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2017 DIGILAW 374 (JK)

Sudesh Kumar v. Union of India

2017-07-18

ANURAG GOPALAM THAPLIYAL, BANSI LAL BHAT

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JUDGMENT : 1. Through the medium of instant petition the petitioner seeks a direction to respondents for grant of "War Injury" pension w.e.f. 01.06.1998, as also the rounding off benefits. The case set up by the petitioner is that he was enrolled in the army on 28.03.1979 and was invalided out from the army under Rule 13(3) item (iii) (v) being placed in low medical category on 01.06.1998. It is averred in the petition that the petitioner developed disability "HYPERTENSION (401)" in the year 1996, while posted with 4 JAK RIF at Siachen Glacier and was placed in low medical category "CEE" (Temp) for six months w.e.f. 14.12.1996. His disability was declared as attributable to conditions of service, has occurred while serving in Saichen Glacier, base camp on operational duty. The Invaliding Medical Board held on 06.02.1998 declared the disability of petitioner as attributable to military service but later changed it to aggravate by military service and accepted that the disability was developed during his tenure at Siachen Glacier due to stress & strain of military service. Medical Board recommended his disability @ 20% for two years. However, despite representations made by the petitioner no disability pension was granted in favor of the petitioner. The Records did not process his case of disability claim with PCDA (P), Allahabad. In reply to RTI Application of petitioner it was stated that the claim of petitioner for disability pension was not processed with PCDA (P), Allahabad, as he was not entitled for the same being discharged from service at his own request. Same reply was furnished by the respondents in reply to the legal notice served by the petitioner. It is further averred in the petition that the reply furnished by the respondents is totally bundle of lies and against the entries made in the Discharge Book of the petitioner that he was discharged under Army Rule 13(3) item (iii) (v) being placed in low medical category. It is further averred in the petition that since the disability of petitioner was attributable to/aggravated by military service and the Invaliding Medical Board recommended disability pension for two years temporarily, he should have been brought before the Re-survey Medical Board which was the responsibility of Record office. It is further averred in the petition that since the disability of petitioner was attributable to/aggravated by military service and the Invaliding Medical Board recommended disability pension for two years temporarily, he should have been brought before the Re-survey Medical Board which was the responsibility of Record office. It is further averred that even if the petitioner would have been discharged at his own request, his case is fully covered by the judgment of Delhi High Court and SLP No. 24171 of 2004 filed by the Govt, of India in case of Govt, of India & Anr. v. Mahavir Singh Narwal dismissed by the Hon'ble Apex court on 04.01.2008. Since the disability of the petitioner was declared as attributable to/aggravated by military service by the Invaliding Medical Board, his disability in terms of the policy in vogue was required to be declared as "Battle Casualty". An Earlier petition OA No. 2627 of 2012 filed by the petitioner was allowed to be withdrawn with liberty to file a fresh one, in terms of order dated 04.10.2012. It is claimed that the impugned order of Discharge is unsustainable and liable to be quashed and the petitioner is entitled to be granted "War Injury" pension w.e.f. the date of his invalidment i.e. 01.06.1998. 2. In their written statement respondents, while not disputing the facts largely, pleaded that the petitioner was discharged from service on compassionate grounds at his own request on 31.05.1998 after rendering 19 years, 04 months and 12 days of service. It is admitted that while the petitioner serving with 4 JAK RIF, he was diagnosed as "HYPERTENSION" (401), for which he was placed in low medical category "CEE" (T) for six months w.e.f. 14.12.1996. On subsequent review, petitioner was again placed in low medical category "BEE" (T) for six months w.e.f. 27.09.1997. Meanwhile petitioner requested for discharge from service on compassionate grounds. His request was considered and petitioner was discharged from service w.e.f. 31.05.1998 on compassionate grounds at his own request before fulfilling his terms of engagement under the provisions of Army Rule 13(3) item (iii) (iv). Petitioner was brought before the Release Medical Board on 06.02.1998. His disability "HYPERTENSION" (401) was assessed as not attributable to but aggravated by military service with 20% disability for two years. Petitioner was brought before the Release Medical Board on 06.02.1998. His disability "HYPERTENSION" (401) was assessed as not attributable to but aggravated by military service with 20% disability for two years. It is pleaded that the individual seeking discharge from service at his own is neither entitled to disability