1

ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI

O.A.No.148 of 2013

Monday, the 03rd day of March, 2014

THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH

(MEMBER - JUDICIAL) AND

THE HONOURABLE LT GEN K. SURENDRA NATH (MEMBER – ADMINISTRATIVE)

M. Natarajan Ex Rect. 1379283

Son of Muthaiyan

Punathittai, Kattapulavilai Kappiyarai Post, Kanyakumari District

Tamil Nadu.

… Applicant

By Legal Practitioners: M/s. A. Dennison, M.K. Sikdar &

S. Biju

Vs.

1. Union of India, rep. by

Secretary to the Government,

Ministry of Defence, New Delhi.

2. The Senior Record Officer,

Madras Engineer Group Bangalore 900 493

C/O 56 APO … Respondents

By Mr. B. Shanthakumar, SPC

2

ORDER

(Order of the Tribunal made by

Hon’ble Lt. Gen. K. Surendra Nath, Member-Administrative)

1. This Original Application has been filed under Section-14 of the Armed

Forces Tribunal Act, 2007, whereby the petitioner has claimed the following

reliefs :-

a) To call for the records pertaining to Order in L.No.7/653/95/D

dated 24.12.96, on the file of the first respondent and quash the

same;

b) To direct the first respondent to continue the payment of

disability pension, with effect from 8.5.1987.

2. In brief, the facts of the case are that the applicant was enrolled in the

Indian Army on 2.11.1983 as a Sepoy after duly passing all necessary

examinations and physical tests and relevant recruitment procedures in the

Engineers. While undergoing training in Timber Bridge Crossing in the

Regimental Centre, he slipped and fell down and in the said accident he had

his right little finger crushed and it became useless. He was admitted in

Command Hospital, Air Force, Bangalore, for treatment. He was placed in

medical category ‘EEE’ permanently and was declared medically unfit and

was discharged from service on 29.6.1985. At the time of discharge, the

Invalid Medical Board held the injury to be of permanent nature and

3

assessed his disability as 20% for two years and the injury was attributable

to military service. Accordingly, he was granted disability pension of 20%

for two years from 29.6.1985. On completion of two years period, he

reported for Review Medical Board on 4.3.1987 at Military Hospital,

Trivandrum, in accordance with Army Order 121/79. The Review Medical

Board assessed the condition of the applicant since the last Board as “Static

and likely to be permanent” and recommended 20% disability. However,

the individual did not receive any pension. The Controller of Defence

Accounts (Pensions) discontinued paying disability element of pension to

him. On an appeal to the Government against the discontinuance of

disability pension vide his undated petition, he was re-assessed by the Re-

assessment Medical Board held on 14.2.1994, at Military Hospital,

Trivandrum. However, his claim for disability pension was again rejected

vide CCDA(P), Allahabad, letter No.G3/RA/3/94/2656/V dated 30.5.1994,

stating that the disability was assessed to be below 20% and hence was not

eligible for disability pension. His appeal against discontinuation of disability

pension vide his letter dated 29.7.1994, was again rejected by First Appeal

Committee vide Government of India, Ministry of Defence letter

No.7(653)/95/D dated 24.12.1996. The applicant averred that he thereafter

approached the Army Headquarters again on several occasions, but he was

not granted disability pension and in his application, he had claimed that the

Invalid Medical Board had fixed his disability at 20% for life and, therefore,

he should be given disability pension as recommended by the Medical Board

4

and rounded off to 50% as per existing rules of Government of India,

Ministry of Defence, policy letter No.1(2)/97/D(Pen–C) dated 31.1.2001, and

in accordance with Apex Court Ruling on the applicability of broadbanding of

disability reported in 2009 (9) SCC between K.J.S. Buttar Vs. Union of

India and another.

