Supreme Court of India
SECRETARY, GOVERNMENT OF INDIA & ORS.versusDHARMBIR SINGH
- Citation
- 2019 INSC 1063
- Decided
- 20 September 2019
- Disposal
- Appeal(s) allowed
- Bench
- L NAGESWARA RAO
Holding
Leave is deemed duty, but disability pension is only payable when the injury has a causal connection with military service, and the Medical Board’s determination on attributability is final.
Summary
Dharambir Singh, a former Territorial Army soldier, was injured in a scooter accident while on two days of casual leave and claimed a disability pension. The Armed Forces Tribunal had granted the pension, holding that leave is deemed duty, but the Government appealed. The Supreme Court examined whether personnel on leave are considered on duty, whether the injury must have a causal link to military service, and what weight the Court of Inquiry and Brigade Commander’s findings carry. It held that although leave is treated as duty, a disability pension is only payable if the injury is causally connected to military service, and the final authority on attributability is the Medical Board, not the COI or Brigade Commander. Consequently, the Tribunal’s order was set aside and the appellant’s application dismissed.
Issues considered
- Whether Armed Forces personnel on casual or annual leave are deemed to be on duty for purposes of disability pension.
- Whether an injury sustained while on leave must have a causal connection with military service to be attributable or aggravated by such service.
- Whether the opinion of the Court of Inquiry or Brigade Commander is final in determining attributability of injury, or whether the Medical Board’s opinion prevails.
Legislation cited
- Army Act, 1950s. 3(i), s. 9
- Defence Services Regulationss. 520
- Entitlement Rules for Casualty Pensionary Awards, 1982s. 12, s. 13, s. 17, s. 19
- Leave Rules for the Services, Volume-I (Army)s. 10, s. 11(a), s. 12(f)
- Medical Regulationss. 423(a), s. 423(b), s. 423(d)
- Notification dated 29.11.1962 (SRO 6.E)
- Pension Regulations for the Army, 1961/2008s. 173
Subjects
disability pensionarmed forcescasual leavedutycausal connectionmedical boardcourt of inquiryEntitlement Rules 1982Army ActRegulation 423
Judgment
122 [2019]REPORTS
SUPREME COURT 13 S.C.R. 122 [2019] 13 S.C.R.
A THE SECRETARY, GOVERNMENT OF INDIA & ORS.
v.
DHARMBIR SINGH
(Civil Appeal No. 4981 of 2012)
B SEPTEMBER 20, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Entitlement Rules for Casualty Pensionary Awards, 1982– rr.
12, 13, 17 & 19– Admissibility of disability pension, when personnel
C of Armed Forces are on leave – Respondent joined the Army in
1981– While he was granted two days casual leave from Jan.25,
1999 to Jan.26, 1999, he met with an accident riding scooter and
suffered head injury, fracture – Court of Inquiry conducted to
investigate into the circumstances under which he sustained injuries–
Having rendered pensionable service, the respondent was
D discharged from service on Dec.13, 1999 in view of Medical Board’s
report which held the disability to be 30%– Claim for disability
pension rejected by Medical Board– Armed Forces Tribunal held
the respondent entitled to disability pension – On appeal, held: In
terms of Leave Rules, the casual leave and annual leave count as
E duty– However, in terms of Rule 11(a) of the said Rules, an individual
on casual leave is not deemed to actually perform duty during such
leave – 1982 Rules give expansive definition to the expression ‘duty’
– It includes the period when Armed Forces personnel is proceeding
from his leave station or returning to duty therefrom– It includes
even an accident which occurs when a man is not strictly on duty
F provided it involved risk which was definitely enhanced in kind or
degree by the nature, conditions, obligations or incidents of his
service and that the same was not a risk common to human existence
in modern conditions in India – However, as per Regulation 423 of
the Medical Regulations, such injury has to have causal connection
G with military service or such injury is aggravated by military service
– In the instant case, Commanding Officer reported that the injury
is not attributable to military service, but the Brigade Commander
endorsed that the injury is attributable to military services – There
was no material available to the Brigade Commander to return such
finding when the evidence of the witnesses and the conclusion
H
122
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 123
v. DHARMBIR SINGH
given by the Commanding Officer is that no one is to be blamed for A
the accident– Since the accident occurred when the respondent was
purchasing house hold articles, it cannot be said that there is any
causal connection between the injury and the military service –
Order of the Tribunal set aside – Leave Rules for the Services,
Volume-I (Army)– rr.10, 11(a)– Medical Regulations– Regulation
B
423 (a), (b) and (d) – Army Act, 1950 – ss.3(i), 9 – Pension
Regulations for Army, 1961 – Regulation 173 – Pension Regulations
for the Army, 2008 – Armed Forces.
Leave Rules for the Services, Volume-I (Army) – rr.10, 11(a) –
Held: When Armed Forces personnel is availing casual leave or C
annual leave, is to be treated on duty – Armed Forces.
Army Act, 1950 – s.3(i) – Respondent in Army, was on two
days casual leave when he met with an accident while riding scooter
and suffered injuries– Discharged from service – Claim for disability
pension – Held: Determining factor is causal connection between D
the accident and the military duties – Injury or death must be
intervention of armed service, howsoever remote it may be– Further,
in terms of s.3(i), “active service” means time during which a person
who is subject to the Act, is attached to, or forms part of, a Force
which is engaged in operations against an enemy engaged in military
operations in, or is on the line of march to, a country or place E
wholly or partly occupied by an enemy, or is attached to or forms
part of a Force which is in military occupation of a foreign country
– Present is not the case covered by the said definition – When the
person is going on scooter to purchase house hold articles, such
activity, even remotely has no causal connection with the military F
service – Medical Regulations – Regulation 423 – Armed Forces.
Armed Forces – Medical Regulations – Regulation 423(b) –
Contradiction with r.12(f) of 1982 Rules – Discussed – Entitlement
Rules for Casualty Pensionary Awards, 1982 – r.12(f).
G
Armed Forces – Claim for disability pension on account of
injury suffered due to accident – Court of Inquiry assembled to
investigate the circumstances leading to injury – Scope of, vis-a-vis
assessment by the Medical Board – Discussed.
H
124 SUPREME COURT REPORTS [2019] 13 S.C.R.
A Allowing the appeal, the Court
HELD: 1.1 Pension Regulations for Army, 1961, have now
been substituted by Pension Regulations for the Army, 2008.
Pension Regulations for Army, 1961 and Pension Regulations
for the Army, 2008 are substantially same in respect of
B admissibility of disability pension. The Entitlement Rules for
Casualty Pensionary Awards, 1982 apply to service personnel
who become non-effective on or after January 1, 1982. Prior to
1982 Rules, the Entitlement Rules of 1950 were in force which
are similar to the 1982 Rules as far as factors considering
disablement as attributable to military service are concerned.
C Regulation 423 of the Medical Regulations also explains the
injuries which are attributable to service. [Paras 7-9][136-F-G;
137-A-B; 139-B]
1.2 In terms of Section 3(i) of the Army Act, 1950, the active
service means time during which a person who is subject to the
D
Act, is attached to, or forms part of, a Force which is engaged in
operations against an enemy engaged in military operations in,
or is on the line of march to, a country or place wholly or partly
occupied by an enemy, or is attached to or forms part of a Force
which is in military occupation of a foreign country. The present
E is not the case covered by the definition of Section 3(i) of the Act.
