to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'= whether the complainant had furnished a hand loan of Rs.15 lakhs to the accused as stated in the complaint or whether the complainant had paid Rs.20 lakhs as mentioned in the legal notice dated 10 August 2004 or whether he had paid an amount of Rs.5 lakhs as suggested during the course of cross-examination was a matter of serious doubt. If the complainant had paid Rs.15 lakhs to the accused, the suggestion during the course of cross-examination of having paid an amount of Rs.5 lakhs casts serious doubt on the existence of a debt in the first place. complainant failed to establish the source of funds which he is alleged to have utilized for the disbursal of the loan of Rs.15 lakhs to the appellant. During the course of his cross-examination the complainant deposed that earlier, the appellant had furnished two cheques, one of ICICI Bank for Rs.5 lakhs and another of Canara Bank for Rs.10 lakhs which he had presented. The complainant admitted that he had not mentioned anything about the accused having issued these two cheques in his complaint. Nothing was stated by the complainant in regard to the fate of the earlier two cheques which were allegedly issued by the appellant. The non-disclosure of the facts pertaining to the earlier two cheques, and the steps, if any, taken for recovery was again a material consideration which indicated that there was a doubt in regard to the transaction. On a totality of the facts and circumstances and based on the evidence on the record, the first appellate court held that the presumption under Section 139 of the Act stood rebutted and that the defence stood probabalised. we are of the view that having regard to the law laid down by the three Judge Bench in Rangappa (supra) the appellant duly rebutted the presumption under Section 139 of the Act. His defence that there was an absence of a legally enforceable debt was rendered probable on the basis of the material on record. Consequently, the order of acquittal passed by the first appellate court was justified.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).95-96 OF 2019
(Arising   out   of   Special   Leave   Petition(Crl.)     No(s).
3737-3738 of 2016)
ANSS RAJASHEKAR                            APPELLANT(s)
                                VERSUS
AUGUSTUS JEBA ANANTH                       RESPONDENT(s)
J U D G M E N T 

DR.DHANANJAYA Y. CHANDRACHUD,J.
Leave granted.
These  appeals   arise  from   the  judgment   and  order   of  a
learned Single Judge of the High Court of Karnataka dated
14   November   2014,   reversing   the   judgment   of   the   Lower
Appellate   Court   acquitting   the   appellant   of   an   offence
under Section 138 of the Negotiable Instruments Act, 1881
('the Act').
The   case   of   the   respondent-complainant   is   that   on   09
March   2005,   the   appellant   issued   a   cheque   in   the   sum   of
Rs.5   lakhs   in   his   favour,   towards   discharge   of   a
liability of Rs.15 lakhs, in repayment of an amount which

2
was   borrowed   in   the   month   of   February,   2004.     According
to   the   complainant,   the   amount   was   repayable   within   six
months.   When   the   complainant   presented   the   cheque   on   23
March 2005, it was returned by the bank for insufficiency
of   funds.   The   complainant   presented   the   cheque   again   for
realisation on 14 July, 2005 but it was returned with the
same   result.   A   notice   of   demand   was   issued   by   the
complainant   on   10   August,   2005.   In   response,   the
appellant-accused   denied   that   there   was   a   legally
enforceable   debt.   In   his   reply,   the   appellant   stated
thus:
"4. My   client   and   his   wife   and   your
client   and   his   wife   had   purchased   separate
house   sites   in   Survey   No.   96/3   at
Hoaramvuagrahara   Village,   Krishnarajapuram
Hobli,   Bangalore   on   31.01.2001.     All   these
sites   situate   adjacent   to   each   other.   Your
client   enticed   my   client   and   my   client�s
wife to give power in his favour so that he
could   pursue   the   matter   of   getting   housing
loan   from   financial   institutions   at
Bangalore.   However   your   client   prepared   the
power   deed   incorporating   the   clauses   for
sale also.   When my client questioned about
the   inclusion   of   clauses   for   sale,   your
client had stated that it had inadvertently
typed and the purpose of power deed is only
for   obtaining   loan   and   so   it   need   not   be
registered.
5. Besides   this   power   deed   your   client
also   obtained   from   my   client   the   original

