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ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI
O.A.No.148 of 2013
Monday, the 03rd day of March, 2014
THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH
(MEMBER - JUDICIAL) AND
THE HONOURABLE LT GEN K. SURENDRA NATH (MEMBER – ADMINISTRATIVE)
M. Natarajan Ex Rect. 1379283
Son of Muthaiyan
Punathittai, Kattapulavilai Kappiyarai Post, Kanyakumari District
Tamil Nadu.
… Applicant
By Legal Practitioners: M/s. A. Dennison, M.K. Sikdar &
S. Biju
Vs.
1. Union of India, rep. by
Secretary to the Government,
Ministry of Defence, New Delhi.
2. The Senior Record Officer,
Madras Engineer Group Bangalore 900 493
C/O 56 APO … Respondents
By Mr. B. Shanthakumar, SPC
2
ORDER
(Order of the Tribunal made by
Hon’ble Lt. Gen. K. Surendra Nath, Member-Administrative)
1. This Original Application has been filed under Section-14 of the Armed
Forces Tribunal Act, 2007, whereby the petitioner has claimed the following
reliefs :-
a) To call for the records pertaining to Order in L.No.7/653/95/D
dated 24.12.96, on the file of the first respondent and quash the
same;
b) To direct the first respondent to continue the payment of
disability pension, with effect from 8.5.1987.
2. In brief, the facts of the case are that the applicant was enrolled in the
Indian Army on 2.11.1983 as a Sepoy after duly passing all necessary
examinations and physical tests and relevant recruitment procedures in the
Engineers. While undergoing training in Timber Bridge Crossing in the
Regimental Centre, he slipped and fell down and in the said accident he had
his right little finger crushed and it became useless. He was admitted in
Command Hospital, Air Force, Bangalore, for treatment. He was placed in
medical category ‘EEE’ permanently and was declared medically unfit and
was discharged from service on 29.6.1985. At the time of discharge, the
Invalid Medical Board held the injury to be of permanent nature and
3
assessed his disability as 20% for two years and the injury was attributable
to military service. Accordingly, he was granted disability pension of 20%
for two years from 29.6.1985. On completion of two years period, he
reported for Review Medical Board on 4.3.1987 at Military Hospital,
Trivandrum, in accordance with Army Order 121/79. The Review Medical
Board assessed the condition of the applicant since the last Board as “Static
and likely to be permanent” and recommended 20% disability. However,
the individual did not receive any pension. The Controller of Defence
Accounts (Pensions) discontinued paying disability element of pension to
him. On an appeal to the Government against the discontinuance of
disability pension vide his undated petition, he was re-assessed by the Re-
assessment Medical Board held on 14.2.1994, at Military Hospital,
Trivandrum. However, his claim for disability pension was again rejected
vide CCDA(P), Allahabad, letter No.G3/RA/3/94/2656/V dated 30.5.1994,
stating that the disability was assessed to be below 20% and hence was not
eligible for disability pension. His appeal against discontinuation of disability
pension vide his letter dated 29.7.1994, was again rejected by First Appeal
Committee vide Government of India, Ministry of Defence letter
No.7(653)/95/D dated 24.12.1996. The applicant averred that he thereafter
approached the Army Headquarters again on several occasions, but he was
not granted disability pension and in his application, he had claimed that the
Invalid Medical Board had fixed his disability at 20% for life and, therefore,
he should be given disability pension as recommended by the Medical Board
4
and rounded off to 50% as per existing rules of Government of India,
Ministry of Defence, policy letter No.1(2)/97/D(Pen–C) dated 31.1.2001, and
in accordance with Apex Court Ruling on the applicability of broadbanding of
disability reported in 2009 (9) SCC between K.J.S. Buttar Vs. Union of
India and another.
