OA 1831 of 2012 Mahabir Singh Rao Vs UOI & Ors.
1
ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL
BENCH AT CHANDIMANDIR -.-
OA 1831 of 2012
Mahabir Singh Rao …… Petitioner(s)
Vs
Union of India and others …… Respondent(s)
-.-
For the Petitioner (s) : Col (Retd) NK Kohli, Advocate
For the Respondent(s) : Mr. Gurpreet Singh, Sr. PC.
Coram: Justice Surinder Singh Thakur, Judicial Member.
Lt Gen DS Sidhu (Retd), Administrative Member.
-.-
ORDER
___.09.2015
-.-
1. This application has been filed under Section 14 of the AFT Act 2007.
The applicant enrolled in the Army on 20.06.1968. He sustained injuries
during the Indo-Pak War of 1971 on 10.12.1971, was awarded the Wound
Medal and declared a Battle Casualty. He was discharged from service on
01.06.1992 in the rank of Naib (Nb) Subedar. The Release Medical Board
declared his disability CSOM (Rt) OPTD and ASOM (Lt/healed) attributable
to military service with 20% disability for two years. He was subjected to
Resurvey Medical Boards (RSMB) periodically, until his disability was
assessed as 30% for life vide Medical Board dated Jan 2002 (Annexure A-5).
He avers that, the disability pension paid to him, was at the rates applicable to
a Sepoy instead of Nb Subedar, ie the rank held at the time of discharge
(Annxexure A-6). He claims that this is in violation of Para 180 of the
Pension Regulations for the Army 1961. He further states that he has not
been paid War Injury Pension (WIP) wef 1996 in terms of MoD letter
45/22/97-P&PW (C) dated 03.02.2000 and also denied rounding off benefits.
OA 1831 of 2012 Mahabir Singh Rao Vs UOI & Ors.
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2. He prays for : -
`”(a) Directions to the Respondents to release the disability pension and its arrears along with interest to the Applicant with effect from the date of retirement as per the rank held by him at the time of retirement in accordance with Regulation 180 of the Pension Regulations for the Army (1961).
(b) Directions to the Respondents to release WIP and its arrears alongwith interest to the Applicant with effect from 01 Jan 1996 in accordance with Govt of India, Ministry of Defence Letter No. 45/22/97-P&PW(C) dated 03 Feb 2000.
(c) Directions to the Respondents to release broad banding benefit of disability element @ 50% wef 01 Jan 1996 with interest in accordance with Govt of India, Ministry of Defence Letter No. 45/22/97-P&PW(C) dated 03 Feb 2000.
(d) Issue any other appropriate order or direction which this Hon’ble Bench
may deem fit and proper under the circumstances of the case.”
3. On issue of notice, the respondents filed a written reply. There is no
dispute on the facts, except that the respondents state that he was transferred
to pension establishment on 30.06.1992 against the petitioner‟s claim of
01.06.1992. They state that though the Release Medical Board had assessed
his disability at 20% for two years, PCDA (P) Allahabad granted disability
pension at 20% for five years. After a number of RSMBs he was granted
disability pension @30% for life on 17 Jun 2002. They state that as per Para
179 of the Pension Regulations for the Army 1961, „disability element in
respect of JCOs and ORS who are discharged on completion of term of
engagement or on attaining the age, irrespective of their period of
engagement, shall be assessed on the accepted degree of disablement at the
time of discharge on the basis of rank held on the date on which the wound/
injury was sustained or in the case of disease on the date of the first removal
from duty on the account of the disease’. Since in the instant case, the
OA 1831 of 2012 Mahabir Singh Rao Vs UOI & Ors.
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petitioner sustained injury in the rank of Gunner, he was correctly paid
disability pension.
4. As regards the grant of WIP, his case was re-examined by The Artillery
Records and sent to PCDA (P) on14 Aug 2012; reply from them is still
awaited. With respect to broad banding, their stand is that, under Para 7.2 of
MoD letter 1(2)/97/D (Pen-C) dated 31.01.2010, rounding off disability
element is only applicable to those who have been invalided out of service
prior to completion of terms of engagement. In this case, the petitioner was
discharged from service and thus not eligible for rounding off. They have
prayed for the petition to be dismissed.
