ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI O.A.No.30 of 2017 Friday, the 9 Th Day of February, 2018

1 ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI O.A.No.30 of 2017 Friday, the 9 th day of February, 2018 THE HONOURABLE MR.JUSTICE V.S.RAVI (MEMBER – J ) AND THE HONOURABLE LT GEN C.A.KRISHNAN (MEMBER – A ) Ex-Sapper G.Jaganathan Service No.1356574, aged about 67 years, S/o Late Sri Gurunatha Pillai residing at Meenakshi & Co., 9, Kader Khan Street Suramangalam Post, Salem-636005,Tamil Nadu …Applicant By Legal Practitioners: M/s Shri D.Solomon Pandian & Shri S.Sudagar vs. 1. Union of India, Represented by the Secretary Government of India, Ministry of Defence, Room No.227B Wing, Sena Bhawan, New Delhi-110 011 2. Chief of Army Staff Army Head Quarters (AHQ) Integrated Head Quarters (IHQ) DHQ Post South Block New Delhi-110011 3. Principal Controller Defence Accounts(Pension) G3-IV Section, Droupati Ghat, Allahabad Accounts (Pension), Allahabad-211014 UttarPradesh 4. Records Officer, Madras Engineer Group, Abhilakh Karyalaya, Record Office, Madras Engineer Group, Post Bag No.4201, Sivan Chetty Garden Post, Bangalore-560042 …Respondents By: Shri K.Ramanamoorthy Central Government Standing Counsel 2 ORDER HON’BLE LT. GEN. C.A.KRISHNAN, MEMBER(A) 1. This Original Application was filed by Ex.Sapper G.Jaganathan of the Corps of Engineers, seeking disability pension. 2. The applicant submits that he was enrolled into the Indian Army on 02.09.1971 and invalided out on medical grounds on 10.02.1981. As per copy of Madras Engineering Group Record Office letter No.Pen(D)/135657/8 dated 09.05.1981 the Invaliding Disability, i.e., ‘NEUROSIS(HYSTERICAL REACTION/300)’ is neither attributable to nor aggravated by military service. 3. The applicant further submits that when he was enrolled into the Indian Army as a Sapper in the Madras Engineering Group in Bangalore, he was enrolled after thorough medical check-up and he was enrolled after he was physically and mentally found fit in all aspects for enrolment. He cleared rigorous tests during the enrolment. Thereafter, he served with this Unit in peace as well as difficult field areas. In the year 1977, his Unit was called out to help the flood victims in Andhra Pradesh during the Super Cyclone. The 3 applicant was involved in removing several dead bodies every day during that time. He handled large number of starved and mentally depressed people who were affected by the 1977- Super Cyclone. Further, he had to remove carcasses of various domestic animals. Living among the people affected by fear psychosis, affected his mind also with neural problems. The neural problems slowly started to affect his brain and in 1980 he fell sick and was admitted in Eastern Command Military Hospital, Calcutta, from where he was transferred to Base Hospital, Barrackpore, where Medical Board examination was conducted and he was medically boarded out. He was discharged from service on 10.02.1981 on low medical category due to ‘NEUROSIS(HYSTERICAL REACTION/300)’ . 4. The applicant submits that he did not suffer from any ailments when he joined the Army in 1971. Despite this, the Medical Board did not give any report or convey the cause for his ailment ‘NEUROSIS(HYSTERICAL REACTION/300)’, nor considered the time spent by the applicant with dead bodies and with depressed people during the Super Cyclone which caused his ailment. The applicant submitted that his disability is delayed 4 manifestation of a pathological process set in motion by service conditions and arose within three years of service and is attributed to and aggravated by military service. 5. The applicant also submits that as per Appendix-2 of MoD Letter No.1(3)/2002/D (Pen/Pol) dated 18.01.2009 a disease which was not present at the time of a members’ retirement/discharge from service but arose within 7 years thereafter, may be recognized as attributable to service if it can be established by the competent medical authority that the disability is delayed manifestation of a pathological process that is set in motion by service conditions obtaining prior to discharge and that the applicant’s appeal for disability pension was not considered favourably even though this ailment surfaced while in service. The applicant further submits that it is surprising that a person who after retirement falls sick and gets disabled within 7 years of his retired life can claim disability pension, whereas the applicant who was still in service and was affected with a disability ailment after three years of the flood relief work dealing with dead bodies, by delayed manifestation of a pathological process that was set in motion by service conditions is 5 not considered favourably. The applicant submitted that his ailment should also be considered as attributable to service and pensionery benefits like disability pension granted to him. He further submits that the same Defence Regulation Rules cannot be interpreted in two ways. 6. The applicant preferred an appeal vide his letter dated 12 th October 1981. The 3 rd respondent disallowed the appeal without analyzing the facts of the case vide their letter No.7/(826)/84/D/Pen.A dated 7.5.1985. The applicant’s final appeal dated 12.03.2010 was also rejected stating that “the disability assessed by medical authority at the time of invalidment was neither attributable to nor aggravated by military service.” 