REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4981 OF 2012
THE SECRETARY, GOVERNMENT OF INDIA &
ORS. .....APPELLANT(S)
VERSUS
DHARAMBIR SINGH .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1) The challenge in the present appeal is to an order dated March 7,
2011 passed by the Armed Forces Tribunal, Chandigarh, Regional
Bench at Chandimandir1
, 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,
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 1/3rd Femur (LT). A Court of Inquiry2
was conducted to
investigate into the circumstances under which the respondent
1 for short, ‘Tribunal’
2 for short, ‘COI’
1
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 the accident? (If so,
indicate how and to what
extent).
No one is to be blamed. In fact, he
lost control of his 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 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, 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.
4) Learned counsel for the appellants argued that though the
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
3 (1999) 6 SCC 459
2
scooter to purchase electrical goods for his sister when he lost
control while saving a cyclist, 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, ExNaik
5
. This Court in Vijay Kumar examined the admissibility of
disability pension, when personnel of Armed Forces are on leave.
The 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 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 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 judgments of the Tribunal as also
Full Bench judgment of Punjab & Haryana High Court in Union of
4 Decided on July 03, 2019 in Civil Appeal arising out of Diary No.37356 of 2017 & Anr.
5 (2015) 10 SCC 460
3
India & Ors. v. Khushbash Singh
6
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 caused by an activity which
is not an “unmilitary activity” has to be 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 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 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
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
(b) is engaged in military operations in, or is on the line
of march to, a country or place wholly or partly
6 2010 (3) SLR 103
7 2014 SCC OnLine P&H 10564
8 for short, ‘Act’
4
occupied by an enemy, or
(c) is attached to or forms part of a force which is in
military occupation of a foreign country.”
“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 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.”
“Notification dated 29.11.1962
S.R.O. 6.E - New Delhi, the 28th November 1962
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 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)
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.
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.
5
Rule 11 (a) - Annual leave, for the year may at the
discretion of 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.
(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).”
“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 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.”
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: -
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
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 invalid gratuity as the
case may be.
6
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 continued exposure to
hostile work environments subject to extreme weather
conditions or occupational hazards resulting in death or
disability would be examples.
Category C
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
(iii) Mishaps at sea while on duty.
(iv) Electrocution while on duty etc.
(v) Accidents during participation in organised sports
events/adventure activities/expeditions or training.
Explanation:
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.
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 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 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
(ii) Action during deployment with a peace keeping
7
mission abroad
(iii) Border skirmishes
(iv) During laying or clearance of mines including
enemy mines as also mine sweeping operations.
(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.
(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
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.
(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 time.
Explanation :
Death or injury sustained in the circumstances falling
under Category E entitles liberalised family pension or
war-injury pension 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 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 the Pension Regulations for the Army, 1961,
8
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.”
8) The Entitlement Rules for Casualty Pensionary Awards, 19829
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:
“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.
(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 prescribed or
organized route.
NOTE: 1
(a) xxx xxx
(b) xxx xxx
(c) xxx xxx
9 1982 Rules
9
NOTE: 2
xxx xxx
(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 government transport or
when road mileage is paid/payable for the
journey.
(e) XXX XXX
(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 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.”
“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 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 attributability is
conceded, the question of grant of disability
pension at full or at reduced rate will be
considered.”
xx xx xx
10
“17. Medical Opinion: At initial claim stage, medical
views on entitlement and assessment are given by the
IMB/RMB. Normally, 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 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, aggravation by service is to be
accepted unless any worsening in 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:
“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 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 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.
xxx xxx xxx
d) The question, whether a disability or death is
attributable to or aggravated by service or not, will
11
be decided as regards its medical aspects by a
Medical Board or by the medical officer 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 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:
(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 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
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 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 either attributable to or aggravated by
military service?
12
(iii) What is the effect and purpose of COI into an injury
suffered by armed forces personnel?
Answer to Question No.1
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. 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 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
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.
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
13
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 (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 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.
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 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
14
Regulation 423 of the Medical Regulations, 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 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:
“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, 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 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.
15
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.
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 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
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 was to blame 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
16
the COI proceedings.
20) In view of Regulation 423 clauses (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 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.
Answer to Question No.3
21) Before we answer Question No.3, para 520 of the Defence 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 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.
(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
Headquarters, Org Dte in the case of non-medical
17
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
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 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.
(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.
(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.
(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
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
18
except those of JCOs, 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 the
primary medical examination report (AFMSF-2A) by the
CO that 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 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 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 and other physical
recreations as defined in para 271.
In all cases where a court of enquiry is not held, IAFY2006 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.
