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2015 DIGILAW 103 (JK)

Union of India and Ors. v. Amrik Singh

2015-03-16

BANSI LAL BHAT, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT N. Paul Vasantha Kumar, C.J. 1. This appeal is filed by Union of India, Ministry of Defence and the officials of Defence, challenging the order dated 31.05.2001 made in OWP No. 24/2000, wherein the learned single Judge allowed the writ petition filed by the respondent claiming disability pension with 12% interest. 2. The brief facts necessary for disposal of this appeal are as follows-- (a) The respondent, Ex-Sepoy Amrik Singh, bearing No. 3369121 was initially enrolled in Sikh Regiment on 28th December, 1971 and transferred to J & K Militia w.e.f. 13.03.1973. The J & K Militia was re-designated into J & K Light Infantry (JAKLI) w.e.f. 27.04.1976 as per the order of Government of India, Ministry of Defence in letter No. 4 (3) 75/776-C/D (GS-1) dated 27.04.1976. The respondent was transferred to pension establishment w.e.f. 01.01.1987 under Rule 13(3), Item III(1) of Army Rules 1954. The respondent was granted service pension at Rs. 399/- per month with effect from 01.01.1987 for life with dear-ness relief as admissible from time to time. The basic pension was stepped up to Rs. 1275/- per month w.e.f. 01.01.1996 for life as per Government decision based on 5th Pay Commission report. A sum of Rs. 10,340/- was paid to the respondent as Retirement Gratuity. The respondent got enrolled in Defence Security Corps on 30.05.1988 and discharged from service on 31.05.1998 under Rule 13(3), Item III (I) of Army Rules, 1954 as the respondent was unwilling for further extension of service. As per the service documents, the date of birth of the respondent is 28.12.1952 and on re-enrolment into Defence Security Corps he had elected to continue to draw his pension and not to count the former service towards enhanced rate of pension and gratuity with service in Defence Security Corps. The option certificate was duly signed by the respondent on 27.06.1988 therefore his earlier service was not counted towards the enhanced rate of pension and gratuity. The respondent rendered 9 years and 325 days qualifying service with the Defence Security Corps for which he was paid a sum of Rs. 37,290/- as service gratuity and Rs. 18645/- as retirement gratuity at the time of discharge from Defence Security Corps service. As per Rule 132 of the Pension Regulations for the Army Part I (1961), the minimum period of qualifying service required for earning service pension shall be 15 years. 37,290/- as service gratuity and Rs. 18645/- as retirement gratuity at the time of discharge from Defence Security Corps service. As per Rule 132 of the Pension Regulations for the Army Part I (1961), the minimum period of qualifying service required for earning service pension shall be 15 years. As the respondent had rendered only 9 years and 325 days, he was not entitled to get service pension. The respondent was treated as a lower medical category before he was released by the Medical Board on 20.02.1998 at Military Hospital Jabalpur. The Medical Board recommended him to be released in medical category BEE (Permanent) with 50% disability for two years due to disease (I) Sexual Dysfunction of Organic Origin ICD-608 and (II) Secondary Depression ICD-300 (d) which was approved by the Competent Authority on 18.03.1998. The Medical Board also opined that there are constitutional disorders unconnected with service. The disability pension claim made by the respondent was placed before the Chief Controller of Defence Accounts (Pensions) Allahabad for consideration which was rejected by order dated 10.08.1999, stating that the disabilities were neither attributable nor aggravated to military service, therefore, he was not entitled to get disability pension under Rule 173 of the Pension Regulations. (b) The said order was challenged by the respondent in the writ petition and the learned single Judge held that no finding was recorded by the appellants regarding the suffering from a disease and no disease could be detected at the time of entry into service and therefore the disability sustained by the respondent was to be treated as sustained during the course of employment and ultimately the finding was given regarding the eligibility of the respondent, holding that he was entitled to get the disability pension, treating the disability at 50% and opportunity was given to the appellants to examine the respondent again and in case the disability is reduced or has gone up, the disability would be determined accordingly and disability pension was ordered to be released within a period of two months from the date of order with interest @ 12%. 3. Having aggrieved of the said order this appeal is filed contending that respondent without filing the statutory appeal before the Secretary to Government of India, Ministry of Defence, has filed the writ petition, which ought not to have been entertained. 