J Anthusamy Versus the Senior Record Officer for Officer in Charge Records Madras Engineering Group Bangalore - Court Judgment

ACA Adityan

The learned Counsel for the applicant Mr.S.A.Sarangabani files Vakalatnama. The petitioner has moved the Honourable High Court of Madras for redressal of his grievance by filing WP No.12846 of 2007, which has subsequently been transferred to this Tribunal, after the constitution of the Tribunal under the Armed Forces Tribunal Act, 2007 and the same has been renumbered as T.A.24/2009.

2. The affidavit to the petition filed by the petitioner reads as follows:- The petitioner was recruited in the Army with Sr.No.15300549Y on 30.09.1985 and underwent training in Bangalore. Training included handling of small arms and driving of heavy vehicles. The requisite training was complete in the trade ‘Operator of Earth Movers. The petitioner has continued in service for more than one year. As per the employment rules in civil services in Centre and State, the employee is made permanent after six months. But in the next year of service, on 06.12.1986, the petitioner was unfortunately medically boarded out on the ground that he could not withstand the strain and stress of military service. The petitioner was placed in medical category “EEE”. The medical authorities have forgotten that when a person has completed his basic training, other works are not hard and he can withstand any stress or strain. Due to his ignorance, he could not approach any higher authorities. As per natural justice the Training Centre should have given him any other suitable trade in Army or made him a non-combatant soldier as is done in the Air Force. The petitioner could have been given medical pension and not service pension. The medical pension asked for by the petitioner was rejected. The petitioner has sent several notices to the competent authorities but without any help. The Honorouble High Court has entertained a petition which was moved by the petitioner after the lapse of 35 years and has ordered to pay exgratia pension. No department will leave its employee without pension when medically sent out of service. The Army is bound to give medical pension to the petitioner as per Annx.7.

3. The respondent in his counter has submitted that the petitioner was recruited in the Army on 30.09.1985 and was allotted Army No.15300549Y and had undergone basic Military training at Madras Engineer Group and Centre, Bangalore. While undergoing this Military training, the petitioner was suffering from a constitutional disorder and was brought before the Invaliding Medical Board on 24.09.1986 at Command Hospital (Air Force), Bangalore. The Medical Board recommended him to be invalided out of service in medical category ‘EEE with 20 % disability for two years due to diagnosis “NEUROSIS (300)”. The Medical Board consisting of specialised doctors opined that the disability of the petitioner is a constitutional disorder and not attributable to or been aggravated by military service. This was approved by the competent authority on 18.10.1986. Such personnel are required to be invalided out of service within 21 days from the date of approval of Invaliding Medical Board proceedings by the competent authority within the framework of the rules on the subject. Accordingly, the petitioner was invalided out of service on 06.12.1986 (A/N) under Rule 13 (3) item IV of Army Rules 1954 on medical grounds and struck of strength w.e.f. 07.12.1986 after availing 30 days Annual leave for the period from 07.11.1986 to 06.12.1986. Thus the petitioner had rendered one year and 68 days of service in the Army.

3(a)The rules governing the Army personnel and Civilian personnel are quite different. Army personnel will be eligible to get Service Pension after rendering 15 years of qualifying service whereas Civilian personnel will be eligible to get Service pension only after rendering 20 years of qualifying service. Army personnel will be got attested after successful complete of military training and other technical tests including verification of facts from civil authorities. The constitutional disorders could have manifested at a period of time . It is submitted that Rule 7 (c) revised Rule 14 ( c ) of Appendix II to Pension Regulations for the Army Part I (1961) provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. Though the petitioner was medically fit at the time of his enrolment in the Army the hidden constitutional disorder could not be detected at the time of recruitment because the medical examination of the petitioner at the time of enrolment was a very primary nature and was done by a single medical officer which is proved by the fact that the report of this medical examination is recorded in a form “PRIMARY MEDICAL EXAMINATION REPORT (AFMSF-2A)”. Constitutional disorders may show its symptoms at any time during the period of military service. The specialised doctors of the Invaliding Medical Board , who examined the petitioner physically, have opined that the petitioner was suffering from a constitutional disorder. No other personnel from his Unit did suffer from similar type of disability due to military service as alleged.

