BEFORE THE ARMED FORCES TRIBUNAL REGIONAL BENCH AT CHENNAI RA No 16 OF 2013 IN OA 07 OF 2013 No 6286018, Rank Rect Name P.K. Chandran, Age 66 years S/o Late PS Kunjappu Head Office :The Records Signals Home Address : Block-M 107, Flat No 5, 29th Cross Street, Besant Nagar, Chennai-600090 Applicant Vs The Officer-in-Charge The Records Signals PIN-908 770 C/o 56 APO Respondents REPLY TO COUNTER AFFIDAVIT BY NO 6286018 RECT PK CHANDRAN I, No 6286018 Ex Rect PK Chandran aged about 66 years S/o late Shri P.S Kunjappu, residence of Block-M 107, Flat No 5, 29th Cross Street, Besant Nagar, Chennai 600090 (TN), do hereby solemnly affirmed and sincerely state as follows. 2 I, the Applicant was Enrolled in the Army in the Corps of Signal on 06 Jul 1962 at the age of 14 years 9 months as Boys Entry during the period of Emergency that is at the time of Chinese aggression I was invalided out of service on medical grounds on 03 Apr1966 and rendered 3 years 266 days service during emergency period that was between 1962 to 1966 when our country was under the dark clouds of Chinese aggression in 1962 and followed by Pakistan’s war in 1965. The respondents in their counter affidavit have no objection to my above statement. So the provision of entitlement rules for the disability and special family pensionary awards in respect of all ranks of the Armed Forces during emergency as per Annexure II of The Pension Regulations for the Army 1961 (Part 1)as under is applicable in my respect. “Entitlement Rules for the Disability and Special Family Pensionary Awards in Respect of All Ranks of the Armed Forces During Emergency __________________________________________________________ Period of Emergency Government of India letter __________________________________________________________ 8 Sep 62 to 9 Jun 68 A/01927/AG/PS-4(a)/9948/Pen C Dated 26 Dec 62 __________________________________________________________ 3 Dec 71 to 31 Mar 72 A/01927/AG/PS-4(d)/11130/pen-C 25 Mar 71 to 31 Mar 72 dated 16 Dec 71 (OP Cactus Lily) ________________________________________________________ 15 Aug 71 to 31 Mar 72 PN/3948/1191/Pen-C, date 1Feb 72 (Naval Personnel) ________________________________________________________ Entitlement to disability or family pensionary awards in respect of all ranks of the Armed Forces eligible for pension under Military Rules, disablement or death shall be accepted as due to service. If:- (a) the disablement is due to a wound, injury or disease, which (i) is attributable to service or (ii) existed before or arose during service and has been or Remain aggravated thereby (b) the death was due to or hastened by:- (i) a wound or injury or disease which was attributable to service or (ii) the aggravation by service of a wound, injury or disease which existed before or arose during service. 2. In dealing with these cases, the benefits of reasonable doubt will be given to the claimant. The entitlement shall be denied only if it can be established beyond reasonable doubt that the conditions mentioned above are not fulfilled. 3. Where an injury or disease which led to discharge or death during service, was not noted in a medical report or other appropriate enrolment papers prepared at the time of commencement of the individual’s service, fulfillment of the conditions mentioned in para 1 above may be accepted unless there is a positive evidence to the contrary. 4. Where there is no note in contemporary official records of a material fact on which the claim is based other reliable corroborative evidence of the fact may be accepted.” N.B.- “Service” means service in the Armed Forces during emergency rendered anywhere in India.” 3. The respondents at para 3 of their counter affidavit state that the GOI, MOD authorized the Principal Controller of Defence Account (Pension) i.e. PCDA(P) Allahabad as statutory body of Pension Sanctioning Authority to regulate the pensionary claim of personnel of Armed Forces. The pensionary award are regulated under the provision of Pension Regulations for the Army 1961 (Part 1) and no deviation of the Regulations is however permissible without the prior sanction of Govt of India, Ministry of Defence. Further the respondents stated that in my case no record was available for reason either my disability was assessed not attributable to or aggravated by Military service or percentage of disability less than 20% by Invaliding Medical Board but the same could not be verified at this belated stage. Hence, Signals Records is unable to offer any comment or brief without service documents. Here it is submitted that The Pension Regulations for the Army 1961 (Part 1) already incorporate the Govt Order on 26 Dec 1962. Further as per The Pension Regulations for the Army 1962 (Part 1) as perRule 4,5,6,7,8,9, 18 and 19 of Entitlement Rules for casualty pensionary awards 1982 is also applicable in my respect for grant