Pronob Ganguly vs Union Of India And Others

The instant Original Application has been filed under Section 1,1 of the Armed Forces Tribunal Act, 2007 seeking the following reliefs:

(i) Set aside and quash the order of ACFA (Army HQ AG's Branch P5-4) dated 11.12.2013;

(ii) Set aside and quash the order of SACP (Army HQ AG's Branch PS-4) dated 04.08.2016;

(iii) Grant 40% disabty pension to the applicant from the date of retirement from Army service;

(v) Grant payment of arrears of disability pension from the date of retirement with 12% interest thereon.

The facts of the case, in brief, are that the applicant was enrolled in the Indian Army on 09,06,1979 and superannuated from service on 30.09.2012,

after 33 years and 03 months' service in the The facts of the case, in brief, are that the applicant was enrolled in the Indian Army on 09.06.1979 and

superannuated from service on 30.09.2012, after 33 years and 03 months' service in the substantive rank of Colonel (Time Scale). He was granted

service pension with effect from 01.10.20121 as is evident from Annexure A2.While in service i.e. on 05.03.1991, he was diagnosed with the ""ailment

Labile Hypertension"""" and downgraded to low medical category"" S1H1A1P2E1. Though his medical category was subsequently upgraded to

S1H1A1P1E1, during the annual medical examination at the Military Hospital, Dinjan in April 2005, he was detected with high blood pressure,

therefore, his medical category was downgraded to S1H1A1P2E1. During this period, he was serving in a field area. In 2007, the applicant was

brought before a review Medical Board at Military Hospital, Barrackpore and placed fn 511-11A1P2E1. The disabili ty ""of the applicant for """"Primary

hypertension"""" was assessed"" @ 40%. Meantime, in the Review Medical Board conducted at Military Hospital, ""Danapur, the applicant was found

suffering from """"Atrial Ftbrillation"""" and"" the disability was assessed to 40% in aggregate, The Release Medical Board conducted in the year 2012,

however, recommended that the disabilities (I) Primary Hypertension and (ii) Artrial Fabrillation were neither attributable to nor aggravated by military

service. Thereupon, the applicant filed a first appeal on 01.03.2013 before the competent authority, which was rejected vide Annexure A6, Against the

rejection of his first appeal, the applicant filed a second appeal on 05.11.2014, which also ended in rejection. It is in this perspective that the applicant

has preferred the present 0.A.

Learned Counsel for the applicant pleaded that at the time of enrolment, the applicant was found fit in all respects for service in the Army and there

is no note in the service record that he was suffering from any disease at the time of his enrolment in service. The diseases of the applicant were

contacted during the service, hence they are attributable to and aggravated by military service. He pleaded that in the light of the decisions in

Dharamvir Singh v. Union of India and others (2013) 7 SCC 316.) and Union of India and another v. Rajbfr Singh ( ), the applicant is entitled to get

disability pension. He also argued that in the light of the decision of the hionble Supreme Court in Union of India and others v. Ram Avtar(…..), the

applicant is entitled to get his disability pension broad banded to 50%.

On the other hand, learned counsel for the respondents contended that the disabilities of the applicant © 40% composite for life have been

regarded as NANA by the RivlB and first Appellate Committee. However, based on his second appeal, the competent authority decided re-

examination of the applicant by an Appeal medical Board. The Appeal Medical Board also gave similar opinion as RMB on attributability and made

minor changes in percentage of disability for both disabilities. Thus in view of two separate medical boards holding similar opinion the applicant is not

entitled to disability pension and his claim for disability pension has been correctly rejected. He pleaded for dismissal of the Original Application.

We have heard the learned counsel appearing for both the parties and also gone through the Release Medical Board proceedings as well as the

records. The question that need to be answered is as to whether the disabilities of the applicant are attributable to or aggravated by military service?

The law on attributability of a disability has already been settled by the Honible Supreme Court in the case of Dharanwir Singh (supra). In this case,

we find that the RMB has denied attributability to the applicant only by endorsing that the disabilities (I) Primary Hypertension and (ii) Artrial

Fabrillation are neither attributable to nor aggravated (NANA) by service on account of the following reasons:

Primary Hypertension is an idiopathic disorder. There is no service related cause hence conceded as not attributable o service. Onset of ID

in Sep 2007 while serving in peace and continued to serve in peace since onset of ID till date hence no close time association of onset with

service in Field/CI Ops/HAA hence conceded as neither attributable to nor aggravated by military service.

Artrial Fibrillation- There is no service related cause hence conceded as not attributable to service. Onset of ID in Oct 2010 while serving

in peace and continued to serve in peace since onset of ID till date hence no close time association of onset with service ifi Field/CI Ops/HAA

hence conceded as neither attributable to nor aggravated by military service.

These reasons given by the RMB are not convincing and do not reflect the complete truth on this matter. The applicant was enrolled in Indian Army

on 09.06.1979 and the disabilities had originally started after more than 12 years of service i.e. in the year 1991 when it was first detected while

carrying out patrolling at a height of 11500 feet. It was at that time diagnosed as 'Labile Hypertension'. It was also noted that his blood pressure

increased only when he was at high altitudes and not in plains. Subsequently he was upgraded to Shape I and again detected 'Primary Hypertension' in

the year 2007 and 'Artrial Fabrillation' in the year 2010. In these circumstances, we are of the opinion that benefit of doubt leans in favour of the

applicant. Hence, we are of the considered opinion that his disabilities (i) Primary Hypertension © 40% and (ii) Artrial Fabrillation @ 6-10% (As

decided by Appeal Medical Board) should be considered as aggravated by service in line with the law settled by the HonYble Supreme Court in the

case of Dharamvir Singh (supra).

Additionally, in view of the judgment of the Honble Supreme Court in Union of India and others vs Ram Avtar (C.A No 418 of 2012 decided on

10.12.2014), we are of the view that benefit of broad banding of disability pension 40% (composite) for life to be broad banded to 50% for life may be

extended to the applicant with effect from the date of his retirement i.e. 30.09.2012,

In view of the above, the instant 0.A deserves to be allowed, hence allowed. The impugned order dated 04.08.2016 (Annexure Al) is set aside. The

disabilities of the applicant (i) Primary Hypertension and (ii) ArtrialFabrillation are to be considered as aggravated by military service. The respondents

are directed to grant disability element of pension to the applicant         400/a composite for life which would stand broad banded to

50% for life with effect from the date of retirement of the applicant i.e. 30.09.2012.Hovvever1 this is a case where delay & latches have been

condoned hence the payment of arrears of disability element of pension is to be restricted in line with the judgment of Shiv Dass v. Union of India and

others (2007 (3) SLR 445), the Honible Supreme Court has held that the arrears of disability pension are to be restricted to three years prior to the

filing of the 0.A, if the same is filed belatedly and delay is condoned. Since the applicant has approached this Tribunal after a long gap and has tilecI

the U.A on 16.03.2017, therefore, the arrears are to be restricted to three years preceding the filing of the instant O.A. The respondents are directed

to give effect to this order within four months from the date of receipt of a copy of this order. Default will invite interest .© 8% per annum till actual

payment.

No order as to costs.