(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 or the officer who has
19
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.”
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 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 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 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,
20
it cannot be said that there is any causal connection between the
injury and the military service. Though, the attributability
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 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. 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 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
21
learned counsel for the parties.
25) The judgments in Madan Singh Shekhawat, Pension
Sanctioning Authority, PCDA(P), Allahabad & Ors. v. M.L.
George, Ex. SGT
10
, Nand Kishore Mishra v. Union of India &
Ors.
11
and Union of India & Anr. v. Surendra Pandey
12
, 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 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’. 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 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
10 (2015) 15 SCC 319
11 JT 2013 (10) SC 466
12 (2015) 13 SCC 625
22
that any activity which is unmilitary activity.
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.
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 military service, was not examined except
referring to Full Bench 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 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
13 2004 (3) SLR 500
23
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 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,
Kollegal
14
, 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 that the appellant was not entitled to disability pension.
31) The judgments in Union of India & Ors. v. Keshar Singh
16
,
Union of India & Anr. v. Baljit Singh
17
, Union of India & Ors. v.
Dhir Singh China, Colonel (Retd.)
18
and Controller of
Defence Accounts (Pension) & Ors. v. S. Balachandran Nair
19
are the cases 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
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
24
injuries.
32) In Secretary, Ministry of Defence & Ors. v. Ajit Singh
20
, the
personnel had suffered disability on account of electric shock in his
house, when on leave. It was held that such disability is not
attributable 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 in the army referring to judgment of this Court in Union
of India & Ors. v. Jujhar Singh
22
.
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 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 accident. The principles laid down are in tune with
the judgments where the causal connection of the injury with the
20 (2009) 7 SCC 328
21 (2012) 12 SCC 228
22 (2011) 7 SCC 735
25
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
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 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'.
(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
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.
(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.
(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
23 T.A. No. 61 of 2010 decided on November 2, 2010 by the Tribunal
26
casual connection with 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 un-connected acts or
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 an entirely
private act cannot be treated as legitimate 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 connection and nexus to the nature
of the force. At least remote attributability to service would
be the condition precedent 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 conditions in India, unless such risk is enhanced in
kind or degree 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 respondent is dismissed.
.............................................J.
(L. NAGESWARA RAO)
27
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
SEPTEMBER 20, 2019.
28
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4981 OF 2012
THE SECRETARY, GOVERNMENT OF INDIA &
ORS. .....APPELLANT(S)
VERSUS
DHARAMBIR SINGH .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1) The challenge in the present appeal is to an order dated March 7,
2011 passed by the Armed Forces Tribunal, Chandigarh, Regional
Bench at Chandimandir1
, 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,
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 1/3rd Femur (LT). A Court of Inquiry2
was conducted to
investigate into the circumstances under which the respondent
1 for short, ‘Tribunal’
2 for short, ‘COI’
1
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 the accident? (If so,
indicate how and to what
extent).
No one is to be blamed. In fact, he
lost control of his 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 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, 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.
4) Learned counsel for the appellants argued that though the
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
3 (1999) 6 SCC 459
2
scooter to purchase electrical goods for his sister when he lost
control while saving a cyclist, 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, ExNaik
5
. This Court in Vijay Kumar examined the admissibility of
disability pension, when personnel of Armed Forces are on leave.
The 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 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 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 judgments of the Tribunal as also
Full Bench judgment of Punjab & Haryana High Court in Union of
4 Decided on July 03, 2019 in Civil Appeal arising out of Diary No.37356 of 2017 & Anr.
5 (2015) 10 SCC 460
3
India & Ors. v. Khushbash Singh
6
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 caused by an activity which
is not an “unmilitary activity” has to be 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 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 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
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
(b) is engaged in military operations in, or is on the line
of march to, a country or place wholly or partly
6 2010 (3) SLR 103
7 2014 SCC OnLine P&H 10564
8 for short, ‘Act’
4
occupied by an enemy, or
(c) is attached to or forms part of a force which is in
military occupation of a foreign country.”
“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 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.”
“Notification dated 29.11.1962
S.R.O. 6.E - New Delhi, the 28th November 1962
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 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)
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.
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.
5
Rule 11 (a) - Annual leave, for the year may at the
discretion of 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.
(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).”
“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 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.”
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: -
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
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 invalid gratuity as the
case may be.
6
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 continued exposure to
hostile work environments subject to extreme weather
conditions or occupational hazards resulting in death or
disability would be examples.
Category C
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
(iii) Mishaps at sea while on duty.
(iv) Electrocution while on duty etc.
