'Disability Pension Can't Be Denied Merely Because Officer Was Posted At Peace Station Later', Delhi High Court

Background:

The Respondent was commissioned as a Lieutenant in the Army Corps of Electronics and Mechanical Engineers in Shape-1 and retired on 31.05.2012. He claimed the benefit of the disability element of pension and the same was denied by the Petitioners. The Release Medical Board stated that the Respondent had 50% composite disability for the diseases CAD TVD CABG, Primary Hypertension, and Open Angle Glucoma in both the eyes. While it was initially stated that the first disability was attributable to service, later the Board changed its opinion suggesting that it could not be attributed to service since the Officer served in a peace area while the disability arose and therefore, had no connection or relationship to any physical exertion on duty.

The Respondent made representations before the Petitioners, however, the same were rejected.

Aggrieved, the Respondent approached the Armed Forced Tribunal. The Tribunal agreeing with the contentions of the Counsel for the Respondent (Petitioner before the Tribunal) held that the Hypertension was detected when the Respondent was posted in Leh, which is a high-altitude area. The Court accepted that the Respondent went through strain and stress while he was posted in the area despite the area being a peace area. Moreover, the Tribunal held that as per the Guide to Medical Officers, 2008, the Medical Officers were provided guidelines to ascertain the attributability of Hypertension and whether the service compulsions aggravated Hypertension while an Officer was serving in peace areas.

The Tribunal referred to the proceedings of the RMB and held that while initially the Board opined that the first disability CAD TVD CABG was aggravated by military service, later it gave an opinion suggesting non-attributability owing to the Respondent being posted in a peace area later.

The Tribunal cited the decision of the Supreme Court in Dharamvir Singh's case wherein it was held,

'As per Rule 423(a) of General Rules for the purpose of determining a question whether the cause of a disability or death resulting from disease is or is not attributable to service, it is immaterial whether the cause giving rise the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions.'

The Tribunal further reiterated the observations of the Supreme Court stating that if an officer at the time of joining services was found to be physically fit and free from any disability, the disabilities arising after joining the services would be attributable to or aggravated by service.

Making these observations, the Tribunal set aside the Orders that denied the Respondent the benefit of disability element of pension. Moreover, it directed the respondent to be grant disability element of pension for the disabilities of CAD TVD CABG and Primary Hypertension to the Respondent.

Aggrieved by the decision of the Tribunal, the Petitioner approached the High Court.

Contentions of the Parties:

The Counsel for the Petitioner submitted that the opinion of the Medical Board was final and did not require for the Tribunal to interfere.

Meanwhile, the Counsel for the Respondent stated that the Medical Board had initially opined that the disability was attributable to service, however, at a later stage, it changed its opinion merely because the Respondent was posted at a peace station, that is, Ambala. Stating the nature of duties that the respondent was performing at that station, the Counsel held that the Respondent could not be denied the Disability Element of the Pension.

Findings of the Court:

The Court agreed with the contentions of the Counsel for the respondent stating that since the initial finding of the Medical Board suggested that the Respondent's disability had arisen after being in service, it could not have changed its opinion merely because the respondent was posted in a peace area.

The Court further held that the service conditions of the respondent and the relationship of the same with the onset of the disability were factors that needed to be taken into consideration by the Medical Board.

Accordingly, the Court upheld the Order of the Tribunal granting the Respondent the Disability element of Pension.

Case Title: UNION OF INDIA & ORS. versus COLONEL BK CHHIMWAL RETIRED IC 390431

Counsel for the Petitioners: Mr.Jivesh Kumar Tiwari, SPC with Ms.Samiksha, Adv. along with Major Anish Muralidhar, Army.

Counsel for the Respondent: Mr.K.R. Verma, Adv.

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