Last Updated on January 30, 2019 by Legalseva.net
In Indian Army, every year many applicants are invalidated by the Medical Board by assessing disability on one or the other ground. Usually, it is seen whether the disease in question was attributable or aggravated by the medical service or not?
To find it out, Medical Board is formed to assess applicant’s disease and further the percentage of disability owing out of disease.
Now the question comes whether the applicant should claim disability pension from Armed Forces Tribunal , Chandigarh from retirement and interest thereon?
Regulation 179 of Pension Regulation for Army 1961, Part –I entitles suitability of applicant for disability pension.
Also Read- PUNISHMENT OF REPRIMAND BY AFT TRIBUNAL
Hon’ble Supreme Court in Dharamvir Singh Vs. Union of India & Ors passed in Civil Appeal No. 4949/2013 in its judgment dated 02.07.2013 has settled the law regarding disability pension; if at the time of joining Army no record or mention of disease is found then it is presumed that the diseases has occurred while serving in the Army. Hence attributable and aggravated by the Army Service.
For better clarification, read Para 31 of the judgment:-
31. In the present case it is undisputed that no note of any disease has been recorded at the time of the appellant’s acceptance for military service. The respondents have failed to bring on record any document to suggest that the appellant was under treatment for such a disease or by hereditary he is suffering from such disease. In the absence of any note in the service record at the time of acceptance of joining of the appellant it was incumbent on the part of the Medical Board to call for records and look into the same before coming to an opinion that the disease could not have been detected on medical examination prior to the acceptance for military service, but nothing is on the record to suggest that any such record was called for by the Medical Board or looked into it and no reasons have been recorded in writing to come to the conclusion that the disability is not due to military service……………….”
Also read- DECIDING MAINTENANCE OF SPOUSE OF ARMY
The other most noted judgment that talks about the broad banding of disability pension is of Full Bench of AFT, Principal Bench Judgment dated 01st December, 2017 passed in OA No. 1439 of 2016 in Ex. Sgt. Girish Kumar Vs. Union of India & Ors where following conclusions were drawn:
55. After having fully discussed the issue involved before us and to set the controversy at rest vis-à-vis arrears of broad banding of the disability pension on the ground of delay in filing application(s) by the individual/applicant (s) we conclude thus:- (i) Armed Forces personnel who have been invalided/ superannuated/completed terms of service/discharged under normal circumstances with disability, pre or post 01.01.1996 (including the applicants) will be entitled to broad banding of disability/war injury element. Armed Forces personnel who retired pre 01.01.1996 will be entitled to the arrears of broad banding with effect from 01.01.1996 and in the case of those who retired on or after 01.01.1996 will be entitled to arrears with effect from the date of their retirement; (ii) Armed Forces personnel who were premature retirees/ proceeded on premature discharge with disability will be entitled to broad banding of disability/war injury element of pension with effect from either 01.01.2006 or the date of their retirement. There will, however, be no restriction of date for premature retirees to be eligible for disability/was injury benefits since the earlier restriction on pre 01.01.2006 premature retirees has been struck down.
Also Read- WAR INJURY PENSION ARREARS ALLOWED BY AFT TRIBUNAL
(a) Restriction of arrears can be applied to applicant(s) wherein he is not held entitled to disability/was injury element of pension, and such entitlement only gets established post adjudication by AFT/Courts; however, exception apart where the vested right of an individual is held to be denied the issue will be decided by AFT Benches on its own facts.
(b) All premature/voluntary retirees will remain eligible only for disability/war injury element of pension, their service element will need to be earned independently, based on years of service rendered and held as qualified for service pension.
Also Read- ARMED FORCES TRIBUNAL ACT, 2007
The RMB (Release Medical Board) should apply mind while invalidating any applicant out of Military Service. RMB shouldn’t assesses disability without record or reason as neither attributable nor aggravated (NANA).
Mostly the judgment which is quoted by respondents citing medical board an expert body and its opinion to be given due weight, value and credence is the judgment of the Apex Court in Secretary, Ministry of Defence and others vs A.V Damodaran (dead) reported in (2009) 9 SCC 140 and Controller of Defence Account and others Vs Balachandran Nair (2005) 13 SCC 128
Medical Board often refers to Chapter VI Para 33 of Guide to Medical Officers (Military Pension) 2002 for citing link of disease with service and factors that triggered situation to worsen.
Mostly applicants challenge the invalidation from army in the same appeal of disability pension before the AFT Tribunal Chandigarh/Chandimandir. As per settled law, Apex Court judgment in Sukhvinder Singh vs. UOI & Para 173 ‘A’ (section 95 of Pension Regulation of the Army (2008) Part – I of pension regulation of his discharge, on medical grounds is deemed to invalidation out of service.
The gist lies with the reasoning given by RMB whether any particular disease is NANA or not? The reasoning has to be weighed as settled principles of law. Usually benefit of doubt is given to applicant and the rules are to interpreted liberally as laid down in Dharamvir Singh vs. Union of India and Others, reported in (2013) 7 SCC 316.
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These findings are very much important:
“29.1. Disability pension to be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable to or aggravated by military service to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II (Regulation 173).
29.2. 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 [Rule 5 read with Rule 14(b)].
29.3. The onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally (Rule 9). 8
29.4. If a disease is accepted to have been as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service [Rule 14(c)]. [pic]
29.5. If no note of any disability or disease was made at the time of individual’s acceptance for military service, a disease which has led to an individual’s discharge or death will be deemed to have arisen in service [Rule 14(b)].
29.6. 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 [Rule 14(b)]; and 29.7. It is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions), 2002 – “Entitlement: General Principles”, including Paras 7, 8 and 9 as referred to above (para 27).”
Also Read- AFT TRIBUNAL ADVOCATES AND LAWYERS IN CHANDIGARH PANCHKULA AND MOHALI
Further held, it is immaterial whether the service giving rise to disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions.
For rounding off of disability pension, the case is covered under Sukhvinder Singh vs. Union of India and Others, reported in (2014) STPL (WEB) 468 SC where disability leading to invalidating out of service would attract the grant of fifty per cent of disability pension for life.
While court allowing the disability pension appeal issues compliance within three/four months and interest usually 9% if not complied with.
Now comes the date from which the disability pension is applicable or should it be from date of discharge? The early you do the better it would be else a general rule, after retirement it granted only for 2/3 years if considerable delay is there as per judgment of the Apex Court in Civil Appeal No. 418 of 2012 Union of India and others Vs Ram Avtar decided on 10.12.2014. Though the petitioner can always make a request for fresh RSMB to be conducted by Armed forces Tribunal.
Also Read- DISABILTY PENSION BY THE AFT
Rounding off is applied to all persons who are eligible for disability pension. Government decision in the same regards regarding the rounding off was taken on 31.01.2001.
As per OA 621 of 2014 titled Bharat Kumar Vs UOI & Others decided on 19.09.2016 order , no person could be invalided out for medical reason if his disability is not more than 20%.
Arrears of broad banding of disability pension is now not restricted to three years viz January 1, 1996 or 01.01.2006 as the relevant portion of full bench decision in the case of Ex Sgt Girish Kumar is reproduced below:
55. After having fully discussed the issue involved before us and to set the controversy at rest vis-à-vis arrears of broad banding of the disability/war injury element of disability pension on the ground of delay in filing application(s) by the individual/applicant(s), we conclude grant of arrears of broad banding of disability pension, stands answered in the fact that all applicants will be entitled to broad banding of disability/war injury element of pension with effect from 01.01.1996, irrespective of whether they retired pre-1996 or post- 1996 without any restriction of arrears of three years
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