Citation Codes

Equivalent Citations

citation codes

Case Number

Original Application No. 15 of 2017

Advocates

Ld. Shri Virendra Singh, Advocate, Addl. Central Govt Standing Counsel.
Ld. Counsel for the: Shri P.K. Shukla, Advocate Applicant
Assisted by: Maj Salen Xaxa, OIC Legal Cell.

Judges

D.P. Singh, Judicial Member
B.B.P.
Sinha, Armed Forces Member

Acts

SECTION 14 ARMED FORCES TRIBUNAL ACT 2007

See more information ...

Smart Summary

Summary of the Opinion: B.B.P. Sinha

Factual and Procedural Background

The applicant, B.B.P. Sinha, filed an application under section 14 of the Armed Forces Tribunal Act, 2007 seeking (i) rounding off of his disability element of pension from 20% to 50% and (ii) grant of the service element of disability pension. The applicant was enrolled in the Indian Navy on 23.08.1984 and was discharged on 31.08.1999 after completing 15 years of service. He was subsequently enrolled in the Defence Security Corps (DSC) on 07.01.2003 as a Sepoy in a medically fit category for an initial engagement of ten years as per Ministry of Defence policy. The applicant suffered from multiple medical conditions including Obesity, Bronchial Asthma Type II, Diabetes Mellitus, Dyslipidemia, Infero-Lateral Wall and Myocardial Infarction. A Release Medical Board held on 30.08.2013 recommended discharge in a low medical category and found that all disabilities were neither attributable to nor aggravated by service except Bronchial Asthma, which was found to be aggravated by military service. The applicant was granted 20% disability pension for life in respect of Bronchial Asthma. The Tribunal heard counsel for both parties and considered the records.

Legal Issues Presented

Whether the disability element of the applicant's pension, presently assessed at 20%, should be rounded off to 50% in accordance with settled law and applicable regulations.
Whether the applicant is entitled to the service element of disability pension in addition to the disability element, given his DSC service and the applicable Pension Regulations.

Arguments of the Parties

Applicant's Arguments

At the time of enrolment into the DSC the disease(s) in question were not detected by the screening medical board; the applicant was medically fit at recruitment.
The applicant had served in the Navy for more than 15 years and was declared medically fit at Navy discharge and at DSC recruitment, making it unlikely that the disabilities pre-existed enrolment.
If the applicant had been suffering from the alleged disease(s) prior to recruitment, it would have been improbable for him to serve in the DSC; this supports the contention that the condition was not pre-existent or that it was service-aggravated.

Respondent's Arguments

The respondents accepted that the applicant is in receipt of 20% disability pension and acknowledged that, as per prevailing rules, rounding off may apply in some circumstances.
However, the respondents contended that the applicant is not eligible for rounding off under the existing government orders governing such rounding off.
The respondents also contended that the applicant is not eligible for the service element of disability pension as claimed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Union of India v. Ram Avtar, Civil Appeal No. 418 of 2012 (judgment dated 10.12.2014)	Settled law on rounding off of disability pension; addresses whether personnel retiring on superannuation or completion of tenure who have service-attributable or service-aggravated disabilities are entitled to rounding off.	The Tribunal relied on the Supreme Court's decision to allow rounding off of the applicant's disability element from 20% to 50% for life and directed extension of the rounding-off benefit in accordance with that judgment.
Union of India v. Tarsem Singh, (2008) 8 SCC 648	Principle limiting arrears in certain pensionary matters to a period of three years prior to filing of the petition/OA.	The Tribunal applied this principle to restrict arrears of service element of disability pension and rounding off of the disability element to a period of three years prior to the date of filing of the OA.

Court's Reasoning and Analysis

The Tribunal proceeded by first addressing the rounding off issue. It noted that the law on rounding off is settled by the Supreme Court in Union of India v. Ram Avtar and concluded that the applicant's disability element should be rounded off from 20% to 50% for life. The Tribunal explicitly relied on that precedent for this conclusion.