of disability pension in my respect which the respondents have no word to submit in his counter affidavit points against me which read as under :- _________________________________________________________________ RULE 4 Invaliding from service is a necessary condition for grant of Disability pension. An individual who, at the time of his release under the release regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service. JCO/OR and equivalents in other services who are placed permanently in a medical category other than ‘A’ and are discharged because no alternative employment suitable to their low medical category can be provided, as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have been invalidated out of service. RULE 5 The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions:- PRIOR TO AND DURING SERVICE (a) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance. (b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health, which has taken place is due to service. __________________________________________________________________ RULE 6 Disablement or death shall be accepted as due to military service Provided it is certified by appropriate medical authority that :- (a) the disablement is due to a wound, injury or disease which (i) is attributable to military service, or (ii) existed before or arose during military service and has been and remained aggravated thereby. This will also include the precipitating/hastening of the onset of a disability. (b) the death was due to or hastened by:- (i) a wound , injury or disease which was attributable to military service; or (ii) the aggravated by military service of a wound, injury or disease which existed before or arose during military service. ___________________________________________________________________ RULE 7 Where there is no note in contemporary records of a material fact on which the claim is based, other reliable corroborative evidence of that fact may be accepted. ____________________________________________________________________ RULE 8 Attributability/aggravation shall be conceded if casual connection between death/disablement and military service is certified by appropriate medical authority. _____________________________________________________________________ ONUS OF PROOF RULE 9 The claimant shall not be called upon to prove the conditions of entitlements. He/she will receive the benefit of any reasonable doubt. This benefit will be given more liberally to the claimants in field/afloat service cases. (In the instant case, the Applicant was discharge during emergency period 1962 to 1966 which was more important because whole nation was equal to field area). _____________________________________________________________________ RULE 18. PREDIS POSITION: ‘Predisposition’ of ‘inherent constitutional tendency’ in itself is not a disease. And if there is a precipitating or causative factor in service which produces the disease, then it is attributable to service. Notwithstanding the inherent disposition. ____________________________________________________________________ RULE 19. AGGRAVATION : If it is established that the disability was not caused by service, attributability shall not be conceded. However, aggravation by service is to be accepted unless any worsening in his condition was not due to his service or worsening did not persist on the date of discharge. _______________________________________________________________________ 4. The respondents state in their counter affidavit that on perusal of Long Roll my disability was rejected by PCDA(P) Allahabad vide their letter No G3/CA/40316/V, since service documents have been destroyed and hence no more comments. But from the Long Roll it clearly evident that the authority PCDA, was misguided by the code and got confused in the cause of discharge, coded as under Army Rule 13(3)IV, which pertains to those who requested for discharge and been considered, AND for those who were found “unlikely to become efficient soldier. Such of those individuals discharged on account of inefficiency or misconduct are however, not to be treated honorably discharged which is coded as, Army Rule 13(3)iv, undesired in my case. Which is a grave error on the part of Signals Records. A small error by their over-sight has played havoc in my life (Mixtures of harassment and humiliation). Hence was the cause of rejection of disability pension by PCDA(P) Allahabad. This code is certainly not for those medically discharged by a constituted Army Medical Board, like that of Rect P.K. Chandran, who should have been under Army Rule 13(3) III. He has rendered 3 years 266 days of sincere exemplary service, an outstanding trainee in the primitive Boys Regt. Training, followed by Military Training Regiment, and then to No 1 Technical training Regiment, without any adverse remarks in character or not shown