UNION OF INDIA AND ORS.versus3989606 P,EX-NAIK VIJAY KUMAR

                   [2015] 14 S.C.R. 295


                 UNION OF INDIA & ORS.                         A
                             v.
            3989606P, EX-NAIK VIJAY KUMAR
              (Civil Appeal No. 6583 of 2015)
                                                               B
                    AUGUST 26, 2015 .
        [T. S. THAKUR AND R. BANUMATHI, JJ.)
      Entitlement Rules for Casualty Pensionary Awards,
1982- Rule 12 and Notes (1) and (2) - Disability pension -
Respondent was enrolled in Indian Army- He went on annual C
leave - During leave period, he went to stay at the_ house of
his sister- While staying there, he accidentally fell down and
sustained multiple injuries - Composite assessment for
respondent's disability was assessed at 60% by the Medical
Board-After due procedure, the respondent was invalidated D
from service - Respondent was paid monetary benefits due
and payable to him and also other pensionary benefits- His
claim for disability pension was however rejected by the
competent authority stating that respondent's disabilities were
 neither attributable to nor aggravated due to military service E
- Respondent filed appeal which was rejected - Armed
 Forces Tribunal, however, allowed application filed by
 respondent holding that he was entitled to disability pension
for 75% disability from the date of invalidation - Held: The ·
 1982 Entitlement Rules are beneficial in nature and ought F
to be liberally construed - But there has to be a reasonable
causal connection between the injuries resulting in disability
and the military service - On facts, the injury sustained by
respondent was accidental in nature and nobody can be
blamed for the same -Assessment by the Medical Board is G
recommendatory in nature and is subject to acceptance by
the Pension Sanctioning Authority, the opinion of the Medical
Board by itself cannot confer right upon the respondent to
claim disability pension. - After the accident when the
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                            295
296       SUPREME COURT REPORTS                   [2015] 14S.C.R.


A respondent was not actually performing military service, the
  opinion of the Medical Board "aggravated due to stress and
  strain of military service" does not appear to be in proper
  perspective - Clearly the injury suffered by the respondent
  has no causal connection with the military service - The
B tribunal failed to appreciate that the accident resulting in injury
  to the respondent was not even remotely connected to his
  military duty and H falls in the domain of an entirely private
  act - Order of the tribunal accordingly set aside - Pension
  Regulations for the Army 1961 - Regn. 173.
c         Union of India and Anr. v. Ex Naik Surendra
          Pandey 2015 (2) SCALE 361 - distinguished.
          Union of India and Ors. v. Jujhar Singh (2011) 7
          SCC 735 : 2011 (8) SCR 258; Union of India nd
D         Anr. v. TalwinderSingh (2012) 5 $CC 480: 2012
          (5) SCR 437 - relied on.
          Sukhwant Singh v. Union of India through the
          Secretary, Ministry of Defence nd Ors. (2012) 12
          SCC 228; Secretary, Ministry of Defence & Ors.
 E        v. Ajit Singh (2009) 1 sec 328 : 2009 (8)
          SCR 934; Union of India & Ors. v. Keshar Singh
          (2007) 12 sec 675: 2001 (5) SCR 408; Union of
          India & Ors. v. Surinder Singh Rathore (2008) 5
          SCC 747: 2008 (4) SCR 909 - referred to.
 F                        Case Law Reference
          (2012) 12 sec 228       referred to           Para 11
          2009 (8) SCR 934        referred to           Para 13
          2007 (5) SCR 408        referred to           Para 13
 G
          2008 (4) SCR 909        referred to           Para 13
          2011 (8) SCR 258        relied on             Para 14
          2012 (5) SCR 437        relied on             Para 15
 H        (2015) 2 SCALE 361 distinguished              Para 17
  UNION OF INDIAv. 3989606 P, EX-NAIK VIJAY KUMAR               297   ·


