Vide this application, applicant seeks condonation of delay of 2555 days in filing the present O.A. In view of the law laid down in judgement of the Hon'ble Supreme Court in Union of India v. Tarsem Singh ((2009)(1) AISLJ 371) since the relief claimed by the applicant pertains to disability, the delay in filing the O.A. be condoned. However, if the applicant succeeds in getting the relief, the relief will be modulated.
O.A. 329/2015
By way of present O.A. the applicant claims the following reliefs:—
i. To, summon complete records, the case pertaining to service, local discharge dated 05 January, 2007 and release medical board proceedings dated 28 November, 2006 for proper adjudication of the case.
ii To issue, order directions to quash the illegal local discharge dated 05 January, 2007 issued by the respondents discharging the applicant under Army Rule 13(3)III(v) declaring the applicant as undesirable soldier.
iii To issue order, directions to the respondents to reinstate the applicant notionally w.e.f. the date of discharge and pay all the consequential arrears of pay and allowances, full gratuity as applicable and other pensionary benefits along with pende-lite interest on the arrears @ 12%.
iv To issue order, directions to the respondents to grant full pension and disability pension at the rate of 50% along with pende-lite interest on the arrears @ 12% interest.
v. To pass any other order or direction deemed fit and proper in the facts and circumstances of the case.
However, on 27.04.2017, counsel for the applicant made a statement that he is not challenging the discharge order dated 05.01.2007. That being so, the relief nos. i, ii and iii do not survive. The only question left for consideration is whether the applicant is entitled to disability pension.
2. The brief facts germane to the aforesaid question are that the applicant was enrolled in Infantry, the Kumaon Regiment, on 17.04.1995 as Sepoy GD and attestation was done on 19.02.1996. As per the applicant, due to extreme climatic conditions in Siachen Glacier, the applicant developed chest disease which was diagnosed as TB and the applicant was compelled by the Company Commander and the Senior JCO to seek discharge from the Army. He was sent for Release Medical Board instead of Invalidation Medical Board on 03.11.2006 which placed the applicant in low medical category w.e.f. 07.11.2007 and was granted 50% disability for life. However, he was not granted any disability pension. Feeling aggrieved, present O.A. has been filed.
3. In the counter affidavit filed by the respondents, it is not disputed that, from May 2005 onwards the petitioner was admitted to various Military Hospitals and was declared a patient of disseminated Tuberculosis, as a result of which he was placed in low medical category and remained in the same category till the date of discharge. Before proceeding on discharge from service, he was brought before Release Medical Board on 05.12.2006. The competent authority regarded his disability as attributable to military service and assessed it at 50% for life. Since the petitioner had not rendered 15 years of service nor he was discharged solely on medical ground therefore, neither he became eligible for service pension nor disability pension. It is further averred that the applicant was discharged as an undesirable soldier for the army w.e.f. 05.01.2007 under Army Rule 13(3)III(v), after rendering 11 years 08 months and 19 days service. The applicant was habitual of over staying leave being absent without leave and was disobedient to his superiors, which fact was admitted by him and he has been punished four times, as such he is not entitled for any relief.
4. We have heard learned counsel for the parties and have perused the record. It is an admitted fact that the petitioner was discharged on administrative ground being undesirable soldier under Army Rule 13(3)III(v). It is also an admitted fact that at the time of discharge the petitioner was brought before the Release Medical Board which found him suffering from the Disseminated Tuberculosis which was attributable to military service and was assessed 50% disability. Now the only question which remains for adjudication is as to whether an individual who has been discharged from service on administrative grounds having red ink entries in his service career is entitled for disability pension if his disability is found aggravated by military service and 20% and above. The question is no more res integra. Hon'ble the Supreme Court in Ram Pal Singh v. Union of India, (1984) 1 SCC 32 : AIR 1984 SC 504 allowed the disability pension although the petitioner of that case was discharged on account of being found to be undesirable soldier after repeated Court Martials held against him on several occasions. The Regional Bench, Chandigarh has taken similar view in O.A. 542 of 2010 Inderjeet Singh v. Union of India, decided on 08.07.2011 and TA 26 of 2011 arising out of CS 638 of 2009 Kulwir Singh v. Union of India, decided on 05.08.2011. O.A. 3962 of 2013 titled Avtar Singh v. Union of India decided on 22.01.2014, Principal Bench, New Delhi in O.A. 328/2014 titled Ex Sep. Rajinder Singh v. UoI decided on 29.03.2016.
5. In view of the above, we are satisfied that the petitioner is entitled for disability pension assessed at 50% for life. However, keeping in view the fact that the applicant has approached the Tribunal after a considerable delay, therefore the arrears are restricted for three years prior to filing of the present O.A. i.e. 16.04.2015.
6. The respondents are directed to make necessary calculations and make payment to the applicant within three months from the date of order after completing other formalities, failing which the applicant shall be entitled for interest (3) 6%.
7. With these directions, the OA stands disposed of. No order as to cost.
Pronounced in court on this day of 29 August, 2018.