(v) Accidents during participation in organised sports
events/adventure activities/expeditions or training.
Explanation:
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.
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 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 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
(ii) Action during deployment with a peace keeping
7
mission abroad
(iii) Border skirmishes
(iv) During laying or clearance of mines including
enemy mines as also mine sweeping operations.
(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.
(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
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.
(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 time.
Explanation :
Death or injury sustained in the circumstances falling
under Category E entitles liberalised family pension or
war-injury pension 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 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 the Pension Regulations for the Army, 1961,
8
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.”
8) The Entitlement Rules for Casualty Pensionary Awards, 19829
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:
“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.
(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 prescribed or
organized route.
NOTE: 1
(a) xxx xxx
(b) xxx xxx
(c) xxx xxx
9 1982 Rules
9
NOTE: 2
xxx xxx
(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 government transport or
when road mileage is paid/payable for the
journey.
(e) XXX XXX
(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 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.”
“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 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 attributability is
conceded, the question of grant of disability
pension at full or at reduced rate will be
considered.”
xx xx xx
10
“17. Medical Opinion: At initial claim stage, medical
views on entitlement and assessment are given by the
IMB/RMB. Normally, 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 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, aggravation by service is to be
accepted unless any worsening in 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:
“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 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 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.
xxx xxx xxx
d) The question, whether a disability or death is
attributable to or aggravated by service or not, will
11
be decided as regards its medical aspects by a
Medical Board or by the medical officer 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 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:
(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 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
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 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 either attributable to or aggravated by
military service?
12
(iii) What is the effect and purpose of COI into an injury
suffered by armed forces personnel?
Answer to Question No.1
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. 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 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
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.
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
13
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 (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 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.
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 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
14
Regulation 423 of the Medical Regulations, 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 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:
“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, 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 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.
15
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.
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 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
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 was to blame 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
16
the COI proceedings.
20) In view of Regulation 423 clauses (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 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.
Answer to Question No.3
21) Before we answer Question No.3, para 520 of the Defence 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 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.
(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
Headquarters, Org Dte in the case of non-medical
17
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
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 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.
(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.
(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.
(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
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
18
except those of JCOs, 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 the
primary medical examination report (AFMSF-2A) by the
CO that 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 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 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 and other physical
recreations as defined in para 271.
In all cases where a court of enquiry is not held, IAFY2006 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.
(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 or the officer who has
19
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.”
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 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 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 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,
20
it cannot be said that there is any causal connection between the
injury and the military service. Though, the attributability
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 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. 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 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
21
learned counsel for the parties.
25) The judgments in Madan Singh Shekhawat, Pension
Sanctioning Authority, PCDA(P), Allahabad & Ors. v. M.L.
George, Ex. SGT
10
, Nand Kishore Mishra v. Union of India &
Ors.
11
and Union of India & Anr. v. Surendra Pandey
12
, 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 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’. 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 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
10 (2015) 15 SCC 319
11 JT 2013 (10) SC 466
12 (2015) 13 SCC 625
22
that any activity which is unmilitary activity.
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.
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 military service, was not examined except
referring to Full Bench 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 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
13 2004 (3) SLR 500
23
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 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,
Kollegal
14
, 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 that the appellant was not entitled to disability pension.
31) The judgments in Union of India & Ors. v. Keshar Singh
16
,
Union of India & Anr. v. Baljit Singh
17
, Union of India & Ors. v.
Dhir Singh China, Colonel (Retd.)
18
and Controller of
Defence Accounts (Pension) & Ors. v. S. Balachandran Nair
19
are the cases 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
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
24
injuries.
32) In Secretary, Ministry of Defence & Ors. v. Ajit Singh
20
, the
personnel had suffered disability on account of electric shock in his
house, when on leave. It was held that such disability is not
attributable 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 in the army referring to judgment of this Court in Union
of India & Ors. v. Jujhar Singh
22
.
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 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 accident. The principles laid down are in tune with
the judgments where the causal connection of the injury with the
20 (2009) 7 SCC 328
21 (2012) 12 SCC 228
22 (2011) 7 SCC 735
25
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
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 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'.
(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
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.
(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.
(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
23 T.A. No. 61 of 2010 decided on November 2, 2010 by the Tribunal
26
casual connection with 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 un-connected acts or
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 an entirely
private act cannot be treated as legitimate 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 connection and nexus to the nature
of the force. At least remote attributability to service would
be the condition precedent 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 conditions in India, unless such risk is enhanced in
kind or degree 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 respondent is dismissed.
.............................................J.
(L. NAGESWARA RAO)
27
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
SEPTEMBER 20, 2019.
28