pension nor service element of disability pension, if he is found, at the time of discharge to be suffering from disability attributable to or aggravated by military service. It is admitted that due to change in the policy for grant of disability pension in terms of MoD letter dated 29.09.2009 the petitioner has now become eligible for disability element of service pension. Therefore cases of like nature were preferred to PCDA (P), Allahabad, which, in turn submitted the same to GCDA, Delhi Cantt. for further necessary action. However, the decision is still awaited from MoD. It is admitted that petitioner has become eligible for disability pension due to revision in policy. However, directions to implement orders are awaited. It is further pleaded that the petitioner neither sustained any type of injury/wound nor he was involved in any type of operation when he acquired his illness. Therefore, he could not claim to be a "Battle Casualty" and would not be entitled to "War Injury" pension. It is, therefore, pleaded that the petitioner has become entitled for disability element but not entitled for "War Injury" pension as a case of "Battle Casualty". 3. Heard learned counsel for parties and perused the record. 4. Learned counsel for petitioner submits that since the petitioner has acquired disability on account of stress & strain of military service, the plea that he has attained the discharge at his own request would not be a ground to reject his claim for disability pension. It is further submitted that the petitioner fulfils all the conditions of Rule 173 of Pension Regulations for grant of disability element in his favour. His disability "PRIMARY HYPERTENSION" has been declared attributable to/aggravated by military service and the degree of disability was assessed @ 20% by IMB. It is submitted, the petitioner is entitled for disability element® 50% in terms of law laid down by the Hon'ble Apex court in Civil Appeal No. 5591 of 2006 titled KJS Butter Vs. Union of India & Anr. It is submitted, the petitioner is entitled for disability element® 50% in terms of law laid down by the Hon'ble Apex court in Civil Appeal No. 5591 of 2006 titled KJS Butter Vs. Union of India & Anr. It is further submitted that the casualties occurring while operating on the International border or LOC due to illness caused by climatic conditions have to be treated as battle casualties for financial purposes in terms of Army Order 8/S/85 and 01/2003. Per contra learned counsel for respondents submits that though, in terms of Army Order 01/2003 casualty occurring while operating on the International border or LOC due to natural calamities and illness caused by climatic conditions is termed as battle casualty but the same is confined to only cases of injury and since the petitioner has not sustained any type of injury nor was he involved in any operation when he acquired his illness, the disability suffered by him could not be termed as battle casualty and he was not entitled to war injury on the basis of battle casualty. 5. We have considered the arguments advanced at the Bar. It is not disputed that the petitioner was enrolled in army on 28.03.1979. At the time of enrolment he was found medically fit in all respects and no note of any preexisting disease or disability was made at the time of his enrolment. He was invalided out from army under Rule 13(3) after being placed in low medical category on 31.05.1998. He served the army for more than 19 years and was discharged in the rank of Nk for which he was granted service pension only. It is also not seriously disputed that the petitioner acquired the disability "HYPERTENSION" while serving with 4 JAK RIF. Release Medical Board has assessed the disability of the petitioner as not attributable to but aggravated by military service with 20% disability for two years. This happened on 06.02.1998. The petitioner was recommended "fit to be released in medical category "BEE" (Per)" by the said Release Medical Board. He was discharged and service pension was sanctioned in his favour. Release Medical Board has assessed the disability of the petitioner as not attributable to but aggravated by military service with 20% disability for two years. This happened on 06.02.1998. The petitioner was recommended "fit to be released in medical category "BEE" (Per)" by the said Release Medical Board. He was discharged and service pension was sanctioned in his favour. The plea of respondents that the petitioner was discharged from service on compassionate grounds at his own request before fulfilling his terms of engagement is not borne out by the Discharge Book forming Annexure A-1 to the petition in which in the column "Reasons for discharge" it is stated that "the petitioner was discharged under Rule 13(3) iii (v) of Army rules, 1954 being placed in medical category lower than the "AYE". This statement in the Discharge Book clearly establishes that the petitioner was discharged for being placed in low medical category and not on compassionate grounds at his own request as contended by the respondents. Even otherwise, discharge of petitioner at his own request would not incur any disqualification for petitioner to claim disability pension once he has been placed in low medical category. It is well settled by now that a premature discharge at his own request would not render an individual ineligible to claim disability if he has acquired the disability due to military service. Even IHQ MoD (Army) vide their letter dated 03.08.2010 has written to all departments that cases for grant of disability pension earlier denied on the ground of premature discharge shall not be contested. The objection raised by respondents on this score is accordingly repulsed. 