5. This case had been heard and reserved for orders but due to the
untimely and unfortunate demise of late Justice Vinod Kumar Ahuja, was put
up for re-hearing. During this period, the respondents filed an application and
placed on record Artillery Records letter JC-150345/LC/62/NE-5(C) dated 24
Mar 15 (Annx R-2 at Page 73). Relevant extracts are reproduced below:-
“Tele: 0253-2415404/6229 REGD BY SDS/POST Topkhana Abhilekh Artillery Records PIN-908802 c/o 56 APO
JC-150345/LC/62/NE-5(C)
AFT Legal Cell
HQ Western Command
PIN-908543
c/o 56 APO
OA NO 1831/2012 FILED BY JC-150345M EX NB SUB
MAHABIR SINGH RAO VS UOI AND OTHERS IN THE
HON’BLE AFT CHANDIGARH BENCH FOR GRANT OF
WAR INJURY PENSION AND BENEFIT OF ROUNDING
OFF
OA 1831 of 2012 Mahabir Singh Rao Vs UOI & Ors.
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1. xxxxxxxxxx 2. xxxxxxxxxx 3. xxxxxxxxxx
4. xxxxxxxxxx At the time of discharge, the petitioner was
suffering from disability CSOM (Rt) OPTD ASOM (Lt) (HEALED) 382 V-67 and Release Medical Board viewed the same as attributable to military service due to Infection contracted during service, which was shown in AFMSF-15 dated 23 Feb 1974 and AFMSF-16 dated 01 Feb 1992. It means that his previous injury had been cured at the time of his discharge. Thus, this office is of the opinion that the petitioner is not entitled to War Injury Pension.
5. xxxxxxxxx
(LK Desai) Lt Col Chief Record Officer for OIC Records”
6. Heard the learned counsels and perused the record.
7. The following issues are formulated for consideration : -
(a) Issue No 1. Is the petitioner entitled to disability element
emoluments in the rank in which he sustained the injury
(Sepoy) or in the rank he retired (Nb Subedar)?
(b) Issue No 2. Is the petitioner entitled to WIP?
(c) Issue No 3. Is the petitioner entitled to broad banding of
disability?
Issue No1: Disability Pension Payable in Rank Injury Sustained or Held
at Retirement
8. The petitioner and respondents have relied on different provisions of
the Pension Regulations ie Paras 179 and 180 respectively These are
reproduced below : -
OA 1831 of 2012 Mahabir Singh Rao Vs UOI & Ors.
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“179. An individual retired/discharged on completion of tenure or
on completion of service limits or on completion of terms of
engagement or attaining the age of 50 years irrespective of their
period of engagement, if found suffering from a disability
attributable to or aggravated by military service and recorded by
Service Medical Authorities, shall be deemed to have been invalided
out of service and shall be granted disability pension from the date of
retirement. If the accepted degree of disability is 20 per cent or more
and service element if the degree of disability is less than 20 per cent.
The service pension/service gratuity, if already sanctioned and paid,
shall be adjusted against the disability pension/service element, as
the case may be.
(2) The disability element referred to in clause(1) above shall be
assessed on the accepted degree of disablement at the time of
retirement/discharge on the basis of the rank held on the date on
which the wound/injury was sustained or in the case of disease on
the date of first removal from duty on account of that disease.
Note:- In the case of an individual discharged on fulfilling the terms
of his retirement, his unwillingness to continue in service beyond the
period of his engagement should not effect his title to the disability
element under the provision of the above regulation.”
180. The rank for the purpose of assessment of service element
and disability element of disability pension, shall be the substantive
rank or higher paid acting rank, if any held by the individual on any
of the following dates, whichever is most favourable:
(a) the date of discharge/invalidment from service, or
(b) the date on which he/she sustained the wound or injury or
was first removed from duty on account of a disease causing
his disablement; or
(c) if he/she rendered further service and during and as a
result of such service suffered aggravation of disability, the
date of the later removal from duty on account of the
disability,
Note - In the case of an individual who on account of
misconduct or inefficiency is reverted to a lower rank
subsequent to the date on which the wound or injury was
sustained or disability contracted, the rank for assessment of
service and disability elements of pension shall be the rank
held on the date of invaliding from service.”
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9. A cursory reading of the two regulations would indicate, that, there is
overlap, duplicity and dichotomy between the two provisions. Para179 deals
with „Disability at the time of retirement/discharge‟, whereas Para 180 deals
with „Rank for assessment of disability pension.‟ Whereas Para179 refers to
the issue at hand in a roundabout and imprecise manner, Para 180 deals
specifically with the issue of „Rank for Assessment of disability pension‟
clearly and directly and states that, „the rank for the purpose of assessment
of service element and disability element shall be the substantive rank or
higher paid acting rank, if any held by the individual on any of the dates,
whichever is most favourable between the date of discharge/invalidment
from service, or the date on which he sustained the wound or injury.’ No
rationale was put forward by the learned counsel for the respondents as to
why Para 179 and not Para 180 will apply. Neither do the Pension
Regulations amplify this. It is a well settled law that when faced with such a
situation, the more liberal and beneficial provision will apply. It is quite
implicit, that the rank more favourable for assessment of service and
disability element shall apply. By applying Para 179, the respondents are
placing the applicant in a disadvantageous position and interpreting the rules
and regulations within a narrow compass, to deny the applicant his rights. We
are constrained to observe that the respondents have not come out with all
fairness, while reproducing the relevant legal provision pertaining to the
assessment of disability pension they have concealed Regulation 180.