7. The applicant submitted an application for sanction of disability pension in Defence Pension Adalat held at Vellore held in November, 2015. Defence Pension Adalat vide their letter PA/VLR/0611 dated 25.05.2016 have forwarded the claim to the 4 th respondent. However, the letter remains unanswered till date. 6 8. The respondents in their reply statement have submitted that all service records and Medical Board documents pertaining to the applicant have been destroyed on completion of the mandatory period of retention in accordance with the Regulations as the applicant was a non-pensioner. In the absence of any medical documents, the respondents were unable to ascertain any details of his disability. However, they submitted that the applicant was not granted any type of pension since he did not fulfil the conditions for grant of disability pension in accordance with the then existing rules. 9. Heard rival submissions and perused the records. 10. It is not disputed that the applicant was enrolled in the Indian Army on 02-09-1971 and was invalided out of service on 10.02.1981 after rendering 9 years 5 months and 8 days of service due to Invaliding Disease ‘NEUROSIS (HYSTERICAL REACTION/300)’ even though no medical documents were placed on record either by the applicant or by the respondents. 7 11. Based on the above facts, it is evident that either the disability element of the applicant was assessed at below 20%, or if higher, it was considered as neither attributable to nor aggravated by service and hence he was not granted any disability pension. However, since he was invalided out of service on medical grounds, it can be assumed that his disability was 20% or more but was declared neither attributable to nor aggravated due to military service. 12. In this regard, the principles enunciated by the Hon’ble Supreme Court in Union of India & another Vs. Rajbir Singh (Civil Appeal No.2904 of 2011) are mentioned below : 15. …. Last but not the least is the fact that the provision for payment of disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit those who have been sent home with a disability at times even before they completed their tenure in the armed forces. There may indeed be cases, where the disease was wholly unrelated to military service, but, in order that denial of disability pension can be justified on that ground, it must be affirmatively proved that disease had nothing to do with such service. The burden to establish such a disconnect would lie heavily upon the employer for otherwise the rules raise a presumption that the deterioration in the health of the member of the service is 8 on account of military service or aggravated by it. A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same. The very fact that he was upon proper physical and other tests found fit to serve in the army should rise as indeed the rules do provide for a presumption that he was disease-free at the time of his entry into service. That presumption continues till it is proved by the employer that the disease was neither attributable to nor aggravated by military service. For the employer to say so, the least that is required is a statement of reasons supporting that view. That we feel is the true essence of the rules which ought to be kept in view all the time while dealing with cases of disability pension”. 13. From the above, it is evident that the applicant’s Invaliding Disease, viz., ‘NEUROSIS (HYSTERICAL REACTION/300)’ is to be considered attributable to/aggravated by the military service and therefore he is entitled to disability pension and the benefits of broad banding. 14. In view of the foregoing, the O.A is allowed to the extent that the applicant is held eligible for grant of disability element pension of 20% with effect from his date of retirement, i.e., 10.02.1981. However, the arrears with broad banding benefits shall be restricted to a period of three years prior to the date of filing of 9 this O.A., i.e., 13.10.2013 (O.A. was filed on 13.10.2016) in accordance with the Order dated 22.11.2017 passed in M.A.No.33 of 2017.

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