Section 9 of the Act empowers the Central Government to declare
that any person or class of persons subject to the Act, with
reference to any area in which they may be serving or with
reference to any provision of this Act or of any other law for the
time being in force, will be deemed to be on active service within
F
the meaning of the Act. In pursuance of such provision, the Central
Government has notified that all persons who are subject to the
Act shall, wherever they may be serving, be deemed to be in
active service within the meaning of the Act and of any other law
for the time being in force. Still further, in terms of leave rules,
G the casual leave and annual leave count as duty. However, in terms
of Rule 11(a) of the Leave Rules for the Services, Volume-I
(Army), an individual on casual leave is not deemed to actually
perform duty during such leave. 1982 Rules provide that a person
is on duty when he is proceeding from his leave station or
H
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 125
v. DHARMBIR SINGH
returning to duty from his leave station. Still further, in terms of A
clause (f) of Rule 12 of the 1982 Rules, an accident can be said to
be attributable to service when a man is not strictly ‘on duty’ as
defined, provided that it involved risk which was definitely
enhanced in kind or degree by the nature, conditions, obligations
or incidents of his service and that the same was not a risk
B
common to human existence in modern conditions in India.
Therefore, a person if killed or injured by another person for the
reason he belongs to the Armed Forces, he shall be deemed to
be ‘on duty’. Thus, it is held that when Armed Forces personnel
is availing casual leave or annual leave, is to be treated on duty.
[Paras 11-14][140-F-H; 141-A-E] C
1.3 The 1982 Rules give expansive definition to the
expression ‘duty’ being undertaken by the personnel of the Armed
Forces. It includes the period when Armed Forces personnel is
proceeding from his leave station or returning to duty from his
leave station. It includes even an accident which occurs when a D
man is not strictly on duty provided that it involved risk which
was definitely enhanced in kind or degree by the nature,
conditions, obligations or incidents of his service and that the
same was not a risk common to human existence in modern
conditions in India. However, as per Regulation 423 of the E
Medical Regulations, such injury has to have causal connection
with military service or such injury is aggravated by military
service. In Regulation 423(a) of the Medical Regulations, it has
been specifically mentioned that it is immaterial whether the
cause giving rise to the disability or death occurred in an area
declared to be a field service or active service area or under F
normal peace conditions, will be deemed to be duty. Regulation
423(a) mandates that it is essential to establish whether the
disability or death bore a causal connection with the service
conditions. All evidence, both direct and circumstantial, will be
taken into account and benefit of reasonable doubt, if any, will be G
given to individual. Clause (b) of Regulation 423 of the Medical
Regulations presumes that disability or death resulting from
wound or injury, will be regarded as attributable to service if the
wound or injury was sustained during actual performance of ‘duty’
in Armed Forces. This is in contradiction to”deemed to be duty”
H
126 SUPREME COURT REPORTS [2019] 13 S.C.R.
A as per Rule 12(f) of 1982 Rules, as the Rule is when a man is not
strictly on duty. However, the injuries which are self-inflicting or
due to individual’s own serious negligence or misconduct even
in the cases of active duty, are not to be conceded unless, it is
established that service factors were responsible for such action.
The question whether a disability or death is attributable to or
B
aggravated by military service or not, is to be decided by the
Medical Board. The opinion of Medical Board with regard to
actual cause of disability or death and the circumstances under
which it originated will be regarded as final in terms of Rule 17 of
1982 Rules which is to the effect that at initial claim stage, medical
C views on entitlement and assessment shall prevail for decisions
in accepting or rejecting the claim. [Paras 15-18][141-F-H; 142-
A-B, D-F]
1.4 Regulation 423(d) provides that the question whether
a disability or death is attributable to or aggravated by service or
D not, will be decided as regards to its medical aspects by a Medical
Board/ medical officers. Such opinion of the Medical Board insofar
as it relates to the actual cause of disability or death and the
circumstances in which originality will be regarded as final. The
Commanding Officer has to record his opinion as to whether
injured person was on duty and whether he or she was to blame
E
in a COI. Therefore, the scope of COI is to examine the conduct
of the injured person to determine whether the person has made
himself liable to be proceeded against departmentally. In respect
of the injury, causal connection of injury to the army service is
not final in the COI proceedings. In view of Regulation 423 clauses
F (a), (b) and (d), there has to be causal connection between the
injury or death caused by the military service. The determining
factor is a causal connection between the accident and the military
duties. The injury or death must be connected with military
service howsoever remote it may be. The injury or death must
be intervention of armed service and not an accident which could
G
be attributed to risk common to human beings. When a person is
going on a scooter to purchase house hold articles, such activity,
even remotely has no causal connection with the military service.
[Paras 19-20][142-G-H; 143-A-C]
H
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 127
v. DHARMBIR SINGH
1.5 In terms of para 520 of the Defence Services A
Regulations, a certificate on I.A.F.Y.-2006 is required to be
forwarded by the Medical Officer In-charge to the Commanding
Officer. The COI is assembled to investigate the circumstances
leading to injury (clause c). The Commanding Officer has to
record his opinion as to whether injured person was on or off
B
duty including as to whether he or she was to blame. The
proceedings are then to be sent to Brigade Commander or the
officer authorized under Section 8 of the Act to record reasons as
to whether disability or death was attributable to military service
and whether it occurred on field service. The Commanding Officer
has reported that the injury is not attributable to military service, C
but I.A.F.Y.-2006 produced before the Court at the time of hearing
of the present appeal shows that the Brigade Commander has
endorsed that the injury is attributable to military service. There
was no material available to the Brigade Commander to return a
finding that disability was attributable to military service when
D
the evidence of the witnesses and the conclusion given by the
Commanding Officer is that no one is to be blamed for the accident
as per column 3 (c) reproduced in the earlier part of this order.
Since the accident has occurred when the respondent was
purchasing house hold articles, it cannot be said that there is any
causal connection between the injury and the military service. E
Though, the attributability assessment of injury cases is different
than the disease cases but, unable to accept the argument that in
injury cases, the finding of COI is final. Therefore, unable to
hold that the opinion of the Brigade Commander in all situations
will be final in respect of an injury suffered. It has been held in
F
Answer to Question No. 2 that the opinion of Medical Board is
final in terms of Rule 17 of 1982 Rules and Regulation 423 (d) of
the Medical Regulations. The purpose of investigation by the
COI is to examine nature of injuries whether such injuries were
suffered on or off duty. However, para 520 is not to the effect that
the opinion of the Brigade Commander is final on the basis of G
which the grant of disability pension is dependent. The percentage
of disability as well as whether the disability is attributed to or
aggravated by military service has to be assessed by the Medical
Board. The purpose of COI is to examine the conduct of the
H
128 SUPREME COURT REPORTS [2019] 13 S.C.R.
A personnel of the Armed Forces, whereas, the Medical Board
examines, the causal connection with the injury with the military
services and also the extent of disability. Thus, the COI and the
opinion of the Medical Board both have different objects and
purposes to achieve. The order of the Tribunal is not sustainable.
