Col Dharam Singh (Retd) (Army) vs UOI & Others on 20 December 2024

**ORDER**

**20/12/2024**

1. Under Section 14 of the Armed Forces Tribunal Act 2007, the Applicant has filed this OA praying that the Impugned Order dated 17/1/2023 as well as 02/2/2023 be quashed and set aside and the applicant's disability be regarded as attributable to service as held by RMB as also the Court of Inquiry and that the applicant be granted Disability Element for 20% duly rounded off to 50% wef 01/5/2022 for life.

2. Brief facts of the case as enunciated by the applicant are that the applicant was commissioned in the Army on 12/6/1993 and performed his duties with utmost dedication and commitment. Later from his parent Unit of Madras Regiment, the applicant was transferred to Intelligence Corps in Sept 2002 and undertook several intelligence operations and was also awarded Commendations Cards by the Chief of the Army Staff, Vice Chief of the Army Staff and the Chief of Defence Staff as an acknowledgment of his outstanding service under trying circumstances. While posted as the Commanding Officer, 110 Intelligence and Field Security Unit (IFSU) at Dinjan under HQ 2 Mountain Division Sector, on 16/2/2016 while returning from a border intelligence mission after visit to his Sub Unit Det while walking towards his room, he slipped and fell down and sustained injuries in his back and neck. He was initially treated at the 302 Field Hospital and later evacuated by Helicopter the next day to the 162 MH and was later transferred to Command Hospital, Eastern Command, Kolkata, on 12/3/2016. The Court of Inquiry that went into the circumstances under which he sustained injury has opined that the injury, Prolapsed Intervertebral Disc L5-S1, was attributable to military service. He was released from service in low medical category on 30/4/2022 on attaining the age of superannuation. He had rendered 28 years, 10 months and 19 days of service and was granted service pension for life, but not granted disability element of disability pension, although the RMB assessed the disability of the applicant @20% for life. In support of his argument, the applicant has placed reliance on the Judgment of the Hon'ble Apex Court in the case of Dharamvir Singh Vs UOI & Ors, 2013 7 SCC 316 as also in the case of UOI & Ors Vs Rajbir Singh, in Civil Appeal No 2904/2011, decided on 13/2/2015.

3. The Respondents have filed a Reply Statement and at the outset, have stated that the relief prayed for by the applicant is not admissible as the RMB conceded the disability of the applicant as aggravated by military service, but the Appellate Committee on First Appeal reassessed the disability of the applicant @10%, which is less than 20% as the applicant had refused to undergo surgery, which was expected to reduce the disability to 10%. Hence, the disability being considered at less than 20% does not meet the eligibility conditions as per Regulation 37 (a) of Pension Regulations for the Army 2008. Hence, the OA is devoid of merit and be dismissed at the admission stage itself. The Respondents further stated that the applicant retired from service on 30/4/2022 on reaching the age of superannuation. Being in low medical category, the RMB assessed the disability of the applicant, "PIVD L5-S1 (M-51-17), @Composite 20% for life and considered it as attributable to military service as per Injury Report dated 03/7/2016, Annexure R/1. The claim of the applicant was adjudicated by the competent authority at Army HQ and was not approved vide their letter dated 06/7/2022, Annexure R/2.

4. During the course of hearing, counsel for the applicant has placed on reliance, inter alia, the Order dated 04/1/2024 passed by this Tribunal in OA No 196/2022 in the case of Ex Nb Sub Naveen Kumar Vs UOI & Ors.

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

6. Perusal of record reveals that the Court of Inquiry held under the aegis of HQ 2 Mtn Div, vide their Convening Order dated 21/4/2016, that had gone into the circumstances under which the applicant sustained injury on his back and neck on 16/2/2016 while posted at Anini, Arunchal Pradesh, concluded that the incident happened while the applicant was heading towards his room in the evening at 1600 hours as the surface was slippery because of rains and the area around was devoid of light. As per opinion dated 10/6/2016 of the Station Commander, the injury sustained by the applicant was attributable to military service as he had slipped and fell down while walking towards his room at Anini, while visiting his Sub Det, as he was on bonafide military duty when the accident happened. The RMB assessed the disability of the applicant, "PIVD L - 5 - S1 (M 51, M17)", @Composite 20% for life and considered it as attributable to military service. As per the statement made at Page No 8, Para 2 (d) & (e) of the RMB proceedings, lucidly stated, as follows :—

"(d) Has the effect of refusal been explained to and fully understand by the individual, viz, a reduction in or the entire withholding of any disability pension to which he/she might otherwise be entitled? NA.

(e) Does the Medical Board consider it probable that the operation /treatment would have cured the disease/disability or reduced its percentage? NA".

7. Having perused the Court of Inquiry and the RMB proceedings of the applicant, we are of the considered view that the rejection of claim of the applicant by the competent authority cannot be sustained as it is clearly evident that there is definitely a causal connection between the injury sustained by the applicant and the military duty and that the statement of the Respondents in their Reply Statement that the applicant had refused to undergo surgery belies the statement in the RMB proceedings as stated above. In view of this and since the disability of the applicant was considered as attributable to military service and was assessed @20% composite for life, the applicant is eligible for grant of disability element of disability pension @20% for life from the date of his retirement from service.

8. In fine, the OA is allowed and the Respondents are directed to grant disability element of disability pension @20% to be rounded off to 50% wef 01/5/2022 for life to the applicant. 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% shall accrue on the whole amount till the date of its actual payment.

OA 100/2023 filed by Col Dharam Singh (Retd)

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

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

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

cda/-

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

After pronouncement of the Order, Counsel for the Respondents has made an oral prayer for grant of Leave to Appeal before the Hon'ble Apex Court. Since we do not find any substantial question of law of general public importance involved in the matter warranting grant of Leave to Appeal, the oral prayer for grant of Leave to Appeal is rejected.

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

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