Anu Shankar (15783489 Y Ex.Rect. Army Air Defence Regiment) Vs. Government of India, Rep. by Defence Secretary - Court Judgment

SooperKanoon Citationsooperkanoon.com/1116693
CourtArmed forces Tribunal AFT Regional Bench Kochi
Decided OnFeb-24-2012
Case NumberT.A.No.145 of 2010
JudgeA.C. ARUMUGAPERUMAL ADITYAN, MEMBER (J) & THE HONOURABLE LT. GEN. THOMAS MATHEW, PVSM, AVSM, MEMBER (A)
AppellantAnu Shankar (15783489 Y Ex.Rect. Army Air Defence Regiment)
RespondentGovernment of India, Rep. by Defence Secretary
Excerpt:
a.c.a. adityan, member (j) this application has been filed before the hon'ble high court of kerala at ernakulam for the relief of disability pension by way of filing w.p.(c) no.18017/2009 and after the constitution of this tribunal the same was transferred as per sec.34 of the armed forces tribunal act, 2007 and assigned number t.a.145/2010. 2. the grievance of the applicant in a nutshell is that he had enrolled in the indian army on 3/9/2003 and due to inability 'non ossifying fibroma (right) tibia', a bone grafting was done on 18/8/2004 and the wound was completely healed. but the applicant was discharged from service under rule 13 of the army rules, 1964. the applicant was not even issued with a discharge certificate (it is represented by the learned central government counsel that subsequently discharge certificate has been furnished to the applicant). according to the applicant, at the time of discharge he has neither been sanctioned disability pension nor invalid pension. all his attempt for the grant of disability pension ended in vain, which made the applicant to approach the court with this application for a direction to quash exts.p3, p8 and p9 orders and to grant disability pension. 3. in the joint counter the respondents would oppose this application on the ground that while participating in the cross country practice on 22nd july 2004 the applicant had complained of severe pain on his right knee and thereafter he was admitted in the military hospital devlali on 20th october 2004 and discharged on 21st october, 2004 and the disease was diagnosed as 'non ossifying fibroma (rt) tibia' and accordingly the applicant was placed in lower medical category 's1h1a3(t-08)p1e1 with effect from 20th october 2004 by a duly constituted medical board held at military hospital at devlali (ext.r1(b)). subsequently, the applicant was down graded to medical category s1h1a5p1e1 for the ibid disability. the applicant was brought before invalidating medical board (imb) at military hospital, devlali on 7th february 2005. the medical board after physical examination of the applicant has assessed that the disability 'non ossifying (rt) tibia optd under which the applicant was suffering is neither attributable to nor aggravated by military service and the disability was also medically assessed at 15-19% permanent. the opinion of the invalidating medical board (afmsf-16) is ext.r1(c). so, on the basis of the opinion of the medical board (afmsf-16) the applicant was discharged with effect from 3rd march 2005 under army rule 13(3) iii(iii). the discharge book was also thereafter handed over to the applicant through zilla sainik board, dimapur district, nagaland (ext.r1(d)). as per para 173 of the pension regulation of army 1961 part i the applicant is not entitled to the disability pension since the opinion of the medical board is as to the effect that the disability is neither attributable to nor aggravated by military service. the applicant was paid a sum of rs.7,503/- on account of invaliding gratuity as per para 198 of pension regulations for the army, 1961 part i as he was not eligible for invaliding pension, being less than 10 years of qualifying service. the applicant had only one year and 6 months of total service. the statutory appeals preferred by the applicant for disability pension before the competent authority were also rejected. under such circumstances, the application is liable to be dismissed. 4. we heard the learned counsel appearing for the applicant sri.t.r.jagadeesh and the learned central government counsel sri.tojan j. vathikulam for the respondents and considered their respective submissions. 