Clement Robert Pawar vs Union Of India And Others

The applicant has challenged the impugned order dated 17/06/2016, vide which the representation dated 23/02/2016 made by the applicant seeking

disability pension was rejected.

The facts germane to the filing of the present OA, as averred by the applicant, are that the applicant was enrolled in Indian Navy as a Sailor on

09/08/1973 and due to heavy stress and strain as an Engine Room Apprentice, he developed Neurosis and was subsequently invalided out of military

service on 20/03/1982 on completion of 8 years, 7 months and 11 days of military service. However, he was not granted disability pension, therefore, a

Statutory petition was submitted to the Chief of Naval Staff and to the Competent Authority on 23/02/2016 which was rejected holding that the

disability suffered by the applicant is neither attributable to nor aggravated by military service. Feeling aggrieved, the present OA has been filed.

The claim made by the applicant has been contested by the respondents on the ground that the applicant was medically boarded out of service on

20/03/1982 after rendering only 8 years, 7 months and 11 days qualifying service. The invaliding medical board ""considered his disability """"Neurosis

as neither attributable to nor"" aggravated by military service with assessment at 50% for two years. ""The medical board has specified that the

disability is """"not connected to"" ""the service since it is a constitutional illness"""". Therefore, his claim for"" disability pension was rejected by the

competent authority, i.e., PCDA (P), Allahabad. The decision was communicated to the applicant vide office letter dated 24/09/1983, giving him an

option to appeal against the rejection within a period of six months, however, he did not submit his appeal. Now after a lapse of nearly 34 years, he

represented to the Records Office on 23/02/2016 for grant of disability pension. The said representation was replied vide letter dated 17/06/2016

intimating him about his ineligibility for disability pension.

We have heard learned counsel for the parties and have carefully perused the records.

Learned counsel for the respondents, at the outset, submitted that the OA is liable to be dismissed as the same is highly belated having been filed

after a lapse of more than 34 years and no application seeking condonation of delay in filing the OA was moved by the applicant.

However, learned counsel for the applicant submits that there is no delay in filing the OA since the impugned order was passed on 17/06/2016 and

the OA was filed on 16/08/2016, i.e., within six months of the legally stipulated period under Section 22 of Armed Forces Tribunal Act, 2007.

It goes without saying that the present OA is highly belated having been filed after a lapse of 34 years as the applicant was invalided out of military

service on 20/03/1982, whereas the present OA was filed in the year 2016.

Learned counsel for the applicant further submits that even if it is taken that there is delay in approaching the Tribunal, even then the OA is not

liable to be dismissed on that ground alone. For raising this submission, reliance is placed on a recent order dated 05/12/2019 passed by Hon'ble

Supreme Court in Civil Appeal No 5760-5761/2018 (Col Opendra Kumar Verma (Retd) Vs. Union of India and Ors.), where the appeal preferred by

the appellant against dismissal of his OA on ground of limitation was allowed.

Section 22 of the Armed Forces Tribunal Act, 2007 provides for the limitation within which an individual is required to approach the Tribunal

seeking a relief, this section reads as under:-

Limitation: The Tribunal shall not admit an applicationâ€

(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 21 has been made unless the application is

made within six months from the date on which such final order has been made;

(b) in a case where a petition or a representation such as is mentioned in clause (b) of sub-section (2) of section 21 has been made and the

period of six months has expired thereafter without such final order having been made;

(c) in a case where the grievance in respect of which an application is made had arisen by reason of any order made at any time during the

period of three years immediately preceding the date on which jurisdiction, powers and authority of the Tribunal became exercisable under

this Act, in respect of the matter to which such order relates and no proceedings for the redressal of such grievance had been commenced

before the said date before the High Court.

(2) Notwithstanding anything contained in sub-section (1), the Tribunal may admit an app//cat/on after the period of six months referred to

in clause (a) or clause (b) of sub-section (1), as the case may be, or prior to the period of three years specified in clause (c), if the Tribunal

is satisfied that the applicant had sufficient cause for not making the application within such period.

A bare reading of this section goes to show that the Tribunal shall not admit an application unless the application is made within six months from

the date on which the final order or representation is decided. Sub-section (2) of this Section, however, empowers the Tribunal to admit an application

beyond the expiry of six months, if the Tribunal is satisfied that the applicant had sufficient cause for not making the application within such period.

The issue of delay in claiming disability pension was considered by Honible Supreme Court in the case of Union of India and Ors. Vs. Tarsem

Singh , 2008 (8) SCC 648, and observed as under:-

'5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and ladies (where remedy is sought by

filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the

said rule Is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, the relief can be granted

even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing

wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or

administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of

third parties, then the claim will not be entertained., For example, if the issue relates to payment or re-fixation of pay or pension, relief may

be granted in spite of delay as it does not affect the rights of third parties. But lithe claim involved issues relating to seniority or promotion

etc., affecting others, delay would render the claim stale and doctrine of !aches/ limitation will be applied. In so far as the consequential

relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High

Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ

petition.

In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment

of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before

the date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances.

In view of the above, these appeals are allowed. The order of the Division Bench directing payment of disability pension from the date it

fell due, is set aside. As a consequence, the order of the learned Single Judge is restored.