The Order passed by the Tribunal is set aside and the Original
B
Application filed by the respondent is dismissed. [Paras 22, 23
and 37][145-G-H; 146-A-G; 151-B]
Renu Devi v. Union of India & Ors. 2019 (12) SCALE
730; Union of India & Ors. v. Vijay Kumar No.3989606
P, Ex-Naik (2015) 10 SCC 460 : [2015] 14 SCR
C 295– relied on.
Union of India & Ors. v. Khushbash Singh 2010 (3)
SLR 103; Barkat Masih v. Union of India & Ors. 2014
SCC OnLine P&H 10564 – held not good law.
D Madan Singh Shekhawat v. Union of India & Ors.
(1999) 6 SCC 459; Madan Singh Shekhawat, Pension
Sanctioning Authority, PCDA (P), Allahabad & Ors. v.
M.L. George, Ex. SGT (2015) 15 SCC 319; Nand
Kishore Mishra v. Union of India & Ors. JT 2013 (10)
SC 466 : [2013] SCR 213; Union of India & Anr. v.
E Surendra Pandey (2015) 13 SCC 625; Vardip Singh &
Anr. v. Union of India & Ors. 2004 (3) SLR 500;
Khoday Distilleries Limited & Ors. v. Sri Mahadeshwara
Sahakara Sakkare Karkhane Limited, Kollegal (2019)
4 SCC 376 : [2019] 3 SCR 411; Lance Dafedar
F Joginder Singh v. Union of India & Ors. 1995 Supp 3
SCC 232; Union of India & Ors. v. Keshar Singh (2007)
12 SCC 675 : [2007] 5 SCR 408; Union of India &
Anr. v. Baljit Singh (1996) 11 SCC 315 : [1996] 7 Suppl.
SCR 626; Union of India & Ors. v. Dhir Singh China,
Colonel (Retd.) (2003) 2 SCC 382 : [2003] 1 SCR 779;
G Controller of Defence Accounts (Pension) & Ors. v. S.
Balachandran Nair (2005) 13 SCC 128 : [2005] 4
Suppl. SCR 431; Secretary, Ministry of Defence & Ors.
v. Ajit Singh (2009) 7 SCC 328 : [2009] 8 SCR 934;
Sukhwant Singh v. Union of India & Ors. (2012) 12
H SCC 228; Union of India & Ors. v. Jujhar Singh (2011)
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 129
v. DHARMBIR SINGH
7 SCC 735 : [2011] 8 SCR 258; Jagtar Singh v. Union A
of India & Ors. Decision of the Armed Forces Tribunal
dtd. November 2, 2010 in T.A. No. 61 of 2010 –
referred to.
Case Law Reference
(1999) 6 SCC 459 referred to Para 3 B
2019 (12) SCALE 730 relied on Para 4
[2015] 14 SCR 295 relied on Para 4
2010 (3) SLR 103 held not good law Para 5
C
(2015) 15 SCC 319 referred to Para 25
[2013] SCR 213 referred to Para 25
(2015) 13 SCC 625 referred to Para 25
2004 (3) SLR 500 referred to Para 27
D
[2019] 3 SCR 411 referred to Para 29
(1995) Supp 3 SCC 232 referred to Para 30
[2007] 5 SCR 408 referred to Para 31
[1996] 7 Suppl. SCR 626 referred to Para 31
E
[2003] 1 SCR 779 referred to Para 31
[2005] 4 Suppl. SCR 431 referred to Para 31
[2009] 8 SCR 934 referred to Para 32
(2012) 12 SCC 228 referred to Para 33 F
[2011] 8 SCR 258 referred to Para 33
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4981
of 2012.
From the Judgment and Order dated 07.03.2011 of the Learned
G
Armed Forces Tribunal Chandigarh Bench at Chandigarh in O.A. No.
687 of 2010.
Ms. Ruchira Gupta, Ms. Akanksha Kaul, Ms. Mona Sinha,
A.K. Sharma and B.V. Balaram Das, Advs. for the Appellants.
H
130 SUPREME COURT REPORTS [2019] 13 S.C.R.
A Rajesh Sehgal and Avijit Bhattacharjee, Advs. for the Respondent.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order dated March
B 7, 2011 passed by the Armed Forces Tribunal, Chandigarh, Regional
Bench at Chandimandir 1, granting disability pension to the respondent
Dharambir Singh, as the injury was found to be attributed to military
service.
2. The undisputed facts are that the respondent joined Territorial
Army on December 28, 1981 and was discharged on December 13,
C
1999. He was granted two days casual leave from January 25, 1999 to
January 26, 1999 when posted at Jalandhar Cantt. During the leave
period, he met with an accident while riding a scooter and suffered head
injury with Faciomaxillary and compound fracture 1/3 rd Femur (LT). A
Court of Inquiry2 was conducted to investigate into the circumstances
D under which the respondent sustained injuries. The Brigade Commander
has given its Report dated August 18, 1999 that the injuries, occurred in
peace area, are attributable to military service. One of the findings of
the Report recorded under Column 3(c) is reproduced hereunder:
“(c) Was anyone else to blame for No one is to be blamed. In
E the accident? (If so, indicate how fact, he lost control of his
and to what extent). own scooter.”
3. After rendering pensionable service of 17 years and 225 days,
the respondent was discharged from service on December 13, 1999
pursuant to the report of the Medical Board dated November 29, 1999
F which held the disability to be 30%. However, the claim for disability
pension was rejected by the Medical Board on the ground that the
disability was neither attributable to nor aggravated by military service.
An appeal filed by the respondent against the rejection of his claim for
disability pension was rejected by the Additional Directorate General,
G Personnel Services. It is thereafter the respondent invoked the jurisdiction
of the Tribunal. The learned Tribunal referred to the judgment of this
Court in Madan Singh Shekhawat v. Union of India & Ors.3 and held
that the respondent is entitled to disability pension.
1
for short, ‘Tribunal’
2
for short, ‘COI’
H 3
(1999) 6 SCC 459
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 131
v. DHARMBIR SINGH [HEMANT GUPTA, J.]
4. Learned counsel for the appellants argued that though the A
respondent would be treated to be on duty even if he was on casual
leave or annual leave but the injuries suffered must have causal
connection as attributable to or aggravated by military service. The
respondent in this case was admittedly going on a scooter to purchase
electrical goods for his sister when he lost control while saving a cyclist,
B
therefore, there is no causal connection between the injuries resulting in
disability and military service. Learned counsel for the appellants relied
upon two recent judgments of this Court in Renu Devi v. Union of
India & Ors.4 and Union of India & Ors. v. Vijay Kumar No.3989606
P, Ex-Naik5. This Court in Vijay Kumar examined the admissibility of
disability pension, when personnel of Armed Forces are on leave. The C
Court declined the claim with the following findings:
“23. In the light of the above discussion, it is clear that the injury
suffered by the respondent has no causal connection with the
military service. The Tribunal failed to appreciate that the accident
resulting in the injury to the respondent was not even remotely D
connected to his military duty and it falls in the domain of an
entirely private act and therefore the impugned orders cannot be
sustained.”