3. Mr. B. Shanthakumar, Learned Senior Panel Counsel assisted by M.
Dennison, representative of Legal Cell, ATNK&K Area, appearing for the
respondents, in their Counter would state that the individual was recruited to
the Madras Engineer Group on 2.11.1983. While undergoing basic military
training on Timber Bridge Crossing, he slipped and fell down during bridging
exercises and got injury to his little finger of right hand. He was admitted to
Air Force Command Hospital for treatment. During the period of
hospitalisation and treatment, the applicant was tenaciously adamant for not
doing physiotherapy exercises as he had no interest to do so which resulted
in the development of Flexion Contracture Little Finger (R) at the Proximal
Inter Phalangyal Joint. He was reviewed by the Surgical Specialist at the
said Hospital, who opined that the applicant is unlikely to be an efficient
soldier because of the injury and was recommended for invalidment in
category ‘EEE’. The invalid Medical Board, which was held on 9.5.1985
recommended him to be invalided out of service in medical category ‘EEE’
with 20% disability for two years due to disability Flexion Contracture Little
Finger(R). This was concurred with by the competent authority and the
5
applicant was invalided out of service on 28.6.1985 under Rule-13(3) Item
(iv) of Army Rules, 1954, on medical grounds. The disability of the applicant
was considered as attributable to military service and he was given disability
pension at the rate of Rs.111/- from 29.6.1985 to 8.5.1987 and a service
element of Rs.102/- for life. On completion of two years, the applicant was
brought before Re-Assessment Medical Board (RAMB). The competent
medical authority PCDA(P), Allahabad, held the disability to be less than
20% (i.e. between 10% to 14%) and hence disability element of the pension
was discontinued with effect from 9.5.1987. The rejection of disability
pension by competent authority was communicated to the applicant vide
Records, Madras Engineering Group, Bangalore, letter
No.1379283/Pensions(RSMB)/77 dated 28.9.1987 advising him to prefer an
appeal against the rejection, if he wished to do so, within six months.
Subsequently, the applicant preferred an appeal dated 1.2.1988 against the
rejection of disability pension, which was also rejected by the Government of
India, Ministry of Defence, vide letter No.7(626)/88/D(Pens-A) dated
30.11.1988. As per Rule-173 of Pension Regulations for the Army, 1961
(Part-I), unless otherwise specifically provided, a disability pension
consisting of service element and disability element may be granted to an
individual who is invalided out of service on account of disability which is
attributable to or aggravated by military service in non-battle casualty cases
and disability is assessed at 20% or over. As the disability of the applicant
was considered less than 20% for life, no disability pension was admissible
6
to him within the framework of the Rules. The respondents also brought out
that the case is hopelessly barred by limitation and insurmountable delay in
approaching this Hon’ble Tribunal and would state that the case is liable to
be dismissed in favour of Union of India. The Learned Senior Panel Counsel
for the respondents also cited other Judgements of Armed Forces Tribunal,
Lucknow, in its Order dated 8.8.2012 and in O.A.No.55 of 2012 with
M.A.No.78 of 2012 dated 17.2.2014. The Hon’ble Tribunal in this case had
taken a similar view and dismissed the application on account of delay and
laches.
4. The respondents’ contention that the case is delayed by 5679 days and
on account of delays and laches, it was liable to be dismissed, was
considered by this Tribunal. The applicant in his Affidavit stated that he was
discharged from the army service and due to want of money, he could not
file the application in time. He further stated that the delay is neither wilful
nor wanton and if the delay is not condoned, he would continue to suffer and
lose the pension. This being a case of renewal of disability pension, which
pertains to pension matters with recurring and continuing cause of action,
the principles laid down by the Hon’ble Apex Court in the case of Union of
India and others Vs. Tarsem Singh reported in (2008) 8 SCC 648,
could be applied and the delay can be condoned in such matters without
attaching much significance to limitation and while doing so, the relief should
be restricted to a period of three years prior to the date of filing of the
7
Original Application. Therefore, we were inclined to condone the delay of
5679 days as per our Order in M.A.No.191 of 2013 dated 11.11.2013 in
order to give an opportunity to the applicant to put forth his case and it was
allowed subject to the relief given by the Tribunal will be restricted to a
period of three years prior to the date of filing of the Original Application.