Col Opendra Kumar Verma (Retd) (supra) was also a case where the applicant claimed disability element of pension after his representation

made to the respondents was rejected. The OA was dismissed on the ground of being highly belated. The order was challenged by the applicant

before Hon'ble Supreme Court and Hon'ble Supreme Court vide order dated 05/12/2019 relied upon its earlier judgement rendered in the case of

Tarsem Singh (supra) and Ex Sep Chain Singh through Lr. Dhaneshwari Devi Vs. Union of India & Ors. (Civil Appeal No. 22965/2017) and it was

observed that there has been consistent view of the court that in the event disability pension is claimed with delay, the claimant is not entitled for

pension for earlier period except for a period of three years prior to the date of filing the claim. Following the earlier judgement, it was held that the

claim of the appellant could not have been altogether rejected. The applicant in that case was held entitled for the disability pension which was ordered

to be paid with effect from the period of three years prior to the date of filing of the OA in Armed Forces Tribunal.

In view of this judgement passed by Honrble Supreme Court, if the delay in filing the OA is taken from the date of invaliding out of the applicant,

then the same is liable to be condoned, however, in case the applicant succeeds in making out the case on merits, then the arrears will be restricted to

three years prior to the date of filing of the OA. As regards the impugned order dated 17/06/2016 •vide which the representation made by the

applicant was rejected, then obviously the OA is within time.

Coming to the merits of the case, the applicant was invalided out of service on completion of 8 years, 7 months and 11 days of military service on

the ground that he was suffering from Neurosis. However, he was denied the benefit of disability pension on the ground that the disease was neither

attributable to nor aggravated by military service, although the assessment of the disability was 50%. According to the applicant, he was working as a

Sailor and due to heavy stress and strain as an Engine Room Apprentice, he developed Neurosis and therefore the disability was attributable to

military service. From the documents available in the court, it becomes clear that, when the applicant joined in Indian Navy on 09/08/1973, he was not

suffering from any disease and the disability in question was detected/ sustained only during the course of his military service, i.e., on 03/05/1979 when

he was posted at INS Talwar, a combat naval vessel.

The law on attributability of a disability has already been well settled by the Honfble Supreme Court in the case of Dharamvir Singh Vs, Union of

India and Ors, (2013) 7 SCC 213. In this case the Apex Court took note of the provisions of the Pensions Regulations, Entitlement Rules and the

General Rules of Guidance to Medical Officers and summed up the legal position emerging from the same in the following words:-

29.1. Disability pension to be granted to an individual who is invalided from service on account of a disability which is attributable to or

aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable to or

aggravated by military service to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II

(Regulation 173).

29.2. A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of

entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be

presumed due to service [Rule 5 read with Rule 14(b)].

29.3. The onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with

the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally (Rule 9).

29.4. if a disease is accepted to have been 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 [Rule

14(c)]. [plc]

29.5. If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led to

an individuals discharge or death will be deemed to have arisen in service [Rule 14(6)].

29.6. If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and

that diseasel.vill not be deemed to have arisen during service, the Medical Board is required to state the reasons [Rule 14(b)]; and 29.7. It

is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions),

2002- ""Entitlement: General Principles', including Paras 7, 8 and 9 as referred to above (para 27).

In view of the settled position of law on attributability/aggravation, we find that the RMB has denied attributabilityiaggravation to the applicant only

by endorsing a cryptic sentence in the proceedings i.e. 'No relation to service condition'. We this cryptic remark adequate to deny

Attributability/aggravation to a soldier who was fully fit since his enrolment and the disease in question had first started on 03.05.1979 i.e. after

completion of about five years and eight months of his service. We are, therefore, of the considered opinion that the benefit of doubt should be given

to the applicant as per the Hon'ble Supreme Court judgment of Dharamvir Singh (supra) and the disability of the applicant should be considered as

aggravated by military service.

The present case, where the applicant was invalided out of service is covered by the judgement of the Hontle Apex Court in Sukhvinder Singh Vs.

Union of India & Ors (Civil Appeal No 5605 of 2010 wherein it was observed that it would be extremely disturbing if the Authorities are perceived as

being impervious or unsympathetic towards members of the Armed Forces who have suffered disabilities, without receiving any form of recompense

or source of sustenance, since these are extricabiy germane to their source of livelihood. Honfble Apex Court, after taking note of various rules and

regulations, relating to the grant of pension, held as under:-

We are of the persuasion, therefore, that firstly, any disability not recorded at the time of recruitment must be presumed to have been

caused subsequently and unless proved to the contrary to be a consequence of military service. The benefit of doubt is rightly extended in

favour of the member of the Armed Forces,- any other conclusion would be tantamount to granting a premium to the Recruitment Medical

Board for their own negligence. Secondly, the morale of the Armed Forces requires absolute and undiluted protection and if an injury leads

to loss of service without any recompense, this morale would be severely undermined. Thirdly, there appears to be no provisions authorising

the discharge or invaliding out of service where the disability is below twenty per cent and seems to us to be logically so. Fourthly, wherever

a member of the Armed Forces is invalided out of service, it perforce has to be assumed that his disability was found to be above 20 per

cent. Fifthly, as per the extant Rules/Regulations, a disability leading to invaliding out of service would attract the grant of fifty per cent

disability pension.

In the light of the preceding paragraphs and essential parameters given aforesaid, we hereby set aside the impugned order rejecting the claim of

the applicant for disability pension and hold that he is entitled to disability pension from the date of invalidrnent which is to be broad-banded to 75% in

the light of the judgement of the Honfble Supreme Court in Union of India and Ors. Vs. Rain Avtar (Civil Appeal 418 of 2012) decided on 10th

December, 2014.

Since the applicant has come to this Tribunal after a considerable delay, hence the arrears are restricted to three years prior to the date of filing of

the application, i.e. 17,08.2016.

Accordingly, the respondents are directed to release the arrears within a period of four months from the date of receipt of a copy of this order,

failing which, the arrears shall carry interest at the rate of 6% per annum.

The OA stands disposed of in the above terms with no order as to costs.

Pronounced in open Court on this the 15th day of January, 2020.