5. Per contra, Mr. Rajesh Sehgal, learned counsel for the
respondent, argued that the claim of disability pension arises under two E
heads: one, under ‘injury’ and the other, under ‘disease’ cases. It is argued
that the opinion of the Medical Board in respect of disease cases is final
but, in respect of injury cases, the finding of the COI is final and is to be
made basis of grant of disability pension. He refers to Para 520 of the
Defence Services Regulations published in the year 1986, which we
shall reproduce at the relevant stage. The reliance is placed upon various F
judgments of the Tribunal as also Full Bench judgment of Punjab &
Haryana High Court in Union of India & Ors. v. Khushbash Singh6
followed by Division Bench judgment in Barkat Masih v. Union of
India & Ors.7 delivered by one of us (Justice Hemant Gupta) as a
Judge of Punjab & Haryana High Court. It is argued that any injury G
caused by an activity which is not an “unmilitary activity” has to be
4
Decided on July 03, 2019 in Civil Appeal arising out of Diary No.37356 of 2017 &
Anr.
5
(2015) 10 SCC 460
6
2010 (3) SLR 103
7
2014 SCC OnLine P&H 10564 H
132 SUPREME COURT REPORTS [2019] 13 S.C.R.
A deemed to be an injury attributed to or aggravated by military service.
The Division Bench in Barkat Masih concluded as under:
“20. In view of the judgment of Hon’ble Supreme Court in Madan
Singh Shekhawat’s case (supra), Balbir Singh’s case (supra)
and that of Full Bench judgment of this court in Khushbhash
B Singh’s case (supra), we find that the injuries suffered by the
petitioner when on casual leave entitles the petitioner for a disability
pension as the injury would be deemed to have been attributed to
military service. Consequently, the writ petition is allowed.”
6. Before we consider the respective arguments of learned counsel
C for the parties, the provisions of the Army Act, 19508, Notification issued
by the Central Government on November 29, 1962, Rules and Regulations
which are applicable in respect of grant of disability pension need to be
extracted hereunder:
“Army Act, 1950
D Section 3 (i)
(i) “active service”, as applied to a person subject to this Act,
means the time during which such person –
(a) is attached to, or forms part of, a force which is engaged in
operations against an enemy, or
E
(b) is engaged in military operations in, or is on the line of march
to, a country or place wholly or partly occupied by an enemy, or
(c) is attached to or forms part of a force which is in military
occupation of a foreign country.”
F “Section 9
Power to declare persons to be on active service.
Notwithstanding anything contained in clause (i) of section 3, the
central Government may, by notification, declare that any person
or class of persons subject to this Act shall, with reference to any
G area in which they may be serving or with reference to any
provision of this Act or of any other law for the time being in
force, be deemed to be on active service within the meaning of
this Act.”
H
8
for short, ‘Act’
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 133
v. DHARMBIR SINGH [HEMANT GUPTA, J.]
“Notification dated 29.11.1962 A
S.R.O. 6.E - New Delhi, the 28 November 1962
th
In exercise of the powers conferred by section 9 of the Army
Act, 1950 (46 of 1950), the Central Government hereby declares
that all persons subject to that Act, who are not on active service
under clause (I) of section 3 thereof, shall, wherever they may be B
serving, be deemed to be on active service within the meaning of
that Act for the purposes of the said Act and of any other law for
the time being in force.”
“Leave Rules for the Services, Volume-I (Army)
C
Rule 10. Casual leave counts as duty except as provided for in
Rule 11 (a).
It cannot be utilized to supplement any other form of leave or
absence, except as provided for in clause (A) of Rule 72 for
personnel participating in sporting events and tournaments. D
Casual leave due in a year can only be taken within that year. If,
however, an individual is granted casual leave at the end of the
year extending to the next year, the period failing in the latter year
will be debited against the casual leave entitlement of that year.
Rule 11 (a) - Annual leave, for the year may at the discretion of E
the sanctioning authority, be extended to the next calendar year
without prejudice to the annual leave authorised for the year in
which the extended leave expires;
(b) Annual leave may be taken in instalments within the same
year. F
(c) The annual leave year is the calendar year, viz., 1st January to
31st December.
(Leave 11 substituted. Auth: MoD letter No. B/33922/AG/PS-
(b)/642/D(AG) dated 4th April 2011).”
G
“Disability Element for Disability at the time of Discharge/
Retirement (2008)
Regulation 53(a) – An individual released/retired/discharged on
completion of term of engagement or on completion of service
limits or on attaining the prescribed age (irrespective of his period
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134 SUPREME COURT REPORTS [2019] 13 S.C.R.
A of engagement), if found suffering from a disability attributable to
or aggravated by military service and so recorded by Release
Medical Board, may be granted disability element in addition to
service pension or service gratuity from the date of retirement/
discharge, if the accepted degree of disability is assessed at 20
percent or more.”
B
Regulation 82 - For determining the pensionary benefits on death
or disability which is attributable to or aggravated by Military
service under different circumstance, the cases shall be broadly
categorized as follows: -
C Category A
Death or disability due to natural causes neither attributable to
nor aggravated by military service as determined by the competent
medical authorities. Examples would be ailments of nature of
constitutional diseases as assessed by medical authorities, chronic
D ailments like heart and renal diseases, prolonged illness, accidents
while not on duty.
Explanation:
The cases of death or disability due to natural causes falling under
Category A entitles ordinary family pension or invalid pension or
E invalid gratuity as the case may be.
Category B
Death or disability due to causes which are accepted as attributable
to or aggravated by military service as determined by the
competent medical authorities. Disease contracted because of
F
continued exposure to hostile work environments subject to
extreme weather conditions or occupational hazards resulting in
death or disability would be examples.
Category C
G Death or disability due to accidents in the performance of duties
such as:
(i) Accidents while travelling on duty in Government vehicles or
public/private transport.
(ii) Accidents during air journeys
H
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 135
v. DHARMBIR SINGH [HEMANT GUPTA, J.]
(iii) Mishaps at sea while on duty. A
(iv) Electrocution while on duty etc.
(v) Accidents during participation in organised sports events/
adventure activities/expeditions or training.
Explanation: B
Invalidment case falling under Category B and Category C due to
disease contracted or injury sustained or cause of death if accepted
by medical authority and/ or competent authority attributable to or
aggravated by Military service the individual may be granted
disability pension or special family pension as the case may be. C
Category D
Death or disability due to acts of violence /attack by terrorists,
anti – social elements etc. whether on duty other than operational
duty or even when not on duty. Bomb blasts in public places or
transport, indiscriminate shooting incidents in public etc. would be D
covered under this category, besides death/disability occurring while
employed in aid of civil power and also while dealing with natural
calamities.
Explanation:
Cases falling under Category D entitles liberalised disability pension E
or liberalised family pension as the case may be.
Category E
Death or disability arising as a result of: -
(i) Enemy action in international war F
(ii) Action during deployment with a peace keeping mission abroad
(iii) Border skirmishes
(iv) During laying or clearance of mines including enemy mines
as also mine sweeping operations. G
(v) On account of accidental explosions of mines while laying
operationally oriented mine field or lifting or negotiating mine field
laid by the enemy or own forces in operational areas near
international borders or the line of control.
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136 SUPREME COURT REPORTS [2019] 13 S.C.R.
A (vi) War like situations, including cases which are attributable to/
aggravated by:-
(1) extremist acts, exploding mines etc, while on way to an
operational area
(2) battle inoculation training exercises or demonstration with live
B
ammunition
(3) Kidnapping by extremists while on operational duty
(vii) An act of violence/attack by extremists, anti-social elements
etc. while on operational duty.
