Judgment & Order dated 15 May 2023 OA-04/2021 on 15 May 2023

ORDER

1. This applicatron has been flled under Section 74 of the Armed Forces Tnbunal Act,2007,by the applicant, who is aggrievedby the rejection of his claim for disability pension by the respondents vide impugned order dated 18.12.2079.

2. The applici:ant was initially enrolled in the Bngade of The Guards on 15.02.7984 and was discharged from service on ,28.02.2001 under Army rule '1.3 (3) III (i) after rcndering 17 years and 15 days of qualifyrng service. The applicant was granted service pension.vide PCDA (P) Altahabad PPO no. S/058790/2OOO (Army). Thereafter,the applicant was re-enrolled in DSC on 21.09.2002 and he did not opt to count his former service towards DSC service. He OA 4/2021- Ex Nk Ginjohang was discharged from Dsc service wef 30.04.201'9 undet Army rule 1g (3) III (D, after rendering 1 6 years , 7 months and 10 days of qualifyrng service. At the time of disch arge, the applicant was brought befere a duly constitut ed medical board. Release Medical Board assess'ed his disabllity 'TyPE-II DIABETES MELLITUS' and ,OBESITy, as neither attnbutable to nor aggravated by mihtary service @ 20% disablement and 'NIL' petcentage of disability qualifyng pension. The first appeal preferced by the individu al was rejected vida order dated 18.12.2019. The second appeal pteferted : by the appl.tcant is under consi deralton by the Second Appellate Committee on Pension (SACP). The applicant was gtanted second service pension vide PPO no. 194201901 194- g. Learned counsel for the applicant submitted that, as per Regulatio n 53(a) of the Pension Regulations for the Army , 2008- oAn indiuidual released/retired,/discharged on completion of term of engagement or on ,o*plrtio, of seruice limits or on attaining the prescribed age (ircespective of his period of engagement), if found suffering from a disability attributable to or agrauated by military seruice and'so recorded by Release Medical Board, may be granted disabiligr eleruent in addition to seruice pension or seruice gratuity from the date of retirement/discharge, if the accepted degree of disability is assessed at 2O percent or more". He furthet submitted OA 4/2027 - Ex Nk Giniohang 1,3 that as per Rule 5 of the Entitlement Rules for Caus allty Pensionary Awards, 1,982 amember is presumedtohavebeen in sound physical and mental condition uporL entering service except to physical ; disabilities noted or recorded at the time of entrance. In this case , the apphcant was in sound physical and mental health at the time of l entry into servi ce and no note of any disease was recorded at the time of entry into service. The' onset of the disease was only in Match 2017, whlle the applicant was in service due to stress and sttain :' related to military service. Moreover, Rule 9 of the aforesaid Rule ' puts the burden to disapprove the coruelation of the drsability with the service with the authorities and categoncally prescribes that ' 'benefit of doubt is to be given to the claimant Therefore, that the release medrcal board had lllegally and arbitrarlly held the disease as ' neither attributable to nor aSSravatedby mllltary service.

4. l,earned counsel for the respondents submitted that as pet Para SS(a) of the Pension negulations for the Army, 2OO8 (Part I), the primary condition for grant of disability pension is that the disability is either attributable to or aggtavated by military service and disability is assessed at 20% or over. In the instant case, the disability of the applicant is assessed as NANA by the medrcal board with nil .:. percentage of dtsability. Hence, the apphcant is not entitled for ,. disability pension. OA 4/2027 - Ex Nk Giniohong

5. Learned counsel for the respondents further submitted the disability DIABETES MELLITUS TYPE-II is a metabolic disorder of idiopathic origin with a strong genetic familial prepondetance. The disability 'OBESITY' is due to rnterplay of genetic metabolic and Iifesfyle factors and due to failure tn maintaining the body weight. Hence, the Release Medical Board has correctly held both the disabilities as neither attnbutable to nor aggravated by mllitary service.

6. l,earned counsel for the respondents had also submitted that as pq section 21, of the AFT Act 2007 , the Trlbunal sha1l not ordin anly admit an appeal unless it is satisfied that the applicant had avalled the remedies avarlable to him undet the Army Act 1950. In the present case, the second appeal preferred by the apphcant is afueady under consider atron by the SACP. This aspect has afueady been upheldby the Hon'ble AFI (PB) New Delhi in the judgment dated 05 Feb Z}lgin OA No 1569/2018 in the case titled Col (Retd) Satinder Singh Yaid Vs Union of lndia & Others. Therefore, the O.A is, therefore, liable to be dismissed with costs.

