Vijay Mohan

Chandigarh, July 11

The Armed Forces Tribunal has, while granting disability benefits to a retired naval officer over 40 years after his discharge from service, struck down provisions of the Ministry of Defence (MoD) regulations that said invalid pension is applicable in only those cases where civilian re-employment is restricted.

“We hold that the words in Clause 2 of the MoD letter dated 16-07-2020, which requires a permanent incapacity for civil re-employment as well, to be wholly unconstitutional,” the Tribunal’s Bench comprising Justice Anu Malhotra and Rear Admiral Dhiren Vig ruled.

The requirement of permanent incapacitation for civil re-employment for invalid pension to armed forces personnel with less than 10 years of qualifying service in cases where personnel are invalided out of service on account of any bodily or mental infirmity, which is neither attributable to nor aggravated by military service, and which permanently incapacitates them from military service is unconstitutional and unreasonable and not based on any intelligible differentia nor reasonable classification and is thus set aside, the bench said.

The petitioner, a Navy Lieutenant, had joined service in January 1977 and was invalided out of service in December 1982 after being placed in low medical category on account of epilepsy.

He contended that the proceedings of the invaliding medical board and other documents were not provided to him and that he could not have been invalided out in the medical category in which he had been placed. A single discharge certificate issued to him simply stated that he was invalided out for being medically unfit for naval service.

He also averred that during his service of five years and 354 days, he was out on the seas most of the time and thus the disability caused to him was attributable to military service. It was only in 1982 that he was first diagnosed with the disease.

He submitted that after being invalided out at the age of 26 years, the only thing on his mind was to find employment and it was on legal advice in the matter that he took up his case with the naval authorities in May 2019. He requested them for the relevant documents but was informed that they had been destroyed after the stipulated period.

Observing that the MoD’s letter was an over reach over an earlier judgement of the Supreme Court in a similar matter, the Bench held that it was also in total violation of the right to equality and right to live with dignity and respect in terms of the Rights of Person with Disabilities Act, 2016.

Stating that Act provides that the government shall take steps to utilise the capacity of persons with disabilities by providing an appropriate environment and that such persons will not be discriminated against, the Bench directed the government to calculate and sanction the officer’s invalid pension and related benefits from the date of his invalidment from service.