3. Having aggrieved of the said order this appeal is filed contending that respondent without filing the statutory appeal before the Secretary to Government of India, Ministry of Defence, has filed the writ petition, which ought not to have been entertained. The respondent has not challenged the order dated 18.03.1998 which recommended him to be released on physical disability. The respondent having submitted his unwillingness to continue beyond 31.05.1998, based on which he was released, ought not to have been treated as discharge on medical ground. The respondent failed to establish that the disability/diseases mentioned above were sustained due to duty in military service as the diseases which were detected after joining service is based on presumption and order of the learned single Judge is liable to be set aside. 4. If is not in dispute that the respondent was initially enrolled in Sikh Regiment on 28.12.1971. Later on he was transferred to Jammu & Kashmir Militia w.e.f. 30.03.1973 which was subsequently re-designated as J & K Light Infantry (JAKLI) and he continued in the said service till 01.01.1987 when he was discharged from service. He was granted service pension w.e.f. 01.01.1987 for lifetime with dearness allowance. After the discharge from JAKLI he was enrolled in Defence Security Corps on 30.05.1988 and he was discharged from service on 31.05.1998. At the time of his re-enrollment, his physical fitness was assessed by Defence Security Medical Board and at that time no medical disorder or disease was pointed out by the medical board. Thus, there is a presumption in favour of the respondent that he was hale and healthy and physically fit for his re-enrollment in Defence Security Corps on 30.05.1988. It is an admitted fact that the Medical Board on 20.02.1998 (Military Hospital Jabalpur) found the disability (a) composite assessment of all disabilities for two years and recommended the respondent to be released in medical category BEE (Permanent) with 50% disability due to disease (I) Sexual Dysfunction of Organic Origin ICD-608 and (II) Secondary Depression ICD-300 (d). It is also not in dispute that the respondent has not completed 15 years of service to claim normal pension and unless he is treated under the disabled category, he is not entitled to get pension. It is also not in dispute that the respondent has not completed 15 years of service to claim normal pension and unless he is treated under the disabled category, he is not entitled to get pension. Admittedly he has rendered 9 years and 325 days of service in the Defence Security Corps and it is not the case of the appellant that he was suffering the diseases mentioned above at the time of his re-enrollment. In the counter affidavit filed by the appellants before the learned single Judge, it is admitted that the respondent was brought before the Release Medical Board on 20.02.1998 at Military Hospital Jabalpur and the said Medical Board recommended him to be released in medical category BEE (Permanent) with 50% disability, composite assessment of all disabilities for two years due to diseases. It is not in dispute that the respondent was discharged before expiry of two years as he was discharged on 31-05-1998. 5. Hon'ble the Supreme Court in the decision reported in 2015 (2) Scale 371 (Union of India and Ors. v. Rajbir Singh) considered a similar issue for grant of disability pension to armed force personnel. In para 16 it is held that once the person having been discharged from service on account of medical disability, the disability must be presumed to have been arisen in the course of service which must, in absence of any reason recorded by the Medical Board at the time of enrollment, be presumed to have been attributable to or aggravated by military service. There is admittedly neither any note in the service record of the respondent at the time of their entry into service to suggest that the disease which the member concerned was found to be suffering from could not have been detected at the time of his entry into service. The initial presumption that respondents were all physically fit and free from any disease and in sound physically and mental condition at the time of their entry into service thus remains un-rebutted and the disability having been assessed more than 20%, the disability pension cannot be denied. 6. The initial presumption that respondents were all physically fit and free from any disease and in sound physically and mental condition at the time of their entry into service thus remains un-rebutted and the disability having been assessed more than 20%, the disability pension cannot be denied. 6. Applying the principle stated in the above said judgment to the facts of this case, the respondent having been found fit for selection in the Sikh Regiment in the year 1971 and further found fit for his re-enrollment in the Defence Security Corps in the year 1998, there is a presumption that the respondent was not suffering from any disability and the disability noted by the Medical Board on 20.02.1998 was sustained during the course of service of Defence Security Corps. Thus, the learned single Judge was right in allowing the disability pension to the respondent and the same having been denied for the period from June, 1998 onwards, was justified in ordering 12% interest on the belated payment of pension to the respondent. The appeal is dismissed. 7. The appellants are directed to calculate the disability pension payable to the respondent with 12% interest from June 1998 and pay the arrears of disability pension with 12% interest within a period of three months and continue to pay the disability pension till his lifetime. 8. No. costs.