5. the only point for consideration in this application is, whether the applicant is entitled to the relief of disability pension as prayed for? 6. the point :- we perused afmsf-16 relating to the applicant, which is ext.r1(c). at part v of afmsf-16 the medical board has opined that the disability namely, non ossifying fibroma (rt) tibia optd m.85.9 under which the applicant is suffering is neither attributable to nor aggravated by service, but the same is constitutional in nature/not connected with service by saying no – no – yes in the relevant columns provided under part v of afmsf-16. as per the dictum of the hon'ble apex court in secretary, ministry of defence and ors vs. damodaran a.v.(dead) through the lrs and ors. 2009 (8) mlj 1475 : (2009) 9 scc 140, due weight, primacy and credence shall be attached to the opinion of the medical board and the court cannot take a different view to that of the view taken by the medical board constituted under statute. the same principle was also followed by the latest judgment of the apex court in civil appeal 4281/2006 dated 15/7/2011. the relevant observations in the said judgment 2009 (8) mlj 1475: (2009) 9 scc 140 runs as follows: “30. when an individual is found suffering from any disease or has sustained injury, he is examined by the medical experts who would not only examine him but also ascertain the nature of disease/injury and also record a decision as to whether the said personnel is to be placed in a medical category which is lower than `aye' (fit category) and whether temporarily or permanently. they also give a medical assessment and advice as to whether the individual is to be brought before the release/invalidating medical board. 31. the said release/invalidating medical board generally consists of three doctors and they, keeping in view the clinical profile, the date and place of onset of invaliding disease/disability and service conditions, draw a conclusion as to whether the disease/injury has a causal connection with military service or not. on the basis of the same they recommend (a) attributability, or (b) aggravation, or (c) whether connection with service. 32. the second aspect which is also examined is the extent to which the functional capacity of the individual is impaired. the same is adjudged and an assessment is made of the percentage of the disability suffered by the said personnel which is recorded so that the case of the personnel could be considered for grant of disability element of pension. another aspect which is taken notice of at this stage is the duration for which the disability is likely to continue. the same is assessed/recommended in view of the disease being capable of being improved. 33. all the aforesaid aspects are recorded and recommended in the form of afmsf- 16. the invalidating medical board forms its opinion/recommendation on the basis of the medical report, injury report, court of enquiry proceedings, if any, charter of duties relating to peace or field area and of course, the physical examination of the individual. 34. the aforesaid provisions came to be interpreted by the various decisions rendered by this court in which it has been consistently held that the opinion given by the doctors or the medical board shall be given weightage and primacy in the matter for ascertainment as to whether or not the injuries/illness sustained was due to or was aggravated by the military service which contributed to invalidation from the military service”. under such circumstances, we are of the considered view that the applicant cannot be granted the relief asked for in this application and the application is liable to be dismissed. the point is answered accordingly. in fine, the application is dismissed as devoid of merit. however the applicant is given an opportunity to challenge the opinion of the medical board (afmsf-16) before a review medical board to be constituted within two months from the date of the application for the same by the applicant at cochin. time for preferring application – one month. no costs.
Judgment:

