Ishwar Singh vs Union Of India And Others

Heard learned counsel for the parties.

OA stands disposed off in terms of separate order of even date

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

(a) Quash the impugned orders dated 02.01.2018 (Annexure Al);

(b) Direct the respondents to grant disability element of pension to the applicant by treating his assessment @ 20% with effect from 19.11.1973 as disability 'Neuralgic Amyotrophy C-5 Left (352I was accepted as aggravated by Military service due to stress and strain of Military service and in the light of Sukhvinder Singh v. Union of India (2014 STPL (Web) 468 SC); and/or

(c) Direct the respondents to grant service element of disability pension to the applicant with effect from 19.11.1973 for life in terms of Para 173 of Pension Regulations for the Army, Part-1, 1961 and Gal MoD letter dated 10.02.2014 and PCDA (P) Allahabad circular dated 25.04.2014 along with 10% interest per annum.

On 26.07.2018, when the matter came up for admission, Mr. Chaitanya, learned counsel for the respondents sought time to file counter affidavit and accordingly, six weeks' time was granted. Thereafter, despite granting several opportunities, the respondents chose not to file any counter affidavit. Finally, on 10.04.2019, as a last opportunity, one week's time was granted to the respondents to file counter affidavit, subject to depositing Rs.5,000/- towards costs. Neither counter affidavit was filed nor did they deposit the costs, but sought more time to file counter affidavit. Though sufficient opportunity was granted to the respondents, since they had not filed any counter affidavit, this Tribunal, vide order dated 26.09.2019, closed the right of the respondents to file counter affidavit and instructed the respondents to produce the original medical records.

The factual matrix, in brief, necessary for the proper resolution of this application, is that the applicant was enrolled in the Army on 20.06.1968 and invalided out from service on 18.11.1973 on being placed in low medical category TEE (P)'. He had rendered only 05 years and 152 days of colour service. An Invalid Medical Board (IMB) was conducted at Base Hospital, Delhi Cantt. on 23.10.1973 and the IMB opined his disability 'Neuralgic Amyotrophy C-5 Left (352) as aggravated by Military service and assessed his disability @ 15-19% for Goi MoD letter dated 29.06.2017 and 10.02.2014 (Annexure A4 and A6), the applicant had submitted a representation dated 18.12.2017 (representation copy attached as Annexure A5) for grant of disability pension. However, the said representation was rejected by the respondents, vide Annexure Al. Hence the instant O.A.

The learned counsel for the applicant submitted that the disability of the applicant has already been conceded as 'aggravated by Military service' by the IMB, however, he has been denied disability pension on the ground that his disability is less than 20%. The learned counsel for the applicant further stated that the Hon'ble Supreme Court in the case of Sukhwinder Singh v. Union of India and others (2014 STPL (Web) 468 SC) has clearly laid down the law that no invalidation is to be carried out if the disability is below 20% and that wherever Armed Forces personnel have been invalidated out for a disability which was less than 20%, it perforce has to be assumed that the disability is above 20%. The learned counsel emphasized on the fact that the applicant was invalided out from service prematurely after completing only about 05 years and 05 months of service, well before completing his term of engagement and despite the fact that his disability was accepted as aggravated by Military service by the Medical Board. He concluded by stating that in light of the law settled by the Hontle Supreme Court in the case of Sukhwinder Singh (supra) on minimum disability percentage required for invalidation, the applicant should be granted disability pension @ 20% rounded off to 50%.

The respondents have not filed counter affidavit. However, learned counsel for the respondents produced the original IMB records. The same were perused and it was observed that the applicant's disability was conceded as aggravated by Military service @ 15-19% by the IMB held on 23.10.1973 and the medical category was reduced to Category E (EEE), which resulted in invalidation of the applicant. However, the learned counsel for respondents stated that though the disability of the applicant Neuralgic Amyotrophy C-5 Left (352) was considered as aggravated by Military service, since it was assessed less than 20% (15-19%), his claim has correctly been rejected by the competent authority. Though the learned counsel for the respondents subsequently conceded that in light of in Sukhwinder Singh (supra), the minimum percentage of disability has to be 20% for invalidation, however, he added that the applicant had been invalidated in 1973 whereas the said beneficial decision of the Hon'ble Supreme Court was delivered in 2014.

Having heard the learned counsel for the parties and perused the original medical records, we are of the view that this is a case of invalidation out of service, where the disability has been conceded as aggravated by Military service by the Medical Board but the disability pension has been primarily denied to the applicant on the ground that his disability was less than 20%. In the above background, we are of the opinion that to answer the question, whether the applicant is entitled to disability pension or not, we will have to first answer the question as to whether the applicant, who was invalidated in 1973, is entitled to the benefit of the decision of the Hon'ble Supreme Court passed in 2014?

In this case, we noted that the matter pertains to pensionary benefits. It is trite that the claim for pension is based on continuing wrong and the relief can be granted if such continuing wrong qto. creates a continuing source of injury. In Union of India and others v. Tarsem Singh (2008) 8 SCC 648, it was held by the Hon'ble Supreme Court that if a petition for pension is filed beyond a reasonable period, the relief prayed for may be restricted to a period of three years.

In view of the above, the instant 0.A is disposed of, with the following directions:

(i) Annexure Al order dated 02.01.2018 is quashed;

(ii) The disability of the applicant 'Neuralgic Amyotrophy C-5 Left (352)' @ 15-19% for two years is to be deemed to be @ 20% for two years in the light of the decision of the Hon'ble Supreme Court in Sukhwinder Singh (supra);

(iii) The applicant is entitled to disability pension for two years with effect from the date of his invalidation i.e. 18.11.1973';

(iv) Since the applicant has approached the Tribunal after a huge delay, his financial benefits will be restricted to three years prior to the date of filing this O.A. i.e. 17.07.2018;

(v) The respondents are directed to grant service element of disability pension to the applicant for life, restricting the arrears for a period of three years prior to the date of filing of the present 0.A i.e. 17.07.2018;

(vi) The applicant is not entitled to any arrears of disability element of disability pension for the two year period with effect from 1973 i.e. the period for which his Medical Board was valid. His future entitlement to disability element of disability pension will depend on the outcome of a Re-Survey Medical Board (RSMB), which is to be conducted by the respondents within three months from the date of receipt of a copy of this order;

(vii) The respondents are directed to give effect to this order within four months from the date of receipt of a copy of this order; and

(viii) In case the respondents fail to give effect to this order within the stipulated time, they will have to pay interest @ 6% on the amount accrued from due date till the date of actual payment.

No order as to costs.