All India Ex-Services Welfare Association

Feb 15 2015 : The Times of India (Kolkata)

SC: Disability pension must if soldier discharged for disease

Amit Choudhary

New Delhi:

A soldier, discharged from service due to some disease, cannot be asked to prove he suffered the ailment because of military service to be eligible for disability pension, the Supreme Court has ruled.

It said the government has to give disability pension to a discharged soldier as he was fit at the time of his induction in armed forces and it is presumed that he suffered from ailments only because of his job.

“A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same.The very fact that he was, upon proper physical and other tests, found fit to serve in the Army should rise as indeed the rules do provide for a presumption that he was dis ease-free at the time of his entry into service. That presumption continues till it is proved by the employer that the disease was neither attributable to nor aggravated by military service,“ a bench of justices T S Thakur and R Banumathi said.

The court said it would be presumed that the soldier contracted the disease because of his job and it is for the government to prove that the disability is not attributable to military service. “This necessarily implies that no sooner a member of the force is discharged on medical grounds, his entitlement to claim disability pension will arise unless, of course, the employer is in a position to rebut the presumption that the disability which he suffered was neither attributable to nor aggravated by military service,“ it said.

The court said the provision of disability pension is a beneficial provision which should be interpreted liberally so that armed force personnel discharged because of disease are benefitted.

“There may indeed be cases where the disease was wholly unrelated to military service. But in order that denial of disability pension can be justified on that ground, it must be affirmatively proved that the disease had nothing to do with such service. The burden to establish such a disconnect would lie heavily upon the employer. Otherwise, the rules raise a presumption that the deterioration in the health of the member of the service is on account of military service or aggravated by it,“ the court said.

The court passed the order on a petition by the Centre challenging an Armed Forces Tribunal order directing it to pay pension to some ex-soldiers who were discharged from military service.