Hasmuddin vs Union Of India And Others

Arguments heard.

Vide separate order, OA stands disposed of.

M.A. No. 2041 of 2019:

Heard learned counsel for the parties on the point of delay. Delay of 5840 days in filing the OA has been explained by the applicant. Keeping in view

the averments made in the MA and finding the same to be bonafide and in the light of the decision in Union of India and others Vs. Tarsem Singh

[2008 (8) SCC 648], we allow the instant MA and condone the delay in filing the OA. However, in case the applicant succeeds in the matter, he will

be entitled to the arrears restricted to three years prior to the date of filing the OA.

M.A. No. 2041 of 2019 stands disposed of accordingly.

O.A. No. 1300 of 2019:

The applicant, having been found medically and physically fit, was enrolled in the Indian Army on 26.09.1986. The applicant was discharged from

service on 30.09.2003. Since the applicant was in low medical category, he was produced before the duly constituted Release Medical Board (RMB),

which assessed the applicant's disability 'IRRITABLE BOWEL SYNDOROME (K-58)' @ 20% for life. RMB held the disability of the applicant 'as

aggravated by service due to stress and strain of service'. However, the claim for disability pension was rejected by PCDA (P) on the administrative

side vide letter dated 17.04.2004. The applicant preferred an appeal against the said letter, but no response was received. Hence, the present Original

Application.

It is submitted by the learned counsel for the applicant that this interference by administrative authorities is against the judgment of the Hon'ble

Supreme Court given in the matter of Ex Sapper Mohinder Singh Vs. Union of India and Another [Civil Appeal No. 164 of 1993 (arising out of SLP

No. 4233 of 1992)] decided on 15.01.1993 and other rulings also.

Per contra, learned counsel for the respondents contended that the applicant is not entitled to the relief claimed since the Competent Authority

found the disabilities ""Neither Attributable to Nor Aggravated by Military Service"".

Having heard learned counsel on both sides, we are of the view that the case in hand is squarely covered by the decision in Ex Sapper Mohinder

Singh (supra), wherein the Hon'ble Supreme Court observed as under:

“… xxx ... From the above narrated facts and the stand taken by the parties before us, the controversy that falls for determination by us

is in a very narrow compass viz., whether the Chief Controller of Defence Accounts (Pension) has any jurisdiction to sit over the opinion of

the experts (Medical Board) while dealing with the case of grant of disability pension, in regard to the percentage of the disability pension,

or not. In the present case, it is nowhere stated that the petitioner was subjected to any higher Medical disability pension to the petitioner. We

are unable to see as to how the accounts branch dealing with the pension can sit over the judgment of the experts in the medical line without

making any reference to a detailed or higher Medical Board which can be constitutedunder the relevant instructions and rules by the

Director General of Army Medical Corps.

Subsequent to this, the Integrated HQ of MoD(Army) issued letter dated 25.04.2011, which states, ""These alterations in the findings of IMB/ RMB

by MAP (PCDA(P) without having physically examined the individual, do not stand to the scrutiny of law and in numerous judgments, Hon'ble

Supreme Court has ruled that the Medical Board which has physically examined should be given due weightage, value and credence."" It further asks

Command Headquarters to instruct all Record Offices under their control to withdraw unconditionally from such cases, notwithstanding the stage

they may have reached and such files be processed for sanction"".

In light of the judgment of the Honble Supreme Court in Ex Sapper Mohinder Singh (Supra), we are satisfied that the claim for disability pension

was wrongly interfered with by the Administrative Authority. As per the findings of Release Medical Board, the applicant's disability 'IRRITABLE

BOWEL SYNDOROME (K-58)' was held 'aggravated by military service due to stress and strain of service' and is, therefore, entitled for disability

pension.

Considering the law laid down by the Honble Supreme Court and also the attendant circumstances and issues discussed in detail above, the

rejection of the claim of the applicant is set aside and the applicant is, thus, held entitled to disability element of pension @ 20% for life, which is liable

to be broadbanded to 50% in terms of judgment of Honble Supreme Court in Union of India Vs. Ram Avtar Appeal 418 of 20121 decided on

10.12.2014 from the date of discharge.

Accordingly, the respondents are directed to implement the order within a period of four months from the dale of receipt of a copy of this order,

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

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

filing of the OA i.e. 07.08.2019.

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