3. Mr. B. Shanthakumar, Learned Senior Panel Counsel assisted by M.

Dennison, representative of Legal Cell, ATNK&K Area, appearing for the

respondents, in their Counter would state that the individual was recruited to

the Madras Engineer Group on 2.11.1983. While undergoing basic military

training on Timber Bridge Crossing, he slipped and fell down during bridging

exercises and got injury to his little finger of right hand. He was admitted to

Air Force Command Hospital for treatment. During the period of

hospitalisation and treatment, the applicant was tenaciously adamant for not

doing physiotherapy exercises as he had no interest to do so which resulted

in the development of Flexion Contracture Little Finger (R) at the Proximal

Inter Phalangyal Joint. He was reviewed by the Surgical Specialist at the

said Hospital, who opined that the applicant is unlikely to be an efficient

soldier because of the injury and was recommended for invalidment in

category ‘EEE’. The invalid Medical Board, which was held on 9.5.1985

recommended him to be invalided out of service in medical category ‘EEE’

with 20% disability for two years due to disability Flexion Contracture Little

Finger(R). This was concurred with by the competent authority and the

5

applicant was invalided out of service on 28.6.1985 under Rule-13(3) Item

(iv) of Army Rules, 1954, on medical grounds. The disability of the applicant

was considered as attributable to military service and he was given disability

pension at the rate of Rs.111/- from 29.6.1985 to 8.5.1987 and a service

element of Rs.102/- for life. On completion of two years, the applicant was

brought before Re-Assessment Medical Board (RAMB). The competent

medical authority PCDA(P), Allahabad, held the disability to be less than

20% (i.e. between 10% to 14%) and hence disability element of the pension

was discontinued with effect from 9.5.1987. The rejection of disability

pension by competent authority was communicated to the applicant vide

Records, Madras Engineering Group, Bangalore, letter

No.1379283/Pensions(RSMB)/77 dated 28.9.1987 advising him to prefer an

appeal against the rejection, if he wished to do so, within six months.

Subsequently, the applicant preferred an appeal dated 1.2.1988 against the

rejection of disability pension, which was also rejected by the Government of

India, Ministry of Defence, vide letter No.7(626)/88/D(Pens-A) dated

30.11.1988. As per Rule-173 of Pension Regulations for the Army, 1961

(Part-I), unless otherwise specifically provided, a disability pension

consisting of service element and disability element may be granted to an

individual who is invalided out of service on account of disability which is

attributable to or aggravated by military service in non-battle casualty cases

and disability is assessed at 20% or over. As the disability of the applicant

was considered less than 20% for life, no disability pension was admissible

6

to him within the framework of the Rules. The respondents also brought out

that the case is hopelessly barred by limitation and insurmountable delay in

approaching this Hon’ble Tribunal and would state that the case is liable to

be dismissed in favour of Union of India. The Learned Senior Panel Counsel

for the respondents also cited other Judgements of Armed Forces Tribunal,

Lucknow, in its Order dated 8.8.2012 and in O.A.No.55 of 2012 with

M.A.No.78 of 2012 dated 17.2.2014. The Hon’ble Tribunal in this case had

taken a similar view and dismissed the application on account of delay and

laches.

4. The respondents’ contention that the case is delayed by 5679 days and

on account of delays and laches, it was liable to be dismissed, was

considered by this Tribunal. The applicant in his Affidavit stated that he was

discharged from the army service and due to want of money, he could not

file the application in time. He further stated that the delay is neither wilful

nor wanton and if the delay is not condoned, he would continue to suffer and

lose the pension. This being a case of renewal of disability pension, which

pertains to pension matters with recurring and continuing cause of action,

the principles laid down by the Hon’ble Apex Court in the case of Union of

India and others Vs. Tarsem Singh reported in (2008) 8 SCC 648,

could be applied and the delay can be condoned in such matters without

attaching much significance to limitation and while doing so, the relief should

be restricted to a period of three years prior to the date of filing of the

7

Original Application. Therefore, we were inclined to condone the delay of

5679 days as per our Order in M.A.No.191 of 2013 dated 11.11.2013 in

order to give an opportunity to the applicant to put forth his case and it was

allowed subject to the relief given by the Tribunal will be restricted to a

period of three years prior to the date of filing of the Original Application.

