Union of India v. 726674-S EX SGT Jayanta Das

1. Allowed, subject to all just exceptions.

2. Application stands disposed of. W.P.(C) 15232/2024 & CM APPL.63997/2024

3. This petition has been filed by the petitioners challenging the Order dated 05.10.2023 (in short ‘Impugned Order’) passed by the learned Armed Forces Tribunal, Principal Bench, New Delhi (in short, ‘AFT’) in Original Application (in short ‘OA’) No. 1046/2019 titled “726674-S EX SGT JAYANTA DAS vs. Union of India & Ors.”.

4. The learned AFT, vide the Impugned Order, has allowed the OA filed by the respondent herein, holding that the petitioner is entitled to disability pension @ 20% for life for the disability of Bronchial Asthma with rounding off to 50% for life as per Judgment of the Supreme Court in Civil Appeal No.418/2012 titled Union of India vs. Ram Avtar, and further directed the arrears to be released by the petitioners within a period of three months from the receipt of this order, failing which the arrears shall carry an interest @ 6% from the date of the said Order.

5. In reaching the above conclusion, the learned AFT, while placing reliance on the Judgment of the Supreme Court in Dharamvir Singh v. Union of India & Ors., (2013) 7 SCC 316, held as under:

6. The learned counsel for the petitioners submits that the Medical Board in the present case had opined that the disability of the respondent was “neither attributable to nor aggravated by military service.” He further submits that the opinion of the Medical Board could not have been interfered with by the learned AFT.

7. We find no merit in the above contention. The Supreme Court in Dharamvir Singh (supra), while considering the Entitlement Rules for Casualty Pensionary Awards, 1982, has held as under:

hereunder:

5. The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions: Prior to and during service (a) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance. (b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health, which has taken place, is due to service.” From Rule 5 we find that a general presumption is to be drawn that a member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance. If a person is discharged from service on medical ground for deterioration in his health it is to be presumed that the deterioration in the health has taken place due to service.

19. “Onus of proof” is not on the claimant as is apparent from Rule 9, which reads as follows: “9.Onus of proof.—The claimant shall not be called upon to prove the conditions of entitlements. He/She will receive the benefit of any reasonable doubt. This benefit will be given more liberally to the claimants in field/afloat service cases.” From a bare perusal of Rule 9 it is clear that a member, who is declared disabled from service, is not required to prove his entitlement of pension and such pensionary benefits are to be given more liberally to the claimants. *******

29. A conjoint reading of various provisions, reproduced above, makes it clear that:

29.1. Disability pension to be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable to or aggravated by military service to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II (Regulation 173).

29.2. A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service [Rule 5 read with Rule 14(b)].