DISABILITY CLAIM = the injury which had no connection with the military service even though suffered during annual leave cannot be termed as attributable to or aggravated by military service. The member of the Armed Forces who is claiming disability pension must be able to show a normal nexus between the act, omission or commission resulting in an injury to the person and the normal expected standard of duties and way of life expected from member of such forces. Inasmuch as the respondent sustained disability when he was on annual leave that too at his home town in a road accident, the conclusion of the learned Single Judge that he is entitled to disability pension under Regulation 179 is not based on any material whatsoever.

                                                           REPORTABLE


               IN THE SUPREME COURT OF INDIA


                CIVIL APPELLATE JURISDICTION


                CIVIL APPEAL NO. 4281  OF 2006




Union of India & Ors.                                      .... Appellant (s)



            Versus



Jujhar Singh                                          .... Respondent(s)





                           J U D G M E N T


P. Sathasivam, J.


1)     This appeal by Union of India is directed against the



final judgment and order dated 04.01.2002 passed by the



High   Court   of   Punjab   and   Haryana   at   Chandigarh   in



L.P.A.   No.   5   of   2002   whereby   the   Division   Bench   of   the



High Court dismissed their appeal in limine.




2)  Brief facts:



(a)    The   respondent   was   enrolled   in   the   Army   on



27.06.1978.     In   the   year   1987,   when   he   was   on   annual



                                                                            1


leave   to   his   native   place,   he   met   with   an   accident   on



26.03.1987   and   sustained   severe   injuries   and   was



admitted   in   the   hospital   from   26.03.1987   to   20.01.1989.



Subsequently,   he   was   admitted   in   Military   Hospital,



Dehradun   and   after   treatment   was   placed   in   medical



category   BEE   (Permanent)   and   percentage   of   disability



was ascertained as 20%.  After he joined the duty, he was



kept   under   observation   by   the   Medical   Board   and   his



disability was assessed as 60% for two years.  The Medical



Board   also   opined   that   the   disability   was   neither



attributable to nor aggravated by the military service.



(b)    The   respondent   was   superannuated   from   service



w.e.f.   01.07.1998   and   he   was   granted   normal   service



pension.   He made a representation before the authorities



claiming   disability   pension   on   the   ground   that   he   was



having   disability   on   the   date   of   retirement.            The



representation was rejected by the authorities.





                                                                       2


(c)    Against   the   rejection   of   disability   pension   claim,   the



respondent   preferred   a   writ   petition   being   C.W.P.   No.



14290   of   1999   before   the   High   Court   of   Punjab   and



Haryana.     Learned   Single   Judge   of   the   High   Court,   by



order   dated   20.07.2001,   allowed   the   writ   petition   by



holding that the respondent herein is entitled for disability



pension under Regulation 179 of the Pension Regulations



for   the   Army,   1961   (hereinafter   referred   to   as   "the



Regulations").



(d)    Challenging   the   said   order,   the   appellants   herein



preferred L.P.A. No. 5 of 2002 before the Division Bench of



the   High   Court.     The   Division   Bench,   by   impugned



judgment   dated   04.01.2002,   dismissed   the   appeal  in



limine.     Aggrieved   by   the   said   judgment,   the   appellants



preferred   this   appeal   by   way   of   special   leave   petition



before this Court.





                                                                         3


3)    Heard Mr. R. Balasubramaniam,  learned counsel for



the   appellant-Union   of   India   and   Mr.   Jujhar   Singh



respondent, who appeared in person.




4)    The   questions   that   arise   for   consideration   in   this



appeal are:



      (a)    Whether the case of the respondent for disability



             is   covered   under   Regulation   179   of   the   Pension



             Regulations for the Army (Part I) 1961?



      (b)    Whether the disability in an accident suffered by



             the   respondent   during   his   annual   leave   while



             doing   his   personal   work   would   amount   to   the



             disability   attributable   to   or   aggravated   by



             military service?  




5)    Discussion:


      We have already narrated the required factual details.



It is seen that when the respondent was on annual leave,



he   met   with   a   road   accident   at   his   native   place   and





                                                                       4


sustained   grievous   injuries   resulting   in   permanent



disability.     It   is   further   seen   that   after   treatment   and



returning from his leave, he continued in military service



and w.e.f. 01.07.1998, the respondent was superannuated



from  service  and  he  was  granted  normal  service  pension.



According   to   the   respondent,   since   on   the   date   of



retirement, he was permanently disabled, he is entitled for



disability   pension   for   which   he   made   a   representation



which was rejected by the authorities.