5. On the above pleadings, the following points were framed for
consideration in this application :-
1) Whether the injury sustained by the applicant during training is
attributable to or aggravated by military service and of
permanent nature ?
2) Whether disparity in assessing the percentage and nature of
disability of the applicant in the three Medical Boards held, i.e.
Invalid Medical Board of 1985, Re-Assessment Medical Board of
1987 and Re-Assessment Medical Board of 1994, was due to
improvement in the condition of the injury or a difference of
opinion of respective Medical Boards ? What is the scope of
power of PCDA(P), to interfere with the opinion of the Medical
Board ?
3) Whether the disability of the applicant presently assessed at less
than 20% be rounded off to 50% in accordance with the
8
provisions of Government of India, Ministry of Defence letter
dated 31.01.2001 (supra) ?
4) To what relief, if any, the applicant is entitled for ?
6. We have heard Mr. S. Biju, Learned Counsel for the applicant and Mr.
B. Shanthakumar, Learned Senior Panel Counsel assisted by Mr. M.
Dennison, representative of Legal Cell, ATNK & K Area, Chennai, appearing
for the respondents, and have gone through the records and the
submissions made by them.
7. Points No. 1 & 2: From the records and averments of both Counsels,
the applicant Mr. M. Natarajan, was recruited into Madras Engineering Group
on 2.11.1983. He sustained injury to his right little finger while undergoing
bridging training on 14.11.1984, and he was subsequently hospitalised in Air
Force Command Hospital at Bangalore. The injury was found to be of such a
nature that he could not continue in military service. Despite hospitalisation
and treatment, the injury resulted in the development of Flexion Contracture
Little Finger (R) at the Proximal Inter Phalangyal Joint. The Invalid Medical
Board held on 9.5.1985 opined that he is unlikely to be an efficient soldier
and recommended for the invalidment in medical category ‘EEE’. The
Medical Board opined that the injury was aggravated probably since the
individual did not do adequate physiotherapical exercises. However, the
9
Board also felt that this was probably due to the fact that the applicant had
not understood the instructions being not conversant with English and Hindi.
We are inclined to accept this proposition. The Invalid Medical Board held the
injury to be attributable to military service and recommended 20% disability
for two years due to the disability ‘Flexion Contracture Little Finger (R)’.
Accordingly, the individual was discharged from service with disability
pension at the rate of Rs.111/- with dearness relief as admissible from time
to time for the period from 29.6.1985 to 08.05.1987, and service element of
Rs.102/- with dearness relief as admissible vide Pension Payment Order
No.D/3314 dated 16 December, 1985.
8. As per records, the applicant was brought before the Re-Assessment
Medical Board (RAMB) on 4.3.1987. In the said Board, the Surgical
Specialist opined that the injury was “static and likely to be permanent”.
The Board assessed the disability of the applicant to be 20% with effect from
9.5.1987. This was concurred to, by the Board and accordingly
recommended the disability to be 20% for permanent. However, the
PCDA(P) reduced the percentage of disability from 20% to less than 20%
(6% to 10%). While doing so, no reasons were adduced for lowering the
percentage of disability. The applicant went on appeal to the First Appellate
Authority vide his letter dated 1.2.1988 against the discontinuance of
disability pension. However, this was again turned down on the plea that
there were no reasonable grounds to alter the assessment as previously
10
made by PCDA(P) i.e. less than 20% (6 to 10% for life). No disability
pension was, therefore, admissible to the applicant under the Rules. Being
aggrieved, the applicant again appealed to the Government of India and was
put through RAMB at Military Hospital, Trivandrum on 14.2.1994. The
Surgical Specialist in his opinion again emphasised that the condition of the
applicant for disability is permanent, unlikely to change and no change was
apparent since the last review. Accordingly, the Medical Board also
endorsed that his condition was static since the last Medical Board.
However, while making the assessment of the disability, the Board assessed
the disability less than 20% with effect from 14.2.1994 for 10 years. The
PCDA(P) assessed the disability to be less than 20% (11% to 14%) and
disallowed the plea for disability pension vide their letter
No.G3/RA/3/94/2656/V dated 30.5.1994.
