Disability Pension After Court Order for NA NA cases with Less than 20% disability

Disability Pension Court Order in favour of Exserviceman 

Disabiltiy Pension Court Order has been passed by Armed Forces Tribunal Lucknow to grant Disability Pension to the disabled soldiers whose claims were rejected by PCDA (P) and Ministry of Defence even after appeal for several times. Finally Exservicemen got victory over the burocratic decision made by the Defence Ministry.

 Disability Pension of thousands of disabled soldiers are denied, their claims are rejected by PCDA (Pension), Allahabad (Prayagraj) every year in spite of haveing Disability pension Court order.  As per rules First appeal and Second appeal is feasible against the rejected claim of disability pension of armed forces personnel. After two appeal, if the claim is not accepted by the defence authority, then next step is to approach the Armed Forces Tribunal located at every Command Zone of the Indian Armed Forces. Armed Forces Tribunal is a departmental level mechanism to overcome any dispute  on the service matters like Central Administrative Tribunal (CAT) etc.

Disability Pension Court Order case of Ex-Sgt Rohitash Kumar Sharma

 

Sgt Sharma was discharged from Indian Air Force in 2015 after completion of his initial terms of engagement i.e 20 years in Low Medical Category A4G3 (Permanent). At the time of retirement from service, the Release Medical Board (RMB) held at Service Hospital where the medical board on assessed his disability ‘SEVERE OBSTRUCTIVE SLEEP APNOEA (OLD)’ @ 15-19% for life and opined the disability to be neither attributable to nor aggravated (NA NA) by the Medical authority of service Hospital.

Basic Rules of Disability Pension as per Pension Regulations for Defence Services

As per the extended Govt rules i.e Pension Regulations for the Army 2008 an similar rules of Navy and Air Force applicable to Ex Sgt Sharma, following ccriteria must be satisfied in order to be eligible to get disability pension :-

(i) Disability should be atleast 20% while released after completion of terms of engagement on superannuation.

(ii) Disability should be either attributable to military servicce or aggravated by military service or both.

Disability Pension claim rejected and steps taken by Sgt Sharma

Cause of rejection of disability Pension(a)  Disability is less than 20%
 (b)  Disability is Neither Attributable to Military Service and Nor Aggrvated by military service
(Cause of Rejection)

Claim of disability pension of Sgt Sharma had been rejeccted as his disability assesed by the medical board as 15-19% , not attributable to and not aggravated (NA NA) by military service. When claim of disability pension of Ex Sgt Sharma rejected by the Pension sanctioning authority i.e PCDA (P), he preferred First and Second Appeal which too were rejected in the year 2016 and 2018 respecctively. After that he filed the petition at Armed Forces Tribunal vide OA No 320 of 2019.

The Petition of Ex Sgt Sharma regarding grant of medical pension

Petition filed in AFT to sought relief by the Ex-serviceman(a) Consider the disability as attributable and aggravated by military service.
 (b) Rounded off the disability  to 50%
 (c)   Grant Disability Pension
(Petition Summary)

Applicant Sgt Sharma pleaded that at the time of enrolment, he was found mentally and physically fit for service in the Air Force and there is no note in the service documents that he was suffering from any disease at the time of enrolment in Indian Air Force. He belongs of Radio Fitter trade of Air Force Telecommunicattion servie and being ccombatant Airman, he was working in advance defence ground environmental system which deals with Radar and Radio equipments and such units are usually at High Altitudes or at remote places and soldiers have to work in shift duties, thus environmental condition leads to stress and strain which has affected his health badly.

Combat life of a soldier – stress and strain of service

In his 20 years of service, he has served in various field/High Altitude and counter insurgency areas of J&K, Sikkim and Assam. The entire service period of Sgt Sharma is an evidencce of rigorous combat life of a soldier which involved huge stress and strain of service due to versatile nature of duties in hard terrains and field /highaltitude areas. In May 2001, he was posted at Air Force Station Bhuj during earthquake in Jan 2001 where he stayed for one year in tent as buildings were badly damaged in earthquake. On October 2006, he was posted at Air Force Station Srinagar a field area and was operated for DNS (LT).

Just after operation his ward mates complained of snoring during sleeping at night due to which he was not able to sleep with other occupants. The applicant also faced problems in breathing whereupon he was allotted separate accommodation at the Wing, Air Force. In the last phase of his three years tenure, he started having breathing problems at HighAltitude due to Nasal Blockage.

Injustice with the soldiers

In spite of such a selfless dueites performed and scrificed the precious years of life for the nation, his disability claim got rejeccted wrongly on the ground of disability percentage being less than 20% and NANA. He pleaded that he was contracted the ailment during service, hence it is attributable to and aggravated by Military Service. Moreover,
various Benches of Armed Forces Tribunal have granted disability pension in similar cases, as such the applicant be granted disability pension as well as arrears thereof, and the applicant is therefore entitled to disability pension and its rounding off to 50%. Inspite of haveing Disability Pension Court Order exist earlier with the Defence authority, they disallowed each and every NA NA Case.

Reference of other Court Orders on Grant of Disability Pension to NA NA Case with 15-19% disability.

He relied upon the judgments of Armed Forces Tribunal, Principal Bench, New Delhi, in the cases of O.A. No 47 of 2017, Lt Gen Sandeep Singh (Retd) vs. Union of India and others, decided on 18.04.2017 and O.A. No 1706 of 2018, Sqn Ldr VK Thakur (Retd) vs. Union of India and others, decided on 10.05.2019. He also relied upon the judgment of the Hon’ble Apex Court in the case of Sukhvinder Singh vs Union of India & Ors, Civil Appeal No. 5604 of 2010, decided on 25.06.2014 and pleaded that he is entitled to grant of disability pension and its rounding off.