C
(viii) Action against extremists, antisocial elements etc. death/
disability while employed in the aid of civil power in quelling
agitation, riots or revolt by demonstrators shall be covered under
this category.
(ix) Operations specially notified by the Government from time to
D
time.
Explanation :
Death or injury sustained in the circumstances falling under
Category E entitles liberalised family pension or war-injury pension
E as the case may be.
Note: The illustrations given in each category above from ‘A’ to
‘E’ are not exhaustive. Case not covered under these categories
shall be dealt with as per Entitlement Rules for Casualty Pensionary
Awards, 1982 as contained in APPENDIX IV of these
F Regulations.”
7. Pension Regulations for Army, 1961, have now been substituted
by Pension Regulations for the Army, 2008. Pension Regulations for
Army, 1961 and Pension Regulations for the Army, 2008 are substantially
same in respect of admissibility of disability pension. Regulation 173 of
G the Pension Regulations for the Army, 1961, reads as under:
“173. The grant of pensionary awards to personnel of the
Defence Security Corps shall be governed by the same
Regulations as are applicable to Personnel Below Officer Rank
of the Army, except where they are inconsistent with the
provisions of the Regulations in this chapter.”
H
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 137
v. DHARMBIR SINGH [HEMANT GUPTA, J.]
8. The Entitlement Rules for Casualty Pensionary Awards, 1982 9 A
apply to service personnel who become non-effective on or after January
1, 1982. Prior to 1982 Rules, the Entitlement Rules of 1950 were in
force which are similar to the 1982 Rules as far as factors considering
disablement as attributable to military service are concerned. Rules 12,
13, 17 and 19 of the 1982 Rules are reproduced hereunder:
B
“12. A person subject to the disciplinary code of the Armed Forces
is on “duty”:-
(a) When performing an official task or a task, failure to do which
would constitute an offence triable under the disciplinary code
applicable to him. C
(b) When moving from one place of duty to another place of
duty irrespective of the mode of movement.
(c) During the period of participation in recreation and other unit
activities organized or permitted by Service Authorities and
during the period of travelling in a body or single by a D
prescribed or organized route.
NOTE: 1
(a) xxx xxx
(b) xxx xxx E
(c) xxx xxx
NOTE: 2
xxx xxx F
(d) When proceeding from his leave station or returning to duty
from his leave station, provided entitled to travel at public
expenses i.e. on railway warrants, on concessional voucher,
on cash TA (irrespective of whether railway warrant/cash
TA is admitted for the whole journey or for a portion only), in G
government transport or when road mileage is paid/payable
for the journey.
(e) XXX XXX
9
1982 Rules H
138 SUPREME COURT REPORTS [2019] 13 S.C.R.
A (f) An accident which occurs when a man is not strictly on duty
as defined may also be attributable to service, provided that
it involved risk which was definitely enhanced in kind or
degree by the nature, conditions, obligations or incidents of
his service and that the same was not a risk common to human
B existence in modern conditions in India. Thus, for instance,
where a person is killed or injured by another party by reason
of belonging to the Armed Forces, he shall be deemed ‘on
duty’ at the relevant time. This benefit will be given more
liberally to the claimant in cases occurring on active service
as defined in the Army/Navy/Air Force Act.”
C
“13. In respect of accidents or injuries, the following rules shall
be observed:-
(a) Injuries sustained when the man is “on duty” as defined, shall
be deemed to have resulted from military service, but in cases
D of injuries due to serious negligence/misconduct the question
of reducing the disability pension will be considered.
(b) In cases of self-inflicted injuries whilst on duty, attributability
shall not be conceded unless it is established that service
factors were responsible for such action; in cases where
E attributability is conceded, the question of grant of disability
pension at full or at reduced rate will be considered.”
xx xx xx
“17. Medical Opinion: At initial claim stage, medical views on
entitlement and assessment are given by the IMB/RMB. Normally,
F these views shall prevail for decisions in accepting or rejecting
the claim. In cases of doubt the Ministry/CCDA (Pensions) may
refer such cases for second medical opinion to MA (Pensions)
Sections in the office of the DGAFMS/Office of CCDA(P),
Allahabad, respectively. At appeal stage, appropriate appellate
G medical authorities can review and revise the opinion of the medical
boards on entitlement and assessment.”
xx xx xx
“19. Aggravation: if it is established that the disability was not
caused by service, attributability shall not be conceded. However,
H
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 139
v. DHARMBIR SINGH [HEMANT GUPTA, J.]
aggravation by service is to be accepted unless any worsening in A
his condition was not due to his service or worsening did not persist
on the date of discharge/claim.”
9. Regulation 423 of the Medical Regulations also explains the
injuries which are attributable to service. Such Regulation reads as
under: B
“Regulation 423. Attributability of Service
a) For the purpose of determining whether the cause of a disability
or death is or is not attributable to service, it is immaterial
whether the cause giving rise to the disability or death occurred
C
in an area declared to be a field service/active service area or
under normal peace conditions. It is, however, essential to
establish whether the disability or death bore a causal
connection with the service conditions…
b) The cause of a disability or death resulting from wound or
D
injury, will be regarded as attributable to service if the wound/
injury was sustained during the actual performance of ‘duty’
in armed forces. In case of injuries which were self-inflicted
or due to an individual’s own serious negligence or misconduct,
the Board will also comment how far the disability resulted
from self-inflection, negligence or misconduct. E
xxx xxx xxx
d) The question, whether a disability or death is attributable to or
aggravated by service or not, will be decided as regards its
medical aspects by a Medical Board or by the medical officer F
who signs the death certificate. The Medical Board/medical
officer will specify reasons for their/his opinion. The opinion
of the Medical Board/medical officer, insofar as it relates to
the actual cause of the disability or death and the circumstances
in which it originated will be regarded as final. The question
whether the cause and the attendant circumstances can be G
attributed to service will, however, be decided by the pension
sanctioning authority.
e) To assist the medical officer who signs the death certificate
or the Medical Board in the case of an invalid, the CO unit
will furnish a report on: H
140 SUPREME COURT REPORTS [2019] 13 S.C.R.
A (i) AFMS F-81 in all cases other than those due to
injuries.
(ii) IAFY 2006 in all cases of injuries other than battle injuries.
f) In cases where award of disability pension or reassessment
of disabilities is concerned, a Medical Board is always
B necessary and the certificate of a single medical officer will
not be accepted except in case of stations where it is not
possible or feasible to assemble a regular Medical Board for
such purposes. The certificate of a single medical office in
the latter case will be furnished on a Medical Board form and
C countersigned by the ADMS (Army)/ DMS (Navy)/
DMS(Air).”
10. In view of the provisions reproduced above, we find that the
following questions arise for consideration:
(i) Whether, when armed forces personnel proceeds on casual
D leave, annual leave or leave of any other kind, he is to be
treated on duty?
(ii) Whether the injury or death caused even if, the armed forces
personnel is on duty, has to have some causal connection
with military service so as to hold that such injury or death is
E either attributable to or aggravated by military service?
(iii) What is the effect and purpose of COI into an injury suffered
by armed forces personnel?