A.C.A. Adityan, Member (J)

This application has been filed before the Hon'ble High Court of Kerala at Ernakulam for the relief of disability pension by way of filing W.P.(C) No.18017/2009 and after the constitution of this Tribunal the same was transferred as per Sec.34 of the Armed Forces Tribunal Act, 2007 and assigned number T.A.145/2010.

2. The grievance of the applicant in a nutshell is that he had enrolled in the Indian Army on 3/9/2003 and due to inability 'Non Ossifying Fibroma (right) Tibia', a bone grafting was done on 18/8/2004 and the wound was completely healed. But the applicant was discharged from service under Rule 13 of the Army Rules, 1964. The applicant was not even issued with a discharge certificate (It is represented by the learned Central Government Counsel that subsequently discharge certificate has been furnished to the applicant). According to the applicant, at the time of discharge he has neither been sanctioned disability pension nor invalid pension. All his attempt for the grant of disability pension ended in vain, which made the applicant to approach the court with this application for a direction to quash Exts.P3, P8 and P9 orders and to grant disability pension.

3. In the joint counter the respondents would oppose this application on the ground that while participating in the cross country practice on 22nd July 2004 the applicant had complained of severe pain on his right knee and thereafter he was admitted in the Military Hospital Devlali on 20th October 2004 and discharged on 21st October, 2004 and the disease was diagnosed as 'Non Ossifying Fibroma (RT) Tibia' and accordingly the applicant was placed in lower medical category 'S1H1A3(T-08)P1E1 with effect from 20th October 2004 by a duly constituted Medical Board held at Military Hospital at Devlali (Ext.R1(b)). Subsequently, the applicant was down graded to medical category S1H1A5P1E1 for the ibid disability. The applicant was brought before Invalidating Medical Board (IMB) at Military Hospital, Devlali on 7th February 2005. The Medical Board after physical examination of the applicant has assessed that the disability 'Non Ossifying (RT) Tibia OPTD under which the applicant was suffering is neither attributable to nor aggravated by military service and the disability was also medically assessed at 15-19% permanent. The opinion of the Invalidating Medical Board (AFMSF-16) is Ext.R1(c). So, on the basis of the opinion of the Medical Board (AFMSF-16) the applicant was discharged with effect from 3rd March 2005 under Army Rule 13(3) III(iii). The discharge book was also thereafter handed over to the applicant through Zilla Sainik Board, Dimapur District, Nagaland (Ext.R1(d)). As per para 173 of the Pension Regulation of Army 1961 Part I the applicant is not entitled to the disability pension since the opinion of the Medical Board is as to the effect that the disability is neither attributable to nor aggravated by military service. The applicant was paid a sum of Rs.7,503/- on account of invaliding gratuity as per para 198 of Pension Regulations for the Army, 1961 Part I as he was not eligible for invaliding pension, being less than 10 years of qualifying service. The applicant had only one year and 6 months of total service. The statutory appeals preferred by the applicant for disability pension before the competent authority were also rejected. Under such circumstances, the application is liable to be dismissed.

4. We heard the learned counsel appearing for the applicant Sri.T.R.Jagadeesh and the learned Central Government Counsel Sri.Tojan J. Vathikulam for the respondents and considered their respective submissions.

5. The only point for consideration in this application is, whether the applicant is entitled to the relief of disability pension as prayed for?

6. The Point :- We perused AFMSF-16 relating to the applicant, which is Ext.R1(c). At part V of AFMSF-16 the Medical Board has opined that the disability namely, Non Ossifying Fibroma (RT) Tibia OPTD M.85.9 under which the applicant is suffering is neither attributable to nor aggravated by service, but the same is constitutional in nature/not connected with service by saying No – No – Yes in the relevant columns provided under Part V of AFMSF-16. As per the dictum of the Hon'ble Apex Court in Secretary, Ministry of Defence and Ors vs. Damodaran A.V.(Dead) through the LRs and Ors. 2009 (8) MLJ 1475 : (2009) 9 SCC 140, due weight, primacy and credence shall be attached to the opinion of the Medical Board and the court cannot take a different view to that of the view taken by the medical board constituted under statute. The same principle was also followed by the latest judgment of the Apex Court in Civil Appeal 4281/2006 dated 15/7/2011. The relevant observations in the said judgment 2009 (8) MLJ 1475: (2009) 9 SCC 140 runs as follows:

“30. When an individual is found suffering from any disease or has sustained injury, he is examined by the medical experts who would not only examine him but also ascertain the nature of disease/injury and also record a decision as to whether the said personnel is to be placed in a medical category which is lower than `AYE' (fit category) and whether temporarily or permanently. They also give a medical assessment and advice as to whether the individual is to be brought before the Release/Invalidating Medical Board.

31. The said Release/Invalidating Medical Board generally consists of three doctors and they, keeping in view the clinical profile, the date and place of onset of invaliding disease/disability and service conditions, draw a conclusion as to whether the disease/injury has a causal connection with military service or not. On the basis of the same they recommend (a) attributability, or (b) aggravation, or (c) whether connection with service.

32. The second aspect which is also examined is the extent to which the functional capacity of the individual is impaired. The same is adjudged and an assessment is made of the percentage of the disability suffered by the said personnel which is recorded so that the case of the personnel could be considered for grant of disability element of pension. Another aspect which is taken notice of at this stage is the duration for which the disability is likely to continue. The same is assessed/recommended in view of the disease being capable of being improved.

33. All the aforesaid aspects are recorded and recommended in the form of AFMSF- 16. The Invalidating Medical Board forms its opinion/recommendation on the basis of the medical report, injury report, court of enquiry proceedings, if any, charter of duties relating to peace or field area and of course, the physical examination of the individual.

34. The aforesaid provisions came to be interpreted by the various decisions rendered by this Court in which it has been consistently held that the opinion given by the doctors or the medical board shall be given weightage and primacy in the matter for ascertainment as to whether or not the injuries/illness sustained was due to or was aggravated by the military service which contributed to invalidation from the military service”.

Under such circumstances, we are of the considered view that the applicant cannot be granted the relief asked for in this application and the application is liable to be dismissed. The point is answered accordingly.

In fine, the application is dismissed as devoid of merit. However the applicant is given an opportunity to challenge the opinion of the Medical Board (AFMSF-16) before a Review Medical Board to be constituted within two months from the date of the application for the same by the applicant at Cochin. Time for preferring application – one month. No costs.