Ex LNk Uda Ram vs UOI & Others on 14 August 2025

**ORDER

14/08/2025**

**MA No 921/2023**

1. 1. Under Section 5 of the Limitation Act and Section 22 (2) of the Armed Forces Tribunal Act 2007, the Applicant has filed this Miscellaneous Application praying for condonation of delay of three years, one month and eight days involved in filing the OA. Taking into considerations the reasons advanced therein, MA is allowed and the delay involved in filing the OA is condoned.

**OA No 499/2023**

1. 2. Under Section 14 of the Armed Forces Tribunal Act 2007, the applicant has filed this OA praying for quashing and setting aside letters dated 03/6/2021 and 06/2/2021 and that the illegal action of the Respondents in demanding refund of Rs 5,38,434/- 

for releasing the disability pension to the applicant. He has also prayed for grant of disability pension to the applicant alongwith rounding off benefit with effect from the date of his discharge from service and pay heavy cost of litigation to the applicant.

3. Brief facts of the case as enunciated by the applicant are that the applicant was initially enrolled in the Army on 02/9/1986 and was discharged from there on 01/10/2008. Thereafter, he was re-enrolled in the DSC on 24/12/2009 and was discharged on 31/12/2019. While in service, the applicant suffered from the disabilities, "Cataract Right Eye", (ii) "Symptomatic Mobitz Type I Block" & (iii) Graves Disease with Post Ablative Hypothyroidism" and was made eligible for grant of disability pension. Thereafter, the Respondents vide their letters dated 03/1/2021 and 06/2/2021, Annexure A/1 & A/2, demanded from the applicant deposit of Rs 5,38,434/- which had been paid to the applicant in excess of his entitled gratuity. The applicant further submits that the applicant is an old age senior citizen lowly paid Ex-serviceman who retired from the rank of a Naik and is facing extreme hardship to run his family and has been illegally forced for recovery which is against the provisions of letter issued by the Govt of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training. Having been aggrieved, the applicant has filed this OA, praying for relief.

4. The Respondents have filed a Reply Statement and have stated that the applicant was initially enrolled in the Army on 02/9/1986 and was discharged from there on 30/9/2008 in the rank of Naik under the provisions of Army Rule 13 13 (3) Item III (i) after rendering 22 years and 29 days of service. He was granted service pension for the qualifying service. Thereafter, he was re-enrolled in the DSC on 24/12/2009 and did not opt to count his former service towards the DSC service. During the initial terms of engagement with the DSC, the applicant was placed in low medical category due to the disabilities, Graves Disease with Post Ablative Hyperthyroidism wef 06/5/2016 followed by Symptomatic Mobitz Type I Block and Cataract Right Eye (Optd) in the year 2018. Accordingly, he was discharged from DSC service wef 31/12/2019 under the provisions of Army Rule 13 (3) Item III (iii) (a) (i) in terms of IHQ of MoD (Army) letters dated 03/5/2018 and 20/11/2018 due to his not meeting the criteria laid down for continuous service in the DSC. He had rendered 10 years and 8 days of qualifying service for which he was granted Service Gratuity and DCRG, amounting to Rs 4,14,180/- and 1,24,254/- respectively. The RMB assessed the disabilities of the applicant, "Symptomatic Mobitz Type I Block @20% for life (ii) Graves Disease with Post Ablative Hypothyroidism @30% for life and (iii) Cataract Right Eye (Optd) @5% for life, with composite assessment @ 47% for life rounded off to 50% for life and the net assessment qualifying for grant of disability pension @ 44% for life rounded off to 40% for life. The first and second disabilities have been considered as aggravated due to prolonged stress and strain or military service whereas the third disability has been considered as neither attributable to nor aggravated by military service as also not related to military service. Claim for grant of disability element to the Applicant was processed to PCDA (P), but the same was returned unactioned because an amount of Rs 5,38,434/- paid on account of service gratuity and death-cum-retirement gratuity at the time of Final Settlement of Account needs to be recovered first from the applicant as the individual was not entitled for service gratuity paid erroneously by the audit authority as the same is only applicable for a non pensioner having served more than five years. However, the individual is entitled for Death-cum- Retirement Gratuity as the applicant has already been considered for grant of Disability Pension by the Adjudicating Authority. As such recovery of the whole amount ie, Rs 5,38,434/- is not possible against DCRG paid to the applicant while accepting his claim for grant of disability pension being the amount of DCRG is less than the amount of service gratuity. Therefore, the applicant has been advised/directed to deposit Rs 5,38,434/- in any nationalised bank through MRO in favour of CDA Chennai, and forward the same to DSC Records for its onward submission to the PCDA (P) alongwith the Disability Pension claim, the fact of which has been communicated to the applicant vide letter dated 06/10/2021. Since the amount has not been refunded by the applicant, the claim is kept pending for want of documents proving that the amount has been refunded.