Subject of DisputeCourt Orders
Rounding Off the Disability percentageLt Gen Sandeep Singh (Retd) Vs U.O.I

Reply of Defence authority and logic in support of rejecction of disability pension

Rebutting arguments of the applicant, Ld. Counsel for the respondents (DEfence Authority) submitted that the disability pension claim of the applicant was rightly rejected because Release Medical Board has assessed the degree of disablement between 15 -19% which is less than the minimum requirement of 20% for the grant of disability pension and held the same as neither attributable nor aggravated by Air Force service, therefore, the disability pension is inadmissible to the applicant.

The defence authority argued that onset of ID was first diagnosed in January 2008 while individual was serving at Srinagar (Field). The authority pleaded that ‘SEVERE OBSTRUCTIVE SLEEP APNOEA (OLD)’ is a disability which is constitutional in nature and obesity is a frequent contributor to this condition. On perusal of Annual Medical Examination for the year 2006 and 2007, it has been found that individual was overweight and at the time of RMB, was overweight with a BMI of 27.58 hence his disability was assessed as neither attributable to nor aggravated by air force service. However service element of pension has been granted to the applicant. Now, lets see the Disability pension court orders earlier passed by the justice body.

The constructive Opinion of the Armed Fores Tribunal in Support of Sgt Sharma, the applicant

various Tribunals and Courts have found that the assessment of disability to the tune of 15-19% itself is a doubtful assessment and cannot be final for the simple reason that
there is no barometer which can assess the disability percentage to the extent of 1% and therefore, the percentage of disability which has been assessed as 15-19% may be 20% also and there may be variation of at least two percent plus also.

In case of doubt as per the Pension Regulations, the benefit should always be given to the applicant. Probably because of this reason the Union of India must have issued the order dated 31.01.2001 to provide for giving the benefit of rounding off the disability pension to 50% to the persons who are having less than 50% of the disability.

References of the Disability Pension Court Order passed earlier

Medical Board in the same disease in the case of Lt Gen Sandeep Singh (Retd) (supra) has assessed the disability as 20% whereas in the case of applicant it has been assessed as 15-19%. So, there could not be different yard sticks while assessing percentage of disability in the same disease.

Law of rounding off for less than 20% passed in various Disability Pension Court Order

Hon’ble Principal Bench in the case of Sqn Ldr VK Thakur (Retd), (supra) in similar matter has considered disability of 15-19% as 20% and rounded off to 50%. Moreover, the law is settled that even if it is less than 20%, it would stand rounded off to 50% (in cases after their superannuation). The case in point relied upon by the Applicant is Sukhhvinder Singh Vs. Union of India, reported in (2014) STPL (WEB) 468 SC.

Law of attributability of disability when assessed by med auth as NA NA

The law on attributability of a disability has already been settled by the Hon’ble Supreme Court in the case of Dharamvir Singh Versus Union of India & Others, reported in (2013) 7 Supreme Court Cases 316. In this case the Apex Court took note of the provisions of the Pensions Regulations, Entitlement Rules and the General Rules of Guidance to Medical Officers to sum up the legal position emerging from the same.

Disputed subjectCourt Orders
Applicability of disability pension to NA NA CaseSupreme Court Orders on Dharamvir Singh Vs U.O.I
Rounding off the disability in case of 15% to 19%CAT Principle Bench Orders on Sqn Ldr VK Thakur (Retd), Vs U.O.I

Wrong assessment by Medical Board in RMB proceedings & opinion of AFT

RMB has denied attributability to the applicant only by endorsing that the disability of the applicant ‘SEVERE OBSTRUCTIVE SLEEP APNOEA (OLD)’ is neither attributable to nor aggravated (NANA) by service on the ground of disability not connected with military service, constitutional disorder, therefore, applicant is not entitled to disability pension.

Weereas it is an undisputed fact that the applicant was enrolled in Indian Air Force with fully fit condition after rigorous medical examination and the disability was detected for the first time after more than 12 years of Air Force service. The disability of the applicant must be presumed to have arisen in the course of service which must, in the absence of any reason recorded by the Medical Board, be presumed to have been attributable to or aggravated by service.

No disability mentioned at the time of enrolment

There is neither any note in the service record of the applicant at the time of his entry in the service nor has any reason been recorded by the Release Medical Board that the disease which the applicant was found to be suffering from, could not have been detected at the time of his entry into service hence this reasoning of Release Medical Board for denying disability pension to applicant is not convincing and doesn’t reflect the complete truth on the matter.

Final Orders Passed by the AFT in favour of the Sgt Sharma – The Disability Pension Court Order 2021

The Tribunal has finally came into decisiin and passed suitable orders in favour of the Exserviceman Sgt Sharma that “in view of the above, the petition of the petitionar, deserves to be allowed, hence allowed”. The impugned orders passed by the defence authority earlier in 2016 and in 2018 rejecting claim for grant of disability element have been set aside by the tribunal. Since the applicant is already in receipt of service element hence the defencce authority has been instructed to consider the disability of the appliant rounded off to 50% from the date of discharge.

The tribunal also passed orders that the entire exercise shall be completed by the defence authority within four months from the date of production of a certified copy of this order, failing which the respondents shall be liable to pay interest at the rate of 9% to the applicant on the amount accrued till the date of actual payment.

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