9. From the above, the following facts emerge :-
a) The applicant sustained injury to his right little finger which was
considered to be of permanent nature and he was invalided out
of service.
a) The injury was attributable to military service. The Invalid
Medical Board as well as the two Re-Assessment Medical Boards,
which includes the last one i.e. of 14.2.1994, opined that the
injury continues to be static and permanent.
11
b) While the Invalid Medical Board and Re-Assessment Medical
Board (RAMB) of 1987 have assessed the disability to be 20%,
the RAMB of 14.2.1994, while opining that the injury continues
to be of “static and permanent” nature and “unlikely to
improve”, however reduced the disability percentage from 20%
to less than 20% without adducing any reasons.
c) The PCDA(P) while adjudicating the percentage of disability had
varied its opinion with regard to the percentage of disability, i.e.,
less than 20% (6% to 10%) in 1987 and less than 20% (11 to
14%) in 1994. In both cases, the PCDA(P) has not given any
reasons either for lowering the percentage of disability from 20%
as recommended by the RAMB or any specific reasons for the
said variations as indicated above.
10. It is a settled law that the opinion of Medical Boards containing panel
of expert Doctors should be given primacy and credence. Several
Judgements have examined and held that the scope of power of PCDA(P) is
very limited. In summarising the role of PCDA(P) with regard to disability
pensions, Delhi High Court in the case of Rajender Singh vs. Union of
India (UOi) and Ors. on 27 July, 2006, held that PCDA(P) is vested with no
jurisdiction of its own to reject issuance of Pension Payment Order and
disbursement of pension after receiving sanction of the competent authority
12
in terms of AFMSF-16 accompanied by medical opinion of duly constituted
medical board. Operative part of the Judgement is reproduced as follows :-
“7. In the judgment of the Division Bench of this Court
in Ex Const.Jasbir Singh (supra), reference was made to another
Division Bench judgment of this Court in the case of
Ex.Signalman Sri Bhagwan. In the Judgment of the Court in Sri
Bhagwan's case the consistent view taken by the Court is that
the jurisdiction of the PCDA(P) is a very limited one and at best
it can refer back the case to the competent authority for replying
to the queries, if any, raised by the pension authorities that too
in accordance with rules but it certainly has no jurisdiction to
take a view contrary to the view of the Medical Board. Arbitrary
non-acceptance of view of the Medical Board would be in
violation to the rules as well as the principles of law stated by
the Courts. In all the above cases, the Courts have dealt with
the provisions entitling the member of the Armed Forces to
receive disability pension. There is no divergence of view in
regard to ambit and scope of power of PCDA(P) and binding
nature of the opinion of the Medical Board constituted in
accordance with rules. Regulation 173 of the Pension Regulations
for Army, 1961 Appendix II relates to grant of entitlement for
disability pension. Section 22 of the Army Act and the
13
instructions issued by the competent authorities as afore-
referred, leave no doubt that PCDA(P) is vested with no
jurisdiction of its own to reject issuance of PPO and
disbursement of pension after receiving sanction of the
competent authority in terms of AFMSF-16 accompanied by the
medical opinion of the duly constituted Medical Board. Once
conditions of Regulation 173 of the Pension Regulations, 1961
are satisfied, the jurisdiction of the PCDA(P) is very limited. Once
the rules required the authorities to perform acts in a particular
manner then it is expected that they would be done as required.
Acti qualibet it suavia. In other words things should take the
prescribed course and the prescribed procedure should not be
permitted to be frustrated particularly by arbitrary exercise of
power. In the case of S. Balachandran Nair (supra), the Supreme
Court has clearly stated the nature and effectiveness of a
medical opinion expressed by the appropriate Board in
accordance with rules. Once the PCDA(P) transgresses its
specified jurisdiction, their action would invite judicial
intervention.
8. In view of the above settled position of law, the
claim of the petitioner merits acceptance. Consequently, this writ
petition is allowed. The respondents are directed to consider and
grant disability pension to the petitioner as per the
14
recommendations of the medical board, its acceptance by the
administrative authorities and in conformity with the relevant
rules.”