     CIVIL APPELLATE JURISDICTION: Civil Appeal No.             A
6583 of 2015.
     From the Judgment and Order dated 13.07.2011 in O.A.
No. 248 of 2011/ Order dated 31.10.2012 in MA No. 795 and
796 of 2012 in O.A. No. 248 of 2011 of the.Armed Force
Tribunal Chandigarh Regional Bench, Chandimandir.               B
     P.S. Patwalia, ASG, Ms. Rashmi Malhotra, Shankar ·
pivate, B.V. Balaram Das.,Advs. for the Appellants.
    Bhim Sen Sehgal, Avijit Bhattacharjee, Advs. for the
Respondent.                                                     C
      The Judgment of the Court was delivered by
      R. BANUMATHI, J. 1. Delay condoned.
       2. This appeal is filed against the order dated 13.07.2011
in. Original Application No.248 of 2011 and order dated D
31.10.2012 in M.A.Nos.795 and 796 of 2012 passed by the
Armed Forces Tribunal, Regional Bench, Chandigarh (for short
'the tribunal') whereby the tribunal allowed the application filed
 by the respondent observing that the respondent is entitled to
get disabiljty pension for 75% disability from the date of his E
 invalidation.
       3. Brief facts which led to the filing.of this appeal are as
 under:- On 25.02.1989, the respondent was enrolled in Indian
 Army from Branch Recruiting Office Palampur and after F
 completion of his basic Military Training at Dogra Regiment,
 the respondent was posted to 12 Dogra on 05.01.1990. The
 respondent was granted thirty days annual leave from
 14.05.2005 to 12.06.2005. However, during the leave period,
•on 19.05.2005 the respondent went from Himachal Pradesh
 to Jalandhar Gantt where hi~ sister resides for making G
 purchase of ornaments and clothes and articles for marriage
 of his younger brother. On the same day, on 19.05.2005 in
 Jalandhar at the house of his sister which was on second floor
 at about 8.00 p.m., while the respondent was climbing stairs
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298         SUPREME COURT REPORTS                 [2015] 14S.C.R.


A     to go to the roof of the quarter for smoking and at that time
      lights went off and due to darkness he slipped accidentally
      and fell down from the stairs and sustained multiple injuries.
      The respondent was initially admitted to Christian Hospital,
      Maqsuda where he was given first aid treatment for a night
 B    and next day on 20.05.2005, he was transferred to Military
      Hospital, Jalandhar for treatment of his multiple injuries. The
      respondent underwent four operations, he was treated in
      military hospital for three to four months. However, the
      respondent was placed in Low Medical Category A3 (T) for
c     6/12 years.The respondent was sent for six weeks sick leave
      and he reported back for review. The respondent was brought
      before the Release Medical Board, wherein the RMB opined
      that respondent should be released from military service in
      Permanent Low Medical Category A-3 for six disabilities he
 o    sustained. The Release Board assessed ttie disabilities at
      Military Hospital Faizabad and composite assessment was
      assessed at 60%. After due procedure, the respondent was
      invalidated from service with effect from 28.02.2006 after
      completion of seventeen years of service.
 E        4. The respondent was paid monetary benefits due and '
   payable to him and also other pensionary benefits. The
   respondent's claim for disability pension was however rejected
   by the competent authority stating that respondent's disabilities
   are neither attributable to nor aggravated due to military
 F service. Aggrieved by the order, the respondent filed an appeal
   dated 09.05.2007 before the appellate authority for grant of
   disability pension. The respondent also sent two
   representations dated 01.10.2007 and December 2007.After
   due inquiry, appeal was rejected by the Appellate Committee
 G vide order dated 13.04.2007 holding that respondent was not
   entitled to disability pension iri terms of Rule 12 of Entitlement
   Rule for Casualty Pensionary Award.
            5. Aggrieved by the order, respondent filed O.A.No. 248
      of 2011 before the tribunal. The tribunal vide impugned order
 H
  UNION OF INDIAv. 3989606 P, EX-NAIK VIJAY KUMAR                    299
                [R. BANUMATHI, J.)