3
document   being   Document   No.   10470/2001   and
Khatha, Tax Receipts, Approved plan and also
4   blank   cheques   of   U.T.I.   Bank   Ltd,
Tuticorin   including   the   cheque   mentioned   in
your notice and Vysya Bank, Bangalore Cheque
Book containing 10 leaves.
6. Your   client   obtained   these   cheques
stating that the financial institutions will
insist   for   the   cheque   leaves   when   the   loan
is   sanctioned   as   to   use   these   cheques   for
monthly   repayment   of   loan   amount.   Your
client   has   now   misused   the   one   such   cheque
as   if   it   was   issued   by   my   client   on
09.03.2005.   Subsequently   my   client   and   his
wife   canceled   the   power   deed   and   also
requested your client to return the cheques
and documents. However, your client is very
particular   to   grab   house   sites   along   with
half   way   constructed   building   for   him   and
his father. An attempt was also made earlier
in   this   regard.   Your   client's   father
colluding   with   your   client   sent   a   notice
dated   09.05.05   containing   false   allegations
to   my   client   to   execute   the   sale   deed   of
said   house   site   situate   at   the   above
mentioned   survey   number   in   favour   of   him.
Since the attempt frizzled out, now the son,
your   client   is   trying   in   a   different   way,
illegally   using   the   mentioned   cheque   to
harass my client to part with the said house
site."
As   the   above   reply   indicates,   the   defence   of   the
appellant   was   that   the   appellant   and   his   wife   and   the
complainant   and   his   wife   had   purchased   adjacent   house
sites.   The   complainant   was   alleged   to   have   persuaded   the
appellant   to   execute   a   power   of   attorney   in   his   favour

4
for   the   purpose   of   obtaining   a   housing   loan   from   the
financial   institutions   in   Bangalore.     According   to   the
appellant   as   many   as   four   blank   cheques   of   U.T.I   Bank
Ltd.   and   a   Vysya   Bank   cheque   Book   containing   ten   leaves
were obtained by the complainant from the appellant.   One
of the cheques which were handed over by the appellant to
the   respondent-complainant   was   alleged   to   have   been
misused.
The   complainant   lodged   a   complaint   before   the
Additional   Chief   Metropolitan   Magistrate   at   Bangalore
being   CC   No.   26999   of   2006   under   Section   138   of   the   Act
on 9 September 2005.
The   Trial   court   by   a   judgment   dated   31   January   2009
acquitted   the   appellant.   The   complainant   -   respondent
filed   Criminal   Appeal   No.   285   of   2009   before   the   High
Court.   By   its   judgment   dated   29   October   2010   the   High
Court   allowed   the   appeal   and   remitted   the   matter   to   the
Trial   court,   having   regard   to   the   judgment   of   this   Court
in   � Rangappa   Versus   Sri   Mohan � 1
.     On   remand,   the   Trial
court   by   a   judgment   dated   5   March   2011   convicted   the
appellant   and   sentenced   him   to   undergo   imprisonment   of
one year and to pay a fine of Rs.7 lakhs out of which an
1  ( 2010) 11 SCC 441

5
amount   of   Rs.6.75   lakhs   was   directed   to   be   paid   to   the
respondent   by   way   of   compensation.   The   appellant
instituted   Criminal   Appeal   No.   245   of   2011   before   the
Additional   Sessions   Jude,   Bangalore.   By   a   judgment   dated
05   March,   2012,   the   First   Appellate   Court   reversed   the
conviction   and   sentence   recorded   by   the   Trial   court.   The
respondent   thereupon   filed   a   Criminal   Appeal   before   the
High   Court,   being   Criminal   Appeal   No.   861   of   2012.     The
High   Court   reversed   the   judgment   of   acquittal,   recording
that   while   the   notice   of   the   appeal   was   served   upon   the
appellant,   he   had   remained   absent.   While   recording   the
conviction   under   Section   138   of   the   Act,   the   High   Court
modified   the   sentence   to   the   effect   that   the   appellant
shall   pay   a   fine   of   Rs.5   lakhs   which   would   be   paid   as
compensation   to   the   respondent   and,   in   default,   he   shall
suffer   imprisonment   for   a   period   of   three   months.     The
conviction recorded by the Trial court was maintained but
the amount of fine was reduced, as noted above.
On   29   April   2016,   notice   was   issued   on   the   question
of   limitation,  there   being  a   delay  of   410  days   in  filing
the   special   leave   petition   as   well   as   on   the   petition.
Having   considered   the   cause   shown   by   the   appellant   for