any in-disciplinary act, in his service life, having been brought up in a highly disciplined atmosphere, as his character was assessed as GOOD, which is highest grading for Rect Soldier. Para 15 of the Army Act 1950 which reads as under should also be read considering in this respect which clears that I was discharge from service not because of likely to become inefficient soldier but was discharge on medical grounds. “15. Validity of enrolment. Every person who has for the space of three months been in receipt of pay as a person enrolled and been borne on the rolls of any corps or department shall be deemed to have been duly enrolled and shall not be entitled to claim his discharge on the ground of any irregularity or illegality in his enrolment or on any other ground whatsoever and if any person, in receipt of such pay and borne on the rolls as aforesaid, claims his discharge before the expiry of the three months from his enrolment, no such irregularity or illegality or other ground shall, until he is discharged in pursuance of his claim, affect his position as an enrolled person under this Act or invalidate any proceeding, act or thing taken or done prior to his discharge.” 5. In this A.F.T. Regional Bench Chennai, In O.A No 15 of 2011 dated 5th May 2011 in respect of LNk(TA) J George between UOI and others who discharged from service on 17 Sep 1963 after a period of 48 years got sanction disability pension though no record of his attributable/aggravated by service was found but rejected by PCDA(P) Allahabad and no record of percentage of disability was found the extract of the Judgment at page 10 reads as follows:- __________________________________________________________________________ 7(b) while concurring with this order, my learned Brother Lt Gen(Retd) S.Pattabhiraman, Administrative Member, adds the following__ “the percentage of disability should be at 50%, which is the minimum as stipulated vide para 7.2 of the Govt of India, Ministry of Defence letter No 1(2)/97/I/D(Pen-C) dated 31 January 2001”. __________________________________________________________________________ 6. Para 6 at Page No 2 of the counter Affidavit the respondent state that the suit filed by the petitioner after lapse of 47 years is grossly time barred by the limitation Act 1963 which needs to be dismissed in the clause of delay and latches. It is submitted that in another case, O.A No 61 of 2011 dated 23 Mar 2012 in this AFT Chennai Regional Bench between Ex Rect E. Sivaiah and EME Records, who served for 2 Years and 90 days in the Army, was sanctioned Disability Pension after a lapse of 44 years, based on UOI and Others Vs Tarsem Singh, (2008) 8 SCC 648 arising from Civil Appeal Nos 5151-5152 of 2008. It has been held that the relief of arrears, of disability pension is liable to be restricted to three years prior to the date of filling of this application. The relevant portion of the said judgment is extracted, same mentioned below :- “To summarize, normally a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to the continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment of re-fixation of pay or pension, relief any be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring /successive wrongs will apply. As a consequence, High Court will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition”. Hence in my case, Service Element of Disability pension be sanctioned @ 50% disability as there are no minimum qualifying service requirement for service element wef 1/1/1973. nsion Regulations for the Army 1962 (Part 1) Recruits and young soldiers and Boys are eligible for disability pension at the rates and under the conditions applicable to a sepoy of the lowest group . hence I am eligible for Service Element of Disability Pension @ 50% rounding of as per the existing orders on the subject. 8. SUMMING UP PARAWISE COMMENTS AS UNDER :- (a) Para 2 of Counter Affidavit. The respondent states that I was enrolled in the Army (Corps of Signals) on 06 Jul 1962 and discharge on 03 Apr 1966 on medical grounds . I rendered 3 years 266 days of service. Counter Reply/Comments from Applicant. The respondents in Para 1 have no objection on my date of enrolment and date of discharged and medical category and the date also confirms that I was discharge during the emergency period that was between 1962 to 1966 when our country was under the dark clouds of Chinese aggression in 1962 and followed by Pakistan’s war in 1965. So the provision of entitlement rules for the disability and special family pensionary awards in respect of all ranks of the Armed Forces during emergency as per Annexure II of The Pension Regulations for the Army 1961 (Part 1)applicable in my respect also based on which Ex Sep E. Sivaiah and LNK (TA) J George sanctioned disability pension after 44 and 47 years respectively. (b) Para 3 of Counter Affidavit. On