dated 13.07.2011 allowed the application of the respondent           A
holding that the respondent is entitled to disability pension for
75% disability for life by giving the benefit of rounding off from
the date ofinvalidation. This appeal assails the correctness of
the impugned order.
      6. Mr. P.S. Patwalia, learned Additional Solicitor General B
appearing for the appellants contended that under Regulation
173 disability pension is granted to an individual who is
invalidated out of service on account of d[sability which is either
attributable to or aggravated by military service. It was
submitted that in the facts of the case, the act of the respondent C
was not even remotely connected to his military duty and while
so, the tribunal erred in directing grant of disability pension to
the respondent.
      7. Per contra, learned counsel for the respondent
                                                                  0
submitted that the Medical Board opined that the disability of
the respondent is aggravated "due to stress and strain of
military service" and once the Medical Board gives its finding·
to the advantage of the disabled soldier, it cannot be changed
by any other authority and hence the respondent is entitled for E
grant of disability pension and tribunal rightly directed payment
of disability pension to the respondent.
     8. We have heard learned counsel for the parties and
have gone through the orders passed by the tribunal and the
material placed on record.               ·                           F
     9. The primary conditions for grant of disability pension
are mentioned under Regulation 173 of the Pension
Regulations for the Army 1961. Regulation 173 reads as
under:-
                                                                     G
      "Unless otherwise specifically provided a disability .
      pension consisting of service element and disability
      element may be granted to an individual who is
      invalidated out of service on account of disability which

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300       SUPREME COURT REPORTS                  [2015] 14S.C.R.


A        is attributable to or aggravated by military service in non-
         battle casualty or is assessed at 20% or over."
         10. In terms of Rule 12 of the Entitlement Rules for
  Casualty Pensionary Awards 1982, a person subject to the
  disciplinary note of the armed forces is treated on duty while
B performing anyone of the functions mentioned in paragraphs
  (a), (b) and (c) of the Pension Regulations. Notes (1) and (2)
  of the Entitlement Rules elaborate the scope and purport of
  the term 'duty'. Para (b) to Note (2) deals with accident which
  occurs when the armed forces personnel is not strictly "on duty"
C as defined in Rule 12. For such situations, the expression "on
  duty" is given an extended meaning inasmuch as an accident
  which occurs when the person concerned is not strictly "on duty''
  is also deemed to be on duty. We may usefully extract Rule 12
  of Entitlement Rules and para (a) to (f) of Notes.(1) & (2) as
D under.-
         "Rule 12: Duty:- The Entitlement Rules 1982
         A person subject to the disciplinary code of the Armed
         Forces is on duty:-
 E       (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;
         (b) When moving from one place of duty to another place
 F       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 singly by a prescribed or organized route .
        . Note 1: xx             xx             xx             xx
                  xx             xx             xx             xx
         Note 2: (d) Personnel while travelling between place of
         duty to leave station and vice versa to be treated on duty
H
 UNION OF INDIA v. 3989606 P, EX-NAIK VIJAY KUMAR                    301
                [R. BANUMATHI, J.]

    irrespedive of whether they are in physical possession           A
    of railway warranUconcession vouchers/cash TA etc or
    not. An individual on authorized leave would be deemed
    to be entitled to travel at public expense.
     (e)The time of occurrence of injury should fall within the
     time an individual would normally take in reaching the          B
     leave station from duty station or vice versa using the
     commonly authorized mode(s) of transport. However,
     injury beyond this time period during the leave would not
     be covered.
     (f) An accident which occurs when a man is not strictly
                                                                     c
     '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       0
     was not a risk common to human existence in modern
     conditions in India."
     11. This Court in Sukhwant Singh vs. Union of India
through the Secretary, Ministry of Defence And Ors., (2012)
12 SCC 228 after referring to the judgment of the tribunal           E
affirmed the legal position as summed up by the tribunal and
the same reads as under:-
     "To sum up in ourviewthe following principles should be
     the guiding factors for deciding the question of
     attributability or aggravation, where the disability or         F
     fatality occurs during the time the individual is on
     authorized leave of any kind:
     (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   G
     for deciding 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           H
302   SUPREME COURT REPORTS                       [2015] 14 S.C.R.