3(b)The disability pension claim of the petitioner was submitted to the Competent Pension sanctioning authority, i.e., Controller (now Principal Controller) of Defence Accounts (Pension), Allahabad vide Record Office Madras Engineer Group letter No.15300549/Pen(D)/3 dated 09.12.1986 for consideration. The claim was rejected by Controller of Defence Accounts (Pensions) Allahabad vide their letter No.G3/86/10357/IV/345 dated 14.01.1987. Therefore the petitioner is not entitled to get disability pension under the provisions of Rule 173 of the Pension Regulations for the Army Part I (1961). This fact was communicated to the petitioner vide Record Office Madras Engineer Group letter No.15300549/Pen(D)/7 dated 05 March 1987 with an advice to prefer an appeal addressed to the Secretary, Government of India, Ministry of Defence (through Record Officer Madras Engineer Group) against the decision of Controller of Defence Accounts (Pensions) Allahabad within six months, if he so desired. However, the petitioner did not submit such an appeal and it shows that he was fully satisfied with the decision of Competent Pension sanctioning Authority. A sum of Rs.644.25 on account of Invalid Gratuity, ie., Service Gratuity, was paid to the petitioner vide Controller of Defence Accounts (Pensions) Allahabad letter dated 14th January 1987.

3(c)It is submitted that the disability element of pension is not a regular pension, but it is a casualty award/compensation for any disability caused during the performance of duties in Military service and not otherwise. In the instant case, the Invaliding Medical Board held on 24th September 1986 at Command Hospital (Air Force), Bangalore consisting of specialised Doctors has opined that the disability of the petitioner is not attributable to Military service, it has not been aggravated thereby and it is not connected with service. The opinion of the Medical Board is clearly recorded at Page 3 of the Invaliding Medical Board Proceedings (AFMSF- 16). The allegations are false and the claim of the petitioner is baseless.

3(d)This respondent is the claimant for disability pension of its affected personnel and no application from the individual is required for the same as alleged. The disability pension claim of the petitioner was correctly submitted to the competent Pension sanctioning authority. All the representations received from the petitioner were promptly replied by Record Office, Madras Engineer Group.

3(e)As per Rule 173 of Pension Regulations for the Army Part-I (1961), 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 a disability which is attributable to or aggravated by Military service in non-battle casualty and is assessed to 20 percent or over. As the disability of the petitioner was considered as neither attributable to nor aggravated by Military service by the authorities concerned, he is not entitled to get disability pension within the framework of rule on the subject. Government of India has delegated its powers to Controller (now Principal Controller) of Defence Accounts (pensions) Allahabad to decide whether or not a death, disease or injury is attributable to or aggravated by Military service and a pension is admissible under the Rules vide Army Order No.417 of 1974. The minimum period of qualifying service rendered and required for grant of Invalid Pension, ie., service element of pension, in such cases is 10 years. For less than 10 years actual qualifying service invalid gratuity shall be admissible as per provisions contained in Rule 198 of Pension Regulations for the Army Part-1 (1961), which has correctly been paid to the petitioner. The petitioner is required to produce documentary evidence in support of his allegations. No fruitful results can be achieved by representing for a benefit time and again which is not entitled to under rules and will be disposed of accordingly. All the representations received from the petitioner were promptly replied by Record Office Madras Engineer Group. The petition is filed after a lapse of long 20 years from the date of the petitioners release from Army service. The long impressing silence of the petitioner is never explained in the petition. On account of delay and laches alone this petition is liable to be dismissed. All the benefits admissible under rules were paid to and received by the petitioner and he is not entitled to get any further monetary/other benefits. The petitioner is not entitled to get disability pension within the framework of rules on the subject for the reasons enumerated in the preceding paragraphs. In view of the forgoing reasons, the respondent acted within the framework of Rules, Regulations and the Act governing the Army and there is absolutely no violation or any lapses on the part of the respondent

3(f)A minimum period of qualifying service actually rendered and required for grant of invalid pension is 10 years. For less than 10 years, actual qualifying service invalid gratuity shall be admissible, as per Rule 198 of the Pension Regulations for the Army 1961. Accordingly, the gratuity was paid to the petitioner. The petition has been filed after a lapse of 20 years from the date of release from the army service. Hence, the petition is liable to be dismissed.

3(g)The point for determination is whether the petitioner is entitled to disability pension or invalid pension as prayed for ?

4. The Point:- Elaborate arguments were put forth by the learned counsel appearing for the petitioner and the learned Government counsel and the JAG Officer for the respondents. The petitioner, who had put in one year and 68 days of service in the army, was discharged from the Army under the medical category “EEE” for the disease “NEUROSIS (300)” by the medical board. In fact, the findings of the medical board was not challenged by the petitioner before the competent authority before filing this petition before the High Court after a lapse of 20 years after the date of discharge from the army. If the army personnel, who is entitled for disability pension, is required to fulfil the requirements under Rule 173 of the Pension Regulations for the Army, which runs 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 a 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 rules in Appendix II.”