account of SIGNAL RECORDS, wrongly quoting the Army Discharge Code Army Rule 13(3)IV instead of Army Rule 13(3)III, the disability pension was rejected by CDA(P) Allahabad. Counter Reply/Comments from the Applicant. Army Rule 13(3)IV is not applicable to the applicant, as he has proved to be an outstanding recruit, while this code, is for those discharged recruits, who volunteered for discharge and been considered AND all those who were, not likely to become an efficient soldier, on disciplinary grounds whereas, the applicant P.K. Chandran has no adverse remark in his service record but for his Character assessed as “GOOD” which is the highest assessment for recruit. Army Act Para 15 of 1950 favorably applies since the applicant has surpassed, more than the minimum continuous salary drawn period. Further, notably the Applicant was discharge from service on medical grounds, constituted by a Medical Board. All these were accepted by the respondents, however states that no comments can be offered at this belated stage (c) Para 4 of the Counter Affidavit. The respondents state that the Disability Pension was not sanctioned for any of the reason either to be assessed of not attributable to or aggravated by but the same could not be verified at this belated stage and the Signals Records is unable to offer any comments or brief without service documents. Counter Reply/comments from Applicant. Record keeping and maintenance of soldier’s personal records ought to be meticulously entered and safely maintained. The initial despatch of the long roll by the Signal Records, was a in a larger sheet of a soldiers consolidated data register. Though it depicts a poor state of unplanned, un organized and untidy entries lacking due care. The Applicant requested for a legible long roll exclusively of his details, sending a specimen format and they complied but noticeably the attachment of the long roll sent with the counter of the Review Application was found in bits and pieces. Hence , the poor state of professional skill amongst the staff of the Signal Records added to their negligence was the cause of the wrong coding, which had lead to harassment and humiliation resulting in grave injustice to the innocent soldier applicant. It is apparent that the Record Officers negligence was the cause of Applicants grievance and for the documents retention period having weeded- out Hence may case be considered as per The Pension Regulation of the Army 1961 (Part 1), Annexure II and G.O. on Emergency period, As per Rules 4,5,6.7.8,9, 18 and 19 , Guide to Medical Officer Military Pension. Since the respondents excepted there Regulations, Rules, Policy/ orders and Instructions are applicable in my respect. (d) Para 5 of the Counter Affidavit. O.A No 07/2013 dismissed by order dated 26 Jun 2013. Counter Reply/Comments from the Applicant. My paid counsel Mr MK Sikdar to whom I entrusted had not taken interest to project my case properly with the Relevant Rules, Regulations, Govt Orders on emergency period as per Pension regulations for the Army 1961 (Part 1) and Guide to Medical Officer (Military Pensions) etc and he seldom attends the court hearings due to which my case failed. (e) Para 6 of the Counter Affidavit. The respondents state that after lapse of 47 years is grossly time barred by the limitation Act 1963 which needs to be dismissed. Counter Reply/Comments from the Applicant. Pensionery matters does not come under limitation Act, it is an on- going process, where any other party is not involved. more particularly for no fault of the aggrieved ex-servicemen, normally a belated remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to the continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment of re-fixation of pay or pension, relief any be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring successive wrongs will apply. As a consequence, High Court will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition. Hence my case is to be considered as to the persons discharge from service during emergency period as a citation I refer cases of this very same Tribunal Bench as said here under :- (i) Armed Forces Tribunal, Regional Chennai Bench, O.A No 15 of 2011 dated 5th May 2011 in respect of LNk(TA) J George between UOI and other who was Discharged from service on 17 Sep 1963 after a period of 48 years, got sanction of his disability pension. (ii) Armed Forces Tribunal, Regional Chennai Bench, O.A No 61 of 2011 dated 23 Mar 2012 between Ex Rect E. Sivaiah and EME Records, who served for 2 Years and 90 days in the Army was sanctioned Disability Pension after a lapses of 44 years based on UOI and Oth ers Vs Tarsem Singh, (2008) 8 SCC 648, arising from Civil Appeal Nos 5151-5152 of 2008, arising out of SLC © No 3820-3821 of 2008. Parawise Comments (f) Counter Reply/Comments for Para 7 & 8 from the Applicant. Reply/Comments