HONBLE MS. JUSTICE SUNITA GUPTA, MEMBER (J) HONBLE LT. GEN. PHILIP CAMPOSE, MEMBER [A] M 12.10.2018 M.A. No. 341 of 2014 : By way of this MA, the applicant seeks condonation of 1235 days delay in ling the present 0A. As this is a case of disability pension, the delay is liable to be condoned in view of the judgments of Honble Supreme Court in Deokinandan Prasad Vs. State o Bihar AIR 1971 SC 1409 and in U_OI & Ors. Vs. Tarsem Singh- 2009 (1) AISLJ 371 and in light of the reasons given Hence, M.A. No. 341 of 2014 is allowed and the delay is condoned. O.A. No. 299 of 2014 z
2. By way of the present OA led under Section l4 of the Armed Forces Tribunal Act, 2007, the applicant claims disability pension @ 75% in terms of Pension Regulations from the date of release till date with penal interest @ 13%, inter OA 299/2014 wxthA 341/2014 r 12102018 ..2/ -2- alia, on the ground that the applicant was commissioned in 13 .JAK RIF 0n 13.12.2003 and released from military service 0n 08.06.2010. In view of the Battle inoculation followed by repeated ring in the unit, the applicant had a hearing loss and was diagnosed as Bilateral Sensori Neural Hearing Loss, which was declared as attributable to military service and quantied @ 75%.
3. It is not disputed by the respondents in their counter affidavit that the applicant was granted commission in the Indian Army on 13.12.2003 and he resigned from service on 08.06.2010. At the time of his discharge, the ofeer was placed in low medical category SlH3(P)AIPlEI for his disability
i.e. Bilateral Sensori Neural Hearing Loss [Ii-90] as aggravated by military service with degree of disablement assessed @ 20% for life by the Release Medical Board (RMB) as per AFMSF-16 dated 02.06.2010. Since the ofcer had resigned from service had not gone on pre-mature retirement, his initial claim was not processed. Therefore, respondents contend that he is not entitled to disability pension.
4. We have heard Ms. Archana Ramesh, Advocate for the applicant and Dr. S.P. Sharma, Advocate for the respondents, and have perused the record. 0A 299/2614wnh MA 341/2014 '12 102018 ..3/- _3_
5. Learned counsel for the applicant has referred to the medical board proceedings according to which, the applicant was suffering from Bilateral Sensori Neural Hearing Loss (H7 90) and Alcohol Dependency Syndrome. However, applicant is now conning the relief to Bilateral Sensori Neural Hearing Loss. Counsel referred to Questions. Nos. l7, 18 and 20 of Part II of the medical proceedings which is reproduced below :
17. Is the disability attributable to service ? (YIN) Yes \ 18. Was it contracted in circumstances over which he had no control [Y/N) Yes
20. If not directly attributable to service, was it Aggravated by service ? [Y/N] Yes If so please explain ? Due to noise produced from ring in Military Service.
The percentage of the disability was assessed as 30%. She also referred to the disability certicate issued by 166, Military Hospital, for submitting that disability of the applicant has been assessed @ 75%.
6. As regards denial by the respondents regarding claim of the applicant for disability pension on the ground that he had submitted a resignation, learned counsel submitted that the controversy is n0 longer res integm and referred to the judgment passed by the Principal Bench, AFT in O.A. No. 603 of 2014 in Ma etd. Charan'it Sin h Med! Vs. Union o India & Ors. decided on 09.02.2016, Where, alter referring to OA 299/2014 wim MA 341/2014 712.10.2015 4/- _4_ the judgments passed in Mahaveer Singh Narwal Vs. Union of India and Anr. [2005 (1) SLJ 133 Delhi] decided on 05.05.2014, which was relied upon by the Regional Bench at Chandimandir in Kamikkar Singh Vs. Union of India in O.A. No. 67 of 2014, it was held that the applicant is entitled for disability pension despite the fact that he had tendered resignation. Learned counsel further submits that the appeal preferred by Union of India against the. said order was dismissed by Honble Supreme Court on 11.09.2017. Reference is also made to an order dated 14.09.2018 passed by the Principal Bench in M.A. N0. 1588 of 2018, whereby the application moved by the respondents seeking leave to appeal before the Honble Supreme Court was also dismissed. As such, it is submitted that since the issue of resignation has been set at rest, the applicant is entitled for disability element of pension.