11. In a Judgement of Hon'ble Apex Court reported in (2009) 9 SCC 140,
between Secretary, Ministry of Defence and others Vs. A.V.
Damodaran (Dead) through LRs and others, the following principles
with regard to primacy of medical opinion have been laid down :-
“8. When an individual is found suffering from any disease
or has sustained injury, he is examined by the medical
experts who would not only examine him but also ascertain
the nature of disease/injury and also record a decision as to
whether the said personnel is to be placed in a medical
category which is lower than ‘AYE’ (fit category) and
whether temporarily or permanently. They also give a
medical assessment and advice as to whether the individual
is to be brought before the release/invalidating medical
board. The said release/invalidating medical board
generally consists of three doctors and they, keeping in view
the clinical profile, the date and place of onset of invaliding
disease/disability and service conditions, draws a conclusion
as to whether the disease/injury has a causal connection
15
with military service or not. On the basis of the same, they
recommend (a) attributability, or (b) aggravation, or (c)
whether connection with service. The second aspect which
is also examined is the extent to which the functional
capacity of the individual is impaired. The same is adjudged
and an assessment is made of the percentage of the
disability suffered by the said personnel which is recorded
so that the case of the personnel could be considered for
grant of disability element of pension. Another aspect which
is taken notice of at this stage is the duration for which the
disability is likely to continue. The same is
assessed/recommended in view of the disease being capable
of being improved. All the aforesaid aspects are recorded
and recommended in the form of AFMSF-16. The
Invalidating Medical Board forms its
opinion/recommendations on the basis of the medical
report, injury report, court of enquiry proceedings, if any,
charter of duties relating to peace or field area and of
course, the physical examination of the individual.
9. The aforesaid provisions came to be interpreted
by the various decisions rendered by this Court in which it
has been consistently held that the opinion given by the
16
doctors or the medical board shall be given weightage and
primacy in the matter for ascertainment as to whether or
not the injuries/illness sustained was due to or was
aggravated by the military service which contributed to
invalidation from the military service.”
12. As for the fixing of the percentage of disability is concerned, while the
Invaliding Medical Board and the first RAMB dated 4.3.1987 have fixed the
disability to be 20% and the nature of disability to be ‘Permanent’, the
second RAMB (14.2.1994) while agreeing with the fact that the nature of
injury is ‘Static since last medical board’, has lowered the percentage of
disability to less than 20% and the assessment duration limited to 10 years
only without affixing any valid reasons for the said variation in the opinion.
We are inclined to question the opinion of the Board and feel that the said
Medical Board erred on both counts. The Board has ascribed no reason or
recorded any improvement in the medical condition to vary the percentage
of disability from 20% to less than 20%. Further, fixing 10 years as the
assessed duration of disability contradicts the expressly stated opinion of the
Surgical Specialist i.e., “His condition is permanent and unlikely (to) change.
No change apparent since last Review.”
17
13. We, therefore, are inclined to disagree with the assessment of
disability and the duration of the assessment at Para-8(a) Column-6 and
Column-7 of the RAMB dated 14.2.1994. We are of the considered view that
the disability caused due to injury to the right little finger ‘Flexion
Contracture Little Finger (RT)’ of the applicant continues to be “Static and
permanent” as hitherfore. Further, we feel that the said Board erred in
affixing disability percentage to be less than 20% without adducing any
supporting reasons to alter the earlier assessment. Both the points are
decided accordingly in favour of the applicant.
14. Point No.3: We now examine the applicability of provisions of broad
banding of relief as envisaged in the Government of India, Ministry of
Defence, Letter No.1(2)/97/D(Pen–C) dated 31.1.2001, in the instant case.
The said policy letter vide para 7.2 envisages broad banding of disability
element as follows :-
Percentage of disability
as assessed by invaliding
medical board
Percentage to
be reckoned for
computing of disability element
Less than 50 50
Between 50 and 75 75
Between 76 and 100 100
18
The said benefits were conferred upon the retirees on and after
1.1.1996. The policy, in the case of disability attributable to military service,
does not make a distinction between 20% and above and less than 20%.
