ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- TA 707 of 2010 (arising out of CS 51 of 2009)

Transcription

1 1 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR TA 707 of 2010 (arising out of CS 51 of 2009) Ranjit Singh Petitioner(s) Vs Union of India and others Respondent(s) For the Petitioner (s) : Mr. Sujan Singh, Advocate For the Respondent(s) : Mr. Ram Chander, Sr. PC. Coram: Justice Vinod Kumar Ahuja, Judicial Member. Air Marshal (Retd) SC Mukul, Administrative Member. ORDER The Civil Suit No. 51 of 2009 filed in the Court of Civil Judge (Senior Division) Tarn Taran, on transfer to this Tribunal, registered as TA No. 707 of 2010 and is taken up under Section 14 of the Armed Forces Tribunal Act, The petitioner prays for grant of disability pension w.e.f along with interest. 3. Brief facts of the case are that petitioner was enrolled in the Army on 10 March, After completion of his training at the SIKH LI Regimental Centre, he was attested as a soldier on 29th March, During the initial training period only he was diagnosed to have been suffering from CSOMIC BILATERAL SENSONNURAL DEAFNESS and VIRAL HEPATITIS for which he was medically treated and retained in service, being placed in LMC CEE(T) w.e.f. 10 th October, 1991 and on subsequent review in CEE(P) with effect from 10 th April, He was permitted to serve further even in LMC by being employed in a shelter appointment by his unit in the public interest. He was discharged from service at his own request w.ef. 31 st May, 1996 under Army Rule 13(3) Item III

2 2 (iv). As per his sheet roll, he was in medical category CEE(P) w.e.f. 10 th April, 1992 to 10 th April, Thereafter, there exists no record regarding review of his medical, category or release medical board in his service dossier. 4. The plaint averments are that the plaintiff was enrolled in the Army on in medically and physically fit condition. During service the plaintiff suffered from severe injuries in his left ear which resulted in continuous discharge of pus due to puncturing of ear drum. Further he also suffered acute ailment of jaundice. After treatment the petitioner was placed in low medical category CEE (Temporary) for six months wef September, On review, he was again placed in low medical category CEE (T) for another period of six months w.e.f. March, He was dismissed from service wef July On the objection raised by the Chief Controller of Defence Accounts, Allahabad (respondent No.3), the petitioner was reinstated into service retrospectively w.e.f. July Keeping this grudge in mind, the Commanding Officer, 15 Sikh Light Infantry (defendant No.5) recommended his invalidation. The Release Medical Board held in May 1996 placed the petitioner in LMC CEE (Permanent) to the extent of 45% disability w.e.f till next review medical board. The petitioner made several requests and representations both verbally as well as in writing for grant of disability pension but all those requests fell on the deaf ears of the defendants. The defendants failed to conduct any review medical board. The plaintiff prays that till the next review board is conducted, the existing invalid disability is deemed to have continued. Therefore, he is liable to grant of disability pension w.e.f with 45% disability till next medical review. Aggrieved thereby the petitioner filed statutory legal notice dated to the authorities concerned for grant of disability pension which was denied vide letter No /LC/Pen dated Hence the civil suit was filed in the Court of Civil Judge (Senior Division) Tarn

3 3 Taran for grant of disability pension, which later on was transferred on establishment of this Tribunal. 5. The respondents in their written statement bring out that the suit is hopelessly barred by time as the present suit has been filed after an unexplained delay of more than 13 years. The plaintiff was discharged from service at his own request and as such he is not entitled to any disability pension according to para 8.2 of Pension Regulations for the Army, 1961 (Part-I) and para 8.3. of Govt of India, MoD, letter dated 31 st Jan, We have heard the learned counsel for the parties and gone through the record of the case. 7. From perusal of the record it emerges that the petitioner was enrolled on 10 th March, 1990 and on completion of training was attested on and posted to 15 SIKH LI on The petitioner was treated for viral hepatitis and CSOMIC BILATERAL SENSONNURAL DEAFNESS at the military hospital and on completion of treatment was placed in Low Medical Category (Temporary) on which was subsequently made into low Medical Category (permanent) w.e.f In spite of his Low Medical Category (Permanent) status, the petitioner was provided sheltered appointment in the Unit. 8. During his short service of six years the petitioner maintained poor discipline record earning three red ink entries in his sheet-roll. The petitioner was away without leave from to (136 days) for which he was tried by the Summery Court Martial on and was awarded dismissal from service. However, the Summery Court Martial was set aside on the directions of Deputy Judge Advocate General, Headquarters Central Command due to certain documentary irregularities in the procedure. The petitioner was reinstated into service. As per the averments made in para 3 of

4 4 the written statement by the respondents, the petitioner was discharged from service at his own request, further qualifying that the copy of the application dated 14 th October, 1995 is appended with the written statement. Scrutiny of the record shows that no such application has been appended with the written statement by the respondents. 9. Further, as per the record held with the SIKH LI, the petitioner was in Low Medical Category (permanent) till 10 th April, Thereafter no record is available with the Unit with respect to holding of any Release Medical Board. As per the respondents, the petitioner was discharged at his own request before completion of his term of engagement on 31 st May, 1996 under Army Rule 13(3)(iv). 10. The current Civil Suit No. 51 of 2009 was filed on in the Court of Civil Judge (Senior Division), Tarn Taran was transferred to this Tribunal on During the preliminary hearing the Tribunal vide order dated 29 th November, 2010 directed the respondents to produce all relevant medical record including the Medical Board proceedings. On getting no response, on 11 th July, 2011, this Tribunal passed the following order: In view of the fact that Medical Board proceeding is not available, let a fresh Medical Board be held in respect of the petitioner s disease. The respondents are directed to hold the Medical Board of the petitioner within three months and submit report. Put up this case on , for filing Medical Board proceedings and final hearing. 11. Scrutiny of the post Release Medical Board Proceedings held on , reveals the following: SUMMARY & OPINION OF COL AV RAMESH, SR ADVISOR (ENT), ARMY HOSPITAL (R&R) DATED 10 JUN 2012 This 40 yr old soldier was apparently placed in med cat CEE(P) in 1992 for CSOM Bilateral with Sensorineural Hearing