A     person is posted and present in his unit. It should similarly
      apply when he is on leave; notwithstanding both being
      considered as 'duty'.
      (b) If the injury suffered by the member of the armed force
      is the result of an act alien to the sphere of military s:::rvice
B     or is in no way connected to his being on duty as
      understood in the sense contemplated by Rule 12 oftl1e
      Entitlement Rules, 1982, it would neither be the legislative
      intention nor to our mind would it be the permissible
      approach to generalise the statement that every injury
c     suffered during such period of leave would necessarily
      be attributable.
      (c) The act, omission or commission of which results in
      injury to the member of the force and consequent disability
      or fatality must relate to military service in some manner
D
      or the other, in other words, the act must flow as a matter
      of necessity from military service.
      (d) A person doing some act at home, which even
      remotely does not fall within the scope of his duties and
 E    functions as a member of the 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 causal connection with
 F    military 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 unconnected acts or
 G    omissions on the 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
 H
 UNION OF INDIA v. 3989606 P, EXcNAIK VIJAY KUMAR                    303
                [R. BANUMATHI, J.]

     an entirely private act cannot be treated as a legitimate       A
     basis for claiming 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         B
     connection and nexus to the nature of the force. At least
     remote attributability to service would be the condition
     precedent to claim under Rule 173. The act of omission
     and commission on the part of the member of the force
     must satisfy the test of prudence, reasonableness and           C
     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 conditions in India, unless such risk
     is enhanced in kind or degree by nature, conditions, D
     obligations or incidents of military service."
      The principles enunciated in the above judgment were
referred to and reiterated by this Court in Union of India And
Anr. vs. Ex Naik Surendra Pandey, 2015 (2) SCALE 361 to E
which both of us were parties.
      12. Entttlement Rules for the Casualty Pensionary Awards
1982 are beneficial in nature and ought to be liberally
construed. In terms of Rule 12, the disability sustained during
the course of an accident which occurs when the personnel of         F
the armed forces is not strictly on duty may also be attributable
to service on fulfilling of certain conditions enumerated therein.
But there has to be a reasonable causal connection between
the injuries resulting in disability and the military service.
      13. Applying the ratio of various cases in Secretary, G
Ministry of Defence & Ors. vs. Ajit Singh, (2009) 7 SCC 328
and relying upon the principles laid down in Union of India &
Ors. vs. Keshar Singh, (2007) 12 SCC 675 and Union of India
& Ors. vs. Surinder Singh Rathore, (2008) 5 SCC 747, this
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304         SUPREME COURT REPORTS                   [2015] 14 S.C.R.


A     Court rejected the claim of the respondent for disability pension
      on account of electric shock sustained by him while he was on
      casual leave.
            14. In Union of India And Ors. vs. Jujhar Singh (2011) 7
      SCC 735, this Court was dealing with the question whether
B     the respondent who had met with an accident in his native place
      and sustained grievous injury resulting in permanent disability
      was entitled to disability pension. The respondent in that case
      had upon recovery from injury continued in military service and
      superannuated with normal service pension. In the said case,
C     this Court held that the member of armed forces who is claiming
      disability pension must be able to show a reasonable nexus
      between the act, omission or commission resulting in an injury
      to the person and the normal expected standard of duties and
      a way of life expected from a member of armed forces.
D
            15. In yet another case, Union of India And Anr. vs.
      Ta/winder Singh, (2012) 5 SCC 480, the disability pension
      was claimed by the individual enrolled in the army who was on
      annual leave for a period of two months in his home town, got
E     injured during the leave period by a small wooden piece "Gu/Ii"
      while playing with children which seriously damaged his left
      eye. This Court in para (12) observed thus:-
           "12. A person claiming disability pension must be able
           to show a reasonable nexus between the act, omission
 F         or commission resulting in an injury to the person and ·
           the normal expected standard of duties and way of life
           expected from such person. As the military personnel
           sustained disability when he was on an annual leave that
           too at his home town in a road accident, it could not be
G          held that the injuries could be attributable to or aggravated
           by military service. Such a person would not be entitled
           to disability pension. This view stands fully fortified by
           the earlier judgment of this Court in Ministry of Defence
           v. Ajit Singh, (2009) 7 sec 328."
 H
  UNION OF INDIA v. 3989606 P, EX-NAIK VIJAY KUMAR               305
                 [R. BANUMATHI, J.]