to para 7 and 8 already covered above. Some of the Govt letters its extract copies are enclosed which are are relevant to my case, for consideration. ____________________________________________________________________________________ DEFINITION OF EX-SERVICEMEN 1. The eligibility of the retired Defence personnel to the status of ex-servicemen is governed by the definition as laid down by Department of Personnel and Training. The definition has been undergoing changes from time to time. The following is the broad categorization:- Those released before 01 Jul 68. Any person who had served in any rank (whether as Combatant or not) in the Armed Forces of the Union and has been released there from otherwise than by way of dismissal or discharge on account of misconduct or inefficiency. Those released on or after 01 Jul 68 but before 01 Jul 79. Any person who had served in any rank (whether as a Combatant or not) in the Armed Forces of the Union for a continuous period of not less than six months after attestation and released there from otherwise than by way of dismissal or discharge on account of misconduct or inefficiency. Those released on or after 01 Jul 79 but before 01 Jul 87. Any person who had served in any rank (whether as a Combatant or not) in the Armed Forces of the Union for a continuous period of not less than six months after attestation if discharged for reasons other than at their own request or by way of dismissal or discharge on account of misconduct or inefficiency and not less than 5 years of service if discharged at own request. Those released on or after 01 Jul 87. Any person who had served in any rank (whether as a Combatant or not) in the Armed Forces of the Indian Union and was released/retired with any kind of pension from Defence Budget or released on completion of specific terms of engagement with gratuity otherwise than at his own request or by way of dismissal or discharge on account of misconduct or inefficiency. __________________________________________________________________________________ Q.15 What does the discharges under Army Rule 13(3) (i) to 13(3) (v) mean? Are the individuals discharged under these clauses eligible to the ESM Status? Ans. The discharges under Army Rule 13(3) (i) to 13(3) (V) relate to:- • 13(3) (i): On fulfilling the conditions of his enrolment or having reached The stage at which discharge may be enforced. • 13(3)(ii): On completion of a period of army service only, there being no vacancy in the Reserve. • 13(3)(iii): Having been found medically unfit for further service. • 13(3)(iv) : At his own request before fulfilling the conditions of his enrolment. • 13(3)(v): All other clauses of discharge. The individuals discharged under clauses 13(3) (I) to 13(3) (iv) are eligible to ESM status, if they fulfill other eligibility conditions as laid down in the definition in vogue at the time of their discharge. The status of discharges under Army Rule 13(3) (v), will, however, be governed by the actual cause of discharge. ______________________________________________________________________________________ Prayer 9. Army Rule 13(3)IV is not applicable to the applicant, as he has proved to be and outstanding recruit, while this code, is only to those discharged recruits, who are likely to become an inefficient soldier. Where as the Applicant, P.K. Chandran, has no adverse remark in his service -records but for his Character having been assessed as “GOOD” which is the highest assessment for recruit. Hence the discharge is itself illegal, null and void in the eye of law and cannot stand for scrutiny even for a moment. Attention of the Honorable Tribunal is brought to the Judgment of T.A No 91 of 2009 dated 08 Oct 2010 of this very Tribunal between Ex Sep N.Subbaiah and UOI and others were this similar type of blunder mistake was committed by the Respondents, this Honorable Tribunal entitled the petitionfor service pension, considering that the discharge is made after minimum qualifying service of 15 years thought the service of the petitioner was 5 years, 5 months and 01 day. Hence in this instant case the discharge of the Applicant itself is per se illegal, the Applicant entitled for Service Element and 50% Disability Pension for Life. 10. In view of the above Reply/Comments submitted by me with relevant authority/ Rules/Regulations/orders and instructions to the counter Affidavit filed by the respondents with out any material/authority/proof I pray the Honorable justice to review my O.A. No 07 of 2013 by my R.A No 16 of 2013 and sanction me Service Element of Disability Pension with rounding off to 50% as per the existing orders on the subject. No 6286018 Ex Rect P.K. Chandran Solemnly affirmed at Chennai on this the day of___Oct 2013and signed in my presence.
Posted on: Fri, 25 Oct 2013 08:31:08 +0000
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