5. On the above pleadings, the following points were framed for

consideration in this application :-

1) Whether the injury sustained by the applicant during training is

attributable to or aggravated by military service and of

permanent nature ?

2) Whether disparity in assessing the percentage and nature of

disability of the applicant in the three Medical Boards held, i.e.

Invalid Medical Board of 1985, Re-Assessment Medical Board of

1987 and Re-Assessment Medical Board of 1994, was due to

improvement in the condition of the injury or a difference of

opinion of respective Medical Boards ? What is the scope of

power of PCDA(P), to interfere with the opinion of the Medical

Board ?

3) Whether the disability of the applicant presently assessed at less

than 20% be rounded off to 50% in accordance with the

8

provisions of Government of India, Ministry of Defence letter

dated 31.01.2001 (supra) ?

4) To what relief, if any, the applicant is entitled for ?

6. We have heard Mr. S. Biju, Learned Counsel for the applicant and Mr.

B. Shanthakumar, Learned Senior Panel Counsel assisted by Mr. M.

Dennison, representative of Legal Cell, ATNK & K Area, Chennai, appearing

for the respondents, and have gone through the records and the

submissions made by them.

7. Points No. 1 & 2: From the records and averments of both Counsels,

the applicant Mr. M. Natarajan, was recruited into Madras Engineering Group

on 2.11.1983. He sustained injury to his right little finger while undergoing

bridging training on 14.11.1984, and he was subsequently hospitalised in Air

Force Command Hospital at Bangalore. The injury was found to be of such a

nature that he could not continue in military service. Despite hospitalisation

and treatment, the injury resulted in the development of Flexion Contracture

Little Finger (R) at the Proximal Inter Phalangyal Joint. The Invalid Medical

Board held on 9.5.1985 opined that he is unlikely to be an efficient soldier

and recommended for the invalidment in medical category ‘EEE’. The

Medical Board opined that the injury was aggravated probably since the

individual did not do adequate physiotherapical exercises. However, the

9

Board also felt that this was probably due to the fact that the applicant had

not understood the instructions being not conversant with English and Hindi.

We are inclined to accept this proposition. The Invalid Medical Board held the

injury to be attributable to military service and recommended 20% disability

for two years due to the disability ‘Flexion Contracture Little Finger (R)’.

Accordingly, the individual was discharged from service with disability

pension at the rate of Rs.111/- with dearness relief as admissible from time

to time for the period from 29.6.1985 to 08.05.1987, and service element of

Rs.102/- with dearness relief as admissible vide Pension Payment Order

No.D/3314 dated 16 December, 1985.

8. As per records, the applicant was brought before the Re-Assessment

Medical Board (RAMB) on 4.3.1987. In the said Board, the Surgical

Specialist opined that the injury was “static and likely to be permanent”.

The Board assessed the disability of the applicant to be 20% with effect from

9.5.1987. This was concurred to, by the Board and accordingly

recommended the disability to be 20% for permanent. However, the

PCDA(P) reduced the percentage of disability from 20% to less than 20%

(6% to 10%). While doing so, no reasons were adduced for lowering the

percentage of disability. The applicant went on appeal to the First Appellate

Authority vide his letter dated 1.2.1988 against the discontinuance of

disability pension. However, this was again turned down on the plea that

there were no reasonable grounds to alter the assessment as previously

10

made by PCDA(P) i.e. less than 20% (6 to 10% for life). No disability

pension was, therefore, admissible to the applicant under the Rules. Being

aggrieved, the applicant again appealed to the Government of India and was

put through RAMB at Military Hospital, Trivandrum on 14.2.1994. The

Surgical Specialist in his opinion again emphasised that the condition of the

applicant for disability is permanent, unlikely to change and no change was

apparent since the last review. Accordingly, the Medical Board also

endorsed that his condition was static since the last Medical Board.

However, while making the assessment of the disability, the Board assessed

the disability less than 20% with effect from 14.2.1994 for 10 years. The

PCDA(P) assessed the disability to be less than 20% (11% to 14%) and

disallowed the plea for disability pension vide their letter

No.G3/RA/3/94/2656/V dated 30.5.1994.

