Delhi High Court
Puneet Gupta vs Union Of India & Ors. on 12 July, 2016
$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : July 12, 2016
+ W.P.(C) 6466/2014
PUNEET GUPTA ..... Petitioner
Represented by: Mr.S.S.Pandey, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Represented by: Mr.D.V.Bhardwaj, Advocate with
Mr.Ankur Chhibber, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (Oral)
1. Having successfully cleared the selection process, the petitioner was
inducted in the Accounts Branch of the Indian Air Force as a trainee and
was deputed at 121 Ground Duty Officers Commissioning in the Accounts
Branch at Hyderabad. The superior officer detected abnormality in the
movement of the petitioner who one fine morning gave a groan and fell
down. It was a case of seizure. The petitioner was hospitalized and was
found to be suffering from Generalized Seizures.
2. Required by law to be examined by a medical board before a decision
was taken on petitioner's retention as a trainee and thereafter induction in
service, the petitioner was examined by a board of doctors at 14 Air Force
Hospital. On November 20, 2007 the petitioner was informed the opinion of
the medical board. The letter dated November 20, 2007 reads as under:-
ABSTRACT OF RECORDS OF AFMSF - 16/17 THE
INVALIDING MEDICAL BOARD (IMB)/ TO BE HANDED
OVER TO THE INDIVIDUAL
1. Service No.154564-H Rank Flt/Cdt. Name: Puneet Gupta
Unit/Record Office : 409 AFSTn./AFRO was brought before
RMB/IMB/RAMB on (date) Jun 07 at 409 AF Stn (Med Sqn.)
Hospital for the disability.
2. Photocopy of specialist‟s opinions is enclosed herewith
for information of the individual concerned. The opinion of the
medical board is summarized as below:
Disabilities Attributable Aggravated Reasons
to service by service
Generalized G 40.3 NO NO Disability
Seizures constitutional in
nature
Assessment
Disabilities Assessment Composite Reasons
for each assessment
disability
Generalized G 40.3 15-19% 15-19% As per grade to
Seizures (Fifteen to MO Mil Pen
Nineteen (Blue book)
Percent)
This is subject to approval of the competent authority."
3. The petitioner applied for a review medical board, which request was
rejected by the competent authority and conveyed to the petitioner on
November 22, 2008. On March 18, 2008 the petitioner was served with a
termination order with status then that of a trainee.
4. Ignoring the averments made in the writ petition that the order
terminating traineeship of the petitioner is illegal, for the reason the prayer
made in the writ petition is for grant of disability pension consisting of
service element, disability element @ 50% for life and gratuity etc. together
with interest @ 12% per annum, we simply note that petitioner's request for
grant of benefits prayed for in the writ petition were rejected vide letter
dated April 17, 2014 which reads as under:-
"Air HQ/99797/3472/Dis/O/DAV-1(B)
Flt Cdt (Retd) Puneet Gupta
S/o Shri Ajay Kumar Gupta
R/o 55-A, Deeplok Colony
Ballupur Road
Dehradun - 248 001
Disability Pension : FLT CDT (RETD) PUNEET GUPTA
(154564-H)
1. Reference your representation dated 16 Jan 2014
addressed to CAS for grant of disability pension.
2. In this regard, it is intimated that scheme for the grant of
Ex-gratia Awards in cases of death/disablement of Cadets
(direct) due to causes attributable to or aggravated by Military
Training is contained in MoD letter No.1(5)/93/D (Pen-C)
dated 16 Apr 1996 as amended from time to time. As per ibid
letter, no disability award shall be payable in cases where the
degree of disablement is less than 20% or the disablement has
not been accepted as attributable to or aggravated by the
conditions of military training. As per the IMB dated 30 Jul
2007, you were found to be suffering from the ID Generalized
Seizures G 40.3 and the ID was found to be aggravated by the
service and the percentage of disablement was assessed as 11-
14% for 2 years. Since the ID Generalized Seizure from which
you were found to be suffering at the time of IMB was held to
be aggravated by service but the percentage of disability was
assessed less than 20%. You are not eligible for disability
award on account of disability.
3. As regards your claim for the grant of disability pension
with the benefit of rounding off and service element of disability
pension, it is intimated that as per MoD letter dated 16 Apr
1996, the amount of disability award shall be proportionately
reduced when the degree of disablement is less than 100%.
Moreover, awards under the scheme are sanctioned purely on
ex-gratia basis and the same will not be treated as pension for
any purpose."