6)    It   was   contended   by   the   respondent   before   the



learned   Single   Judge   that   at   the   relevant   time   when   he



had   gone   on   leave   he   remained   in   military   service   and



while attending to his normal duties at home he suffered



disability and later superannuated with the said disability,



hence   eligible   for   disability   pension.     The   learned   Single



Judge   arrived   at   a   conclusion   that   the   writ   petitioner-



respondent   herein   is   entitled   to   disability   pension   as



envisaged   under   Regulation   179   of   the   Regulations   since




                                                                       5


he   retired   in   normal   course   and   he   was   not   invalidated



from   military   service   on   account   of   his   disability   but   the



fact is that he was suffering from disability on the date of



retirement   which   is   above   the   degree   of   20%.     He   also



concluded that as per Defence Service Regulations, when



a defence personnel goes on leave, he is counted on duty



unless the leave is determined as unauthorized leave.   In



this   way,   relying   on   Regulation   179,   the   learned   Single



Judge   allowed   the   writ   petition   and   directed   the



authorities   to   process   the   case   of   the   writ   petitioner



(respondent   herein)   for   granting   disability   pension   in



accordance with law.   When this order was challenged by



the   Union   of   India   before   the   Division   Bench   of   the   High



Court,   the   Division   Bench,   by   impugned   order   dated



04.01.2002, dismissed their appeal without assigning any



reason.





                                                                          6


7)      In order to answer the above referred questions, it is



useful to refer Regulation 179 which reads thus:


      "Disability at the time of retirement/discharge

      179.  An individual   retired/discharged  on completion  of

      tenure   or   on   completion   of   service   limits   or   on

      completion of terms of engagement or attaining the age

      of 50 years (irrespective of their period of engagement),

      if   found   suffering   from   a   disability   attributable   to   or

      aggravated   by   military   service   and   recorded   by   Service

      Medical   Authorities,   shall   be   deemed   to   have   been

      invalidated out of service and shall be granted disability

      pension   from   the   date   of   retirement,   if   the   accepted

      degree of disability is less than 20 per cent or more, and

      service element if the degree of disability is less than 20

      per   cent.     The   service   pension/service   gratuity,   if

      already  sanctioned  and   paid,   shall   be   adjusted   against

      the disability pension/service element, as the case may

      be.



      (2)     the   disability   element   referred   to   in   clause   (1)

      above   shall   be   assessed   on   the   accepted   degree   of

      disablement at the time of retirement/discharge on the

      basis   of   the   rank   held   on   the   date   on   which   the

      wound/injury   was   sustained   or   in   the   case   of   disease

      on the date of first removal from duty on account of that

      disease."





8)    It is clear that if a person concerned found suffering



from   disability   attributable   to   or   aggravated   by   military



service, he shall be granted disability pension.   The other



condition is that the disability is to be examined/assessed



by   Service   Medical   Authorities   and   based   upon   their





                                                                                  7


opinion   a   decision   has   to   be   taken   by   the   authority



concerned.   The respondent should satisfy the conditions



specified in the Regulation.   In this case, it is the definite



stand   of   the   authorities   that   disability   has   neither



occurred in the course of employment nor attributable to



or aggravated by military service.  We have already pointed



out   and   it   is   not   in   dispute   that   the   respondent   was   on



annual   leave   when   he   met   with   a   scooter   accident   as   a



pillion   rider   and   sustained   injuries   on   26.03.1987   at   his



native   place.     He   was   not  on   military  duty   at  the   time   of



the accident in terms of Para 12 (d) of Entitlement Rules,



1982   as   clarified   vide   Government   of   India,   Ministry



referred   letter   No.1(1)/81(PEN)C/Vol.II   dated   27.10.1998.



In view of the same, the injuries sustained cannot be held



to be attributable to the military service.





9)    In   this   background,   it   is   useful   to   refer   decision   of



this Court in Regional Director, E.S.I. Corporation and


Another  vs.  Francis   De   Costa   and   Another,   (1996)   6



                                                                           8


SCC 1.   Though this decision arose under the Employees'



State   Insurance   Act,   1948,   we   are   of   the   view   that   since



there   is   a   similar   provision   in   the   Employees'   State



Insurance   Act,   namely,   that   the   accident   should   have   its



origin   in   the   employment   and   the   same   should   have



arisen out of and in the course of employment, the same is



applicable   to   the   case   on   hand.     In   that   case,   the



respondent   employee   while   going   to   his   place   of



employment   (a   factory),   met   with   an   accident   at   a   place



which   was   about   only   one   kilometer   away   from   the



factory.     The   accident   occurred   at   4.15   p.m.   while   his



duty-shift   was   to   commence   at   4.30   p.m.     As   a   result   of



the   accident,   the   respondent's   collar   bone   was   fractured.



