IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

25.
OA 263/2014
With MA 293/2014

Ex Maj (Dr) Promode Krishna Asthana ........Petitioner

Versus
UOI & Ors .......Respondents

For petitioner : Mr VS Kadian, Advocate

For respondents : Ms Anjana Gosain, Advocate

CORAM:
HON’BLE MR. JUSTICE PRAKASH TATIA, CHAIRPERSON.
HON’BLE LT. GEN. SANJIV LANGER, MEMBER.

ORDER
19.03.2015

Heard the learned counsel for the parties.

2. The petitioner joined the Indian Army as Short Service

Commission Officer (SSC Officer) on 18.04.1955, and was

firstly discharged from service from 14.07.1958, with reserve

liability, and thereafter, again served from 15.03.1961 to

02.09.1966. According to the petitioner, he served for a total

period of 11 years and 3 months in the colour plus reserve

service. After release from the Army service, the petitioner

joined the General Reserve Engineer Force (GREF) from

07.03.1967. After joining the GREF, the petitioner was found to

be suffering with “Ischemic Heart Disease”. The petitioner was

brought before the Medical Board, who gave its opinion, in its

report dated 03.11.1967, and recommended that the petitioner

be released from service and his disease was attributable to

Military Service which was due to physical stress of the service

in the field area. The petitioner’s disability was assessed to be

20%.

3. Now, the petitioner, after his release from the Army

Service, in the year 1966, after about 48 years, has

approached this Tribunal, seeking the relief of disability

pension, which has been rejected by the Director (Admn) for

Director General Border Roads i.e. GREF. The petitioner also

submitted an application to the PCDA (P) Allahabad, and to

prove this, he has placed on record, a copy of the letter dated

04.12.2013 (issued from PCDA(P) Allahabad). The petitioner’s

pension claim has also been rejected by the Director, MRPS(O)

for DGMS (Army), vide order dated 27.02.2014.

4. The petitioner’s contention is that he suffered this heart

disease, when he was posted in North East Frontier Area

(NEFA) during 1962, and he continued there, till he was

discharged from SSC service. His disease was aggravated,

when he joined the GREF. This fact has been taken note of by

the Medical Board constituted immediately after the discharge

of the petitioner from SSC service from the military, which is

apparent from the Medical Board’s proceedings dated

03.11.1967, wherein it has been recorded that the petitioner

suffered the disease when he was posted in NEFA, area of

India in 1962, and he was also admitted in the Military Hospital

at Shillong.

5. According to the learned counsel for the petitioner, it is

true that the petitioner was discharged from military service with

opinion of Medical Board that the petitioner is in a fit medical

category i.e. AYE-1, but that has been opined due to lack of

knowledge of the petitioner in identifying the disease and the

petitioner may not have informed the authorities in the Army

Service as it was understood to be a chest pain only. The

gravity of the disease may not have been noticed by the

doctors in spite of the fact that he was admitted in the Military

Hospital due to chest pain, which ultimately was found to be

Ischemic Heart Disease pain. According to the learned counsel

for the petitioner, the petitioner’s claim has been rejected by the

respondents without assigning any cogent reason. The

petitioner was entitled to the disability pension from the Army

as well as from the GREF. However, it is not disputed that the

petitioner can get disability pension from one service, if his

claim is accepted.

6. Learned counsel for the Union of India submitted that the

petitioner’s OA deserves to be dismissed merely on the ground

that he was released from the Military Service in a fit medical

condition and without any disability. The petitioner cannot

challenge the opinion of the Medical Board which opined that

the petitioner was fit at the time of his release from the Army

Service, and such challenge cannot be entertained after a

delay of almost 48 years. Learned counsel for the Union of

India, then vehemently submitted that, even the Medical

Board’s opinion cannot be taken as a proof for holding that the

petitioner suffered the disease during the Military Service, for

the simple reason that, in the Medical Board’s proceedings, the

petitioner’s statements have been recorded by the doctor

wherein the petitioner had stated that he suffered the chest

pain when he was posted in NEFA during his service period in

the Army in 1962. It is also submitted that the petitioner was not

entitled to the disability pension even if his disability was

aggravated in the GREF service because of the reason that in

the year 1967 GREF had not been granted the status of a

permanent organization, and therefore, the petitioner was not

entitled to the disability pension.