Answer to Question No.1
F 11. In terms of Section 3(i) of the Act, the active service means
time during which a person who is subject to the Act, is attached to, or
forms part of, a Force which is engaged in operations against an enemy
engaged in military operations in, or is on the line of march to, a country
or place wholly or partly occupied by an enemy, or is attached to or
forms part of a Force which is in military occupation of a foreign country.
G The present is not the case covered by the definition of Section 3(i) of
the Act.
12. Section 9 of the Act empowers the Central Government to
declare that any person or class of persons subject to the Act, with
reference to any area in which they may be serving or with reference to
H
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 141
v. DHARMBIR SINGH [HEMANT GUPTA, J.]
any provision of this Act or of any other law for the time being in force, A
will be deemed to be on active service within the meaning of the Act. In
pursuance of such provision, the Central Government has notified that
all persons who are subject to the Act shall, wherever they may be
serving, be deemed to be in active service within the meaning of the Act
and of any other law for the time being in force.
B
13. Still further, in terms of leave rules, the casual leave and annual
leave count as duty. However, in terms of Rule 11(a) of the Leave Rules
for the Services, Volume-I (Army), an individual on casual leave is not
deemed to actually perform duty during such leave. 1982 Rules provide
that a person is on duty when he is proceeding from his leave station or
returning to duty from his leave station. Still further, in terms of clause C
(f) of Rule 12 of the 1982 Rules, an accident can be said to be attributable
to service when a man is not strictly ‘on duty’ as defined, provided that
it involved risk which was definitely enhanced in kind or degree by the
nature, conditions, obligations or incidents of his service and that the
same was not a risk common to human existence in modern conditions D
in India. Therefore, a person if killed or injured by another person for the
reason he belongs to the Armed Forces, he shall be deemed to be ‘on
duty’.
14. Thus, it is held that when Armed Forces personnel is availing
casual leave or annual leave, is to be treated on duty. E
Answer to Question No.2
15. The 1982 Rules give expansive definition to the expression
‘duty’ being undertaken by the personnel of the Armed Forces. It includes
the period when Armed Forces personnel is proceeding from his leave
station or returning to duty from his leave station. It includes even an F
accident which occurs when a man is not strictly on duty provided that it
involved risk which was definitely enhanced in kind or degree by the
nature, conditions, obligations or incidents of his service and that the
same was not a risk common to human existence in modern conditions
in India. However, as per Regulation 423 of the Medical Regulations, G
such injury has to have causal connection with military service or such
injury is aggravated by military service.
16. In Regulation 423(a) of the Medical Regulations, it has been
specifically mentioned that it is immaterial whether the cause giving rise
to the disability or death occurred in an area declared to be a field service
H
142 SUPREME COURT REPORTS [2019] 13 S.C.R.
A or active service area or under normal peace conditions, will be deemed
to be duty. Regulation 423(a) mandates that it is essential to establish
whether the disability or death bore a causal connection with the service
conditions. All evidence, both direct and circumstantial, will be taken
into account and benefit of reasonable doubt, if any, will be given to
individual. For the sake of repetition, the said clause reads as under:
B
“a) For the purpose of determining whether the cause of a
disability or death is or is not attributable to service, it is
immaterial whether the cause giving rise to the disability or
death occurred in an area declared to be a field service/active
service area or under normal peace conditions. It is, however,
C essential to establish whether the disability or death bore a
causal connection with the service conditions…”
17. Clause (b) of Regulation 423 of the Medical Regulations
presumes that disability or death resulting from wound or injury, will be
regarded as attributable to service if the wound or injury was sustained
D during actual performance of ‘duty’ in Armed Forces. This is in
contradiction to “deemed to be duty” as per Rule 12(f) of 1982 Rules,
as the Rule is when a man is not strictly on duty. However, the injuries
which are self-inflicting or due to individual’s own serious negligence or
misconduct even in the cases of active duty, are not to be conceded
E unless, it is established that service factors were responsible for such
action.
18. The question whether a disability or death is attributable to or
aggravated by military service or not, is to be decided by the Medical
Board. The opinion of Medical Board with regard to actual cause of
F disability or death and the circumstances under which it originated will
be regarded as final in terms of Rule 17 of 1982 Rules which is to the
effect that at initial claim stage, medical views on entitlement and
assessment shall prevail for decisions in accepting or rejecting the claim.
19. Regulation 423(d) provides that the question whether a disability
G or death is attributable to or aggravated by service or not, will be decided
as regards to its medical aspects by a Medical Board/ medical officers.
Such opinion of the Medical Board insofar as it relates to the actual
cause of disability or death and the circumstances in which originality
will be regarded as final. The Commanding Officer has to record his
opinion as to whether injured person was on duty and whether he or she
H
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 143
v. DHARMBIR SINGH [HEMANT GUPTA, J.]
was to blame in a COI. Therefore, the scope of COI is to examine the A
conduct of the injured person to determine whether the person has made
himself liable to be proceeded against departmentally. In respect of the
injury, causal connection of injury to the army service is not final in the
COI proceedings.
20. In view of Regulation 423 clauses (a), (b) and (d), there has to B
be causal connection between the injury or death caused by the military
service. The determining factor is a causal connection between the
accident and the military duties. The injury or death must be connected
with military service howsoever remote it may be. The injury or death
must be intervention of armed service and not an accident which could
be attributed to risk common to human beings. When a person is going C
on a scooter to purchase house hold articles, such activity, even remotely
has no causal connection with the military service.
Answer to Question No.3
21. Before we answer Question No.3, para 520 of the Defence D
Services Regulations needs to be reproduced, which is as under:
“520. Injury to a Person Subject to Army Act.-(a) When an
officer, JCO, WO, OR or nurse, whether on or off duty, is injured
(except by wounds received in action), a certificate on IAFY-
2006 will be forwarded by the medical officer in charge of the E
case to the injured person’s CO as soon as possible after the date
on which the patient has been placed on the sick list, whether in
quarters or in hospital. In the case of injuries which are immediately
fatal, a report of the court of inquiry proceedings referred to in
sub-para (c) (i) will take the place of IAFY-2006.
F
(b) If the medical officer certifies that the injury is of a trivial
character, unlikely to cause permanent ill-effects, no court of inquiry
need be held, unless considered necessary under sub-para (c) (ii),
(iii), (iv) or (v). In any event, however, IAFY-2006 will be
completed and in all cases, except those of JCOs, WOs and OR
will be forwarded through the prescribed channels to Army G
Headquarters, Org Dte in the case of non-medical officers and
Medical Dte in other cases, a copy being retained at command or
other headquarters. In the case of a JCO, WO or OR, IAFY-
2006 will be forwarded to the officer i/c records for custody with
the original attestation, after the necessary entry, stating whether
H
144 SUPREME COURT REPORTS [2019] 13 S.C.R.
A he was on duty and whether he was to blame, has been made by
the CO in the Primary Medical examination report (AFMSF-2A).
(c)In the following cases a court of inquiry will be assembled to
investigate the circumstances:-
(i) If the injury is fatal or certified by the medical officer to be of
B a serious nature. Where an inquest is held, a copy of the coroner’s
report of the proceedings will be attached to the court of inquiry
proceedings.
(ii) If, in the opinion of the CO, doubt exists as to the cause of the
injury.