The   question   before   this   Court   was   whether   the   said



injury   amounted   to   "employment   injury"   within   the



meaning of Section 2(8) of the Employees' State Insurance



Act,   1948   entitling   the   respondent   to   claim   disablement



benefit.  Answering in the negative, this Court held "a road





                                                                          9


accident   may   happen   anywhere   at   any   time.     But   such



accident cannot be said to have arisen out of employment,



unless   it   can   be   shown   that   the   employee   was   doing



something incidental to his employment."





10)    In  Union   of   India   and   Another  vs.  Baljit   Singh



(1996)   11   SCC   315,   the   respondent   therein   was   enrolled



in   the   Army   as   an   Apprentice   on   30.03.1975   and   was



appointed in the service on regular basis w.e.f. 27.03.1977



in the EME 177 Battalion.  While he was in service he had



sustained   moderately   severe   injury.     On   the   basis   of   the



opinion   of   the   Medical   Board,   he   was   discharged   from



service as an invalidated man on 31.05.1981.   In the writ



petition filed by him, the High Court of Himachal Pradesh



directed   the   authorities   to   pay   him   disability   pension.



This   was   challenged   by   the   Union   of   India   before   this



Court   by   way   of   appeal   by   special   leave.     From   the



materials   placed,   this   Court   concluded   that   it   cannot   be



said that the sustenance of injury  per se  is on account of




                                                                       10


military   service.     The   report   of   the   Medical   Board   of



doctors   shows   that   it   is   not   due   to   military   service.



Finally, it was held by this Court as under:



       "In   each   case,   when   a   disability   pension   is   sought   for   and

       made a claim, it must be affirmatively established, as a fact,

       as   to   whether   the   injury   sustained   was   due   to   military

       service   or  was  aggravated   which  contributed   to  invalidation

       for the military service.   Accordingly, we are of the view that

       the   High   Court   was   not   totally   correct   in   reaching   that

       conclusion".





11)    In  Secretary,   Ministry   of   Defence   and   Others  vs.


A.V.   Damodaran   (dead)   through   LRs.   and   Others,


(2009)   9   SCC   140,   the   opinion   of   the   Medical   Board   and



acceptability   or   otherwise   for   awarding   disability   pension



was   considered.     The  short   question   that   was  considered



in that case was whether the High Court was justified in



ignoring   the   report   of   the   Medical   Board   in   which   it   was



clearly   mentioned   that   disability   of   A.V.   Damodaran   was



neither attributable to nor aggravated by military service.



On   examination,   the   Medical   Board   had   opined   that   the



disability   of   A.V.   Damodaran   was   not   attributable   to   the





                                                                                          11


military service nor has it been aggravated thereby and it



is   not   connected   with   the   service   as   schizophrenia   is   a



constitutional   disease.     The   legal   representatives   of   A.V.



Damodaran   filed   original   writ   petition   before   the   High



Court   praying   for   grant   of   disability   pension.     By   order



dated   20.12.2000,   the   learned   Single   Judge   allowed   the



original   petition   and   declared   that   the   individual   was



eligible   to   get   disability   pension   under   the   provisions



contained   in  the   Pension   Regulations   for  the   Army,  1961



and such other enabling provisions.  The Department filed



a writ appeal before the High Court.   The Division Bench



dismissed   the   said   appeal   finding   no   reason   to   interfere



with the discretion exercised by the learned Single Judge.



After   considering   Regulation   173   which   speaks   about



primary conditions for the grant of disability pension and



various other earlier decisions, this Court concluded that



the   Medical   Board   is   an   expert   body   and   its   opinion   is



entitled   to   be   given   due   weight,   value   and   credence.     In





                                                                         12


that   case,   the   Medical   Board   has   clearly   opined   that   the



disability of late A.V. Damodaran was neither attributable



nor aggravated by military service.  In this way, this Court



concluded   that   the   legal   representatives   of   A.V.



Damodaran   are   not   entitled   to   disability   pension.