7. We have considered the submissions of the learned

counsel for the parties and perused the material on record as

well as Regulation 54 of the Pension Regulations for the Army

1961.

8. It is true that the petitioner has approached this Tribunal

after an inordinate delay of almost 48 years. But, since the

claim of the disability pension is giving a continuing cause of

action, therefore, the petitioner’s claim cannot be rejected

merely on the ground of delay. Only loss, that may be suffered

by the petitioner, is that he cannot get the arrears beyond the

last three years from the date of filing of this OA.

9. Coming to the merit of the case, the Medical Board’ s

opinion, a copy of which has been placed on record by the

petitioner, is not under challenge. Obviously, it favours the

petitioner, and it is the report given by the Medical Board

constituted by the respondents themselves, the respondents

therefore cannot question it. In the Medical Board’s

proceedings, it is mentioned that the petitioner suffered the

disease in the year 1962, when he was posted in NEFA and he

was admitted in the Military Hospital, Shillong. Thereafter, it is

mentioned that in view of typical history and ECG changes this

is a case of “Ischemic Heart Disease”, and he is unfit for further

service in the GREF.

10. The petitioner was discharged from the Army Service on

02.09.1966 and joined the GREF on 19.03.1967. The period,

between the petitioner’s leaving the Army Service and joining

the GREF, is six months. It appears that the Medical Board was

constituted on 14.10.1967 i.e. within a period of seven months

from the date of the petitioner’s joining the GREF.

11. Regulation 54 of the Pension Regulations for the Army

1961 is relevant, and it is as under:-

“54. An officer who is retired otherwise than at his

own request, with a retiring pension or/gratuity, but
who, within a period of ten years from the date of
retirement is found to be suffering from a disease
which is accepted as attributable to his military
service, may, at the discretion of the competent
authority, be granted in addition to his/her retiring
pension/gratuity a disability element at the rate
appropriate to the accepted degree of disablement
and the rank last held with effect from such date as
may be decided upon in the circumstances of the
case.
Note:- The officer claiming the benefit under the
provision of Regulation 54 above will send an
application to the CCDA(P) directly to be brought
before a medical board. On receipt of the
application the relevant documents, CCDA(P) will
decide where necessary, in consultation with the
Medical Adviser (Pensions) attached to his office,
whether a prima facie justification for bringing the
claimant before a medical board exists or not. If it is
decided to „bring the officer before a medical board‟
the CCDA(P) will make arrangement themselves for
a medical board.”
12. A bare perusal of Regulation 54 will reveal that such

provision has been incorporated in the Pension Regulations for

the Army 1961 so that the persons who were discharged in a

fit medical condition from the Armed Forces Services, and if

they are found to be suffering from any disease subsequent to

their discharge from service, and the disease is having

connection with the Military Service and acceptable as

attributable to Military Service, such Army personnel may also

get the benefit of the disability pension. The obvious reason is

that the law framers must have conceived the situation that, a

person from the Army, Air Force or Navy, may be discharged in

a fit medical condition, either AYE-1 or SHAPE-1, but

subsequently, it may be noticed that such a person suffered the

disease, during the service period and his disease had direct

connection with his service conditions. Such disease can be

noticed at any time within 7 years (and that period has been

extended to 10 years subsequently). Probably, the GREF as

well as the Army, who rejected the petitioner’s claim for

disability pension, proceeded to reject the same under wrong

perception of law that the claim for grant of disability pension

should have been lodged within a period of 10 years after the

discharge of one from the service, whereas a bare reading of

the Regulation 54 will reveal that this period of 7 years/10 years

is not for submitting the claim for disability pension, but this

period of 7 years/10 years is the period within which if one

suffers or is found to have suffered the disease during service

period, then such persons are entitled to the disability pension.

Important fact is that the person’s disability must have surfaced

or have been noticed subsequent to discharge but must have

been attributable to or aggravated by the Military Service, and it

may surface during the service, or it may surface after service,

but it should surface within a period of 7 years/10 years from

the date of Army Personnel’s discharge from the service.

