Capt Paramdeep Singh v. Union of India & Ors.

The Division Bench of this Court in the case of Amar Nath Vs. Union of India and others, 1998(2) SCT 350 (P&H): 1998(1) All Instant Judgments 478, where the court, after discussing law in detail, held as under: - “Once this certificate was issued in favour of the appellant entitling him to receive the disability pension, this benefit could not have been withdrawn by the Controller of Defence Accounts (P), Allahabad on his own without holding appellate medical board in accordance with law. Exhibit D.3 while rejecting the claim of the appellant referred to period of 10 years previous of 25.6.1988 and disability being less that 20%. This was never put to the appellant prior to the passing of the order. If the appellant was entitled to the benefit in accordance with the rules on CWP No. 7283 of 1997 -13- the strength of the disability certificate Ex. P.1, the appellant could not be divested of the same without following due process of law and after giving proper opportunity to the appellant which admittedly has not been done in the present case. The corollary to this main issue is as to whether the Controller of Defence Accounts (P), Allahabad at all was justified in assuming the jurisdiction which is not vested in it under the rules. Under the relevant rules and instructions, the respondents have the authority to constitute an Appellate Board and disturb the findings arrived at by the first medical board which again was not done, it would not be permissible to disturb the finding without taking recourse to the relevant rules and instructions governing the subject.” In another Division Bench judgment of the Hon'ble Delhi High Court reported as 2006(4) SCT 545, following observations have been made: - “8. Similarly, in cases where a court of enquiry has been held with regard to any injury of a person and it has been held by the Commanding Officer that the injury sustained by the petitioner was attributable to military service and the person was placed in low medical category, orders passed by the Chief Controller of Defence Accounts (Pension) summarily rejecting the disability claim without following the procedure, as mentioned in Shri Bhagwan's case (supra), suffers from infirmity and the same are hereby quashed.” The stand of the respondents that the petitioner was discharged on account of expiry of his tenure and is, thus, not entitled to disability pension, is also to be rejected in view of the Rule 4 of the Entitlement Rules and Regulation 53 of the Army Regulations. Regulation 53 of the CWP No. 7283 of 1997 Army Regulations provides as under: - -14- “53. Officers compulsorily retired on account of age or on completion of tenure. - An officer compulsorily retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by military service and recorded by service medical authority may at the discretion of the President, be granted in addition to the retiring pension admissible, a disability element as if he/she had been retired on account of disability, according to accepted degree of disablement at the time of retirement.” The aforesaid regulation clearly provides that where an officer is retired on completion of tenure and he is suffering from any disability attributable to or aggravated by military service and recorded by service medical authority may also be granted disability element of pension at the discretion of the President. In the present case, the petitioner was not discharged on completion of his tenure. The entire material placed on record is pointer to the fact that the petitioner's release was not on account of expiry of his tenure, but on account of disability by placing him in low medical category finding him unfit for Military service in field area. It is under these circumstances that the petitioner has also claimed extension in service on sedentary/light duty being one of his prayers. In terms of regulation 53, a person who is retired compulsorily or released on completion of tenure but suffers from disability attributable to or aggravated by military service, is also entitled to disability element of pension at the discretion of the President of India. Thus, rejecting the claim of the petitioner on such a flimsy ground is totally unwarranted in law and on facts. Rule 4 of the Entitlement Rules, CWP No. 7283 of 1997 -15- referred to above, clearly provides that invalidating from service is a necessary condition for grant of disability pension. The petitioner has been invalided out of service on account of disability by placing him in low medical category. His disability having been assessed at 70% by the release medical board, his claim for disability pension cannot be disputed. The Entitlement Rules for Casualty Pensionary Awards, 1982, referred to hereinabove, deal in detail with the circumstances under which the disability is to be granted. While Rule 4 deals with the invalidating from service as a necessary condition for grant of disability pension, Rule 6 deals with the disablement due to wound injury attributable to military service. Rule 8 of the aforesaid Rules clearly provides that even if there is a casual connection between the disablement and military service as certified by the medical board, disability pension is payable. Rule 9 places onus of proof upon the authorities to establish that the disability is not attributable to military service. From the conjoint reading of the abovequoted Rules and Regulations, it is abundantly clear that the claimant is not to be called upon to prove the conditions of the entitlement rather the benefit has to be given liberally and in case of doubt the benefit should go to the claimant. In the present case, there is no question of even a doubt rather the clear findings of the Court of Inquiry establish that the injury sustained by the petitioner is attributable to military service. Even the duty defined under Rule 12 of the aforesaid 1982 Awards is also CWP No. 7283 of 1997 -16- attracted in the present case. The petitioner was on official duty when he sustained injury. In view of the above circumstances, the petitioner is entitled to disability pension. The petitioner has also claimed extension in service, however, during the course of arguments, the claim for extension in service was abandoned on account of pendency of this petition for number of years. This petition is accordingly allowed. Respondents are directed to grant disability pension to the petitioner and release the benefit within a period three months. However, the arrears shall be restricted to three years preceding the filing of the writ petition. January 07, 2010 R.S. (Permod Kohli) Judge Whether to be reported to the reporter? Yes.