6. The fact that the disability "HYPERTENSION" resulting in placement of petitioner in low medical category "BEE" (Per) with disability assessed @ 20% for two years not attributable to but aggravated by military service, satisfies the conditions for grant of disability pension in terms of Regulation 173 of Pension Regulations for the Army, 1961, is not disputed by the respondents in view of the revised policy. This is clearly spelt out in Para 8 of the written statement by pleading that the petitioner has become eligible for disability pension due to revision in policy. However, petitioner's claim for war injury is seriously contested by pleading that he does not fall in the category of battle casualty. This is clearly spelt out in Para 8 of the written statement by pleading that the petitioner has become eligible for disability pension due to revision in policy. However, petitioner's claim for war injury is seriously contested by pleading that he does not fall in the category of battle casualty. It is not in dispute that in terms of Para 1(g) of AO 1/2003 casualty occurring while operating on the International border or LOC due to natural calamities and illness caused by climatic conditions will be termed as a battle casualty. According to respondents petitioner had not sustained any type of injury or wound nor as he involved in any type of operation when he acquired his illness. It is contended on behalf of respondents that the disability "HYPERTENSION" is a disease which was not attributable to but aggravated by military service. Thus, it is contended, that the claim of petitioner for war injury on the basis of battle casualty has been rightly rejected. 7. Admittedly, petitioner served in army for more than 19 years. While serving with 4 JAK RIF he was admitted to 328 Field Ambulance and diagnosed as "HYPERTENSION" (401), downgraded to low medical category leading to his release in medical category "BEE" (Per) with disability assessed @ 20% for two years, not attributable to but aggravated by military service. According to learned counsel for petitioner casualties occurring while operating on the International border or LOC due to illness caused by climatic conditions are treated as physical casualties for statistical purposes and battle casualties for financial purposes. Reference is made to AO 8/S/85 and Appendix A sub Para (g) of AO 1/2003 in this regard which supports his contention. Learned counsel for petitioner also placed reliance on some judgments. In Ex. Nk Sultan Singh v. Union of India & Ors. decided on 18.08.2008, the Hon'ble High Court of Delhi held that to constitute a war injury case it is not that the person must suffer a bullet injury in view of the definition of battle casualty. From opinion of Medical Board forming Annexure 4 to the petition it emanates that the petitioner was diagnosed as a case of "PRIMARY HYPERTENSION" (401) and the disability developed during his tenure at Siachen. The disability was assessed @ 20% for two years, aggravated by military service. From opinion of Medical Board forming Annexure 4 to the petition it emanates that the petitioner was diagnosed as a case of "PRIMARY HYPERTENSION" (401) and the disability developed during his tenure at Siachen. The disability was assessed @ 20% for two years, aggravated by military service. Medical record clearly bears out that the disability was due to stress & strain of military service. Nothing has been brought on record by the petitioner to demonstrate that the petitioner acquired the disability "PRIMARY HYPERTENSION" during a duly notified operation. The medical opinion attributes the onset of "HYPERTENSION" to stress & strain of military service and not to the harsh climatic conditions, inhospitable terrain and high altitude area. Viewed in that context, the disability of petitioner does not fall in the criteria of battle casualty. However, petitioner would be entitled to disability element of disability pension for two years. 8. In view of the foregoing discussion, this petition is allowed to the limited extent and the respondents are directed to grant disability pension in favour of petitioner @ 20%, rounded off to 50% w.e.f. the date of his discharge i.e. 01.06.1998, calculate the arrears, issue a fresh PPO and make the payment within three months from the date of service of this order. Respondents shall conduct a Re-survey Medical Board of petitioner to assess his disability in the interregnum and for future, and based thereon grant disability pension. The petition is accordingly disposed of. File shall go to records after its due completion.