13. In the present case, the petitioner’s disease of “Ischemic

Heart Disease” was noticed immediately after the petitioner’s

discharge, and that too, within a period of 7 months only.

“Ischemic Heart Disease” may not be noticed by the patient,

and may be taken lightly under some confusion of only a chest

pain. We do not find any reason to presume that as far back as

in the year 1967, the petitioner may have given a false

statement before the doctor, so as to claim the disability

pension in the year 2013 or 2014. Had there been any intention

of the petitioner to make his disability claim based on the

alleged concocted medical opinion, he would have immediately

lodged his claim for disability pension, on the basis of his

alleged concocted story in the year 1967 itself, (immediately

after the Medical Board gave its opinion in favour of the

petitioner), and not waited for the decades to lodge his claim for

the disability pension. Therefore, the contention of the learned

counsel for the respondents that, a false statement was given

by the petitioner before the doctor, so as to substantiate his

claim for disability pension, cannot be accepted.

14. That the petitioner suffered the disease is an undisputed

fact, and the said disease, which made the petitioner unfit for
further service, was detected within a period of less than eight

months from the date of his discharge from the Army Service.

Therefore, in this case, it can be safely held that, the petitioner

suffered the disease, when he was in the military service, and it

may have aggravated when he was in the GREF. Indisputably,

the petitioner entered into the military service in a fit medical

condition, and he has been released without noticing his

disease by the Medical Board, at the time of the petitioner’s

release from the Army Service. Subsequently, it was found that

the petitioner suffered the disease during the Army Service,

and therefore, the petitioner should have been discharged in a

low medical category, though for unknown reasons he was

released with a medical report of he being in a fit medical

condition (SHAPE-1), which stands refuted by the Medical

Board’s proceedings dated 03.11.1967.

15. It is true that for claiming the disability pension in a case,

when one is discharged from service in a fit medical condition,

and the disability is noticed subsequent to his discharge, then

such person is required to submit his claim before the PCDA

(P) with relevant documents. In this case, the petitioner’s

contention is that he submitted his claim before the PCDA (P)

Allahabad and also submitted the Medical Board’s

Proceedings, related to him, before the PCDA(P) Allahabad,

which has been acknowledged by the PCDA(P) Allahabad in

their letter dated 04.12.2013. It is also true that the petitioner

has not placed on record a copy of his representation submitted

to the PCDA (P) Allahabad, and particularly for which, the

learned counsel for the respondents has raised objection, that

the petitioner should have placed on record a copy of his

representation, referred in the PCDA’s letter dated 04.12.2013.

May such representation and the objection, be relevant but

because of non-production of copy of the representation, which

the petitioner submitted to the PCDA (P) Allahabad, is in itself

not sufficient ground to draw adverse inference against the

petitioner because the claim of the petitioner is based on the

Medical Board’s Proceedings of the year 1967, and these

proceedings are not in dispute at all. The petitioner’s claim

before the PCDA (P) Allahabad was a belated one, but as we

have observed that the claim of disability pension is giving a

continuing cause of action, in view of the large number of

judgments of various Hon’ble High Courts as well as of the

Hon’ble Supreme Court, therefore, submitting of the claim

before the PCDA (P) Allahabad belatedly, or even not

submitting the claim before the PCDA (P) Allahabad is not of

much consequence, and the petitioner’s disability pension claim

cannot be rejected only on the ground that the petitioner did not

submit his claim for disability pension to the PCDA (P)

Allahabad within time.

16. In this case, the Medical Board, in its report dated

03.11.1967, has assessed the petitioner’s disability at the rate

of 20%, and also observed that the petitioner’s disability is not

capable of improvement. Therefore, the petitioner is entitled to

the disability pension and is also entitled to the benefit of

rounding off of the disability pension from 20% to 50%. The

petitioner is also entitled to the arrears for the last three years,

with interest at the rate of 12% per annum from the date of filing

of this OA, which is filed on 22.05.2014. The order be

implemented within a period of three months from the date of

receipt of a copy of this order. No order as to costs.

17. The OA stands allowed with no order as to costs.

(PRAKASH TATIA)
CHAIRPERSON

(SANJIV LANGER)
MEMBER

Dated:19.03.2015
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