Ratikanta Bhuyan vs Union Of India And Others

Counter affidavit has been filed. No rejoinder is to be filed as stated by the proxy counsel for the applicant. Pleadings are thus complete.

Respondents have brought the original record of the applicant. Copy of the same be handed over to us within two days.

Arguments heard. Vide separate order, OA stands disposed of.

M.A. No. 2104 of 2018:

Heard learned counsel for the parties on the point of delay. Delay of 2765 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. 2104 of 2018 stands disposed of accordingly.

O.A. No. 1904 of 2018:

The applicant, having been found medically and physically fit, was enrolled in the Indian Air Force on 27.02.1974. He was discharged from service

on 31.03.2011. At the time of his retirement from service, since the applicant was in low medical category, he was brought before the duly constituted

Release Medical Board (RMB) on 11.03.2011 and subsequent days, which assessed the applicant's disability i.e. PRIMARY HYPERTENSION

(Old) 1-10, 0, Z-09.0 @ 30% (originated in February, 2009) for life, but the same was held as 'Neither attributable to Nor aggravated by military

service' (NANA)'. The applicant served appeal cum legal notice dated 24.09.2018 for grant of disability element of pension which was rejected vide

impugned order dated 15.10.2018. Hence, the present OA.

Learned counsel for the applicant contended that the instant matter is squarely covered by a catena of decisions of the Honble Supreme Court

including Dharamvir Singh Vs. Union of India and Ors. (2013) 7 SCC 31,6 Union of India and Ors. Vs. Rajbir Singh (2015) 12 SCC 26 4and Union of

India and Ors Vs. Angad Singh Titaria (2015) 12 SCC 257. Further, the claim of the applicant is also supported by relevant rules.

Per contra, learned counsel for the respondents contended that the applicant is not entitled to the relief claimed since the RMB, being an Expert

Body, 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 decisions referred to hereinabove.

In Dharamvir Singh's case (supra), the Hon ble Supreme Court held that any disability sustained during the course of Military Service will be attributed

to service conditions unless the disability was such that the disease could not have been detected on medical examination before a person is selected

for Defence Service and furthermore before arriving at a conclusion, the Release Medical Board should have assigned reasons, in writing, that the

disability was not due to Military Service. There is no dispute with regard to the fact that when the applicant entered into service, he was not suffering

from any disease and that the disability in question was detected/sustained only during the course of his Military Service.

The matter for implementation of orders of the Hon'ble Supreme Court in the matter of Dharamvir Singh (supra) in respect of Armed Forces

Personnel in NANA cases was taken up with the Department of Expenditure, Ministry of Finance for consideration. Accordingly, Ministry of

Defence by their letter dated 29th June, 2017 sent to the Chief of Staff of Army, Navy and Air Force for implementation of the orders of Honble

Supreme Court, has laid down the following essential parameters for allowing disability pension:

“I. The question whether a disability is attributable or aggravated by military service is to be determined under ""Entitlement Rules for Casualty

Pensionary Awards 1982.

IL 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.

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

individual's discharge or death will be deemed to have arisen in the service.

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

will not be deemed to have arisen during service, the medical board is required to state the reasons.

In view of the settled law on attributability, we have noticed that the Release Medical Board has denied attributability to military service on the

ground that this disease has originated in peace area and not in a field/CI Ops/HAA area. However, for denial of attributability, the Medical Board has

to assign sufficient reasons as to why the disease could not have been detected prior to acceptance of military service. In the present case also, RMB

has itself mentioned that the onset of disease was in 'February, 2009'. We are of the opinion that the stress and strain of the military service is related

to the basic nature of military duty and it cannot be compartmentalised to field/CI Ops/HAA area. Thus, we are of the view that the benefit of doubt

in this case goes in favour of the applicant. Therefore, in view of the law settled by the Honble Supreme Court in Dharamuir Singh's case (supra), we

are of the considered opinion that this disease is to be considered as aggravated by military service.

In 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 element of disability pension from the date of his discharge from service @ 30%

for life, which is to be broad-banded to 50% in light of the judgment of the Hon'ble Supreme Court in Union of India and Ors. Vs. Ram Avtar [Civil

Appeal 418 of 20121 decided on 10.12.2014.

Accordingly, the respondents are directed to implement this order 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.

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. 19.11.2018.

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