armed forces tribunal, chandigarh regional bench at chandimandir

ARMED FORCES TRIBUNAL, CHANDIGARH
REGIONAL BENCH AT CHANDIMANDIR
-.OA 2869 of 2012
Hazari Lal
Vs
Union of India and others
For the Petitioner (s) :
For the Respondent(s) :
……
Petitioner(s)
……
Respondent(s)
-.Mr Surinder Sheoran, Advocate
Mr. Vibhor Bansal, CGC.
Coram: Justice Rajesh Chandra, Judicial Member.
Lt Gen (Retd) Dalbir Singh Sidhu, Administrative Member.
-.ORDER
13.05.2014
-.1.
This petition has been filed with a prayer that the impugned
letter dated 30.06.2012 of the Record Office may be quashed and the
disability element of disability pension in the rank of officer instead of
JCO may be granted to the petitioner with effect from 01.06.1991
alongwith the benefit of rounding off.
2.
In brief, the facts of the case are that the petitioner joined the
Army on 21.05.1963 and after completing the normal tenure of service
retired with effect from 31.05.1991 in the rank of Honorary
Lieutenant. He has been granted disability element at 20% for life
since 01.06.1991 in the JCO rank although the petitioner is entitled for
the disability element for the rank of Honorary Lieutenant. Various
representations made in this regard did not prove fruitful.
The
petitioner vide representation dated 16.06.2012 again requested for the
disability element at the rate of 20% with effect from 01.06.1991 in
officer rank as well as the rounding off of the disability element from
01.01.1996 as per Government policy but the respondent No.4
informed that the petitioner is not entitled for the benefit of rounding
off as he has been discharged after completion of the normal tenure.
3.
The respondents have admitted that the petitioner joined the
Army on 21.05.1963 and was discharged from service on 31.05.1991
on completion of service tenure. Since the petitioner was having
disability at 20% attributable to military service, he has been granted
disability pension for life vide PPO dated 23.05.2003.
-24.
It has also been admitted that the petitioner was granted
Honorary rank of Lieutenant on active service on 26.01.1991. As per
Vth Pay Commission he was granted disability element at Rs.380/- per
month with effect from 29.07.2003 for life for 20% disability. As per
Circular No. 282 dated 06.08.2001 of PCDA(P) Allahabad the
petitioner is in receipt of disability element at Rs.520/- per month for
20% disability ( Table No.6) with effect from 01.01.1996 and said
payment was to be revised by Pension Disbursing Agency (PDA). It
has further been alleged that in the instant case the PDA is DPDO
Bhiwani (Haryana) and the revised rate of pension disbursed to the
petitioner by PDA is not known to the respondents. So far as the claim
for rounding off of disability element is concerned, this benefit is not
available to the petitioner as his period of service has not been cut
short and he has been discharged after completing the tenure of
service.
5.
We have heard learned counsel for the parties at length and have
gone through the record of the case.
6.
The grievance of the petitioner is that although he was granted
Honorary rank of Lieutenant during service but after his retirement on
06.01.1991 he is being paid the disability element of JCO rank which,
in fact, should be paid for Honorary rank of Lieutenant. Moreover, the
benefit of rounding off of disability element has also not been
extended to him.
7.
Learned counsel for the respondents, on the other hand, relying
upon the provisions of Regulation 179 of Pension Regulations for the
Army ,1961 (Part-1) argued that the disability element is to be
assessed on the accepted degree of disablement at the time of
retirement/discharge on the basis of rank held on the date on which the
wound/injury was sustained and in the case of disease , on the date of
first removal from duty on account of that disease. His contention is
that at the time when the petitioner sustained injury, he was holding
the rank of JCO and as such he is entitled for disability element for the
rank of JCO.
-38.
In reply learned counsel for the petitioner argued that the
provisions of Regulation 179 are not applicable to the controversy at
hand and the appropriate Regulation is Regulation 180.
9.
In order to appreciate the arguments of the learned counsel for
the parties it is proper to quote Regulations 179 and 180 which run as
under :
“Regulation 179 (Disability at the time of retirement/discharge) : An
individual retired/discharged on completion of tenure or on completion of service limits
or on completion of terms of engagement or attaining the age of 50 years irrespective of
their period of engagement, if found suffering from a disability attributable to or
aggravated by military service and recorded by Service Medical Authorities, shall be
deemed to have been invalided out of service and shall be granted disability pension from
the date of retirement, if the accepted degree of disability is 20 percent or more and
service element if the degree of disability is less than 20 percent. The service
pension/service gratuity, if already sanctioned and paid, shall be adjusted against the
disability pension/service element, as the case may be,
(2) The disability element referred to in clause (1) above shall be assessed on the
accepted degree of disablement at the time of retirement/discharge on the basis of the rank
held on the date on which the wound/injury was sustained or in the case of disease on the
date of first removal from duty on account of that disease.
Regulation 180 : ( Rank for assessment of disability pension ) : The rank
for the purpose of assessment of service element and disability element of disability
pension, shall be the substantive rank or higher paid acting rank, if any held by the
individual on any of the following dates whichever is most favourable :
(a) the date of discharge/invalidment from service, or
(b) the date on which he/she sustained the wound or injury or was
first removed from duty on account of a disease causing his
disablement ,or
(c) if he/she rendered further service and during and as a result of
such service suffered aggravation of disability, the date of the
later removal from duty on account of the disability. ”
10.