10. In a similar case, Amar Chand Vs Union of India CWP No 5041 of
2006 in the Punjab and Haryana High Court, the court vide its judgement
dated 11.08.2006 ruled in favour of the petitioner and held, that, disability
OA 1831 of 2012 Mahabir Singh Rao Vs UOI & Ors.
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pension will be paid as per the rank at the time of retirement. Relevant
extracts are given below: -
“A bare perusal of Regulation 180 of the Regulations indicates that the disability element has to be assessed on the basis of the rank held by Army personnel at the time of his retirement/discharge. It is further clear that the regulation is to be applied in such a manner which is most favourable for the grant of disability pension. Even otherwise it is well settled that all legislations in the area of socio economic discipline are required to be construed in favour of the individual and contra proferentem. We are also unable to understand the novel theory of calculating disability in the rank such disability was suffered or discovered by the petitioner. It defies any logic as the question of pension at the stage of incurring the disability or its discovery was not alive. The aforementioned questions only arose when the petitioner was compulsory retired in the rank of JCO. Moreover when the condition of disability persisted while he was working as JCO and on the basis of downgrading the petitioner medically he was compulsory retired, we fail to understand as to how his pension is to be assessed on the basis of his rank when he discovered the disability or it was discovered for the first time. The stand taken by the respondents is wholly unreasonable and therefore unsustainable in the eyes of law.”
“In view if the above discussion, the writ petition deserves to be allowed. Accordingly the impugned orders dated 21.5.1999 ( Annx P-3) decreasing the disability pension of the petitioner and order dated 19.1.2001 (Annx P-5) rejecting the claim of the petitioner for enhancement of disability pension are set aside. We direct the respondents to grant the disability pension to the petitioner permissible to the rank of JCO from the due date and release all the consequential benefits including the arrears of pension form the date of receipt of a copy of this order. The petitioner shall be entitled to his costs, which are assessed at Rs 10,000/-.
11. We observe that in the case cited (supra), the petitioner was
compulsory retired, where as in the instant case, the petitioner retired after
completing his terms of service. We have pondered over the matter and are
of the view that, it makes no difference if the individual was compulsory
retired or was discharged on completion on terms of service, he will in
both cases, be entitled to disability pension as provided for in Regulation
180.
OA 1831 of 2012 Mahabir Singh Rao Vs UOI & Ors.
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Issue No 2: Entitled to WIP or Not
12. The respondents at Para 1 of Page 10 of their written statement,
have admitted that the petitioner sustained injury while on duty during
Indo- Pak Conflict 1971 and occurrence to this effect was published vide
78 Med Regt Part II order No 2/78/med/136/22/1988. They have also
stated that his case for grant of War Injury Element was submitted to
PCDA (P), Allahabad vide Arty Records letter No JC-150345/WIP/Pen -
2A (J) dated 14 Aug 2012. A reply dated 24 Mar 15 (Annexure R-2) has
now been received from Artillery Records. Vide this the respondents
argued that “the petitioner at the time of discharge was suffering from
disability CSOM (Rt) OPTD ASOM (Lt) Healed 382 V-67 and the
Release Medical Board viewed the same as attributable to military service
due to infection contracted during service, which was reflected in AFMSF-
15 dated 23 Feb 1974 and AFMSF-16 dated 01 Feb 1992. It means that
his previous injury had been cured at the time of his discharge. Thus this
office is of the opinion that the petitioner is not entitled to War Injury
Pension”.
12. The learned counsel for the petitioner argued that in 1972, the
medical specialist had issued a certificate that the petitioner is a battle
casualty and his disability is not less than 50% (taken on record as Exhibit
1). He also brought to our notice that the injury has been held to be
attributable to military service in the Invaliding Medical Board. The
learned counsel for the respondents however drew our attention to Para
2(b) of Part III of the Invaliding Medical Board where the Board has
OA 1831 of 2012 Mahabir Singh Rao Vs UOI & Ors.