7. Having heard both the sides at lengfh, the only issue to be decided -is wh ether the disability of the apphcant i.e. 1. Diabetes ,i':Mellitus T-II and 2. Obesity could be held attributable to or aggravatedby military service and btoadbanded to 50 percent. OA 4/2021- Ex Nk Giniohong

8. The law on the point of attnbutability of a disability is afueady , , settled by the Hon'ble Supreme Court in the case of Dltaramuir Sin9rt Vs. (Inion of India teOIS) 7 SCC 316J, which hasbeen followed in subsequent decisions of the Hon'ble Supreme Court and in the number of orders passed by the Tribunal wherein the Apex Court had consider ed the question with regard to payment of disabllity pension and after takrng note of the provisions of the Pension l, Regulations, Entitlement Rules and the General Rules of Guidance to ' '' Medical Officers, it was held by the Hon'ble Supreme Court that an Army personnel shall be 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 and in the event of his being drscharged from service on medrcal grounds, dnY ' deterioratton in his health, which may have taken place, shall be :', presum ed due to seryice c.onditions. The Apex Court further held that the onus of proof shall be on the respondents to prove that the disease from which the incurutbent is suffering is neither attrlbutable I to nor aggravatedby military service. Hon'ble Supreme Court in the case of Ilnion of India & [Civil Appal Nos. 2904 of 2O1il decided on lg.OZ.2O75, after considering the case tn Dharamuir Singh (supra) Ors. Vs.-RaibLlu OA 4/2021- Ex Nk Giniahang '- 9.

,6 ., ,' uphol ding the decision of the Tnbunal granting disabtlity pension observe d as under : o........ Last but not tlte least is the fact tltat tlte prouision for pawent of disability pension is a beneficial prouision which ougltt to be intetpreted liberally so as to benefit tltose who have been sent ltome with a disability at times even before tltey completed tlteir tenare in the zumed forces. ... Thete may inded be cases, wherc the disease was wholly unrcIated to militaty seruice, but, in order tltat denial of disability pension can fu justified on tltat gzound, it must be atribmatively prcved tltat tlte disease had notlting to do with suclt setyice........ "

10. Further, the Hon'ble Supreme Court also in the case of Commander Rakesh Pande Vs. Union of India & Ors. [Civil ApWal No. 597O of 2019J decided on 28.77.2079,has upheld the decision of the ArmedForces fnbunai grantingdisability pension in respect of diabetes to the apphcant. 1 1. In the light of the law afueady laid down with regard to the attrtbutability/aggravation, we find that the RMB has denied the attnbutabllity/aggravatton of the disability (diabetes mellifus) on the groundthatthe disease is metabolic disorder and not connectedwith service. Howeverrtaking note of the facts and crrcumstances of the case) we are of the view that this reasoning given by the RMB for denying disability element of disability pension to the applicant is not convincing. The Tribunal has consistently taken a view that the armed forces personnel go through the pressure of rigorous military training and assocrated stress and strain of the service andholding the drsability in question as only metabolic disorder without giving any specific grounds for the opinion may not be acceptable. lt may also be taken into consideratron that the most of the personnel of the aryned forces, during their service, work in the stressful and hostile environment, difficult weather condition s and under sfrict disciplinary norms. Admittedly, the applicant was inifially enrolled in the army in February, 1984 and the disabllity's onset was only dragnosed in March, 2017. There has not been any note regarding his leading a poor lifestyle andfamily history etc. We are,therefore, of the considered opinion that the benefit of doubt in these circumst ances should be gi-ven to the applicant in view of above judgment andsettled law on the poin t of attributabllity/aggravation, the disability (diabetes mellifus) of the applicant should be held attrrbutable to/ aggravatedby the military service.

12. In view of the aforesaid judtcial pronouncements and the paramet'ers referred to above, the applicant is entitle d for disabllity element of pension in respect of dtsabllity 'diabetes mellifus Type-II.

Therefore, OA is allowed. The respondents are directed to grant disability element of pension to the applicant @ Zoo/o v,rhich be further rounded off to 50o/o for life from the date of discharge in term of the judicial pronouncement of the Hon'ble supreme court in the case of Union of India Vs. Ram Avtar (Civil ApWaJ No. 4IB/ZOIZ) decided on 1 0.72.2014. However , as the applicant has approached theTribunal after a considerable delay, in view of the law laid down in Tarsem Singh's case (supra), arrears will be restricted to three years pnor to the date of filing of this OA i.e. OS.O4.ZOZI.

13. Accordingly,the respondents are directedto calculate, sanction and issue necessary PPo to the applicant within four months from the date of receipt of copy of this order, failing which, the applicant shall be entitled to interest @ 60/o per annumtill the date of payment.

74. Pending MAs, if any, stand:closed accordingly. There is no otder as to costs. Pronoun ced inoi", Court on this sth - day of May, 2023. (J[JsrrcE RAIEr\DM METVOM CTIAIRPER,SON (tT GFAI P*IVI. HARTZ) MEMBER(A)