However, in the facts and circumstances of that case, this



Court directed that the amounts which have already been



paid   to   the   LRs   of   deceased   A.V.   Damodaran   towards



disability pension may not be recovered from them.





12)    In  Ex. N.K. Dilbag  vs.  Union of India and Others,



2008 (106) Delhi Reported Judgment 865, a Full Bench of



the   Delhi   High   Court   had   an   occasion   to   consider   the



similar issue and eligibility of disability pension by Armed



Forces   Personnel.     After   adverting   to   various   decisions   of



this   Court   as   well   as   of   the   High   Courts,   it   concluded



thus:



       "24.   To   sum   up   our   analysis,   the   foremost   feature,

       consistently highlighted by the Hon'ble Supreme Court,

       is   that   it   requires   to   be   established   that   the   injury   or

       fatality   suffered   by   the   concerned   military   personnel



                                                                                        13


      bears   a   causal   connection   with   military   service.

      Secondly,   if   this   obligation   exists   so   far   as   discharge

      from   the   Armed   Forces   on   the   opinion   of   a   Medical

      Board   the   obligation   and   responsibility  a   fortiori  exists

      so   far   as   injuries   and   fatalities   suffered   during   casual

      leave are concerned.  Thirdly, as a natural corollary it is

      irrelevant   whether   the   concerned   personnel   was   on

      casual or annual leave at the time or at the place when

      and where the incident transpired.  This is so because it

      is   the   causal   connection   which   alone   is   relevant.

      Fourthly,   since   travel   to   and   fro   the   place   of   posting

      may   not   appear   to   everyone   as   an   incident   of   military

      service,   a   specific   provision   has   been   incorporated   in

      the Pension Regulations to bring such travel within the

      entitlement   for   Disability   Pension   if   an   injury   is

      sustained   in   this   duration.     Fifthly,   the   Hon'ble

      Supreme Court has simply given effect to this Rule and

      has not laid down in any  decision  that each and every

      injury   sustained   while   availing   of   casual   leave   would

      entitle   the   victim   to   claim   Disability   Pension.     Sixthly,

      provisions   treating   casual   leave   as   on   duty   would   be

      relevant   for   deciding   questions   pertaining   to   pay   or   to

      the right of the Authorities to curtail or cancel the leave.

      Such   like   provisions   have   been   adverted   to   by   the

      Supreme   Court   only   to   buttress   their   conclusion   that

      travel   to   and   fro   the   place   of   posting   is   an   incident   of

      military   service.     Lastly,   injury   or   death   resulting   from

      an activity not connected with military service would not

      justify and sustain a claim for Disability Pension.   This

      is   so   regardless   of   whether   the   injury   or   death   has

      occurred   at   the   place   of   posting   or   during   working

      hours.  This is because attributability to military service

      is a factor which is required to be established."



In   the   light   of  our   discussion,  we   fully  endorse   the   views



expressed by the Full Bench.





                                                                                         14


13)    Mr. R. Balasubramaniam, learned counsel appearing



for the Union of India has pressed into service the opinion



of the Medical Board which reads as under:



       "1.      Did the disability/ies exist before entering service?



       No.



       2. (a) In respect of each disability the Medical Board on

       the   evidence   before   it   will   express   its   views   as   to

       whether?



       (i)      It is attributable to service during peace or under

       field service condition; or



       (ii)     It has been aggravated thereby and remains so; or



       (iii)    It is not connected with service.

                The Board should state fully the reasons in regard

       to each disability on which its opinion is based.



       Disability                          A             B             C



       1. FRACTURE SHAFT OF                No            No            Yes

       TIBIA FEBULA (Lt) LOWER

       1/3

       2. SUPRA CONDYLAR

       FRACTURE FEMUR (Lt)"




It   is   pointed   out   that   A,   B   and   C   refers   (i),   (ii)   and   (iii)



which is not in dispute.  The above opinion makes it clear



that   the   injury,   particularly,   the   fracture   is   not



attributable to service and it is not connected with service.





                                                                                   15


14)    The proceedings of the Court of Inquiry are as under:



       "Proceedings of a                 Court of Inquiry

       Assembled at                      19 GUARDS (ATGM) C/o 56 APO

       On the day of                     10 Jul 90

       IN the order of                   Commanding   Officer   19   Guards

                                         (ATGM)

       For the purpose of                Enquiring into the circumstances

                                         Under which No. 1367100 H NK

                                         Jujhar   Singh   met   with   an

                                         accident on 26 Mar 87 during his

                                         Annual leave.