On the service element claim, the Tribunal analysed the applicable Pension Regulations. Since the applicant was discharged from the DSC in 2013, the Pension Regulations for the Army, 2008, were held applicable (Regulation 179 bringing DSC personnel under the relevant Army provisions). The Tribunal extracted and considered the relevant provisions, including:

Regulation 81(a): a person invalided from service on account of a disability attributable to or aggravated by service may be granted a disability pension consisting of a service element and a disability element, and there is no minimum qualifying service condition for earning the service element.
Regulation 95: an individual placed permanently in a low medical category and discharged because no suitable alternative employment could be provided shall be deemed to have been invalided out of service under the Entitlement Rules for Casualty Pensionary Awards, 1982 (Appendix-IV).
Regulation 98: specifies the composition and amounts of service element and disability element, including computation rules and percentage reckoning for disability elements.

Applying those regulations to the facts, the Tribunal observed that the respondents had already granted the applicant 20% disability for life (disability element). The Tribunal found there are no provisions allowing payment of only the disability element without the service element where entitlement exists. Although the applicant lacked sufficient DSC service to earn a full service pension, his case fell under Regulation 98(a)(ii)(b), which covers individuals who have not rendered sufficient service to qualify for full service pension and provides for a minimum measure of service pension in such cases. On this basis, the Tribunal concluded that the applicant is eligible for the service element based on his length of service in the DSC.

Accordingly, the Tribunal allowed the service element prayer and directed the respondents to sanction and pay the service element in addition to the disability element, effective from the date of grant of disability pension. The Tribunal further ordered the respondents to extend the rounding-off benefit of the disability element as per Regulation 98(c) and in accordance with Union of India v. Ram Avtar, if not already done.

As to arrears, the Tribunal applied the limitation principle in Union of India v. Tarsem Singh to confine recovery to a period of three years prior to the filing date of the OA. The Tribunal directed payment of the full arrears within four months of receipt of a copy of the order and imposed interest at 8% per annum on unpaid amounts beyond that period.

Holding and Implications

Holding: The Tribunal granted the applicant's reliefs as follows:

Rounding off: The applicant's disability element is to be rounded off from 20% to 50% for life.
Service element: The applicant is entitled to the service element of disability pension in addition to the disability element for his DSC service; respondents directed to sanction and pay the service element effective from the date of grant of disability pension.
Arrears and payment: Arrears of the service element and of the rounding-off benefit are limited to a period of three years prior to the date of filing of the OA; respondents to pay the arrears within four months of receipt of a copy of the order, failing which the unpaid amount will carry simple interest at 8% per annum.
Costs: There will be no order as to costs.

Implications:

The direct consequence is that the applicant receives an increased disability element (rounded to 50%) and is granted the service element of disability pension for his DSC service, subject to the three-year arrears limitation.
The Tribunal applied settled Supreme Court precedent (Union of India v. Ram Avtar) and followed the arrears limitation in Union of India v. Tarsem Singh; the order implements existing precedent rather than creating new law.

Show full summary ...

(Army No. 8824447-P) Sepoy Om Prakash Tripathi v. Union Of India

B.B.P. Sinha, Armed Forces Member:— The Present Application under section 14 of the Armed Forces Tribunal Act, 2007 has been primarily preferred for rounding off of disability element of pension from 20% to 50% and grant of service element of Disability Pension.

2. We have heard Shri P.K. Shukla, Ld. Counsel for the applicant and Shri Virendra Singh, Ld. Counsel for the respondents assisted by Maj Salen Xaxa, OIC Legal Cell and perused the records.

