This Article is authored by Advocate Anil Malhotra.
By a erudite, landmark, salutary and watershed verdict, Supreme Court rejected a bunch of 27 appeals of Union of India challenging orders of Armed Forces Tribunal granting disability pension to Armed Forces personnel, mostly from ranks, and conclusively held in principle that disability was attributable to or aggravated by military services. In Union of India Vs. Rajbir Singh, Supreme Courthas very lucidly enunciated three principles. Firstly, that “a member of armed forces is presumed to be in sound physical and mental condition at time of his entry into service if there is no note or record to contrary made at time of such entry”. Secondly, “in event of his subsequent discharge from service on medical ground, any deterioration in his health is presumed to be due to military service” which will entitle him to claim disability pension. Thirdly, “burden to establish that disease was wholly unrelated to military service would lie heavily upon employer for otherwise rules raise a presumption that deterioration in health of member of service is on account of military service or aggravated by it.” To sum up, resting onus and presumption on employer, Supreme Court has authoritatively settled “that provision for payment of disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit those who have been sent home with a disability at times even before they completed their tenure in armed forces.”
For a nation which is largest importer of military goods with third largest total number of soldiers of 2.5 million, of which 1.3 million are active and 1.2 million are reserve, judgment culls out sound benevolent principles which can be interpreted as practice directions to come to rescue of large number of soldiers who claim disability pension upon being invalided or discharged from services of armed forces on medical grounds. Striking moot question which rebounds is as to why is it necessary for disabled soldiers to enter into protracted battles in court rooms with Government for a rightful claim denied to them. Recruited to ranks mostly in teens, jawans give their best of youthful energy to serve their motherland at borders, war zones and strife stricken areas risking their lives with no fear or favour. It is indeed sad and sorry that in return, valiant soldiers are denied their due if invalidated or discharged from service. Surely, this is not what they bargained for. Rather than spending on contesting on litigation upto Supreme Court, Ministry of Defence could do well in giving funds to soldiers as pensions instead of spending on unnecessary litigation pitted against opponents who can ill afford it. An unfair fight in Courts after battles on ground is not required. Lacs spent on litigation to deny meagre pensions in thousands require a self-introspective audit by high and mighty in office.
President is supreme Commander of Indian armed forces comprising of Army, Navy, Air Force and Coast Guard. Their management is under Chief of Defence Staff. Navy Act, 1957 contains provisions for making regulations, inter-alia, to provide for terms and conditions of service, pay, pension, allowances and or benefits of persons in Naval service and which regulations have to be approved by Parliament. Army Act, 1950, and Air Force Act, 1950, prescribes provisions for power to make rules and regulations for purposes of carrying out provisions of these enactments for which such rules and regulations are to be laid before Parliament and published in official gazette. Army and Air Force Acts, though containing residuary provisions, do not prescribe any specific provision for making statutory rules in respect of pensions. Regardless, sanction and revision of pensionary benefits and awards to armed forces personnel besides adjudication of disability and family pension is within domain of Office of Chief Controller of Defence Accounts (Pensions) at Allahabad (CCDA).
Amongst or benefits, grant of disability pension in all three services separately is governed by Pension Regulations for Army, 1961, Navy (Pension) Regulations, 1964 and Pension Regulations for Air Force, 1961. All of them supported by supplementing Entitlement Rules unanimously prescribe qualifying requirement of suffering a minimum benchmark of 20 percent disability on account of a disease or disability attributable to aggravated by military / navy / air force service upon being invalidated from service or being designated to a low medical category. Assessment of this decision rests with an Invaliding or review or reassessment Medical Board which evaluates degree and cause of disability either at time of discharge or at subsequent stages. CCDA thereupon adjudicates on all claims as final authority. This practice in vogue for past 65 years does little to provide a crutch to discharged disabled soldier who is often told that his disability is constitutional in nature and that this decision of authorities cannot be interfered with. Previously, High Courts in writ jurisdiction and now Armed Forces Tribunal Act, 2007 empowers Tribunals to embark upon a judicial review of such conclusions of defence authorities interpreting non-statutory pension regulations to complete disadvantage of hapless soldiers. Thankfully, with a string of judicial precedents and now final verdicts of Supreme Court, onus and presumption of attributability or aggravation has now been saddled with defence authorities making it no longer possible for them to repudiate rightful solace of disability pension which is a meagre resource for disabled soldiers.
In a larger perspective, Ministry of Defence could well revisit their existing enactments to frame statutory rules and regulations prescribing eligibility, criteria and procedure for award of disability pension amongst or retiral benefits admissible to Armed Forces Personnel. Clearly, new mandate ought to be to lean in favour of disabled soldiers so that benefits can be, “interpreted liberally” and not with a tight fist by administrative controls vesting with CCDA. For disability pensions, award and not rejection ought to be the practice. Supreme Court, in Veer Pal Singh, held that opinions of defence services Medical Board, “deserves respect but not worship”. Clearly, writing on wall indicates that ode to be compiled for gallant soldiers serving nation needs a new script authored by a compassionate pen. Legislators could do well in structuring statutory pension regulations providing mandatory disability pension upon soldiers being discharged on medical grounds without a witch-hunt of finding faults to establish disability not being attributed or aggravated by defence service as a means to deny disability pension. Further, subjecting soldiers to resurvey or reassessment medical boards for revisiting a medical disability determined at time of discharge from service ought to be done away with. Once a soldier is discharged from active service on medical grounds never to return, least compensation he deserves is disability pension for life. It is humiliating to subject him to re-testing. Logic ought to be that if you cannot return to active service, reparation should remain for life as a means to an end.
Armed Forces leapfrog to expansion and modernisation upon considerable financial budget and import military goods to no end. Courageous soldier is decorated on all momentous occasions as recognition of his valour and gallantry. War memorials are erected to commemorate and pay posthumous tributes to military heroes who dedicated their lives for security and safety of nation. We could equally do well if we statutorily provide for them in evening of their life by pecuniary compensation in shape of mandatory pensions free from shackles of discriminatory administrative controls requiring judicial intervention upon litigation forced on defence personnel upto Supreme Court over periods upto twenty years.
Soldiers deserve a living healing touch and not awards in posterity. It is a dishonour to engage them in combat in Courts for disability pensions after they have fought enemies in wars in battlefields. Ministry of Defence catching spirit from enlightened views of Supreme Court could well set apart a generous kitty from its coffers for a earmarked disability fund which can be created by appropriate statutory pension rules for mandatory disability pension for discharged soldiers. Outdated and outmoded existing pension regulations have outlived their utility and no longer honour or respect sentiments of disability pensions. They need to go.