6
condoning the delay we deem it appropriate to condone the
delay.   We do not find from the record of this case that
there   was   any   deliberate   act   of   neglect   on   the   part   of
the appellant in pursuing his remedies.
Assailing   the   judgment   of   the   High   Court,   learned
counsel   appearing   on   behalf   of   the   appellant   has
addressed   the   submissions   on   two   aspects.   First,   it   is
submitted   that   there   is   an   absence   of   a   legally
enforceable   debt.   Hence,   it   is   urged   that   the   conviction
which   has   been   recorded   by   the   High   Court   is
unsustainable.   Secondly,   it   is   urged   that   the   appellant
discharged   the   burden   which   is   cast   by   the   provisions   of
Section   139   and   established   a   defence   on   a   preponderance
of   probabilities   as   required   by   the   judgment   of   this
Court   in   Rangappa   (supra).   The   learned   counsel   has
extensively   relied   upon   the   judgment   of   acquittal   by   the
Additional   Sessions   Judge   dated   5   March,   2012,   adopting
the   appreciation   of   evidence   in   that   judgment   as   the
submissions   of   the   appellant   in   support   of   the   present
appeal.   Learned   counsel   submitted   that   the   High   Court
should   have   been   circumspect   in   overturning   the   judgment
of   acquittal.   No   reasons   have   been   disclosed   in   the

7
impugned   judgment   upon   assessment   of   evidence,   much   less
reasons   for   coming   to   the   conclusion   that   the   acquittal
by the first appellate court was either perverse or would
lead to a miscarriage of justice.
On   the   other   hand,   learned   counsel   appearing   on
behalf   of   the   complainant-respondent   has   submitted,
placing   reliance   on   the   judgment   in   Rangappa   (supra),
that   the   appellant   failed   to   discharge   the   burden   which
cast   upon   him   and   that   the   presumption   under   Section   139
of   the   Act   applies   to   the   facts   of   the   present   case.
Adverting   to  the   material  on   the  record   it  is   urged  that
the   fact   that   the   cheque   was   signed   by   the   accused   and
was   drawn   on   the   bank   where   he   has   an   account   is   not   in
dispute.   It   is   urged   that   the   defence   was   correctly
appreciated   by   the   Trial   court   while   recording   a
conviction   under   Section   138   and   the   High   Court   in
restoring that conviction has not fallen into error. 
Section   139   of   the   Act   mandates   that   it   shall   be
presumed,   unless   the   contrary   is   proved,   that   the   holder
of   a   cheque   received   it,   in   discharge,   in   whole   or   in
part, of a debt, or liability. The expression "unless the
contrary   is   proved"   indicates   that   the   presumption   under

8
Section   139  of   the  Act   is  rebuttable.   Terming  this   as  an
example   of   a   �reverse   onus   clause�   the   three   Judge   Bench
of   this   Court   in   Rangappa   (supra)   held   that   in
determining   whether   the   presumption   has   been   rebutted,
the test of proportionality must guide the determination.
The   standard   of   proof   for   rebuttal   of   the   presumption
under Section 139 of the Act is guided by a preponderance
of probabilities.  This Court held thus:
�28 In   the   absence   of   compelling
justifications,   reverse   onus   clauses
usually   impose   an   evidentiary   burden   and
not   a   persuasive   burden.   Keeping   this   in
view,  it is a settled position that when an
accused   has   to   rebut   the   presumption   under
Section   139,   the   standard   of   proof   for
doing   so   is   that   of   `preponderance   of
probabilities'.   Therefore,   if   the   accused
is   able   to   raise   a   probable   defence   which
creates   doubts   about   the   existence   of   a
legally   enforceable   debt   or   liability,   the
prosecution   can   fail .   As   clarified   in   the
citations,   the   accused   can   rely   on   the
materials   submitted   by   the   complainant   in
order   to   raise   such   a   defence   and   it   is
conceivable   that   in   some   cases   the   accused
may   not   need   to   adduce   evidence   of   his/her
own.� (emphasis supplied)
In  the   present  case,   it  is   necessary  now   to  consider
whether the presumption under Section 139 stands rebutted
by the accused-appellant. The defence of the appellant is

9
that he has not borrowed the amount of Rs. 15 lakhs from
the   complainant   as   alleged   nor   had   he   issued   the   cheque
(Exhibit P-1) in discharge of a legally enforceable debt.
Specifically,   the   defence   of   the   accused   is   that   no
payment   was   made   by   the   complainant   to   him,   in   discharge
of   which   the   cheques   have   been   issued.   His   defence   was
that   the   cheque   was   issued   to   the   complainant   on   an
assurance   of   a   loan   which   would   be   obtained   from   a
financial   institution.   This,   as   we   have   noted,   was   also
the   defence   in   reply   to   the   notice   of   demand   issued   by
the complainant.
It   is   in   this   background,   it   would   be   necessary   to
advert to the material which was relied upon by the first
appellate   court   to   acquit   the   accused-appellant.   During
the course of his cross-examination, PW-1 admitted that a
General   Power   of   Attorney   was   executed   by   the   appellant
in   his   favour.   Admittedly   the   appellant   and   the
respondent   are   related   and   there   was   some   civil
litigation   between   the   father   of   the   complainant   and   the
appellant.   The   complainant   admitted   that,   as   a   matter   of
fact,   he   himself   received   an   amount   of   Rs.10   lakhs   from
the appellant under a loan transaction but stated that he