       16. Applying these principles and Rule 12 and mandate A
of Regulation 173, admittedly in the instant case as mentioned
in the proceedings before the Board Officer that during the
annual leave respondent went to Jalandhar on 19.05.2005 from
Himachal Pradesh to purchase ornaments and clothes for his
brother's marriage. He was staying at his sister's place and B
in the night at about 8.00 p.m. while he was climbing the stairs
to get to the roof for smoking and at that time the lights went off
 and due to sudden darkness he lost his balance and fell down
 and lost his senses. He was admitted in civil hospital in
 Jalandhar and after first aid, he was transferred to military C
hospital JaJandhar for multiple fracture injuries. It is apparent
that the injury sustained by Vijay Kumar was accidental in nature
 and nobody can be blamed for the same. Respondent's act
of going towards the roof for smoking at his sister's house
 and falling down at no stretch of imagination can be attributed . D
 to military service.
       17. Learned counsel for the respondent heavily placed
reliance upon the judgment of this Court in Union. of India &
Anr. vs. Ex Naik Surendra Pandey, (2015) 2 SCALE 361, in
which the respondent went on annual leave and was travelling E
from the place of his duty to the place where his family was
residing (Sewan). The respondent boarded the bus from
Hajipur to reach Patna to join his family an9 at that time, he
met with an accident which resulted in disability assessed at
20% by the Medical Board. In the said case, it was the specific F
case of the respondent that although the respondent's
hometown is Gopalganj, his family was residing at Patna and
it was for that reason he claimed to be travelling by train beyond
Sewan upto Hajipur by train to catch a bus to reach Patna to
join his family. Considering the facts and circumstances of the G
said case and that respondent's family was residing at Patna,
this Court held that there was a reasonable nexus and causal
connection between the disability and the military service of
 respondent at the relevant time. In para (12), it was held that
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306         SUPREME COURT REPORTS                   [2015) 14 S.C.R.


A     " ..... The case may have been different ifthe respondent had
      reached the destination engaged in some activity, unrelated
      to military service and in the course of such activity met with
      an accident resulting in a disability .... ". Thus, Ex Naik
      Surendra Pandey case is clearly distinguishable on facts.
B           18. Learned counsel for the respondent contended that
      the composite assessment for the respondent's disability was
      assessed at 60% by the Medical Board and the same was
      found to be attributable and aggravated "due to stress and
      strain of military service" and as per settled law once medical
C     board gives its finding to the advantage of the disabled soldier,
      findings of the Medical Board cannot be changed. The above
      contention does not merit acceptance. By perusal of record
      issued by Medical Board AFMSF-16/17, it is seen that the
      assessment by the Board is recommendatory in nature and is
D     subject to acceptance by the Pension SanctioningAutt>ority. It
      is also mentioned in the Medical Abstract Records as:-
            "1. Though the disablement has been mentioned in
            percentage in para 6 of Part V, this does not mean
            eligibility for disability pension since the Invalidating
 E
            Disabilities is/are neither attributable to nor aggravated
            by service."
            When the opinion of the assessment by the Board is
      recommendatory in nature and is subject to acceptance by
 F    the Pension Sanctioning Authority, the opinion of the Medical
      Board by itself cannot conferright upon the respondent to claim
      disability pension. Further, after accident the respondent was
      treated in the military hospital fort~ree to four months and he
      was placed in low medical category. The respondent went for
G     six weeks sick leave and reported back for review and
      invalidated from service with effect from 28.2.2006. After the
      accident when the respondent was not actually performing
      military service, the opinion of the Medical Board "aggravated
      due to stress and strain of military service" does not appear
 H
      UNION OF INDIAv. 3989606 P, EX-NAIK VIJAY KUMAR                   307
                     [R. BANUMATHI, J.] ·

     to be in proper perspective. After the accident, when the A
· '· respondent was not actually performing his duties and therefore
     disability cannot be attributed to military service nor can it be
     said to have been aggravated due to stress and strain of
     military service.
         19. In the light of the above discussion, it is clear that the B
   injury suffered by the respondent has no causal connection
   with the military service. The tribunal failed to appreciate that
   the accident resulting in injury to the respondent was.not even .
   remotely connected to his military duty and it falls in the domain ·
   of an entirely private act and therefore th.e impugned orders . C
   cannot be sustained.
         20. In the result, the impugned order of the tribunal is set
   aside and the appeal is allowed. In the facts and circumstances
   of the case, we make no order as to costs.                         D

    Bibhuti Bhushan Bose                              Appeal allowed.