable to an individual who is discharged from service on account of a disability which is attributable to or aggravated by military service and assessed at 20% or more. The question whether the disability is attributable to or aggravated by military service is to be determined under the rules contained in Appendix II. The said Appendix II contains the Entitlement Rules for Casualty Pensionary Awards, 1982 as amended from time to time. Prior thereto, there had been other Entitlement Rules for Casualty Pensionary Awards. Rule 4 of the Entitlement Rules for Casualty Pensionary Awards, 1982, being relevant on the point, is re-produced as follows:

“4. Invaliding from service is a necessary condition for grant of disability pension. An individual who, at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service. ICO/OR and equivalents in other services who are placed permanently in a medical category other than 'A' and are discharged because of alternative employment suitable to their low medical category can be provided, as well as those who having been retained in alternative employment out are discharged before its completion of their engagement will be deemed to have been invalidated out of service.”

The aforesaid rule 4 inter alia provides that an individual who, at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited, will be treated as invalidated from service. It may not be out of context to mention that a similar provision had been incorporated even in the Entitlement Rules for Casualty Pensionary Awards, 1948 as rule 1.

Therefore it is crystal clear that rule 1 of the Entitlement Rules for Casualty Pensionary Awards, 1948 was in pari materia with rule 4 of the Entitlement Rules for Casualty Pensionary Awards, 1982. The case of Mahavir Singh Narwal (supra) had arisen under the aforesaid 1948 Entitlement Rules. The Division Bench of the Delhi High Court examined the extent and scope of Regulation 173 of the Regulations as also rules 1 and 2 of the Entitlement Rules for Casualty Pensionary Awards, 1948 and held as follows:

“ 6. On careful perusal of the aforesaid rule it is manifestly clear that invalidated from service is necessary condition for grant of disability pension. What has to be seen for entitlement for disability pension is whether an individual at the time of his release was in a low medical category than that in which he was recruited if it was so then such person will be treated as invalidated from service. It is the admitted case of the parties that at the time of recruitment the petitioner did not have any disability. It is also admitted case of the parties that the petitioner got disability on account of stress and strain of military service and his category was initially lower down temporary (sic) to CEE on 21st September, 1978 for a period of 6 months and after the Release Medical Board examined the petitioner on 11th April 1979 it found the disability to be 30% aggravated by stress of military service and he was down graded to permanent low medical category. Once the petitioner was in low medical category according to Rules 1 and 2 of Appendix II of Pension Regulations 173 he shall be treated as invalidated from service. It seems that on careful consideration of the Pension Regulations 173, read with Rules 1 and 2 of Appendix II, the respondents themselves have recommended for grant of disability pension to the petitioner ............”

(emphasis supplied)

8. The Delhi High Court further held that merely because a person has been discharged from service on compassionate ground, although his disability has been acquired on account of his stress and strain of military service, will not be a ground to reject the claim of disability pension, if he has been invalidated as per the Appendix II of Entitlement Rules for Casualty Pensionary Awards, 1948.

9. The aforesaid view of the Delhi High Court which was affirmed by the Apex Court still holds good on the point.

10. In our view, invalidment from service is one of the main conditions for grant of disability pension. According to the rule 4 of the Entitlement Rules for Casualty Pensionary Awards, 1982 if an individual, at the time of his release, was in a low medical category than the medical category he had been placed at the time of his recruitment, it is to be treated that the individual was invalided out of service. In such matters the disability pension cannot be denied on the ground that the individual himself requested for his discharge. Invalidment from the service cannot be inferred only when the individual is discharged by the authorities due to the disability. It can also be inferred in a case where discharge is sought for by the person suffering from the disability. What is material in such matters, is to see as to what was the medical category of the person at the time of his entry and also at the time of his discharge. If the medical category which was at the time of the recruitment, is found downgraded at the time of the discharge, it is to be treated that the person was invalidated from the service and in such matter the question whether the discharge was granted by the authorities themselves at their own or it was granted due to the request made by the concerned person, does not appear to be material at all.”

11. It may not be out of context to mention that the Release Medical Board had opined that the applicant's disability aggravated due to 'adverse climatic condition' while in service and was accordingly aggravated by the military service. The Release Medical Board further opined that the disability was for 5 years only. It is also significant to mention that the applicant was fit at the time of his entry in the Army and Release Medical Board placed him in the low medical category than that in which he had been recruited.

12. In view of the aforesaid, the applicant's claim for the disability element of pension for a period of 5 years from the date of discharge is liable to be allowed. However the question for further disability pension on expiry of the aforesaid period of 5 years may be given due consideration after a Re-survey Medical Board is held.

13. The Original Application is allowed. The respondents are directed to sanction and pay the applicant disability element of pension also for a period of 5 years from the date of his discharge. They are directed to pay the entire arrears to the applicant within four months from today failing which the unpaid amount will carry a simple interest at the rate of 8% per annum to be paid by the respondents to the applicant.

14. With regard to the claim for the disability pension after the expiry of the aforesaid period of 5 years, the respondents are directed to constitute a Re-survey Medical Board to assess the continuance of the applicant's disability as expeditiously as possible, preferably within four months from today and fix a date, time and place for the same and inform the applicant well in advance requiring him to attend the Re-assessment Medical Board. In case the Re-survey Medical Board finds the disability continuing even after the aforesaid period of 5 years and is 20% or more, the applicant's claim for disability pension even beyond 5 years may be given due consideration in accordance with law.

15. There will be no order as to costs.

16. Issue copy of the order to both side.