5. As per Rule 173, the foremost consideration for granting an army personnel the disability pension, he should have been invalidated out of service by the competent authority on account of the disability which is attributable to or aggravated by the military service. But unfortunately, in the case of the petitioner, on perusal of the medical board proceedings, it is seen that the disease with which the petitioner was suffering is neither attributable to nor aggravated by the military service, but the same is constitutional in nature. What sanctity we can attach to the medical board proceedings has been clarified in the latest judgement of the Honourable Apex Court reported in (2009) 8 MLJ 1475 (SC) {Secretary, Ministry of Defence and others Vs. Damodaran AV (dead) through LRs and others}. The facts of the said case in brief are as follows :

The petitioner therein A.V.Damodaran was enrolled in the Indian Army as Sapper in the Madras Engineers Group on 28.11.1979. After completion of basic training he was posted to 1st Engineer Regiment. A.V.Damodaran was admitted to MH Allahabad and was diagnosed to be suffering from Malaria B.T. on 24.6.1984 and he was discharged from the hospital on 30.6.1984 and was again admitted in the Air Force Hospital, Jhansi because he was suffering from Hallucination. A.V.Damodaran was transferred to the Command Hospital, Lucknow for management by a psychiatrist on 5.7.1984. The disability of A.V.Damodaran was diagnosed as Schizophrenia (295) in peace station in July 1984. On 17.1.1985 the Medical Board recommended him to be invalided out of service in medical category ‘EEE with 60% disability for a period of two years due to the disease Schizophrenia (295). The Medical Board had opined that the disability of A.V.Damodaran was not attributable to the military service nor has it been aggravated thereby and it is not connected with the service as Schizophrenia is a constitutional disease. The opinion of the Medical Board reads as under_

OPINION

This is a case of Schizophrenia in a young officer with 5 years service with no disorder of through peruption, behaviour and irrational incongruity. He also exhibited impairment of judgment and might onset July 84. He has been treated with neuroleptis, electroplexy and psychotherapy. Response to therapy has been satisfactory. There is no evidence of active present features of illness at present. However, in view of early onset of the illness, a short period of service and chances of relapse in future under stress and strain of military service, he is considered unfit for further service. Recommended medical category EEE (Psychological).

He has been reviewed by the medical specialist and no physical contributory factor elicited for his psychiatric breakdown. In abetment assessed is 60% (sixty percent) disability neither attributable nor aggravated by service. Langevity : Average

AFMSF 16281 along with related documents.

The writ petition filed by the legal heir of the said A.V.Damodaran for the relief of grant of disability pension was ordered by a single judge of the High Court, Kerala. The Department filed a Writ Appeal before the same High Court. The said Writ Appeal was also dismissed. Against which the said Civil Appeal was preferred before the Honourable Apex Court. The moot point that arose before the Honourable Apex Court was that whether the petitioners therein are entitled to the grant of disability pension under the provisions as contained in Regulation 173 of the Pension Regulations for the Army, 1961 and such other enabling provisions? After elaborately discussing several citations on the point their Lordships have ultimately held at para 7, 8 and 9 (Judgment of Honourable Dr.Mudundakamsharama, J.,) as follows:-

“7. The aforesaid provisions including that of the guidelines called the Guide to Medical Officers (Military Pensions) 1980 and also the source of power, i.e., the provision of Section 173 of the Pension Regulations including other relevant provisions came to be considered by the Supreme Court. A conjoint reading of the aforesaid provisions along with the decisions rendered by this Court makes it amply clear that the said provisions and the decisions lay down the entire procedure, guidelines and principles as to under what circumstances a person could be said to be medically unfit and disabled and is to be boarded out from service and its attributability. The decisions have also dealt with the manner and circumstances under which the said person would be entitled to receive the disability pension.

8. 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. 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, draws 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. The second aspect which is also examined is the extent to which the function capacity of the individual is impaired. The said 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. All the aforesaid aspects are recorded and recommended in the form of AFMSF-16. The Invalidating Medical Board forms its opinion/recommendations 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.

9. 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.”

6. Under such circumstances, there is absolutely no material placed before us to eschew or discard the medical board proceedings invaliding the petitioner in this case. The medical board is of the firm view that the petitioner was suffering from ‘NEUROSIS (300)” , a disease which can not be attributable to or aggravated by military service, but it is constitutional in nature. It is seen from the counter filed by the respondents that the petitioner has been granted invalid gratuity and that he has been receiving the same. As such, it is clear that the petitioner is not entitled for disability pension or invalid pension as asked for in his petition.

7.The learned counsel for the petitioner, relying on the judgement of the Honourable High Court in WP No.18835/2002 dated 04.06.2002 made a plea before this Tribunal that the appeal of the petitioner may be viewed compassionately and this Tribunal may recommend for ex-gratia pension to the petitioner on compassionate grounds. Under such circumstances, We also direct the petitioner herein to make a fresh representation before the competent authority or the commanding officer concerned, if so advised, for grant of ex-gratia to the petitioner within four weeks from the date of receipt of copy of this order and the competent authority shall dispose of the same within six weeks from thereafter. The petition is disposed of.