By means of the present original application filed under Section 14 of the Armed Forces Tribunal Act 2007 the applicant has claimed the following reliefs:-
a) Qiiash and set aside the impugned letter No, 1046~ 7625/LC/P9n dated 05.10.2015 and discharge 0i the applicant and reinstate him in service with effect from the date 0f discharge with all consequential benetits.
b) Direct respondents t0 grant disability pension to the applicant which includes disability element as well as service element and pay the due arrears of disability pension with interest @ 12% from the date of discharge with all the consequential benefits. Z. Briefly stated the facts germane to the filing of the present OA are that the applicant was enrolled in Territorial Army (TA) in Puniab Regiment on 28.09.2001 and discharged from service on 31.10.2014 under TA Rule 13(iii) (v) of TA Act Rules 1948 (Revised Edition 1976) being undesirable after completion of 13 years and 34 days of service including un-embodied service of 3 years 69 days. At the time of discharge, Release Medical Board assessed disability of the applicant 30% for life on account of "Grade-l Retrolisthesis LV5/SVl and opined that disability was aggravated by military service. Copy of RMB, however, was not supplied to the applicant even after his request. Legal notice-cum representation was served by the applicant through his counsel for grant of disability pension on 23.09.2015 but respondents denied the same vidc letter No. 10467625/LC/Pen dated 05.10.2015 on the ground of his being discharged from service as an undesirable soldier. The applicant had approached the competent authority for cancellation of his discharge order and for grant of disability pension in accordance with rules and existing medical/administrative provisions. However, competent authority decided that he is not eligible for grant of disability pension in terms of lHQ of MOD (Army) letter No. B/40502/Appeal/05/AG/PS-4 (Imp-II) dated 18.08.2005. lt is alleged that the action of the respondents is in contravention of the rule as well as settled judicial pronouncements. Accordingly, he is entitled to the reliefs claimed
3. The respondents, in the counter affidavit, controverted the averments made by the applicant in the OA and preliminary objections were taken inter-alia on the ground that 0A is not maintainable as per Rule l0 of Armed Forces Tribunal (Procedure) Rules, 2008 which provide that an application shall be based upon a single cause of action and may seek one or more reliefs, provided that they are consequential to one another. On the one hand the applicant is seeking setting aside his discharge order and to be reinstated in service and on the other hand, the applicant is praying for disability pension The reliefs sought by the applicant are in no manner consequential to each other. The legal notice-cum- representation dated 23092015 sent by the applicant does not challenge his discharge and is only with regard to his disability pension. On merit, it was submitted that the applicant was given ample opportunities to improve himself but he showed total disregard to military discipline and proved himself a habitual offender for which he was awarded five red ink entries within a short span of service i.e. 13 years and 34 days in the battalion including three years and 69 days disembodied service Accordingly, he was discharged from service under Rule 14 b (ii) of Territorial Army Act Rules 1948 being an undesirable soldier, hence he is not entitled for grant of Disability Pension 4f Learned counsel tor the applicant gave up his first relief seeking setting aside the discharge of the applicant and his reinstatement in service on 19.09.2017 and confined his prayer only with regard to grant of disability pension
5. Mr. VS. Kadian, learned counsel [or the applicant submitted that as per para 173 of Pension Regulations for the Army 1961, primary condition for the grant of disability penSion is that the disability should be attributable or aggravated by military service in non battle casualty and is assessed at 20% or more. At the time of discharge, Release Medical Board assessed disability of the applicant @ 30% for life and opined the disability was aggravated by Military service. Reference was also made to para 173A of the Pension Regulation for the Army 1%1 which provides that individuals who are placed in a lower medical category (other than E) permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who are unwilling to accept the alternative employment or who having retained in alternative appointment are discharged before completion oi their engagement shall be deemed to have been invalided from service for the purpose 0t the entitlement rules laid down in Appendix Il to these Regulations. As per para 113(b) of the Pension Regulations for the Army 1961 an individual who is removed tram service under Army Act Section 20 may be considered For the grant of pension, gratuity at the rate not exceeding that for which he would have otherwise qualified, had he been discharged on the same date. The competent authority may however, make it considered necessary any reduction any amount of pension/ gratuity on the merit of each case. Reliance was also placed 0n catena of dec15ions/ orders passed by Hon'ble Supreme Court and various Armed Forces Tribunals wherein the individual was granted disability pension although he was discharged on account of being found to be undesirable soldier Reliance was placed on Ram Pal Singh v UOI 81. Ors (1984) 1 SCC 32, OA No. 07/2012 titled Ex Sep Bhaba Prasanna Panda vs. UOI decided on 04.032013 by AFT (RB) Kolkatta, TA No. 19/2010 titled Ratna Bahaclur Chetrv Vs. UOI decided on 17.022011 by AFT, TA 19612009 titled Kulwinder Singh vs UOI decided on 195.2010 and OA 73912010 titled Baljit Singh vs @decided on 2712010, OA 542 0f 2010, titled lnderieet Singh v UOI 8r Ors decided 0n 087072011 and TA 26 of 2011 titled Avtar Singh vs UOI decided on 227012014 and in OA 28712012 titled Kulwinder Singh vs. UOI decided on 22032014.
