[Disability Pension] No Qualifying Service Needed To Claim Pension, Burden To Prove Disconnect Between Disease & Service Lies On Employer: Gauhati HC

The Gauhati High Court recently set aside the orders by which the claim of an Ex-Rifleman (Assam Rifles) for disability pension was rejected by the Director General (Assam Rifles), on the ground that the said orders are illegal and arbitrary which violates the legal right of the said Rifleman under Rule 3(A) of the CCS (Extraordinary Pension Rules), 1939.The single-judge bench comprising Justice Arun Dev Choudhury observed:“...in case of a disability pension it is the employer who discharges the employee after arriving at a satisfaction that he has become disable to perform his duties and such disability is attributable to his service condition or aggravated by service condition. Therefore, the legislature in its wisdom has not prescribed for any qualifying service for a disability pension under Rule 3(A) of the Rules 1939.”The petitioner was a Rifleman (General duty) enrolled in the Assam Rifles on November 25, 1991. After completion of his military training, he was posted at 15th Assam Rifles on February 27, 1993. The petitioner was granted 60 days Earned Leave with 12 days Journey Period w.e.f. January 27, 1994, to April 08, 1994, and was required to report for his duty on April 09, 1994. It was contended that he did not rejoin his duty on the said date and later, he voluntarily rejoined his duty on December 14, 1994 absenting himself for 242 days.It was submitted that while re-joining the service, the petitioner informed the concerned authorities that he had developed abnormal mental behaviour at his residence during his leave period. Accordingly, the concerned authority regularized his period of absence of 245 days by granting him 66 days of Earned Leave, 60 days of Half Pay Leave and 116 days of Extraordinary Leave in terms of Clause 15 of the Assam Rifles Part-II order No. 03/156/96.After re-joining the service, it was stated that the petitioner was kept under medical supervision and was referred to Air Force Hospital for his medical treatment and further management on January 09, 1995. However, he was found to have suffered from “Non-Organic Psychosis” by the Psychiatrists and was placed in Low Medical Category CEE (Temporary) w.e.f. February 01, 1995.It was noted that due to his abnormal mental behaviour, it was difficult to retain him in defence service and as per the opinion of the Psychiatrists of 5th Air Force Hospital, Jorhat, the petitioner was invalidated from service w.e.f. March 31, 2001 for Low Medical Category CEE (Psy) Permanent disability of “Non-Organic Psychosis”. However, it was declared by the Medical Board that such disability is not attributable/aggravated to service conditions.Under a High Court order dated May 16, 2002, a medical examination was conducted and it was concluded that the petitioner was suffering from “non-organic psychosis”, which was not attributable to and not aggravated by the service condition and therefore, the petitioner was not entitled to disability pension.Being aggrieved by the impugned orders dated October 04, 2002 and January 06, 2011, the present writ petition was filed.The Counsel appearing for the petitioner submitted that a member of the Armed forces is presumed to be in sound physical and mental condition upon entering service. It was argued that if there is no note or entry to the contrary in his record and in the event he is subsequently discharged from service on medical grounds, the onus to prove that deterioration in his health was not due to service condition, lies on the employer and in case of failure on the part of the employer to discharge such burden the benefit of doubt must go to the employee.Thus, it was argued that the petitioner had served for more than 9 years since November 25, 1991, till the date of his discharge from service on March 31, 2001, and he is entitled to Disability Pension.On the other hand, the Counsel appearing for the Union of India submitted that the petitioner did not have the required qualifying service of 10 years for the grant of invalid pension as specified in Rule 49(2)(b) of the CCS (Pension Rules) 1972 (Rules 1972).It was further contended that the petitioner was also found ineligible for the grant of disability pension under CCS (Extraordinary Pension Rules), 1939 (Rules 1939) as his disease was found to be not attributable to /not aggravated by the service conditions as per Rule 3(A) of the Rules 1939.The Court noted that it has not found any material on record to show that there was any disability involving any physical or mental condition at the time of entry into service on November 25, 1991.While relying upon the proposition of law laid down by the Supreme Court in a catena of cases, the Court noted that there is a presumption of sound physical and mental condition at the time of entry into the service and in case of a medical discharge, any deterioration in health is presumed to be due to military service. It was further highlighted by the Court that the burden to establish a disconnect between the ...

[Disability Pension] No Qualifying Service Needed To Claim Pension, Burden To Prove Disconnect Between Disease & Service Lies On Employer: Gauhati HC

Udit Singh

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