3. The undisputed facts are that the applicant was enrolled in the Indian Navy on 23.08.1984 and after completion of 15 years of service he was discharged from service on 31.08.1999. On 07.01.2003 the applicant was enrolled in Defence Security Corps (DSC) as Sepoy in a medically fit condition (S1H1A1P1E1) for an initial terms of engagement of ten years as per Government of India Ministry of Defence policy No A/00592/DSC-2/813-III/D(GS-IV) dated 05.12.1981 which stipulates that the initial period of engagement for Sepoys in the DSC will be ten years. Those who are recommended and selected for further retention may, if willing, be given five years extension at a time or till they reach the age of superannuation i.e. 55 years subject to fulfillment of eligibility criteria like discipline, medical category, age and confidential report etc. The applicant suffered with Obesity, Bronchial Asthma Type II, Diabetes Mellitus, Dyslipidemia, Infero-Lateral Wall and Myocardial Infarction. The applicant was brought before the Release Medical Board on 30.08.2013 which recommended him to be discharged from service in low medical category with all as disabilities as neither attributable to nor aggravated by military service except Bronchial Asthama. The Release Medical Board found Bronchial Asthma as aggravated by military service for which the applicant is in receipt of 20% disability pension for life.

4. Learned counsel for the applicant has drawn our attention to the fact that at the time of enrolment in the DSC, the disease in question was not noticed by the screening medical board. Keeping in view the fact that the applicant served the Navy for more than 15 years and was declared medically fit at the time of recruitment in the DSC and also at the time fof discharge from Navy. It would therefore be hard to believe that he was suffering from said disease from pre-enrolment stage in Navy or DSC. The submission of learned counsel for the applicant is that in case the applicant had been suffering from the aforesaid disease, it would have not been possible for him to serve the DSC.

5. On the other hand, Ld. Counsel for the respondents acceded that the applicant is in receipt of 20% of disability pension which as per prevalent rules may be rounded off to 50%. However the Ld. Counsel for the respondents claimed that he is not eligible for rounding off as per existing Government orders. He also added that he is not eligible for service element of Disability Pension as claimed.

6. As for as rounding off is concerned, the law on rounding off of disability pension is well settled vide Hon'ble Supreme Court in Civil Appeal No. 418 of 2012, Union of India v. Ram Avtar, on 10.12.14:

“4. By the present set of appeals the appellant raise the question, whether or not, an individual, has retired on attaining the age of superannuation or completion of his tenure of engagement, if found to suffering from some disability which is attributable or aggravated by the military service, is entitled to grant the benefit of rounding-off of disability pension. The appellant(s) herein would contend that, the basis of Circular No. 1(2)/97/D (Pen-C) issued by the Ministry of Defence, Government of India, dated 31.01.2001, the aforesaid benefit is made available on to an Armed Forces Personnel who is invalidated out of service, and not to any other category of Armed Forces Personnel mentioned hereinabove.

5. we have heard learned counsel for the parties the lis.

6. We do not see any error in the impugned judgment(s) and order(s) and therefore all the appeals which pertain to the concept of rounding off of the disability pension are dismissed, with no order as to costs.

7. The dismissal of these matters will be taken note of by the High Courts as well as by the Tribunals in granting appropriate relief to the pensioners before them, if any, who are getting or are entitled to the disability pension.”

7. In view of above his disability element will stand rounded off from 20% to 50% for life.

8. The prayer of service element of disability pension needs a closure scrutiny. Since the petitioner was discharged in the year 2013 from DSC, Pension Regulations for the Army 2008, would apply to him. Regulations 179 of the regulation above, indicates that disability pension is admissible under same candidates as applicable to Army personnel under chapter IV of the Pension Regulation. Relevant Portion applicable are given below.

“WHEN ADMISSIBLE

81.(a) Service personnel who is invalided from service on account of a disability whfich is attributable to or aggravated by such service may, be granted a disability pension consisting of service element and disability element in accordance wih the Regulations in this section.

Explanation: -

There shall be no condition of minimum qualifying service for earning service element.

(b) The question whether disability is attributable to or aggravated by military service shall be determined under the entitlement Rules for Casualty Pensionary award, 1982 as laid down in APPENDIX - IV of these Regulations.