5. During the course of final hearing today, counsel for the applicant has vehemently argued that the applicant is a low paying retired Naik and demanding refund of the service gratuity and death-cum-gratuity from him is illegal and unfair and is also against the law of the land. In support of his arguments, he has placed on record a copy of the Judgment dated 04/4/2025 passed by the Hon'ble Supreme Court in Civil Appeal 2025, arising out of a SLP (C) 5918/2024 in the case of Jogeswar Sahoo & Ors Vs The District Judge, Cuttak & Ors.

6. We have heard the counsels for the parties and perused the material placed on record.

7. From the perusal of material placed on record, it is evident that the applicant had a 22 years of qualifying service in his first spell of service in the Army for which he is in receipt of Service Pension for life. The applicant was re-enrolled in the DSC on 24/12/2009 and was discharged from service on 31/12/2019 after rendering 10 years and 8 days of service. Pending decision on grant of disability element of pension to him, the applicant was paid a total amount of Rs 5,38,434/- towards Service Gratuity and Death-cum-Retirement Gratuity at the time of his discharge from service. The Respondents have conceded that the applicant is entitled for grant of Disability Element for the second spell of his service in DSC for the first two Disabilities assessed @composite 40% and considered as aggravated by military service by the duly constituted RMB. At the time of processing his claim for grant of disability pension, the Respondents have advised the applicant to refund the amount of service gratuity and death-cum-retirement gratuity, amounting to Rs 5,38,434/-, which was paid to him at the time of his discharge from DSC service as the grant of disability element is a later development after his discharge from DSC. Therefore, in view of the fact that the applicant will be getting Disability Element of Disability Pension @50% for his life, we consider the amount of Service Gratuity and DCRG paid to him would be excess payment to the applicant that he was not rightfully entitled to. Since the applicant had rendered 22 years and 29 days of service in the Army before being re-enrolled in the DSC and for which he is in receipt of Service Pension for the qualifying service, the applicant is not entitled for grant of Disability Pension, but he is eligible for grant of Disability Element of Disability Pension only @40% as assessed by the duly constituted RMB alongwith the benefit of rounding off to 50% in terms of extant rules/policy. We are also of the view that the amount of Rs 5,38,434/- paid to the applicant at the time of discharge from DSC service has to be recovered from the applicant as per extant rules/regulations through Equated Monthly Instalments at a moderate rate so as not to cause any acute financial hardship to the Applicant.

8. In fine the OA is allowed and the Respondents are directed to grant Disability Element of Disability Pension @40% duly Rounded Off to 50% to the Applicant wef the date of his discharge from DSC service, ie, 01/1/2020 for life. The arrears shall be paid to the applicant within a period of six months from the date of receipt of a copy of this Order, failing which, interest @6% pa shall be entitled to him till the actual date of its payment. Before departing, we make it abundantly clear that the Respondents PDA/SPARSH PCDA (P) shall be at liberty to effect recovery of the amount of Service Gratuity and DCRG paid to the applicant at the time of his discharge from DSC service in terms of extant rules/regulations. As a first step, fifty percent of amount which has been paid in excess to his entitlement may be deducted from the total amount of arrears of disability element of disability pension payable to the applicant since 01/01/2020 and the balance amount, if any, @ Rs 6,000/- (Rupees Six Thousand only) per month till total liquidation of the amount to be recovered.

9. The OA is disposed off accordingly. No order on costs.

10. Pending application, if any, also stands disposed off.

**(SANJIV MITTAL)** **MEMBER (A)**

**(GOVERDHAN BARDHAR)** **MEMBER (J)**

cda/-