5. It strikes at the outset that the respondents have materially changed
their stand concerning the cause which led to or contributed to the
disablement of the petitioner, as conveyed to the petitioner under cover of
the communication dated November 20, 2007 and the communication dated
April 17, 2014. Whereas in the communication dated November 20, 2017 it
has been communicated to the petitioner that the invalidating medical board
which diagnosed the petitioner as a patient of Generalized Seizure : G 40.3,
held the medical infirmity neither attributable to nor aggravated by service,
evidenced from the fact that in the proforma prescribed, under the heading
'Attributable to service‟ and 'Aggravated by service‟ it has been written :
NO. But, in the communication dated April 17, 2014 it is written that the
disability was found to be aggravated by service.
6. Exercising his right under the Right to Information Act, the petitioner
applied for, and was supplied a copy of the medical board proceedings
which have been filed by the petitioner as Annexure P-8 to the writ petition.
The same record the opinion of the medical board that the disability was
aggravated by service.
7. With reference to the applicable proforma in which the medical board
has penned its opinion, concerning the column where opinion had to be
penned regarding degree of disablement and its duration, the medical board
has opined as under:-
Disability Percentage Composite Disability
Net
As of assessment for qualifying
assessment
numbered disablement all disabilities for disability
qualifying for
in Para 1 with with duration pension with
disability
Part IV duration (Max 100%) duration
pension (Max
with duration 100% with
duration)
Generalized 20% 20% (Twenty 20% (Twenty 20% (Twenty
Seizures G (Twenty percent for percent for percent for
40.3 percent for lifelong) lifelong) lifelong)
lifelong)
8. Surprisingly, beneath the column in the proforma where aforenoted
opinion has been written by the review medical board we find insertions
recording as under:-
Disability Percentage Composite Disability
Net
As of assessment for qualifying for
assessment
numbered disablement all disabilities disability
qualifying for
in Para 1 with with duration pension with
disability
Part IV duration (Max 100%) duration
pension (Max
with duration 100% with
duration)
11-14% for 11-14% for two 11-14% for 11-14% for
two years years two years two years
9. A perusal of the rejection letter dated April 17, 2014, contents
whereof have been reproduced by us in paragraph 4 above, records the
reason given, which is the stand taken by the respondents in their counter
affidavit, that no disability pension can be sanctioned to the petitioner
because disablement opined by the medical board is less than 20%.
10. The grant of disability pension, called by the name 'Ex-gratia award'
is in the policy circular dated April 16, 1996 issued by the Government of
India, Ministry of Defence. It deals with grant of ex-gratia in case of
death/disablement of cadets due to causes attributable to or aggravated by
military training. Paragraph 2 whereof reads as under:-
"Ex-Gratia Awards in cases of disablement : In cases of
invalidment on medical grounds due to disabilities
attributable to or aggravated by the conditions of military
training, an ex-gratia award at the rate of `375/- per month
for life shall be admissible to the ex-cadets (except service
entry). In addition a disability award on ex-gratia basis
shall also be admissible to the ex-cadet at the rate of `600/-
per month for 100% disability, during the period of
disablement. The amount of disability award shall be
proportionately reduced when the degree of disablement is
less than 100%. No disability award shall be payable in
cases where the degree of disablement is less than 20% or
the disablement has not been accepted as attributable to or
aggravated by the conditions of military training."
11. It this paragraph, which has been referred to in the rejection letter
dated April 17, 2014 wherein a reference is made to the policy circular
dated April 16, 1996. It is the stand of the respondents that no disability
award is payable in case degree of disablement is less than 20% or the
disablement has not been accepted as attributable to or aggravated by the
conditions of military training.
12. Notwithstanding it being initially conveyed to the petitioner in the
letter dated November 20, 2007 that as per the medical board the
disablement was neither attributable to nor aggravated by military training,
in the counter affidavit filed and prior thereto in the communication dated
April 17, 2014, it has been admitted that the medical board opined that the
disability was aggravated by military training. We find that the medical
board has so opined while filling up the proforma after the petitioner was
medically examined and therefore cannot help expressing our displeasure at
a false stand taken by the respondents in its first communication dated
November 20, 2007 to the petitioner that the medical board had opined the
disability neither attributable to nor aggravated by service.
13. Thus, the condition of the policy circular dated April 16, 1996, of the
disablement being aggravated due to service is satisfied in the instant case
as conceded to by learned counsel for the respondents.
14. Issue arises concerning interpretation of para 2 of the policy circular
dated April 16, 1996. A perusal thereof would reveal that it has four limbs
which are distinct. The first limb is that if invalidment on medical grounds
due to disability is attributable or aggravated by the conditions of military
training, an ex-gratia award @ `375/- per month for life shall be admissible
to the ex-cadet. From time to time this amount has been increased and
currently is `3500/- per month. The second limb, with reference to the first
two words of the sentence : 'In addition‟ makes it clear that additional ex-
gratia @ `600/- per month, which amount has now been increased to
`5000/- per month, is payable if disability is 100% during the period of
disablement. The third limb reduces this additional amount proportionately
to the reduced degree of disablement. Lastly, no disability award is payable
where the degree of disablement is less than 20%.
