Disability benefits to soldier can’t be denied if surgery is refused on grounds that disease may not be fully curable, rules AFT

Soldier, who was suffering from a spinal issue, was discharged from Army after having rendered pensionable service but in a low medical category as there was no sheltered appointment available

Photo for representation. iStock

Tribune News Service

Vijay Mohan

Chandigarh, November 5

The Armed Forces Tribunal has held that disability pension cannot be denied to a soldier discharged on medical grounds if he had refused to undergo surgery after being told his disorder would not be fully cured even after availing the treatment.

The soldier, who was suffering from a spinal issue, was discharged from the Army after having rendered pensionable service but in a low medical category as there was no sheltered appointment available.

The release medical board held his disability to have been aggravated by military service. The extent of his disability was assessed as 20 per cent for life, but the same was reduced to 10 per cent on account of refusal to undergo surgery.

He contended that provisions issued by the Directorate General Armed Forces Medical Services, stipulate that in case of spinal disorders, where there is refusal to undergo surgery, the same may be considered reasonable inter alia if the disease would not be completely cured.

The Tribunal’s bench comprising Justice Sudhir Mittal and Lt Gen Ravendra Pal Singh observed that as per the proceedings of the release medical board, had the soldier undergone surgery, the disability could have been reduced to 10 per cent and that is probably the reason for reduction of extent of disability to 10 per cent.

“In the instance case, the board itself has opined that disability to the extent of 10 per cent would continue to exist even if he had undergone surgery and thus refusal to undergo surgery should have been considered reasonable and the soldier should have been granted full disability pension,” the Bench ruled.

Stating that it was not disputed that disability to the extent of 10 per cent would have remained and accordingly refusal to undergo surgery is held to be reasonable, the Bench said that the reduction of the extent of disability to 10 per cent was not justified in law.

Quashing the orders denying disability pension to the soldier, the Bench directed the respondents to grant him benefits for disability to the extent of 20 per cent, rounded-off to 50 per cent in accordance with supreme court directives, along with arrears.

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