10
had repaid that amount to the appellant. PW-1 stated that
the appellant had requested him for a loan of Rs.15 lakhs
in February 2004. The defence of the appellant being that
no   amount   was   actually   paid   by   the   complainant   to   him,
the evidence of PW-1 in regard to the payment of the loan
assumes   significance.   According   to   PW-1,   the   loan   of
Rs.15   lakhs   was   paid   into   the   hands   of   a   representative
of   the   appellant   at   his   request.   The   appellant   failed   to
indicate   even   the   name   of   the   representative   to   whom   the
alleged amount of Rs.15 lakhs is stated to have been paid
over   in   cash.     The   entire   amount,   significantly,   is
alleged   to   have   been   paid   over   without   obtaining   a
receipt or document evidencing the payment of the amount.
In   the   notice   of   demand   that   was   issued   by   the
complainant   to   the   appellant   after   the   cheque   had   been
returned   for   want   of   funds,   the   complainant   stated   that
the   appellant   had   sought   a   'financial   accommodation'   of
Rs.15   Lakhs   and   paid   a   sum   of   Rs.20,000   (corrected
thereafter   in   a   corrigendum).   The   first   appellate   court
noted in the course of its judgment that while conducting
the cross-examination of the accused, the complainant had
stated   that   the   accused   had   demanded   a   loan   of   Rs.15
lakhs,   but  at   that  time   the  complainant   had  only   paid  an

11
amount   of   Rs.5   Lakhs   as   a   loan   for   which   the   accused
issued   Exhibit   P1.   This   suggestion   was   specifically
denied   by   the   accused.   In   this   context,   the   first
appellate court observed that whether the complainant had
furnished   a   hand   loan   of   Rs.15   lakhs   to   the   accused   as
stated   in   the   complaint   or   whether   the   complainant   had
paid   Rs.20   lakhs   as   mentioned   in   the   legal   notice   dated
10   August   2004   or   whether   he   had   paid   an   amount   of   Rs.5
lakhs as suggested during the course of cross-examination
was   a   matter   of   serious   doubt.   If   the   complainant   had
paid   Rs.15   lakhs   to   the   accused,   the   suggestion   during
the   course   of   cross-examination   of   having   paid   an   amount
of   Rs.5   lakhs   casts   serious   doubt   on   the   existence   of   a
debt in the first place. 
Besides   what   has   been   set   out   above,   an   important
facet   in   the   matter   was   that   the   complainant   failed   to
establish the source of funds which he is alleged to have
utilized   for  the   disbursal  of   the  loan   of  Rs.15   lakhs  to
the appellant. During the course of his cross-examination
the   complainant   deposed   that   earlier,   the   appellant   had
furnished   two   cheques,   one   of   ICICI   Bank   for   Rs.5   lakhs
and   another   of   Canara   Bank   for   Rs.10   lakhs   which   he   had

12
presented.   The   complainant   admitted   that   he   had   not
mentioned   anything   about   the   accused   having   issued   these
two   cheques   in   his   complaint.   Nothing   was   stated   by   the
complainant   in   regard   to   the   fate   of   the   earlier   two
cheques which were allegedly issued by the appellant. The
non-disclosure of the facts pertaining to the earlier two
cheques,   and   the   steps,   if   any,   taken   for   recovery   was
again a material consideration which indicated that there
was a doubt in regard to the transaction.  
On   a   totality   of   the   facts   and   circumstances   and
based   on   the   evidence   on   the   record,   the   first   appellate
court   held   that   the   presumption   under   Section   139   of   the
Act   stood   rebutted   and   that   the   defence   stood
probabalised.   From   the   judgment   of   the   High   Court,   the
significant   aspect   of   the   case   which   stands   out   is   that
there   has  been   no   appreciation  of   the  evidence   or  even   a
reference to the reasons furnished by the first appellate
court.   The   High   Court   adverted   to   the   judgment   of   this
Court   in   Rangappa   (supra).   Having   adverted   to   that
decision,   the   High   Court   reversed   the   order   of   acquittal
by   holding   that   a   mere   denial   of   the   transactions   or   an
omnibus   denial   of   the   entire   transaction   could   not   be