C (iii) If, in the opinion of the CO, doubt exists as to whether the
injured person was on or off duty at the time he or she received
the injury.
(iv) If, for any reason, it is desirable thoroughly to investigate the
cause of the injury.
D
(v) If the injury was caused through the fault of some other person.
In cases where the injured person is a JCO, WO or OR, the court
may consist of one officer as presiding officer, with two JCOs, WOs or
senior NCOs as members.
E (d) The court of inquiry will not give an opinion, but the injured
person’s CO will record his opinion on the evidence, stating whether the
injured person was on duty and whether he or she was to blame. When
no evidence as to the circumstances attending the injury beyond that of
the injured person is forthcoming it should be stated in the proceedings.
The proceedings will then be sent to the brigade commander or the
F
officer who has been authorised under Section 8 of the Army Act to
exercise the legal and disciplinary powers of a brigade commander who
will record thereon his decision whether disability or death was attributable
to military service and whether it occurred on field service. After
confirmation, the medical officer will, in all cases except those of JCOs,
G WOs and OR, record his opinion in the proceedings as to the effect of
the injury on the injured person’s service. The proceedings will then be
forwarded by the CO through the prescribed channel to Army
Headquarters, Org Dte in the case of non-medical officers and Medical
Dte in other cases, a copy being retained at command or other
headquarters. In the case of a JCO, WO or OR a record will be made in
H
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 145
v. DHARMBIR SINGH [HEMANT GUPTA, J.]
the primary medical examination report (AFMSF-2A) by the CO that a A
court of inquiry has been held, and also as to whether the man was on
duty and whether he was to blame. The primary medical examination
report will then be passed to the medical officer who will record his
opinion as to the effect of the injury on the man’s service. The proceedings
of the court of inquiry will then be forwarded to the officer i/c records
B
for enclosure with the injured person’s original attestation (see sub-para
(b) above), except in the case of a court of inquiry under sub-para (c)(v)
above, in which case the proceedings, together with a copy of the medical
opinion as to the effect of the injury on the man’s service, will be
forwarded without delay to Army Headquarters.
(e) When an officer, JCO, WO, OR or nurse, not on duty, is injured C
in any way by or through the fault of a civilian or civilians, and receives
compensation from such civilian or civilians, in lieu of any further claim,
this will be recorded in the proceedings of the court of inquiry.
(f) A Court of inquiry need not necessarily be held to investigate
deaths or injuries sustained through taking part in organized games, sports D
and other physical recreations as defined in para 271.
In all cases where a court of enquiry is not held, IAFY-2006 will
be completed with the statements of witnesses as required by item 4
thereon and when applicable, the CO will certify that the games, sports,
or physical recreations were organized ones. E
(g) The injury report will be submitted to the brigade commander
or the officer who has been authorised under Section 8 of the Army Act
to exercise the legal and disciplinary powers of a brigade commander
only if the injury is severe or moderately severe or if a court of inquiry to
enquire into the causes of injury has been held. The brigade commander F
or the officer who has been authorised under Section 8 of the Army Act
to exercise the legal and disciplinary powers of a brigade commander
will record on the form his decision whether or not the injury was
attributable to military service, and whether it occurred on field service.
In all other cases, the CO will record his opinion.” G
22. In terms of para 520 of the Defence Services Regulations, a
certificate on I.A.F.Y.-2006 is required to be forwarded by the Medical
Officer In-charge to the Commanding Officer. The COI is assembled to
investigate the circumstances leading to injury (clause c). The
Commanding Officer has to record his opinion as to whether injured H
146 SUPREME COURT REPORTS [2019] 13 S.C.R.
A person was on or off duty including as to whether he or she was to
blame. The proceedings are then to be sent to Brigade Commander or
the officer authorized under Section 8 of the Act to record reasons as to
whether disability or death was attributable to military service and whether
it occurred on field service. The Commanding Officer has reported that
B the injury is not attributable to military service, but I.A.F.Y.-2006 produced
before the Court at the time of hearing of the present appeal shows that
the Brigade Commander has endorsed that the injury is attributable to
military service. We find that there was no material available to the
Brigade Commander to return a finding that disability was attributable to
military service when the evidence of the witnesses and the conclusion
C given by the Commanding Officer is that no one is to be blamed for the
accident as per column 3 (c) reproduced in the earlier part of this order.
Since the accident has occurred when the respondent was purchasing
house hold articles, it cannot be said that there is any causal connection
between the injury and the military service. Though, the attributability
D assessment of injury cases is different than the disease cases but, we
are unable to accept the argument raised by Mr. Sehgal that in injury
cases, the finding of COI is final. Therefore, we are unable to hold that
the opinion of the Brigade Commander in all situations will be final in
respect of an injury suffered. We have held in Answer to Question No.
2 that the opinion of Medical Board is final in terms of Rule 17 of 1982
E
Rules and Regulation 423 (d) of the Medical Regulations.
23. The purpose of investigation by the COI is to examine nature
of injuries whether such injuries were suffered on or off duty. However,
para 520 is not to the effect that the opinion of the Brigade Commander
is final on the basis of which the grant of disability pension is dependent.
F
The percentage of disability as well as whether the disability is attributed
to or aggravated by military service has to be assessed by the Medical
Board. The purpose of COI is to examine the conduct of the personnel
of the Armed Forces, whereas, the Medical Board examines, the causal
connection with the injury with the military services and also the extent
G of disability. Thus, the COI and the opinion of the Medical Board both
have different objects and purposes to achieve.
24. Having considered the provisions of the statutes, rules and
regulations, we now refer to the judgments referred to by the learned
counsel for the parties.
H
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 147
v. DHARMBIR SINGH [HEMANT GUPTA, J.]
25. The judgments in Madan Singh Shekhawat, Pension A
Sanctioning Authority, PCDA(P), Allahabad & Ors. v. M.L. George,
Ex. SGT10, Nand Kishore Mishra v. Union of India & Ors. 11 and
Union of India & Anr. v. Surendra Pandey12,are the cases where the
Armed Forces personnel have suffered injuries while returning from or
going on leave. In terms of Rule 12 Note 2 (d) of 1982 Rules read with
B
Regulation 423(a), any injury or death while returning from or going to
duty has a causal connection with the military service and, thus, such
injury or death is considered attributable to or aggravated by military
service.
26. The Full Bench judgment of Punjab and Haryana High Court
in Khushbash Singh has devised a new expression ‘unmilitary activity’. C
Since the rules and regulations framed under the Act provide for disability
pension only if there is causal connection of injuries with the military
service, thus warranting a positive finding. The ‘unmilitary activity’ is
not an expression used in the rules or regulations and is based on negative
proof. What is unmilitary activity is vague, indefinite and is based upon D
surmises and conjectures. Therefore, we find that in terms of the
provisions of the Act, Rules and instructions keeping in view the policy
decisions of the appellants, the disability pension is admissible only if
injury is either attributable to or aggravated by military service and not
that any activity which is unmilitary activity.