INDIVIDUAL DISCHARGED BEING PERMANENTLY IN LOW MEDICAL CATEGORY

95. Individual who is placed in a low medical category (other than ‘E’) permanently and who is discharged because no alternative employment in his own trade/category suitable to his low medical category could be provided or who is unwilling to accept the alternative employment or who having been retained in alternative apppointment is discharged before completion of the engagement, shall be deemed to have been invalided out of service under the Entitlement Rules for Casualty Pensionary Awards, 1982 as laid down in APPENDIX-IV to these Regulations. This provision shall also apply to indivdual who is placed in a low medical category while on extended service and is discharged on that account before completion of the period of the extension.

AMOUNT OF DISABILITY PENSION

98. The amount of disability pension consisting of Service element and disability element shall be as follows:—

(a) Service element payable for life- i) Where the individual has rendered sufficient service to earn service pension Equal to normal service pension as determined under Regulation 50 for qualifying service actually rendered plus weightage as admissible. ii) Where the individual has not Rendered sufficient service To qualify for service pension (a) If the disability was sustained while on flying or parachute jumping duty in an Aircraft or while being carried on duty in an aircraft under proper authority:— The minimum service pension appropriate to his rank and group, if any b) In all other cases:— Equal to the service pension As determined under Regulation 50 for qualifying Service actually rendered Plus weightage as Admdissible. The amount of Service pension shall in no Case be less than 2/3rd of the Minimum service pension Admissible to the rank/pay Group. It shall be further Subject to the ceiling Prescribed for minimum Pension. b) Disability element on invalidment- i) The disability element shall be payable for the period for which disability has been accepted. The rates of disability element for 100% disability for the rank last held shall be as under:— Junior Commissioned Officer - Rs. 1900/- p.m. Other Ranks - Rs. 1550/- per month ……. c) The extent of disability or functional incapacity shall Be determined in the following manner for the purpose of computing disability element in: Percentage of disability Element as finally accepted Percentage to be reckoned for computing disability Element Less than 50 50 Between 50 to 75 75 Between 76 and 100 100”

9. The eligibility of the applicant for disability pension is not in contention as the respondents have granted him 20% disability for life and has been sanctioned disability element of the disability pension. Regulation 98 lays down that disability pension consists of service element and disability element and further lays down how each is to be paid. There are no provisions in the rules for an individual to be paid only disability element. In case of the applicant, since he has insufficient service to earn a pension from DSC, his case would be governed by Regulation 98(a)(ii)(b). In our view, therefore, the applicant is eligible for service element based on his length of service in DSC.

10. In view of the above the prayer for service element of Disability Pension is allowed. Respondents are directed to sanction and pay the SERVICE ELEMENT OF DISABILITY PENSION to the applicant in addition to the disability element for his DSC service with effect from the date of grant of disability pension. The respondents are further directed to extend the benefit of rounding off of the disability element to the applicant as per Reg. 98(c) of Pension Regulations for the Army 2008, if not already done. It would also be in accordance with the directions of the Hon'ble Apex Court in Union of India v. Ram Avtar, Civil Appeal No. 418 of 2012. It is however made clear that the benefit of arrears of service element of disability pension as also rounding off of the disability element will be restricted to a period of three years prior to the date of filing of this O.A. in accordance with the principles laid down by the Apex Court in Union of India v. Tarsem Singh (2008) 8 SCC 648). Accordingly respondents are directed to pay the entire arrears to the applicant within four months from the date of receipt of a copy of this order, failing which the unpaid amount will carry a simple interest at the rate of 8% per annum to be paid by the respondents to the applicant.

11. There will be no order as to costs.

12. Issue free copy to the parties.

(Army No. 8824447-P) Sepoy Om Prakash Tripathi v. Union Of India

Summary of the Opinion: B.B.P. Sinha

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

(Army No. 8824447-P) Sepoy Om Prakash Tripathi v. Union Of India

Comments