L/Nk Hem Kumar Chettri v. Union Of India

MA 1035/2016

1. Heard Mr. Sukhjinder Singh, Learned counsel for applicant and Mr. V.S. Tomar, learned counsel appearing for the respondents.

2. The applicant has filed this application seeking condonation of delay in filing the OA claiming the disability pension with the rounding off benefit contending, inter alia, that since the claim of the applicant is based on a continuing cause of action, which arises every month, the delay needs to be condoned.

3. The learned counsel appearing for the respondents, on the other hand, submits that the applicant having failed to demonstrate any sufficient cause in not filing the OA on time, delay may not be condoned.

4. The claim of the applicant in the OA is for disability pension and also rounding off benefit, which being based on a continuing cause of action, which arises every month, we disposed of the MA with the observation that if the applicant is found to be entitled to the relief claimed in the OA, arrear may be restricted for a period of three years preceding the date of the filing of the OA (OA filed on 19.10.2016).

5. MA accordingly stands disposed of.

OA 1384/2016

1. Heard Mr. Sukhjinder Singh, Learned counsel for applicant and Mr. V.S. Tomar, learned counsel for the respondents.

2. The applicant has filed this application challenging the order dated 10.04.2015 passed by the Senior Record Officer for OIC Record, whereby and whereunder the claim for the disability pension of the applicant has been rejected on the ground that the disability from which the applicant was found to have suffered at the time of invalidating out from service, being neither attributable nor aggravated by military service, he is not entitled to the disability pension.

3. The applicant has also prayed for a direction to the respondent authorities to pay the disability pension with the benefit of rounding off the same in terms of the order passed by the Hon'ble Supreme Court on 10.12.2014 in Union of India v. Ram Avtar.

4. The respondents have contested the prayer made in the OA by filing counter affidavit contending, inter alia, that since it is evident from the invalidating medical board proceeding that the applicant was suffering from the disability even at the time of entering into service, the applicant was not entitled to the relief claimed, the disability having not been found to be either attributable to or aggravated by military service.

5. Referring to the averments made in OA it has been submitted by the learned counsel for the applicant that since the applicant was invalidated out from the service after serving for more than 8 years and there was no disability recorded in the service records at the time of entering into service, the applicant is entitled to the benefit of the disability pension @ 20% and also the rounding off benefit upto 50%, as the applicant has been invalidated out from service for the disability he found to have suffered. The learned counsel in support of his contention has placed reliance on the decision of the Hon'ble Supreme Court in Sukhvinder Singh v. Union of India reported in (2014) 14 SCC 364.

6. The learned counsel for the respondents on the other hand opposing the prayer made in the OA and referring to averments made in the counter affidavit filed has submitted that it is being evident from the invalidating medical board proceeding that the applicant was suffering from the disability even at the time of entering into service, the disability was found to be neither attributable to nor aggravated by military service and hence the applicant's claim for disability pension has rightly been rejected by the respondent authorities. The learned counsel, therefore, submits that the applicant is not entitled to the relief claimed in the OA.

7. The arguments advanced by the learned counsel for the parties received our due consideration. It is no not in dispute that at the time of entering into service no disability was recorded in the service record of the applicant. In the invalidating medical board proceeding it has however, been recorded that the applicant was suffering from some disability even at the time of entering into service. The applicant was recruited in service there being no disability found and he having been found medically fit for recruitment in service. The applicant continued in service for more than 8 years and thereafter he was invalided out from service on medical ground on 02.10.1980.

8. The Hon'ble Supreme Court in Sukhvinder Singh (supra) upon consideration of his previous judgments and also the relevant provisions has summarized entitlement of the disability pension as under:

“9. We are of the persuasion, therefore, that firstly, any disability not recorded at the time of recruitment must be presumed to have been caused subsequently and unless proved to the contrary to be a consequence of military service. The benefit of doubt is rightly extended in favour of the member of the Armed Forces; any other conclusion would be tantamount to granting a premium to the Recruitment Medical Board for their own negligence. Secondly, the morale of the Armed Forces requires absolute and undiluted protection and if an injury leads to loss of service without any recompense, this morale would be severely undermined. Thirdly, there appears to be no provisions authorising the discharge or invaliding out of service where the disability is below twenty per cent and seems to us to be logically so. Fourthly, wherever a member of the Armed Forces is invalided out of service, it perforce has to be assumed that his disability was found to be above twenty per cent. Fifthly, as per the extant Rules/Regulations, a disability leading to invaliding out of service would attract the grant of fifty per cent disability pension”.

9. In the instance case, as discussed above, nothing has been recorded that the applicant was suffering from any disability at the time of entering into the service. The applicant was invalidated out from service on medical ground. He, therefore, cannot be left high and dry without making any payment for the disability for which he has suffered while he was discharging his duties in the Indian Army.

10. That being the position, and having regard to the fact that the percentage of the disability was found to be 20 by the invalidating medical board, we direct the respondents to grant the disability pension to the applicant @ 20%, which is rounded off to 50%, in view of the decision of the Hon'ble Supreme Court in Ram Avtar (Supra). The applicant however, shall be entitled to arrear for a period of three years preceding the date of the filing of the OA (OA filed on 19.10.2016). The arrear would carry interest @ 9% per annum from the said date till date of payment.

The arrear along with interest shall be paid to the applicant within a period of four months from the date of receipt of a copy of the order.

11. OA is accordingly allowed.

12. The learned counsel appearing for the respondents makes an oral prayer to grant leave to appeal before the Hon'ble Supreme Court, which has been rejected since no question of law of general public importance is involved in this case.