E
27. Mr. Sehgal has relied upon Division Bench judgment of Delhi
High Court in Vardip Singh & Anr. v. Union of India & Ors.13. It was
a case where a Captain saved 150-160 lives in a tragic fire incident in
Uphaar Cinema, New Delhi. The High Court has considered it appropriate
to grant disability pension to the family of the deceased Major. Said
judgment is in the peculiar facts of that case. F
28. However, the reliance of Mr. Sehgal upon Division Bench
judgment in Barkat Masih is not tenable. We find that the judgment is
correct to the limited extent that personnel of Armed Forces when on
leave are also on duty. However, the subsequent question, whether an
injury or death suffered by a personnel has some causal connection with G
military service, was not examined except referring to Full Bench
10
(2015) 15 SCC 319
11
JT 2013 (10) SC 466
12
(2015) 13 SCC 625
13
2004 (3) SLR 500 H
148 SUPREME COURT REPORTS [2019] 13 S.C.R.
A judgment of that Court wherein, it was held that unmilitary service activity
alone will be excluded from the expression ‘death’ or ‘injury’ caused by
military service or aggravated to military service. We find that such
conclusion is not sustainable as per the applicable rules and regulations.
29. In Barkat Masih, such Armed Forces person was riding a
B scooter which was hit by army truck in the cantonment area. Such
accident with the army truck has no causal connection with the military
service as the deceased was on casual leave. Even a civilian could meet
with an accident with the army truck within or outside the cantonment
area. Such accident has no causal connection with the military service
of an injured or the deceased. Therefore, the Full Bench judgment of
C Punjab & Haryana High Court in Khushbash Singh and that of the
Division Bench of that Court in Barkat Masih are not the good law. It
may be noticed that special leave petition in the Barkat Masih order
was dismissed but it was dismissed on the ground of delay, therefore, in
view of the judgment of this Court in Khoday Distilleries Limited &
Ors. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited,
D
Kollegal14, it does not amount to merger of the order passed by the
High Court with that of this Court.
30. Another order referred by the respondent is Lance Dafedar
Joginder Singh v. Union of India & Ors.15. In that case, this Court
granted disability pension when no rules or regulations were produced
E that the appellant was not entitled to disability pension.
31. The judgments in Union of India & Ors. v. Keshar Singh16,
Union of India & Anr. v. Baljit Singh17, Union of India & Ors. v.
Dhir Singh China, Colonel (Retd.) 18 and Controller of Defence
Accounts (Pension) & Ors. v. S. Balachandran Nair19 are the cases
F arising out of disability on account of some disease which, in the opinion
of the Medical Board, was said to be paramount. Such judgments are
not applicable in the cases of injuries.
32. In Secretary, Ministry of Defence & Ors. v. Ajit Singh20,
the personnel had suffered disability on account of electric shock in his
G 14
(2019) 4 SCC 376
15
1995 Supp (3) SCC 232
16
(2007) 12 SCC 675
17
(1996) 11 SCC 315
18
(2003) 2 SCC 382
19
(2005) 13 SCC 128
H 20
(2009) 7 SCC 328
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 149
v. DHARMBIR SINGH [HEMANT GUPTA, J.]
house, when on leave. It was held that such disability is not attributable A
to or aggravated by military service.
33. In Sukhwant Singh v. Union of India & Ors.21, the Armed
Forces personnel suffered injury in a scooter accident which rendered
him unsuitable for any further military service. It was held that there
was no causal connection between the injuries suffered and the services B
in the army referring to judgment of this Court in Union of India &
Ors. v. Jujhar Singh22.
34. In Vijay Kumar, the person was climbing stairs of the house
of his sister. He accidentally slipped on account of darkness on account
of failure of electricity supply. This Court held that the injuries sustained C
were accidental in nature and nobody can be blamed for the same. Thus,
the order of the Tribunal granting disability pension was set aside.
35. Another judgment referred to by the learned counsel for the
appellants is Renu Devi. It is a case of special family pension on account
of death of the Armed Forces personnel during casual leave in a road D
accident. The principles laid down are in tune with the judgments where
the causal connection of the injury with the military service was not
found and, therefore, the disability pension cannot be granted.
36. We find that summing up of the following guiding factors by
the Tribunal in Jagtar Singh v. Union of India & Ors 23 and approved E
in Sukhwant Singh and in Vijay Kumar do not warrant any change or
modification and the claim of disability pension is required to be dealt
with accordingly:-
“(a) The mere fact of a person being on ‘duty’ or otherwise, at
the place of posting or on leave, is not the sole criteria for deciding
F
attributability of disability/death. There has to be a relevant and
reasonable causal connection, howsoever remote, between the
incident resulting in such disability/death and military service for it
to be attributable. This conditionality applies even when a person
is posted and present in his unit. It should similarly apply when he
is on leave; notwithstanding both being considered as ‘duty’. G
(b) If the injury suffered by the member of the Armed Force is
the result of an act alien to the sphere of military service or in no
21
(2012) 12 SCC 228
22
(2011) 7 SCC 735
23
T.A. No. 61 of 2010 decided on November 2, 2010 by the Tribunal H
150 SUPREME COURT REPORTS [2019] 13 S.C.R.
A way be connected to his being on duty as understood in the sense
contemplated by Rule 12 of the Entitlement Rules 1982, it would
not be legislative intention or nor to our mind would be permissible
approach to generalise the statement that every injury suffered
during such period of leave would necessarily be attributable.
B (c) The act, omission or commission which results in injury to the
member of the force and consequent disability or fatality must
relate to military service in some manner or the other, in other
words, the act must flow as a matter of necessity from military
service.
C (d) A person doing some act at home, which even remotely does
not fall within the scope of his duties and functions as a Member
of Force, nor is remotely connected with the functions of military
service, cannot be termed as injury or disability attributable to
military service. An accident or injury suffered by a member of
the Armed Force must have some casual connection with military
D service and at least should arise from such activity of the member
of the force as he is expected to maintain or do in his day-to-day
life as a member of the force.
(e) The hazards of Army service cannot be stretched to the extent
of unlawful and entirely un-connected acts or omissions on the
E part of the member of the force even when he is on leave. A fine
line of distinction has to be drawn between the matters connected,
aggravated or attributable to military service, and the matter entirely
alien to such service. What falls ex-facie in the domain of an
entirely private act cannot be treated as legitimate basis for claiming
F the relief under these provisions. At best, the member of the force
can claim disability pension if he suffers disability from an injury
while on casual leave even if it arises from some negligence or
misconduct on the part of the member of the force, so far it has
some connection and nexus to the nature of the force. At least
remote attributability to service would be the condition precedent
G to claim under Rules 173. The act of omission and commission on
the part of the member of the force must satisfy the test of
prudence, reasonableness and expected standards of behaviour.
(f) The disability should not be the result of an accident which
could be attributed to risk common to human existence in modern
H
THE SECRETARY, GOVERNMENT OF INDIA & ORS. 151
v. DHARMBIR SINGH [HEMANT GUPTA, J.]
conditions in India, unless such risk is enhanced in kind or degree A
by nature, conditions, obligations or incidents of military service.”
37. In view of the above discussion and the conclusions drawn by
the Tribunal in T.A. No. 61 of 2010, we find that the order of the Tribunal
is not sustainable. Consequently, the appeal is allowed. The Order passed
by the Tribunal is set aside and the Original Application filed by the B
respondent is dismissed.
Divya Pandey Appeal allowed.
C
D
E
F
G
H
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