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remarked “(b) In respect of each disability shown as attributable under
A, the Board should state fully, the specific condition and period in
service which caused the disability. - Due to infection contracted during
service (Ref AFMS-15 dated 23 Feb 74)”. He argued that it was only an
infection, not related to war injury per-se which had been cured and hence
the petitioner was not entitled to WIP. The learned counsel for the
petitioner ventilated that even if the injury is healed, it does not mean that
there is no disability.
13. We then went through the medical boards and observed the
following:-
(a) In the Invaliding Medical Board dated 01.02.1992, the word
HEALED has been added later and is in a different
handwriting. There is no signature of the Presiding Officer to
authenticate this addition. It refers to AFMS-15 dated
26.10.72 for the specific condition and period in service which
caused the disability.
(b) AFMS-15 dated 26.10.72 has the following remarks:-
1. Was the disability contracted in
in service ? Yes
2. Was it contracted in in
circumstances over which he had
no control ? Yes
3. Is it directly attributable to to
condition of service ? Yes
4. If so, by what
specific conditions?
Infection during service.
5. If not directly attributable to to
service, was it aggravated
thereby, and if so, by what
specific condition?
And Aggravated during
INDO PAK WAR DEC 1971
6. Medical category
recommended
„BEE‟
OA 1831 of 2012 Mahabir Singh Rao Vs UOI & Ors.
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This categorically notes that the infection occurred during
service and was aggravated during Indo-Pak War Dec 1971. It is also
noted that the injury occurred in „Jessore Sector‟.
(c) Part II order stating that the injury was sustained while on duty
during Indo-Pak War 1971 has been published.
(d) Exhibit 1, a certificate from the medical specialist is reproduced
below:-
“C E R T I F I C A T E
Certified that No. 1246484 Rank Sep Name MAHABIR
SINGH Unit: 78 Med Regt is a battle casualty of the Indo-Pak
conflict 1971 and is a case of Blast Injury Deafness of both ear,
Epiphara both eyes. His disability as is usually assessed under
the rules is not less than Fifty percent(50%) etc as the case may
be as on (date) 24.7.72 for consideration of ex-gratia payments.
(Auth:- Army HQ letter No. 11641/DMS-5(a) dated 2 May 72)
Sd/- A C ROY
Sqn Ldr
E.N.T. SPECIALIST
Officer Commanding
(SEAL)
Army Hospital
Delhi Cantt-10
24.7.1972”
14. From the perusal of the above documents and viewed as above we are
of the opinion that there is no merit in the stand of the respondents that the
petitioner is not entitled to war injury pension. In fact their contention is
misplaced and mischievous. In view of the above discussion we accept that
the petitioner is entitled to WIP.
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Issue No 3: Entitlement to Broad Banding
15. The issues of broad banding has been recently settled by the Apex
Court in the case of Union of India Vs Ram Avtar in Civil Appeal No. 418
of 2012 decided on 10.12.2014.
16. In view of this, the petitioner is entitled to rounding off, of his
disability from 20% to 50% with effect from 1.1.1996. At this stage the
learned counsel for the petitioner made a case for the benefits to be allowed
from 1.1.1996 and not to be restricted to three years prior to filing the
application. He made the plea that the petitioner‟s case was rejected
unauthorisedly. The petitioner did not challenge that order, or it may be due to
his ignorance or unawareness about his right. Be that as it may, he submits,
that, this has been granted in a number of cases from 1.1.1996. In support he
placed before us order dated 30.04.2015 given by the Principal Bench in the
case of Nb/Sub Clk Mahender Singh Vs Union of India and others. This is a
case where the PCDA (P) took a opinion contrary to that of the medical
board. Relevant portions are extracted below : -
“5. Be that as it may, learned counsel for the petitioner submits that in number of cases this benefit has been granted from 01.01.1996 because of the reason that the position was made clear by Union of India also as late as on 15.09.2014 when the Government of India issued letter No. 12(16/2009/D(Pen/Policy). The said letter 12(16/2009/D(Pen/Policy) was considered by the Principal Bench of the Tribunal in OA 160/2015 – Nb Sub(Retd) Arjun Singh Chauhan Vs Union of India & Ors decided on 18.03.2015. In the said case the enhanced disability pension was allowed from 01.1.1996 to the said petitioner. It is also submitted that the letter dated 31.01.2001, allowing the benefit in question, was also a subject matter before the Hon’ble Supreme in Civil Appeal No. 418/2012-Union of India & Ors Vs Ram Avtar decided on 10.12.2014. The Hon’ble Supreme Court rejected more than 800 civil appeals and upheld the judgment of the Tribunal granting the relief on the basis of the Government of India letter dated 31.01.2001. In another case i.e. OA 103/2015 Ex Naik Rulia Ram
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Vs Union of India & Ors, Chandigarh Bench of the Tribunal, vide order dated 05.02.2015 allowed the benefit of broad-banding of disability percentage from 01.01.1996. Learned counsel for the petitioner also brought to our notice the order passed by the Hon’ble Supreme Court in Civil Appeal D 35125/2014 Union of India & Ors Vs Ganpat Ram, dated 12.12.2014 wherein the Hon’ble Supreme Court directed the respondents to release the disability pension in terms of the direction of the Tribunal w.e.f. 01.01.1996 and issued notice to the respondent(petitioner) with respect to the award of the benefit for the period prior to 01.01.1996. According to the learned counsel for the petitioner, even the Hon’ble Supreme Court did not interfere in the award of disability pension from 01.01.1996, allowed by the Tribunal in the case of Ganpat Ram.”