15. The stand of the respondents that the last limb takes away the benefit
of the first three limbs if disablement is less than 20%, does not stand to any
scrutiny for the reason as per the first limb of the para the words used are
'An ex-gratia award‟ at the rate stipulated shall be paid. The second limb
refers to an additional 'disability award‟ payable. The first limb does not
refer to the ex-gratia payment as a disability award and thus the exception
carved out by the last limb of the paragraph, with reference to the words 'No
disability award‟, makes it clear that where the disability is less than 20%
the additional disability award payable under the second limb of the
paragraph is not payable i.e. the last limb nullified the benefit granted by
the second limb.
16. Thus, to deny petitioner the ex-gratia award at the rate contemplated
by the communication April 16, 1996 (with the rate as amended from time
to time) is contrary to the policy circular and to this extent the decision
communicated to the petitioner vide letter dated April 17, 2014 is liable to
be struck down concerning the payment of the ex-gratia award at the rate
mentioned in the policy decision and the rate as amended from time to time.
17. Whether the petitioner is entitled to an additional disability award?
Learned counsel for the petitioner concedes that the additional disability
award contemplated by the second limb of para 2 of the policy circular
would not be payable if the disability is less than 20%.
18. Now, a question of fact arises : What is the percentage of disability
opined by the medical board.
19. We find that the respondents are changing their stand from time to
time and are pulling out figures akin to pulling out a rabbit from a hat. In
the rejection letter dated November 20, 2007, the respondents intimated to
the petitioner that the assessment for disability varied between 15% to 19%,
but in the communication dated April 17, 2014 the percentage of
disablement referred to is between 11% to 14%. As noted above, while
filling up the proforma prescribed, the review medical board assessed the
disability at 20% for life and we find that not only the figure has been
written in numerals i.e. 20 but even in words i.e. twenty. Unexplainably
beneath the box of the proforma i.e. outside the box in hand the percentage
of disability has been recorded as 11-14%.
20. Now, a serious doubt is cast regards the authenticity of the record
produced by the respondents, which is not free from a shadow of doubt. The
shadow is cast by the fact that in the first communication dated November
20, 2007 the percentage disability as assessed by the board was mentioned
as between 15% to 19%. Within the box prescribed in the proforma the
disability quantified has been written as 20% in numeral and in words.
Beneath the same and outside the box the percentage disability has been
recorded as between 11% to 14%. Now, an error may take place in
recording a figure in numerals but where written in numerals is found the
recording in words, authenticity emerges.
21. In view of the material placed by the respondents where the shifting
stand has not been explained, we hold that the percentage of disability
opined by the medical board should be the one as recorded by the board in
numerals and in words within the box of the prescribed proforma, which is
20%.
22. There could be another argument to support the aforesaid finding. It
is not in dispute that the pension regulations for the Air Force, dealing with
enrolled members of the force and officers inducted into the force, vide
Regulation 153, stipulate disability pension to be granted to an individual
who is invalided from service on account of a disability which is
attributable to or aggravated by Air Force service and is assessed at 20%.
The Regulation reads as under:-
"153. Unless otherwise specifically provided, a disability
pension may be granted to an individual who is invalided
from service on account of a disability which is attributable
to or aggravated by air force service and is assessed at 20
per cent or over.
The question whether a disability is attributable to or
aggravated by air force service shall be determined under
the regulations in Appendix II."
23. The Regulations concerning payment of pension to the enrolled
members and officers of the Indian Army, vide Regulation 173 and 173-A
have pari-materia provisions. The two read as under:-
"173. Unless otherwise specifically provided a
disability pension consisting of service element and
disability element may be granted to an individual who is
invalided out of service on account of a disability which
is attributable to or aggravated by military service in
non-battle casualty and is assessed at 20% or over.
173-A Individuals who are placed in a lower medical
category (other than „E‟) permanently and who are
discharged because no alternative employment in their
own trade/category suitable to their low medical
category could be provided or who are unwilling to
accept the alternative employment or who having
retained in alternative employment are discharged before
completion of their engagement, shall be deemed to have
been invalided from service for the purpose of the
entitlement rules laid down in Appendix II to these
Regulations.
Note: The above provision shall also apply to
individuals who are placed in a low medical category
while on extended service and discharged on the account
before the completion of the period of their extension.
The question whether a disability is attributable to or
aggravated by military service shall be determined under
the rule in Appendix II."
24. Regulation 173 of the Indian Army is pari-materia with Regulation
173 of the Air Force. Regulation 173 mandates disability pension consisting
of service aliment and disability aliment to be granted to an army man who
is invalided out of service and invalidation is assessed at 20% or above.