6. Countering the submissions made by the learned counsel for the applicant, Mr. Harish V , Shankar, learned counsel for the respondents submitted that since the applicant was discharged from service being an undesirable soldier, hence he is not entitled for grant of disability pension. Reliance was placed on Revised Procedure tor adjudication of First Appeal cases against rejection of disability pension/ special family pension claim tor submitting that as per clause 5 (c ) where the individual has been discharged from service at his own request or discharged locally being undesirable on administrative ground such case will not be adjudicated nor will any appeal lie for grant of disability pension. The applicant has not challenged this policy, that being so, he is not entitled for grant of disability pension. Learned counsel for respondents further submitted that without conceding the entitlement 0t the applicant for grant of disability pension, at the most, the applicant is entitled for disability element and not disability pension as he has not completed the requisite service for grant of pension
7. We have given our considerable thoughts to the respective submissions of learned counsel for the parties and have perused the record.
8. It is an admitted fact that the petitioner was discharged on administrative ground being undesirable soldier under Rule 14 (b)
(iii) of Territorial Army Act Rules I948 lt is also an admitted tact that at the time of discharge, the applicant was brought beiore the Release Medical Board which found him suffering from Gradel Retrolisthesis LV5/SVl which was aggravated by the military service and was assessed at 30% tor life.
9. Now the only question remains tor adjudication is as to whether the individual who has been discharged from service before completing pensionable service on administrative ground having red ink entries in his service career, is entitled for disability pension it his disability is found aggravated by military service and assessed @20% or above. The question is no more res-integra. Hon'ble Supreme Court in Ram Pal Singh vs Union ofIndia (supra) allowed the disability pension although the petitioner of that case was found to be undesirable soldier after repeated court martial held against him on several occasions. The Regional Bench, Chandigarh has taken similar view in Killvinder Sing/121$. LIOI (supra) Narender Singh vs. U0! (supra) Raiinder Singh vs. UOI (supra) and Azitar Sinvh vs. U0!
10. As regards reliance placed by the respondent on the letter August 2005, the same pertains to the Procedure for adjudication of First Appeal cases and not to the grant of disability pension.
11. In view of the above we are satisfied that the applicant is entitled for disability element from the date 0t discharge. The applicant would also be entitled to broad banding 0t disability element from 30% to 50% based on the Govt. of India, Ministry 0t Defence Circular dated 31.01.2001 and Honble Supreme Court judgement in the case of Union of lnclia vs. Ram Avtar delivered on 10.122014
12. Accordingly/ the O.A. is allowed. The applicant is granted 30% disability element tor his disability as assessed by the Release Medical Board along with the benefit of rounding off from the date of his discharge
13. The respondents are directed to make necessary calculation and make payment to the applicant within a period of four months from the date (Wf receipt of this order failing which the amount shall carry interest @ 8% per annum from the date of order: No order as to costs. Pronounced in open court on Q11 May, 2018i (JUSTICE SUNITA GUPTA) MEMBER (J) (LT. GEN. PHILIP CAMPOSE) MEMBER (A) SS