From the above it is apparent that Regulation 180 falls under the
heading „Rank for assessment of disability pension „ Thus the aspect
of rank for assessment of disability pension has specifically been dealt
with in Regulation 180 which provides that for the purpose of
assessing the disability pension, the rank shall be substantive rank or
higher paid acting rank of the individual on any of the dates mentioned
in clauses (a),(b) & (c) of Regulation 180. It has further been
mentioned in the Regulation that out of the three dates whichever is
favourable to the petitioner would be taken into account for the
purposes of calculating the disability pension.
11.
So far as Regulation 179 is concerned, it is clear that the same
is applicable to the disability at the time of retirement/discharge and it
is the disability element which forms subject matter of Regulation
179(2) and not the rank on which such disability element has to be
-4paid. The rank on which such disability element has to be paid has
specifically been dealt with in Regulation 180. If what is being argued
by learned counsel for the respondents is accepted then the provisions
of Regulation 180 would be otiose.
12.
In view of the above discussion there is no doubt left in this
preposition that the petitioner is entitled for disability element of
pension for the Honorary rank of Lieutenant which was conferred on
him during service.
13.
The petitioner has filed a letter dated 07.07.2003 from Record
Office in which he has been granted Rs. 380/- per month towards
disability element with effect from 29.07.2003 for life. The petitioner
had given a legal notice dated 16.06.2012 (Annexure A-2) to the
Record Office in which he made a prayer for grant of war injury
element in the rank of officer instead of JCO with effect from
01.06.1991 to 31.12.1995 and thereafter, the same element for 50%
disability by rounding off of the disability element from 20% to 50%.
The notice was replied by the Record Office vide letter dated
30.06.2012 (Annexure A-3) in which the only objection raised was
with regard to rounding off of disability pension on the ground that the
petitioner was discharged from service after fulfilling the terms of
engagement. In this reply to the notice nothing has been mentioned
with regard to grant of disability element for the rank of officer
(Honorary Lieutenant). From what has been alleged in the written
statement it appears that the respondents agree that the petitioner is
entitled to disability element at the rate of Rs.520/- per month for 20%
disability with effect from 01.01.1996 but what has been paid to the
petitioner is Rs.380/- per month with effect from 29.07.2003.
14.
The respondents have filed Circular No.282 dated 06.08.2001
issued by the office of PCDA(P) Allahabad as Annexure VI in which
general guidelines have been issued for the implementation of the
provisions regarding revision of various elements of pension. In para 3
there are guidelines for revision of specific elements and para 3(v)
deals with the disability pension. It has been mentioned in this para
3(v) that “ concordance table showing existing rates and revised rates
-5of disability element for various ranks and different percentages is
given in Table No.6.”
15.
Table No.6 showing the rates of revised disability element
admissible w.e.f.01.01.1996 in respect of pre 1996 disability
pensioners of Armed Forces for 20% disability is as under :
Percentage
disability
20%
16.
of Commissioned
Officers including
Hony
Commissioned
Officers
Existing Revised
rates
Rates
Rs. P.M Rs. P.M
150
520
JCOs of Army and Other ranks
their rank in Navy three arms
and Air Force
services.
of
of
Existing
rates
Rs. P.M
Revised Existing Revised
rates
rates
rates
Rs.
Rs. P.M Rs.
P.M
P.M
110
380
90
310
It is clear from the above table that the commissioned officers
including Honorary Commissioned officers were entitled to Rs.150/per month as disability element for 20% disability prior to 01.01.1996
which has now been revised to Rs.520/- per month. It is also clear
from the table that prior to 01.01.1996 JCOs were getting Rs.110/- per
month as disability element which after revision with effect from
01.01.1996 has been raised to Rs.380/-. In the present case initially the
petitioner was allowed Rs.110/- per month as disability element, as is
clear from two PPOs filed as Annexure 1 and Annexure 2 with the
written statement, and now , the petitioner is being paid Rs.380/- per
month with effect from 29.07.2003 for life as is clear from the letter
dated 07.07.2003 of the Record Office which has been annexed by the
petitioner as Annexure A-1 to the petition.
17.
It is obvious that the disability element for the rank of JCO is
being paid to the petitioner from the date of his discharge though he is
entitled for such element for the rank of Honorary Lieutenant.
18.
So far as the rounding off of the disability element is concerned
since the petitioner was discharged from service with 20% disability
attributable to service, he is entitled for disability element of disability
pension with rounding off as per the judgment rendered by Hon‟ble
the Supreme Court dated 31.03.2011 passed in CA No. 5591 of 2006
-6“K.J.S.Buttar vs. Union of India and others”, read with judgment
of this Tribunal dated 22.12.2011 passed in OA No.1370 of 2011,
Labh Singh v. Union of India and others, and also the judgment of
this Tribunal, dated 03.08.2012 passed in bunch of cases led by OA
No.1960 of 2012, Ved Parkash v. Union of India and others.
19.
In view of the above the petition is allowed. The petitioner is
held entitled to disability element of disability pension for the
Honorary rank of Lieutenant from the date of his discharge i.e.
01.06.1991 with the benefit of rounding off of the disability element
with effect from 01.01.1996. However the entire arrears are restricted
to six months prior to the filing of the petition dated 18.10.2012.
20.
At the same time, since in Ved Parkash’s case, leave to appeal
under Section 31 of AFT Act has been granted, on the same questions,
and for the same reasons, the leave to appeal under Section 31 is
granted to the respondents in this case also.
21.
The respondents are directed to make necessary calculations,
and make payment to the petitioner, within a period of four 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 annum from the date of order.
(Justice Rajesh Chandra)
(Lt Gen (Retd) Dalbir Singh Sidhu)
13.05.2014
tyagi
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