As regular readers would be
aware, the issue of declaring disabilities of soldiers as “Neither Attributable
to, Nor Aggravated By Military Service” (popularly known as NANA cases) has
been a vexed one. While the rules on attributability and aggravation are quite
liberal, their interpretation has been literal, leading to denial of disability
and special family pensionary benefits to disabled soldiers and families of soldiers
who die due to some disability while in service.
Despite several judgements
by the Supreme Court, High Courts as also followed by various Benches of the
Armed Forces Tribunal, benefits were denied to such disabled soldiers, and on
the contrary, multiple appeals were filed against favourable verdicts rendered
by Courts.
Besides other issues, this
issue was also deliberated upon and discussed in detail in Paragraph 2.2.1 of the Report of the Committee of Experts constituted by the then Raksha Mantri on directions of the Prime Minister, for reducing litigation involving the
Ministry of Defence and strengthening the mechanisms for redressal of grievances,
of which I too was a Member. The following were the recommendations of the
Committee to this end:
In view of the
foregoing, the Committee notes and recommends the following:
(a) According to rules, as also endorsed by the Supreme
Court, a benefit of doubt regarding ‘attributability/aggravation’ or
‘service-connection’ needs to be granted to any disability arising during
service [See Paragraph 32 of Dharamvir Vs Union of India (supra),
Paragraphs 15 & 16 of Union of India Vs Rajbir (supra)].
The same however can be denied when it is shown that the disability is due to a
person’s own gross misconduct or negligence, illegal activity, substance abuse
or intoxication. The same is also a universally acceptable norm in all
democracies [See Rule 105 of US Code 38 (supra)]. The same benefit is also
admissible in ‘death’ cases due to in-service disabilities leading to
entitlement of Special Family Pension for families. The
said proposition is also agreeable to all stakeholders including the medical
side with the apex medical body, the MSAC, also
on board.
(b) There is no
linkage with ‘peace’ or ‘field’ service as far as attributability of
disabilities is concerned and any such differentiation locally put across by
the office of DGAFMS in the past or professed by any other authority is
illegal, contrary to Entitlement Rules, contemptuous towards decisions of the
Hon’ble Supreme Court and also against Regulations for Medical Services in the
Armed Forces (See Para 33 of Dharamvir Singh Vs Union of India
and Regulation 423 of RMSAF). So for
example, if a soldier develops Heart Disease while in service, the benefit of
doubt needs to be extended to ‘service-connection’ and the claim need not be
rejected on grounds such as ‘served in peace area’ or ‘cause unknown’. The
claim can only be rejected in case of a note of disability at the time of entry
into service or reasons such as ‘heavy
smoking’ or ‘lack of dietary control
leading to obesity and heart disease’ are recorded, if applicable.
Otherwise, the presumption operates in favour of soldiers, as per rules and as held
by the Supreme Court.
(c) Broadly blaming
domestic reasons for psychiatric disabilities arising during military service
is against common knowledge and unethical since domestic reasons are bound to
give rise to stress and also to aggravate the same in soldiers because of the
very fact that due to military service they remain away from their families
most of the year and cannot hence cope up with all familial requirements
efficiently by virtue of their being absent from home. Putting the blame on ‘domestic
reasons’ not only gives out a message that the organisation is simply washing
its hands off the responsibility towards such soldiers but also results in
denial of pensionary benefits to such affected soldiers and their families. The
issue already stands addressed in K Srinivasa Reddy Vs Union of India
(supra) and also explained in detail in the preceding paragraphs by us. The
said principles and causative factors of stress also stand endorsed by way of
DO letters written to Chief Ministers by successive Raksha Mantris, which of
course has also not resulted in desirable results and needs renewed efforts.
(d) All concerned agencies should realize that non-grant of
“attributability” or “aggravation” on flimsy grounds results in denial of
pensionary benefits and consequently denial of a life of basic dignity to
disabled soldiers. While it may be just a casual stroke of a pen for a medical
board, it may be a question of survival for a soldier or his family. The
exercise needs to be undertaken in a common-sense oriented, practical, liberal
and scientific manner. Guidelines, if any, may not operate in derogation of
actual rules and need to move with the times as per global norms based on
scientific studies. The lack of transparency in past amendments in the “Guide
to Medical Officers (Military Pensions)” wherein the said amendments do not
even carry the footnote of the study or the basis leading to the
change/amendment is highly avoidable and so is the tendency not to honestly
reproduce the actual rules in the said guide and eliminating important parts
such as the erstwhile Para 47 of the 2002 version which has vanished without
trace and without reasoning and the spirit of which needs to be restored. All
authorities, including Medical Boards shall decide attributability/aggravation
on a case to case basis as per law laid down by the Supreme Court based on the
interpretation of actual rules and ground realities of the inherent stress and
strain of military life, rather than the mathematical guidelines of the Guide
to Medical Officers or locally issued instructions and DO letters written to
medical boards.
(e) Cases of feigning of disabilities where none exist
should be dealt with strongly and medical boards should also be extra careful
in examining cases where individuals have reported with a medical condition
just prior to retirement or release.
(f) The current approach shows that despite clear cut law
laid down by the Supreme Court and also the spirit of the rules, there is
resistance in accepting the settled legal position based on hyper-technical
hairsplitting reasons. The concerned authorities must accept gracefully and
with all humility the law laid down by the Apex Court and come to terms to the same
since an approach of resistance is not only against law but also at odds with
global practices for disabilities incurred during military service.
(g) It is further recommended that henceforth in medical
boards, all disabilities arising in service may be broadly dealt with on the
anvil of the above practical realities, all
appeals pending against such disabled soldiers filed in the Supreme Court be
withdrawn immediately and pending or future litigation in Courts and Tribunals related
to past cases of disabled soldiers may be dealt with by Government lawyers in judicial
fora on the basis of Supreme Court decisions as above, except in cases of gross
misconduct, negligence, substance abuse or intoxication, on a case to case
basis. Needless to state, the same principles also apply to deaths
while in service.
Based on the position as above, the Ministry of Defence has
finally issued a policy letter for implementation of Court orders granting
disability pension to disabled soldiers, which can be downloaded and accessed by clicking here. While the Ministry has fully accepted judicial dicta as emphasized
in the above recommendation, what is strange is that in Paragraph 3 of the said
policy, though the Defence Services Headquarters have been asked to implement Court
orders and also grant absolute sanctions while implementing the same (as
against Conditional sanctions pending
appeal, as was the case in the past), the Ministry has still not shown a
large heart as far as withdrawal of the pending appeals are concerned, and on the
contrary, rather than asking the Defence Services to withdraw the said appeals,
the Ministry states that ‘absolute sanctions’ be issued on dismissal of the
appeals already pending in the Supreme Court. The question arises that when the
recommendations of the Committee are unambiguous on the subject and so is the
law declared by Constitutional Courts, why should the pending appeals be
pursued till ‘dismissed’, and why not simply withdrawn with full humility?
These are questions to which there are no answers. Notwithstanding
this, we should stay positive since not only will this ensure a faster
implementation of Court orders related to disability pension, it also, in all probability, marks the
closure of a dark era of en masse
appeals against disabled soldiers, and I am sure the remaining issues shall
also be ironed out soon.
Must place on record my gratitude to Mr Manohar Parrikar for initiating these reforms leading us to a
better today.
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