9. From the above, the following facts emerge :-

a) The applicant sustained injury to his right little finger which was

considered to be of permanent nature and he was invalided out

of service.

a) The injury was attributable to military service. The Invalid

Medical Board as well as the two Re-Assessment Medical Boards,

which includes the last one i.e. of 14.2.1994, opined that the

injury continues to be static and permanent.

11

b) While the Invalid Medical Board and Re-Assessment Medical

Board (RAMB) of 1987 have assessed the disability to be 20%,

the RAMB of 14.2.1994, while opining that the injury continues

to be of “static and permanent” nature and “unlikely to

improve”, however reduced the disability percentage from 20%

to less than 20% without adducing any reasons.

c) The PCDA(P) while adjudicating the percentage of disability had

varied its opinion with regard to the percentage of disability, i.e.,

less than 20% (6% to 10%) in 1987 and less than 20% (11 to

14%) in 1994. In both cases, the PCDA(P) has not given any

reasons either for lowering the percentage of disability from 20%

as recommended by the RAMB or any specific reasons for the

said variations as indicated above.

10. It is a settled law that the opinion of Medical Boards containing panel

of expert Doctors should be given primacy and credence. Several

Judgements have examined and held that the scope of power of PCDA(P) is

very limited. In summarising the role of PCDA(P) with regard to disability

pensions, Delhi High Court in the case of Rajender Singh vs. Union of

India (UOi) and Ors. on 27 July, 2006, held that PCDA(P) is vested with no

jurisdiction of its own to reject issuance of Pension Payment Order and

disbursement of pension after receiving sanction of the competent authority

12

in terms of AFMSF-16 accompanied by medical opinion of duly constituted

medical board. Operative part of the Judgement is reproduced as follows :-

“7. In the judgment of the Division Bench of this Court

in Ex Const.Jasbir Singh (supra), reference was made to another

Division Bench judgment of this Court in the case of

Ex.Signalman Sri Bhagwan. In the Judgment of the Court in Sri

Bhagwan's case the consistent view taken by the Court is that

the jurisdiction of the PCDA(P) is a very limited one and at best

it can refer back the case to the competent authority for replying

to the queries, if any, raised by the pension authorities that too

in accordance with rules but it certainly has no jurisdiction to

take a view contrary to the view of the Medical Board. Arbitrary

non-acceptance of view of the Medical Board would be in

violation to the rules as well as the principles of law stated by

the Courts. In all the above cases, the Courts have dealt with

the provisions entitling the member of the Armed Forces to

receive disability pension. There is no divergence of view in

regard to ambit and scope of power of PCDA(P) and binding

nature of the opinion of the Medical Board constituted in

accordance with rules. Regulation 173 of the Pension Regulations

for Army, 1961 Appendix II relates to grant of entitlement for

disability pension. Section 22 of the Army Act and the

13

instructions issued by the competent authorities as afore-

referred, leave no doubt that PCDA(P) is vested with no

jurisdiction of its own to reject issuance of PPO and

disbursement of pension after receiving sanction of the

competent authority in terms of AFMSF-16 accompanied by the

medical opinion of the duly constituted Medical Board. Once

conditions of Regulation 173 of the Pension Regulations, 1961

are satisfied, the jurisdiction of the PCDA(P) is very limited. Once

the rules required the authorities to perform acts in a particular

manner then it is expected that they would be done as required.

Acti qualibet it suavia. In other words things should take the

prescribed course and the prescribed procedure should not be

permitted to be frustrated particularly by arbitrary exercise of

power. In the case of S. Balachandran Nair (supra), the Supreme

Court has clearly stated the nature and effectiveness of a

medical opinion expressed by the appropriate Board in

accordance with rules. Once the PCDA(P) transgresses its

specified jurisdiction, their action would invite judicial

intervention.

8. In view of the above settled position of law, the

claim of the petitioner merits acceptance. Consequently, this writ

petition is allowed. The respondents are directed to consider and

grant disability pension to the petitioner as per the

14

recommendations of the medical board, its acceptance by the

administrative authorities and in conformity with the relevant

rules.”