25. In the decision dated June 25, 2014 in CA No.5605/2010 Sukhvinder
Singh vs. UOI & Ors., noting Regulation 173 and 173A, the Supreme Court
opined in para 6 as under:-
"6. We think that it is beyond cavil that a combatant
soldier is liable to be invalided out of service only if his
disability is 20 per cent or above and there is a further
finding that he cannot discharge duties even after being
placed in a lower medical category. We are indeed
satisfied to note that Rule 173 Appendix-II (10) postulates
and permits preferment of claims even "where a disease did
not actually lead to the member‟s discharge from service but
arose within ten years thereafter." We, just as every other
citizen of India, would be extremely disturbed if the
Authorities are perceived as being impervious or
unsympathetic towards members of the Armed Forces who
have suffered disabilities, without receiving any form of
recompense or source of sustenance, since these are
inextricably germane to their source of livelihood. Learned
counsel for the respondents has failed to disclose any
provision empowering the invaliding out of service of any
person whose disability is below 20 per cent. Indeed, this
would tantamount to dismissal of a member of the Armed
Forces without recourse to a court-martial which would
automatically entitle him to reinstatement. Regulation 143
envisages the „Re-Enrolment of Ex-Servicemen Medically
Boarded Out‟, where the disability is reassessed to be below
20 per cent. It is, therefore, self contradictory to content
that the invaliding out of service of the Appellant was
justified despite his disability being of trivial proportions
having been adjudged between 6 to 10 per cent only. We
shall presume, albeit fortuitously for the Respondents, that
re-assessment of the Appellant‟s disability was not required
to be performed because it was found to be permanent."
26. The logic in the reasoning of the Supreme Court is that every kind of
disability and every percentage of disability does not handicap a person in
discharging his duties. Unless a disability acquires a proportion where a
person is handicapped from discharging duties, it cannot be said that a
person has become disabled to discharge his duties.
27. Thus, 20% disability being suffered is treated as the norm for being
declared a person disabled to perform the duties. This reinforced the fact
that the review medical board while recommending discharge of the
petitioner opined that the disability suffered by the petitioner was 20%. The
board wrote this percentage of disability in numerals and in words, lest there
be any scope of doubt.
28. As noted above, interpolations have been made subsequently and this
explains the different percentage figures stated by the respondents from time
to time being 15% to 19% in the letter dated November 20, 2007, 11% to
14% in the letter dated April 17, 2014 and 11% to 14% recorded outside
the box of the proforma prescribed in the opinion of the review medical
board immediately beneath the writing within the box by the review
medical board that the disability opined was 20%; the writing being both in
numerals and in words.
29. We thus conclude that the disability suffered by the petitioner was
assessed at 20% and thus the petitioner would in addition to the ex-gratia
award contemplated by the first limb of para 2 of the policy circular dated
April 16, 1996 be entitled to the additional disability award contemplated by
the second limb of the para and this amount payable would be at the rate
applicable when the petitioner was discharged from service with the rate
enhanced from time to time by the Government.
30. Though not pleaded in the writ petition, but since it is to the
knowledge of this Court and the existence of which was not denied by
learned counsel for the respondents, on January 31, 2001 the Government
of India, Ministry of Defence issued a office memorandum No. 1
(2)/1997/1/D(Pen-C). The subject of the policy circular is the
implementation of the decision by the Government concerning disability
pension to members of the Armed Forces and as per the same any disability
above 20% upto 50% has to be treated as a disability of 50% and thus we
declare that in conformity therewith the petitioner would be entitled to the
benefit of disability at 50%. The policy circular clearly states that it would
be applicable with effect from January 01, 1996 i.e. has a retrospective
operation. But this is irrelevant in the facts of the instant case because the
petitioner was invalided as a trainee on March 18, 2008 and the benefit
which the petitioner receives as a result of our opinion would be with effect
from the date of the order of termination i.e. March 18, 2008.
31. The writ petition is accordingly disposed of directing the respondents
to pay the ex-gratia amount at the rate contemplated by the first limb of the
policy circular dated April 16, 1996 as also and additional disability award
on ex-gratia basis at the rate contemplated by the second limb of the same
policy circular and while doing so to give effect to the Government of India
memorandum dated January 31, 2001 i.e. notwithstanding the disability
being assessed 20%, to grant the same by treating the disability at 50%.
32. Interest shall be paid @ 6% per annum on simple interest basis
reckoned from each month when the amounts were payable till disbursement
takes place and we are granting interest for the past sums payable because
the respondents have taken a patently illegal stand as also have indulged in
interpolating the record.
33. The petitioner shall be entitled to costs which we quantify at
`25,000/-. The same shall be paid by the Union of India.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
JULY 12, 2016
mamta
