A member of the Armed Forces invalided out of service is presumed to have a sufficient disability to qualify for pension despite formal assessments indicating less than 20%.

Johnson John, J.

The order of the Armed Forces Tribunal, Regional Bench, Kochi allowing disability element of pension is under challenge in this writ petition filed by the Union of India.

2. The respondent enrolled in the Indian army on 06.07.1965 and was invalided out of service on 09.10.1970. His disability ‘Chronic Myofascitis Back’ was considered as attributable to service, as it was an aftermath of an accidental fall during an organized game. The Release Medical Board assessed the disability at less than 20% for two years and therefore, initially, the claim was rejected; but, after two years, even though the Re-survey Medical Board assessed the percentage of disability less than 20%, the claim was accepted at 20% and granted disability pension for the period from 29.7.1972 to 08.08.1974.

3. Subsequently, when the respondent claimed broad banding of disability pension, he was intimated that disability pension was discontinued from 08.08.1974, since the disability was assessed less than 20%. The respondent made a request for grant of disability pension from the date of discharge contending that he was never communicated about the discontinuation of disability pension and thereafter, a Re-assessment Medical Board was conducted in May, 2019 and the Re-assessment Medical Board found that the composite percentage of ID accepted is 14% (rounded off to 50%) for life. But, the disability element of pension was denied to him on the ground that the assessment is made at less than 20% and hence, he approached the Tribunal.

4. Heard Sri. Vivek A.V., the learned Central Government Counsel appearing for the petitioners and Smt. Rati Varma, the learned counsel appearing for the respondent.

5. The learned Central Government Counsel argued that when the disability assessed is below 20%, the individual is entitled to service element only. But, the learned counsel for the respondent argued that the respondent was invalided out of service and that he was granted disability element of pension from 29.07.1972 to 08.08.1974 and he has not received any communication regarding the discontinuation of disability element of pension. It is also argued that the disability ‘Chronic Myofascitis Back’ was considered as attributable to service by the Invaliding Medical Board, as he sustained injury in an accidental fall during an organized game.

6. The learned counsel for the respondent cited the decision of the Honourable Supreme Court in Sukhvinder Singh v. Union of India [(2014) 14 SCC 364] , wherein the Honourable Supreme Court considered the question whether an individual can be invalided out of service when the disability assessed is below 20% and as to whether such a member of the Armed Forces invalided out of service even when the disability assessed is below 20%, is entitled for the disability element of pension and recorded a finding in favour of the individual on both counts mainly for the reason that there is no provision empowering the invaliding out of service of any person whose disability is below 20% and if the same is allowed, that is equivalent to dismissal of a member of the Armed Forces without recourse to a court-martial, which would automatically entitle him to reinstatement.

7. In Sukhvinder Singh (supra), the Honourable Supreme Court also held that Regulation 143 envisages the “Re-Enrolment of Ex- Servicemen Medically Boarded Out”, where the disability is reassessed to be below 20% and therefore, it is self-contradictory to contend that the invaliding out of service of the appellant was justified, despite his disability being of trivial proportions having b