                                  (Vide BROS No. 160 dt. 06 May 89)

                                  PRESIDING OFFICER 10-4743

                                  Lt. KK Singh

                                  Members 1. JC-115678A Sub

                                                P.C. Sharma

                                                2. JC-166001 XNb.Sub

                                                Diwani Chand

       The   Court   having   assembled   pursuant   to   order   proceed   to

       examine the witnesses.




       OPINION OF THE COURT

       The opinion of the court is as under:-



       a)    Inquiry   of   severe   nature   sustained   by   No.13677100   H.

       NK Jujhar Singh during his Annual Leave is not attributable

       to the Military Service.



       b)    No.   1367100   H   NK   Jujhar   Singh   is   not   be   blamed   for

       the injury sustained to him during accident.



                           Presiding Officer           Sd xxx

                                                IC47438 F Lt. KK Singh

                           Member                      Sd xx

                                             JC-115678A Sub PC Sharma

                                                       Sd xx

                           JC 16600 I X Nb Sub Diwani Chand."





                                                                                16


15)    The   above   factual   details   and   materials   show   that



first   of   all,   the   respondent   herein   sustained   injuries   in   a



road   accident   at   his   home   town   during   his   annual   leave



which was not attributable to the military service.   It was



strengthened   from   the   opinion   of   the   Medical   Board   that



the injuries were not attributable to the service and it was



also   not   connected   with   the   service.                    In     A.V.


Damodaran's   case  (supra),   this   Court   has   emphasized


the importance of the opinion of the Medical Board which



is   an   expert   body   and   its   opinion   is   entitled   to   be   given



due weight, value and credence.





16)    We   are   of   the   view   that   the   learned   Single   Judge



failed to appreciate that under Regulation 179 a personnel



can   be   granted   disability   pension   only   if   he   is   found



suffering   from   disability   which   is   attributable   to   or



aggravated   by   military   service   and   recorded   by   Service



Medical   Authorities.     In   the   case   on   hand,   medical



authorities   have   recorded   a   specific   finding   to   the   effect




                                                                            17


that disability is neither attributable to nor aggravated by



the   military   service.     This   fact   has   not   been   appreciated



either   by   the   learned   Single   Judge   or   by   the   Division



Bench of the High Court.   The High Court has also failed



to   appreciate   that   the   Medical   Board   is   a   Specialized



Authority composed of expert medical doctors and it is the



final authority to give information regarding attributability



and   aggravation   of   the   disability   to   the   military   service



and the condition of service resulting in the disablement of



the   individual.     These   relevant   facts   have   not   been



considered   by   the   learned   Single   Judge   and   the   Division



Bench of the High Court.  





17)    As   rightly   pointed   by   the   counsel   for   the   Union   of



India, the High Court failed to appreciate that even though



the respondent sustained injuries while he was on annual



leave in 1987, he was kept in service till superannuation



and he was superannuated from service w.e.f. 01.07.1998.



It   is   relevant   to   point   out   that   he   was   also   granted   full




                                                                            18


normal   pension   as   admissible   under   the   Regulations.     In



the   case   on   hand,   inasmuch   as   the   injury   which   had   no



connection with the military service even though suffered



during annual leave cannot be termed as attributable to or



aggravated by military service.   The member of the Armed



Forces who is claiming disability pension must be able to



show   a   normal   nexus   between   the   act,   omission   or



commission   resulting   in   an   injury   to   the   person   and   the



normal   expected   standard   of   duties   and   way   of   life



expected   from   member   of   such   forces.     Inasmuch   as   the



respondent   sustained   disability   when   he   was   on   annual



leave   that   too   at   his   home   town   in   a   road   accident,   the



conclusion of the learned Single Judge that he is entitled



to disability pension under Regulation 179 is not based on



any   material   whatsoever.     Unfortunately,   the   Division



Bench, without assigning any reason, by way of a cryptic



order, confirmed the order of the learned Single Judge.  





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18)    In   view   of   our   discussion,   the   judgments   of   the



learned Single Judge as well as the Division Bench are set



aside.   We make it clear that the respondent is entitled to



"full   normal   pension"   which   he   is   already   getting   as   per



the   Regulations,   but   not   entitled   to   "disability   pension".



The appeal is allowed.  No costs.





                                      ..........................................J.

                                         (P. SATHASIVAM)




                                     ..........................................J.

                                       (A.K. PATNAIK)



NEW DELHI;

July 15, 2011.  





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