11. In a Judgement of Hon'ble Apex Court reported in (2009) 9 SCC 140,

between Secretary, Ministry of Defence and others Vs. A.V.

Damodaran (Dead) through LRs and others, the following principles

with regard to primacy of medical opinion have been laid down :-

“8. When an individual is found suffering from any disease

or has sustained injury, he is examined by the medical

experts who would not only examine him but also ascertain

the nature of disease/injury and also record a decision as to

whether the said personnel is to be placed in a medical

category which is lower than ‘AYE’ (fit category) and

whether temporarily or permanently. They also give a

medical assessment and advice as to whether the individual

is to be brought before the release/invalidating medical

board. The said release/invalidating medical board

generally consists of three doctors and they, keeping in view

the clinical profile, the date and place of onset of invaliding

disease/disability and service conditions, draws a conclusion

as to whether the disease/injury has a causal connection

15

with military service or not. On the basis of the same, they

recommend (a) attributability, or (b) aggravation, or (c)

whether connection with service. The second aspect which

is also examined is the extent to which the functional

capacity of the individual is impaired. The same is adjudged

and an assessment is made of the percentage of the

disability suffered by the said personnel which is recorded

so that the case of the personnel could be considered for

grant of disability element of pension. Another aspect which

is taken notice of at this stage is the duration for which the

disability is likely to continue. The same is

assessed/recommended in view of the disease being capable

of being improved. All the aforesaid aspects are recorded

and recommended in the form of AFMSF-16. The

Invalidating Medical Board forms its

opinion/recommendations on the basis of the medical

report, injury report, court of enquiry proceedings, if any,

charter of duties relating to peace or field area and of

course, the physical examination of the individual.

9. The aforesaid provisions came to be interpreted

by the various decisions rendered by this Court in which it

has been consistently held that the opinion given by the

16

doctors or the medical board shall be given weightage and

primacy in the matter for ascertainment as to whether or

not the injuries/illness sustained was due to or was

aggravated by the military service which contributed to

invalidation from the military service.”

12. As for the fixing of the percentage of disability is concerned, while the

Invaliding Medical Board and the first RAMB dated 4.3.1987 have fixed the

disability to be 20% and the nature of disability to be ‘Permanent’, the

second RAMB (14.2.1994) while agreeing with the fact that the nature of

injury is ‘Static since last medical board’, has lowered the percentage of

disability to less than 20% and the assessment duration limited to 10 years

only without affixing any valid reasons for the said variation in the opinion.

We are inclined to question the opinion of the Board and feel that the said

Medical Board erred on both counts. The Board has ascribed no reason or

recorded any improvement in the medical condition to vary the percentage

of disability from 20% to less than 20%. Further, fixing 10 years as the

assessed duration of disability contradicts the expressly stated opinion of the

Surgical Specialist i.e., “His condition is permanent and unlikely (to) change.

No change apparent since last Review.”

17

13. We, therefore, are inclined to disagree with the assessment of

disability and the duration of the assessment at Para-8(a) Column-6 and

Column-7 of the RAMB dated 14.2.1994. We are of the considered view that

the disability caused due to injury to the right little finger ‘Flexion

Contracture Little Finger (RT)’ of the applicant continues to be “Static and

permanent” as hitherfore. Further, we feel that the said Board erred in

affixing disability percentage to be less than 20% without adducing any

supporting reasons to alter the earlier assessment. Both the points are

decided accordingly in favour of the applicant.

14. Point No.3: We now examine the applicability of provisions of broad

banding of relief as envisaged in the Government of India, Ministry of

Defence, Letter No.1(2)/97/D(Pen–C) dated 31.1.2001, in the instant case.

The said policy letter vide para 7.2 envisages broad banding of disability

element as follows :-

Percentage of disability

as assessed by invaliding

medical board

Percentage to

be reckoned for

computing of disability element

Less than 50 50

Between 50 and 75 75

Between 76 and 100 100

18

The said benefits were conferred upon the retirees on and after

1.1.1996. The policy, in the case of disability attributable to military service,

does not make a distinction between 20% and above and less than 20%.