Further, the disability percentages from 1% to 50%, have been brought
under one band, i.e., 50% for the purposes of computing of disability
element of pension. The Judgement of Hon'ble Apex Court reported in 2009
(9) SCC between K.J.S. Buttar Vs. Union of India and another,
contended that restricting the benefits of broad banding only to retirees on
and after 1.1.1996 was violative of Article-14 of the Constitution and
extended the benefit to Pre-1.1.1996 retirees also. The relevant point as
laid down in para-14 of the Judgement runs as follows :-
“14. In our opinion the appellant was entitled to the
benefit of para 7.2 of the instructions dated 31.1.2001 according
to which where the disability is assessed between 50% and 75%
then the same should be treated as 75% and it makes no
difference whether he was invalided from service before or after
1.1.1996. Hence the appellant was entitled to the said benefits
with arrears from 1.1.1996, and interest at 8% per annum on
the same.”
15. The provision of broad banding of disability percentage for computing
disability element, in the instant case to 50%, is available to the applicant,
19
as long as the injury is attributable to military service and the assessed
disability is above 1%. Therefore, the question of whether the assessed
disability percentage was above or below 20% is not of much relevance any
further, for allowing disability pension to the applicant.
16. In view of the aforesaid, we may conclude that the applicant was
discharged from service owing to permanent disability to right little finger,
sustained during bonafide training and is attributable to military service.
The disability was assessed to be 20% by the Review Medical Board dated
4.3.1987 and is entitled to continuance of both service element and
disability element of pension with effect from 09.05.1987. We note that
while the applicant continues to draw service element of pension, he has
been denied disability element of pension with effect from 09.05.1987.
Further, with effect from 1.1.1996, he is entitled to the provisions of broad
banding of disability percentage to 50% for computing disability element of
pension.
17. Point No.4: In sum, the applicant is entitled to the service element
of pension for life as fixed originally on invalidment and granted with effect
from 29.6.1985. He is also entitled to reckonable disability element of
pension at 20% from 9.5.1987, and enhanced to eligible for enhancement to
50% from 1.1.1996. However, in accordance with the principles laid down
by the Hon’ble Apex Court Judgement in the case of Union of India and
20
others vs. Tarsem Singh, the disability element of pension is liable to be
limited to three years prior to the date of his filing the application before the
Tribunal i.e., 2.1.2010.
18. In fine, the application is allowed to the extent as indicated above.
The respondents are directed to calculate the arrears of disability pension
three years prior to the date of filing of the application before the Tribunal,
i.e. 2.1.2010 to this date and to pay the applicant within a period of three
months from today and to continue to pay the future service element of
pension as well as the disability pension as indicated above. In default to
pay the said arrears as directed above, the applicant shall be entitled to 9%
p.a. interest over the arrears from this date, till the date of such payment.
No order as to costs.
Sd/- Sd/-
LT GEN K. SURENDRA NATH JUSTICE V. PERIYA KARUPPIAH
MEMBER (ADMINISTRATIVE) MEMBER (JUDICIAL)
03.03.2014
(True Copy)
Member (J) – Index : Yes / No Internet : Yes / No
Member (A) – Index : Yes / No Internet : Yes / No
NCS
21
To,
1. The Secretary to the Government,
Ministry of Defence, New Delhi.
2. The Senior Record Officer,
Madras Engineer Group Bangalore 900 493
C/O 56 APO
3. M/s. A. Dennison, M.K. Sikdar &
S. Biju, Counsel for applicant.
4. Mr. B. Shanthakumar, SPC
For respondents.
5. OIC, Legal Cell (Army), ATNK& K Area HQ,
Chennai-9.
6. Library, AFT, Chennai.
22
HON’BLE MR.JUSTICE V. PERIYA KARUPPIAH
MEMBER (JUDICIAL)
AND
HON’BLE LT GEN K. SURENDRA NATH
MEMBER (ADMINISTRATIVE)
O.A.No.148 of 2013
03.03.2014