5 5 Loss. He underwent RMB in 1996 for the same but received no disability pension. Presently, there exist no old medical documents to base the opinion on. Hence, the present opinion is based purely on clinical condition as on this date. Patient c/o discharge and hearing loss in right ear since There is milk hearing loss in left ear but no ear discharge. ENT Exam: Ear left Right TM Normal Mobile Intact Scarred Small area of thin TM Tuning Fork Tests Severe Mixed hearing loss SNHL Cv/fw 100 CMS 100 CMS Nose/Throat - NAD Pure Tone Eudiometry: Right Severe to profound Mixed Hearing Loss with thresholds of 100 db. Left Moderately severe to severe SNHL with thresholds of DB Impedance eudiometry- Bilateral Type A doae s Bilateral rifer Bera right: Wave V recorded at 60 dbnhl. Left: Wave V recorded at 40 db NHL A case of CSOM effects of Right. He has thin scarred TM on right side indicating on old healed perforation. The hearing thresholds derived from subjective tests like Pure Tone Eudiometry and Free field testing like CV/FW do not correlate with clinical picture and objective tests like BERA. However, he has hearing loss in right eare to the extent of 40 DB. Recommended to be released in med cat H3. The Attributability / Aggravation aspects are as under:- CSOM EFFECTS OF RIGHT (H66.3) 40% 40% CSOM EFFECTS OF RIGHT 40% FOR LIFE. (A) CSOM effects of (right) Attributability to service cannot be ascertained in his ca case as no old medical records are available (initial o court of inquiry, Injury report or certificate of attributab CO). Hence individual being released in LMC H H3(P). However, as per opinion of Sr.Adv 40dB h Army Hospital (R&R) Delhi Cantt, he has hearing loss ear to the extent of 40 db hence giving benefit of attributability can be given. 12. On 14 th January, 2013, this Tribunal passed the following order: The Re-Survey Medical Board proceedings have been filed and are taken on record. In the expert opinion, it has been indicated that the petitioner was found having a thin scarred TM on right side indicating an old healed

6 6 perforation. However, it does not give a detailed account as to what may be the reason for this kind of perforation which the petitioner was having. The respondents are directed to obtain an additional report from the expert with regard to causes of such perforation, which was found healed at the time of Re-Survey Medical Board. According to the respondents, the old medical record of the petitioner i.e. initial opinion, Court of Inquiry, Injury report or certificate of attributability by the CO are not traceable. The respondents are required to inform as to how these documents are not available and who is responsible for the loss of these pape3rs. They are also required to inform as to what action has been taken by the department concerned with regard to the loss of these papers and against whom. A complete report be submitted by the date fixed. List on In spite of repeated adjournments, there has been no response to the order dated 14 th January, 2013 by the respondents. Meanwhile the petitioner through MA No of 2013, filed the copy of the Medical Board Proceedings. 14. On , keeping in view the long time given to the respondents to comply with the order dated 14 th January, 2013, the Tribunal heard the case on merit. The post release Medical Board documents and the opinion of the Medical Specialist indicate that the petitioner has hearing loss in his right ear to the extent of 40%. The petitioner was in LMC (P) at the time of his release from service for the same ailment. In light of above, in our mind there is no doubt about the attributability / aggravation aspects of the disease, however in respect of the assessment percentage of this disability, it can be safely presumed that to be as indicated by the Medical Board dtd at 40% for life. 15. Based on above, the petitioner is held to be suffering from the disability CSOMIC BILATERAL SENSONNURAL DEAFNESS to the extent of 40% attributable to the military service. Since the petitioner was discharged from service w.e.f. 31 st May 1996 and he is held to be suffering from the disease to the extent of 40%, the

7 7 petitioner is entitled to the disability pension with benefit of rounding off as per the judgment rendered by Hon ble the Supreme Court in dated passed in CA No of 2006 K.J.S.Buttar vs. Union of India and others, read with judgment of this Tribunal dated , passed in OA No.1370 of 2011, Labh Singh v. Union of India and others, and a recent judgment of this Tribunal, dated , passed in bunch of cases led by OA No.1960 of 2012, Ved Parkash v. Union of India and others. 16. Accordingly, the petition is allowed. The petitioner is entitled to get disability element of disability pension from the date of discharge along with the benefit of rounding off, however the arrears of disability pension with rounding off are restricted to three years prior to the filing of the civil suit No. 51 of 2009 dated The respondents are directed to make necessary calculations, and actual payment to the petitioner, within a period of three months, from the date of receipt of certified copy of this order by learned counsel for the respondents, failing which the amount shall carry interest at the rate of 10 per cent per annum from the date of order. 18. The order dated 14 th January, 2013 has not been complied. The respondents are directed to comply with the said order within a period of three months from today. (Justice Vinod Kumar Ahuja) (Air Marshal (Retd) SC Mukul) raghav Whether the judgment for reference is to be put on internet? Yes / No.