Wednesday, June 9, 2010

disability jurisprudence by Major Navdeep Singh

From: Navdeep Singh []
Sent: 08 June 2010 19:04
To: Undisclosed-Recipient:;
Subject: mil update

Monday, June 7, 2010
The turning point in disability jurisprudence : Now AFT rings the Bell
The Sword of Justice has no scabbard - Antione de Riveral

There is no dearth of discussion on this blog on the very important issue of determination of attributability and aggravation of disabilities of personnel of defence services by service medical authorities and medical boards. Declaration of attributability and aggravation of disabilities due to military service ultimately determines whether a person shall be entitled to disability pension or not, or whether the family of a deceased shall remain entitled to special or liberalised family pensionary awards or not.

The fact that our medical boards are interpreting rules in a restrictive and literal manner rather than a liberal and beneficial manner (as intended and proclaimed by those very rules) has been discussed earlier in detail on these posts of 18th May, 4th April and 10th April. The problem is compounded by the fact that the office of DGAMFS has issued some conflicting letters on the subject which are even in direct contravention of rules. Needless to say, such instructions which are in conflict with rules or regulations have no value in the eyes of law.

The truly landmark order by the Jaipur Bench of the Hon’ble Armed Forces Tribunal shall, if taken in the right spirit, mark the turning point in the history of disability jurisprudence and may also lead to self-correction. These are the opening lines of the decision rendered on 20th May 2010 in the case of Ex-Hav Mohar Singh Vs Union Of India :

“A shockingly bizarre incident reflects inhuman treatment which has crossed all boundaries of humanity by superior responsible Armed Forces Medical Officers, whose actions when resulted into injustice forced the applicant to seek his legal remedy in the form of the present application for grant of disability pension”

In the said case, which could bring tears even to the eyes of a layman, a veteran who was suffering from an unknown progressive neurological disorder triggered by a vehicular accident while in a military vehicle in an operational area and which resulted in multiple bodily and head injuries, was boarded out with 80% disability declared as ‘aggravated by military service’ by a duly constituted medical board thereby entitling him to disability pension. The papers for pension were however rejected by the PCDA(P) who discarded the contention of the medical board, an action which has time and again been deprecated by Hon’ble Courts including the Supreme Court (But would we ever learn ?). He was then called for an Appeal Medical Board (AMB) for fresh medical examination. The veteran appeared before the AMB on a wheel-chair but the said AMB not only declared his disability percentage as NIL but also declared it ‘neither attributable to, nor aggravated by military service’ opting to endorse the administrative opinion of the PCDA(P) rather than the expert opinion of the release medical board. Smelling something amiss when the veteran appeared before the Tribunal on a stretcher, the Hon’ble AFT ordered a fresh medical board which again correctly declared the disability as ‘aggravated by service’ and also pegged the disability @ 100%.

Not taking this lightly, the Hon’ble AFT, besides granting him disability pension, has also directed the payment of costs of Rs 100,000/- to the veteran to be recovered from the salaries of the members of the Appeal Medical Board who had declared the disability as NIL and ‘neither attributable to, nor aggravated by service’. The Govt has also been directed to initiate disciplinary action under the Army Act against all three members of the AMB.

Following are some excerpts from this truly landmark judgement :

“The applicant has been left in lurch only on the random report without taking in consideration the due care and circumstances of the case by mentioning the percentage of disability as NIL. Such type of conduct, behaviour and manner of performance of duties on the part of the AMB, which consisted of ABC, DEF and GHI deserves to be deprecated as they have acted in callous manner and have committed gross negligence by depriving the applicant of his legal dues and rights. The applicant had to starve for pretty six years without any medical and financial assistance from the non-applicants only because of the callous action of the members of the AMB.”

“What has rankled us more is the callous manner, inhuman approach and failure of performance of duty on the part of the members of the AMB dealing with applicant’s case. The applicant has to be compensated for the travails undergone by him. For this gross negligence, we impose costs of Rs 1,00,000/- (Rs One Lakh only) to be paid to the applicant by the non-applicants but it is to be recovered from the salary of all the three Officers of the AMB i.e. ABC, DEF and GHI jointly and collectively in equal ratio. We also direct that all these three Officers should be subjected to disciplinary action under the Army Act.”

While one tends to feel sorry for the members of the board on whom costs have been imposed, the writing on the wall is that we need to set our house in order. Ordinarily, such problems should be resolved in-house without resort to litigation, but instead of looking inwards we continue to crib about ‘external forces’. There is not even a requirement of an overhaul. If our medical boards are made to read and apply in spirit the Entitlement Rules for Casualty Pensionary Awards, 1982, promulgated by the Govt of India, and ignore the subsequently issued subjective letters from time to time from the M-Block, not even one case for disability pension would reach judicial fora and the flow of correct entitlements would become a rule rather than exception as is the case on date.

1 comment:

  1. Wg Cdr (Retd) A. BhallaJune 7, 2012 at 1:54 AM

    -Serves the callous members of the Appeal Medical Board right.
    -May I know what is the present rule on payment of disability pension to pre 01 January 2006 Officer pensioners who suffered disability attributable to service and who took premature voluntary retirement after completing over 20 years of service.