Sharma S.S vs Union Of India And Others

Through the medium of the instant 0.A, the applicant, is seeking the following prayers:

(a) Quash and set aside [tie impugned Government of India, Nljnistry of Defence letter No. 7(1185)/96/D (Pen A & AC) dated 25.09.1.99/; and/or

(b) Direct the respondents to grant clisabiW pension to the applicant @ 50% iOr 4fe with effect from the date of his discharge Le. (service element

and. disability element) after rounding off/broad banding in terms of Govt of India, Ministry of Defence letter No. 1(2)/97/D (Pen-C) dated 31.01.2001

and law settled by 1-lonrble Supreme Court In Civil Appeal No, 418 of 2012 titled ilaion of India and others v. Rem Avter vide judgment dated

1D12.2014; and/or

(c) Direct the respondents to pay the due arrears of disability pension with interest 12% per annum from the date of discharge of the applicant with ail

the consequential benefits; and

(d) Direct tile respondents to grant ex-serviceman status to the applicant and make eligible for ECHS and medical facilities as like other ex-

servicemen, enrolment, therefore, he is entitled to disability pension. In this regard, learned counsel for the applicant retied on the decision in

Dharamvir Singh v. Union of India and others (2013) 7 SCC 316. Furthermore, the question whether disability is attributable to or aggravated by

military service is to be determ ned under the Entitlement Rules for Casualty Pensionary Awards 1982 of Appendix-II (Regulation 173 of the Army

Pension Regulations 1961).

The applicant was enrolled in the Air Force on 22.12.1986. After about six years of service, on 12.02.1994, he was admitted in the ""hospital, where

his disease was diagnosed as """"Schizophrenia (ICD-"" ""295)"""". The Release Medical Board assessed his disability @ 30% for two"" years. The

applicant was invalided out of service in the medical category EEE (Psychological) with effect from 10.06.1994. The Air Force Record Office

intimated the applicant that his disability is neither attributable to nor aggravated by Military service(NANA) and, therefore, he is not entitled for any

disability pension. The applicant submitted an appeal on 29.01,1996 for grant of disability pension, which was rejected vide letter dated 25.09.1997.

After treatment and on the basis of the medical certificate, the applicant caused to issue a legal notice to the respondents for re-employment on

11.01.1999. As there was no response, the applicant filed Civii Misc. Writ Petition No. 24007 of 2002 before the Horrble High Court of Allahabad,

which was subsequently dismissed as withdrawn to enabie the applicant to approach the Armed Forces Tribunal. It is in this perspective that the

applicant has preferred the present O.A.

Learned Counsel far the applicant contended that at the time of enrolment, the applicant was found mentally and physcally fit for service In the Air

Force and there is no note In the service documents that he was sufferino from any disease at the time of enrolment, therefore, he is entitled to

disability pension. In this regard, learned counsel for the applicant relied on the decision in Dharamvir Singh v. Union of India and others (2013) 7 SCC

Furthermore, the question whether disability is attributable to or aggravated by military service is to be determined under the Entitlement Rules for

Casualty Pensionary Awards 1982 of Appendix-II (Regulation 173 of the Army Pension Regulations 1961).

On the other hand, learned counsel for the respondents contended that the disability of the applicant had been opined as NANA by the IM B?

hence applicant is not entitled to disability pension. Further, the onset of his disability i.e. depression was in 1990 after his mother's death. The

applicant was treated with Ecr and anti-depressants. The Specialist (Psychiatry) at CH (NC) opined that 'In spite of adequate treatment over prolong

period, the applicant has not shown any improvement and harbouring suiddal ideas"". Therefore, the applicant was not fit for further Military service

and recommended him to be invalided out of service in low medical category FEE. The Medical Board assessed his disability @ 30% for two years

and recommended the same as NANA. He, therefore, pleaded for the 0.A to be dismissed.

We have heard learned counsel for both the parties and also gone through the documents available on record.

In this case, the only question which needs to be considered by us is, whether the disability of the applicant is attributable to or aggravated by

military service.

We have noted that the Invaliding Medical Board has denied attributability by stating a cryptic sentence ""constitutional disorder"". Further, we have

noted that while rejecting his appeal, the Government of India, vide its letter dated 25.09.1997 (Annexure Al), has justified denial of attributability

stating that the onset of disease was in ""peace area"". Considering all issues and especially in a situation wherein a soldier is being removed from

service and his source of livelihood is being adversely affected after about seven years of service, we do not ‘:nd that the cryptic expression -

constitutional disorder"" or ""onset in peace"" is a valid justification to deny attributability. Therefore, in our considered opinion, the benefit of doubt goes

in favour of the applicant and his disability ""Schizophrenia (ICD-295)"" 30% is to be considered as aggravated by military service.

The instant 0.A is partly allowed. We hold that the applicant's disability ""Schizophrenia (ICD-295y @ 30% for two years is aggravated by military

service, hence applicant is entitled to get disability pension from the date of his discharge. Considering the fact that the 0.A has been admitted after

condoning the delay and laches, therefore, in view of the decision of the Hon'ble Supreme Court in Shiv Das vs, Union of India and others (2007 (3)

SLR 445), the benefit of arrears of service element shall be restricted for a period of three years preceding the date of filing of the C.A. The date of

filing of this OA is 19,101015. Further entitlement of disability element will be subject to the outcome of Re-Survey Medical Board, which the

respondents shall conduct within four months from the date of receipt of a copy of this order. Ordered accordingly. The respondents are directed to

give. effec.:t to this order within four months from the date of receipt of a copy of this order. Default will invite intere5t @ 8% per annum till actual

payment.

No order as to cost.