7. Rebutting the submissions of the learned counsel for the applicant, learned counsel for the respondents placed reliance upon the policy vide Govt. of India, Ministry of Defence dated 22.11.2001 and have submitted that since the applicant had resigned from service even Without completing 10 years 0f service, therefore, he is not entitled for the relief. Learned counsel tried to distinguish the case of Mahavir Singh Narwal 0A 299/2014 Mm MA 3<11/'2014 r 12.10.2016 ..5/~ _5_ (supra) on the ground that in that case, the applicant had completed 12 years of service, whereas, in the present case, applicant had rendered approximately seven years 01 service. lt is further submitted that substantially similar issue was involved in case of Capt. Dheerai Bharqava Vs. Union of India m before Court N0. 2, which was allowed. Thereafter the respondents approached the Honble Supreme Court by Way 0f ling a Special Leave Petition. However, the same was allowed to be Withdrawn with liberty to file a review application, which has since been led and is still pending.
8. We have given our considerable thoughts to the respective submissions of the learned counsel for the parties and have perused the record.
9. It is not in dispute that at the time of discharge, the applicant was placed in 10w medical category for his disability of Bilateral Sensori Neural Hearing Loss, which was assessed as attributable to military service with degree of disablement assessed @ 30% [wrongly mentioned as 20% in the counter affidavit) for life. The only ground on which the claim of the applicant was denied by the respondents was that he had resigned from the service. The Govt. of India, Ministry of Defence Policy letter dated 22.11.2001, on which the learned counsel for the respondents has placed reliance, was also OA 299/2014 Mir MA 341/2014 > 12.10.2018 6/~ -6- relied upon in Maj (Reth Charanjit Singh Medis case (supra). However, the same was rejected by the Principal Bench 0f AFT. Paragraphs 2, 3 and 4 of the said judgment are relevant and are. reproduced as under :
2. In this behalf the respondents have placed on record the Government policy dated 22.11.2001. In terms of the policy it is conveyed that no pension is entitled to an officer leaving the Army before he becomes eligible for pension/gratuity. When an ofcer seeks to resign voluntarily, irrespective of the length of service he is required to forfeit his gratuity/pension. Therefore, he is not entitled to disability pension. The argument per se seems to be misconceived. Disability pension is granted to a person who has suffered disability attributable to service during the course of his service in the Army.
3. The object of giving disability pension is to compensate the person, who has suffered disability, after he leaves the service. It has no nexus with normal pension. A person is entitled to pension when he completes his pensionable service. Moreover, this issue is no longer res integra. In view of the decision of Mahavir Singh Narwal Vs. Union of India and Anr. decided on 0A 299/2014 with MA 341/2014 7/- _7_ 05.05.2014 2005 (1) SLJ 133 Delhi. Same judgment has been relied upon by the Regional Bench at Chandimandir in Kumikkar Singh... Vs. Union of India in 0A 67/2014. The co-ordinate Bench of this Tribunal has observed as under:
In the Fourth Instance, the denial in Sep 2013 is based on the ground that no pension is admissible on resignation. The issue regarding grant of disability pension to those who resign on compassionate grounds had at this point of time already been settled in the case of Mahavir Singh Narwal in 2012 supra as brought out in para 6).
4. The Tribunal has relied upon the para 6 of the case Mahavir Singh Narwal Vs. Union of India which is reproduced herein below:
0n careful perusal of the aforesaid rule it is manifestly clear that invalidated from service is necessary condition for grant of disability pension. What has to be seen for entitlement for disability pension is whether an individual at the time of his release was in a lower medical category than that in which he was recruited. If it was so, then such 0A 299/2014 with MA 341/2014 i 12.10.2018 . _8_ person will be treated as invalidated from service.
lO. It is also not disputed that the Special Leave Petition led by the Union of India against the said order was dismissed not only on the ground of delay but on merits as well. Despite our query as to whether there is any policy or regulation that in order to qualify for grant of disability element of pension, minimum service is required, counsel for the respondents has failed to point out any such policy or regulation Mere fact that a review application is pending is not sufficient to disentitle the applicant to the relief, to which he is entitled.
ll. That being so, O.A. is allowed. The applicant is entitled for grant of disability element of pension, however7 @ 30% which was assessed by the Medical Board and not @ 75% as claimed by the applicant relying upon the disability certicate dated 22102011. He is also entitled to broad- banding/roundingeoff of disability pension from 30% to 50% for life. However, as the applicant has approached the Tribunal after a considerable delay, the arrears are restricted to three years prior t0 the date of ling of the present OA Lei 29.05.2014. The respondents are directed to calculate, sanction and issue necessary PPO, within a period of four months, failing which, the applicant shall be entitled to 0A 299/20141MU1MA 341/2014 712.10.201c 9/ _9s interest @ 8% per annum from the date of this order till the payment.
12. In view of the above, OiA. stands disposed of. [JUSTICE sum-m GUPTA] MEMBER (J) [LT.GEN. PHILIP CAMPOSE] MEMBER (A) /ng/ GA 299/2014 Mm MA 341/2014 -112710.2018