Badri Lal Gujar vs Union Of India And Others

Through the medium of the instant 0.A filed under Section 14 of the Armed Forces Tribunal Act, 2007, the applicant is seeking the following reliefs:

(i) Quash the impugned order dated 28.03.2013 passed by the fourth respondent being arbitrary and vague;

(ii) Set aside the opinion of the Invalidating Medical Board regarding attributability aspect being arbitrary, perverse and contrary to statutory

provisions;

(iii) Direct the respondents to grant disability pension to the applicant with effect from 25.06.1983 with further direction to round off the disability from

30% to 50%; and

(iv) Direct the respondents to pay interest @12% per annum over the arrears.

In this case, a preliminary objection was raised by respondents that the applicant had knocked the door of this Tribunal after a delay of 794 days.

After considering the justification for the delay, this Tribunal vide order dated 22.07.2019 has condoned the delay.

The facts of the case, in brief, are that the applicant was enrolled in the Indian Army as a Sepoy on 01.03.1976 and was invalided out from service

on 24.06.1983, in low medical category. At the time of discharge from service, the Release Medical Board (RMB) assessed his disability

'Schizophrenia Psychosis (295)' @ 30% for two years, but opined that the disability was neither attributable to nor aggravated by military service

(NANA). He was discharged from service, after rendering 07 years, 03 months and 06 days of service. Within few months of discharge, he was re-

enrolled in DSC on 27.09.1983. The initial claim of the applicant for disability pension was rejected vide order dated 23.12.1983. Thereafter first

appeal was preferred by the applicant against the rejection of his claim for disability pension, but the same was rejected. On 09.08.1986, after about

three years of service in DSC he was discharged from DSC. Later his second appeal was also rejected on ground of being time- barred. Hence the

present O.A.

Learned counsel for the applicant pleaded that at the time of enrolment, the applicant was found medically and physically fit for service in the Army

and there was no note in the service documents that he was suffering from any disease at the time of enrolment in the Army. The disease of the

applicant was contracted during the service and has for the first time started in 1983, hence ft is attributable to and aggravated by military service. The

learned counsel for the applicant further submitted that in similar cases, Honble Supreme Court has granted disability pension, as such the applicant is

also entitled to disability pension and its rounding off.

On the other hand, learned counsel for the respondents contended that disability of the applicant has been regarded dS NANA by the RMB, hence

the applicant is not entitled to disability pension. Referring para 173 of Pension Regulations for the Army, 1961 (Part-I), learned counsel for the

respondents further submitted that an individual is granted disability pension when invalidated out of service on account of disability which is

attributable to or aggravated by military service and is assessed @ 20% or over. In the instant case, ""since the disability of the appticant Le.

Schizophrenia Psychosis (295)"" has been assessed by the RMB to be neither attributable to nor aggravated by nnilitary service (NANA), therefore

he is not entitled 10 disability pension. He, therefore; pleaded for dismissal of the O.A.

Having heard the learned counsel for the parties and having perused the RMB proceedings as well as the records, the only question which arises

for our considerations is:

Whether the disability of the applicant is attributable to or aggravated by military service?

The law on attributability of a disability has already been settled by the Hontile Supreme Court in the case of Dharamvir Singh v. UfI I-017 of India

and others (2013) 7 SCC 316, wherein the liontle Supreme Court took note of the provisions of the Pension Regulations, Entitlement Rules and the

General Rules of Guidance to Medical Officers.

In view of the settled position of law on attributability, we are of the view that the RMB has denied attributabilitylaggravation to the applicant only

by endorsing that the disability 'Schizophrenia Psychosis (295)' is 'constitutional in nature', and not connected with service. On one hand we note that

the disease has started after seven years of military service and on the other hand we find that the RMB has given only one cryptic sentence to justify

NANA i.e. 'constitutional in nature'. We have noted that the specialist opinion as available in RMB is silent on cause of disease, attributability and as

to why this disease could not be detected at the time of enrolment. We are, therefore, of the considered opinion that the benefit of doubt in these

circumstances should be extended to the applicant, in view of the law attributability laid down inDfraramvir Singh (supra) and thereafter the disability

of the applicant should be considered as aggravated by military service.

Resultantly, the O.A. is partly allowed. The impugned order dated 28.03.2013 is set aside. The disability of the applicant is to be considered as

aggravated by military service, hence the applicant shall be entitled to disability pension @ 30% for two years with effect from the date of his

discharge i.e. 24.06.1983. Since the huge delay in filing this 0.A. has been condoned on grounds of being a cause of .11! recurring loss, therefore, in

the light of the law settled by lionble Supreme Court in the case of Shiv Dass vs. Union of India & Others (2007 (3) SLR 445,) it is clarified that the

applicant will bei eligible for the arrears of service element w.e.f. 3 years before the date of filing this 0.A. i.e. 20.07.2016. He will not be entitled to

any arrears of disability element for two years after his discharge. Additionally, the respondents are required to carry out a fresh R.SMB for the

applicant for his disability i.e. %Schizophrenia Psychosis (295)r. His future entitlement to disability element will depend upon the outcome of the

R.5MB. The respondents are directed to give effect to this order within a period of four months from the date of receipt of a copy of this order. In

case the respondents fail to give effect to this order within the stipulated time, they will have to pay interest 8% on the amount accrued from due date

till the date of actual payment.

No order as to cost.