17. There are other judgments which support such a view point. In
S.R. Bhanrale Vs Union of India, 1997 AIR (SC) 27 = 1996(10) SCC
172, Civil Appeal No. 9489 of 1996, decided on 19.07.1996 it was
observed that “the petitioner had claimed retiral benefits including
encashment of earned leave, increment arrears, special pay due, LTC etc.
which remained unsettled. His numerous representations to the
department also evoked no response. It was held that it amounts to
wrongfully withholding the amount from the applicant for more than 12
years. It was also observed that in the circumstances it ill behoved the
Union of India to plead bar of limitation against the dues of appellant and
the appellant was also held entitled to a sum of Rs. Two lacs towards
interest, compensation, litigation expenses for amounts wrongfully
withheld in addition to the claim amount already paid”. In S.K. Mastan
Bee Vs The General Manager, South Central Railway, 2003(1) SCC
184 = 2002(7) SLR 1, Civil Appeal No. 8089 of 2002, decided on
04.12.2002 it was held that “the delay in claiming family pension was
restricted to 38 months only preceding the filing of the writ petition. It
was held that it was not justified since it is the mandatory duty and
obligation of the employer to compute and disburse the family pension
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available to the dependents of deceased employee. The claim of the
petitioners cannot be restricted for the fault of the employer itself”.
18. This is a case where the petitioner was wounded in the Indo-Pak
Conflict of 1971 and retired on 30.06.1992. It is an admitted fact, that it
was a Battle Casualty and he was entitled to WIP on the date of his
retirement. Not only was he denied this for no reason whatsoever, he was
also paid disability pension in the rank of a Sepoy instead of Nb Subedar.
In a half hearted manner, the respondents initiated the process of payment
of WIP on the applicant filing this OA, but again slept over the matter.
This is a case where though no fault of the applicant, he has been
unlawfully denied his rights. In such a case, we are of the view that the
applicant deserves to get his benefits from the date they became due.
19. Our soldiers are serving in very difficult areas, sustaining great
hardships to protect our borders and territorial integrity. Recognising
these hard and difficult conditions, the Government has made certain
provisions to compensate them for the injuries sustained and the difficult
life. It is a matter of great regret and shame, that departments which are
supposed to implement these provisions are doing so in a perverse manner
and denying legitimate dues to the ex-soldiers. This is the least, the
nation can do to repay the debt they owe to the veterans. With a view to
obviate the hardships being suffered by the soldiers at the time of their
retirement, we hold that this order with reference to the rank in which
disability and service element will be assessed at the time of retirement,
will be observed in rem and not in personam, even where the petitioners
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have not approached the Tribunal to obviate untold miseries and
unnecessary wastage of time and money.
Summation
20. In the instant case we are of the considered opinion that, the
petitioner is entitled to War Injury Element of Disability Pension in the
rank of Nb Subedar with effect from the date of his discharge, i.e
01.07.1992, and rounding off of his disability from 20% to 50% with
effect from 1.1.1996. The respondents are also directed to pay interest at
the rate of 10% per annum for the last three years only, prior to filing of
his petition. Rest of the amount of the arrears be paid to the petitioner
without interest. In addition, cost of Rs. 25,000/- is also awarded to the
applicant.
21. The respondents are accordingly directed to calculate and pay the
above amount within a period of three months of the receipt of this order
by the learned counsel for the respondents. Failure to do so will attract an
interest of 10% per annum from the date of this order till the date of
payment.
(Justice Surinder Singh Thakur)
(Lt Gen DS Sidhu (Retd))
04.09.2015 „pl‟
Whether the judgment for reference to be put up on website – Yes/No