Further, the disability percentages from 1% to 50%, have been brought

under one band, i.e., 50% for the purposes of computing of disability

element of pension. The Judgement of Hon'ble Apex Court reported in 2009

(9) SCC between K.J.S. Buttar Vs. Union of India and another,

contended that restricting the benefits of broad banding only to retirees on

and after 1.1.1996 was violative of Article-14 of the Constitution and

extended the benefit to Pre-1.1.1996 retirees also. The relevant point as

laid down in para-14 of the Judgement runs as follows :-

“14. In our opinion the appellant was entitled to the

benefit of para 7.2 of the instructions dated 31.1.2001 according

to which where the disability is assessed between 50% and 75%

then the same should be treated as 75% and it makes no

difference whether he was invalided from service before or after

1.1.1996. Hence the appellant was entitled to the said benefits

with arrears from 1.1.1996, and interest at 8% per annum on

the same.”

15. The provision of broad banding of disability percentage for computing

disability element, in the instant case to 50%, is available to the applicant,

19

as long as the injury is attributable to military service and the assessed

disability is above 1%. Therefore, the question of whether the assessed

disability percentage was above or below 20% is not of much relevance any

further, for allowing disability pension to the applicant.

16. In view of the aforesaid, we may conclude that the applicant was

discharged from service owing to permanent disability to right little finger,

sustained during bonafide training and is attributable to military service.

The disability was assessed to be 20% by the Review Medical Board dated

4.3.1987 and is entitled to continuance of both service element and

disability element of pension with effect from 09.05.1987. We note that

while the applicant continues to draw service element of pension, he has

been denied disability element of pension with effect from 09.05.1987.

Further, with effect from 1.1.1996, he is entitled to the provisions of broad

banding of disability percentage to 50% for computing disability element of

pension.

17. Point No.4: In sum, the applicant is entitled to the service element

of pension for life as fixed originally on invalidment and granted with effect

from 29.6.1985. He is also entitled to reckonable disability element of

pension at 20% from 9.5.1987, and enhanced to eligible for enhancement to

50% from 1.1.1996. However, in accordance with the principles laid down

by the Hon’ble Apex Court Judgement in the case of Union of India and

20

others vs. Tarsem Singh, the disability element of pension is liable to be

limited to three years prior to the date of his filing the application before the

Tribunal i.e., 2.1.2010.

18. In fine, the application is allowed to the extent as indicated above.

The respondents are directed to calculate the arrears of disability pension

three years prior to the date of filing of the application before the Tribunal,

i.e. 2.1.2010 to this date and to pay the applicant within a period of three

months from today and to continue to pay the future service element of

pension as well as the disability pension as indicated above. In default to

pay the said arrears as directed above, the applicant shall be entitled to 9%

p.a. interest over the arrears from this date, till the date of such payment.

No order as to costs.

Sd/- Sd/-

LT GEN K. SURENDRA NATH JUSTICE V. PERIYA KARUPPIAH

MEMBER (ADMINISTRATIVE) MEMBER (JUDICIAL)

03.03.2014

(True Copy)

Member (J) – Index : Yes / No Internet : Yes / No

Member (A) – Index : Yes / No Internet : Yes / No

NCS

21

To,

1. The Secretary to the Government,

Ministry of Defence, New Delhi.

2. The Senior Record Officer,

Madras Engineer Group Bangalore 900 493

C/O 56 APO

3. M/s. A. Dennison, M.K. Sikdar &

S. Biju, Counsel for applicant.

4. Mr. B. Shanthakumar, SPC

For respondents.

5. OIC, Legal Cell (Army), ATNK& K Area HQ,

Chennai-9.

6. Library, AFT, Chennai.

22

HON’BLE MR.JUSTICE V. PERIYA KARUPPIAH

MEMBER (JUDICIAL)

AND

HON’BLE LT GEN K. SURENDRA NATH

MEMBER (ADMINISTRATIVE)

O.A.No.148 of 2013

03.03.2014