13
considered as a tenable defence. The judgment of the High
Court   is   unsatisfactory   and   does   not   contain   any
reference   to   the   evidence   whatsoever.   There   was
absolutely   no   valid   basis   to   displace   the   findings   of
fact   which   were   arrived   at   by   the   first   appellate   court,
while acquitting the accused.
For   the   reasons   indicated   above,   we   are   of   the   view
that   having   regard   to   the   law   laid   down   by   the   three
Judge   Bench   in   Rangappa   (supra)   the   appellant   duly
rebutted   the   presumption   under   Section   139   of   the   Act.
His   defence   that   there   was   an   absence   of   a   legally
enforceable   debt   was   rendered   probable   on   the   basis   of
the   material   on   record.   Consequently,   the   order   of
acquittal   passed   by   the   first   appellate   court   was
justified. 
In   the   circumstances,   we   allow   these   appeals   and   set
aside   the   impugned   judgment   of   the   High   Court   convicting
the   appellant   under   Section   138   of   the   Act.   We,
accordingly, restore the order of acquittal passed by the
first appellate court.

14
 .... ..........................J.
  [DR.DHANANJAYA Y. CHANDRACHUD]
.... ........................J.
  [M.R. SHAH]
NEW DELHI;
JANUARY 18, 2019.

15
ITEM NO.39         COURT NO.11               SECTION II-C
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS
Petition(s)   for   Special   Leave   to   Appeal   (Crl.)     No(s).
3737-3738/2016
(Arising   out   of   impugned   final   judgment   and   order   dated
14-11-2014   in   CRLAP   No.   861/2012   21-01-2016   in   IA   No.
1/2015   21-01-2016   in   CRLAP   No.   861/2012   passed   by   the
High Court Of Karnataka At Bengaluru)
ANSS RAJASHEKAR                     Petitioner(s)
                                VERSUS
AUGUSTUS JEBA ANANTH              Respondent(s)

Date : 18-01-2019 These petitions were called on for
hearing today.
CORAM :  HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
         HON'BLE MR. JUSTICE M.R. SHAH
For Petitioner(s)   Mr. Jay Kishor Singh, AOR
                 
For Respondent(s) Mr. Abhay Kumar, AOR
Mr. Saurabh Mishra, Adv.
Mr. Vineet Kumar Singh, Adv.
Mr. Himanshu Pal Singh, Adv.
                   
          UPON hearing the counsel the Court made the
following
                             O R D E R
Leave granted.
(ASHWANI THAKUR)                      (SAROJ KUMARI GAUR)

16
COURT MASTER (SH)                       BRANCH OFFICER

17
ITEM NO.39         COURT NO.11               SECTION II-C
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS
Petition(s)   for   Special   Leave   to   Appeal   (Crl.)     No(s).
3737-3738/2016
(Arising out of impugned final judgment and order dated  14-11-2014
in   CRLAP   No.   861/2012   21-01-2016   in   IA   No.   1/2015   21-01-2016   in
CRLAP   No.   861/2012   passed   by   the   High   Court   Of   Karnataka   At
Bengaluru)
ANSS RAJASHEKAR                      Petitioner(s)
                                VERSUS
AUGUSTUS JEBA ANANTH               Respondent(s)
Date : 18-01-2019 These petitions were called on for hearing today.
CORAM :  HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
         HON'BLE MR. JUSTICE M.R. SHAH
For Petitioner(s)   Mr. Jay Kishor Singh, AOR
For Respondent(s) Mr. Abhay Kumar, AOR
Mr. Saurabh Mishra, Adv.
Mr. Vineet Kumar Singh, Adv.
Mr. Himanshu Pal Singh, Adv.
                   
          UPON hearing the counsel the Court made the following
                             O R D E R
Leave granted.
The appeals are allowed in terms of the signed reportable
judgment.
Pending   applicat ion(s),   if   any,   stands   disposed   of
accordingly.
(ASHWANI THAKUR)                      (SAROJ KUMARI GAUR)
COURT MASTER (SH)                       BRANCH OFFICER
(Signed reportable judgment is placed on the file) 

Basing on mere red mark entries no person be order to discharge from service when particularly he was going to get pensionable service under under Rule 13(3)(III)(v) of the Army Rules, We have gone through the four red ink entries and the nature of allegations and the charge on the basis of which four read entries were awarded to the appellant. It appears that, out of four red ink entries, two entries pertain to 3.3.1994 and one entry pertains to 3.5.1994. Out of the aforesaid, with respect to one of the red ink entries, the allegation was that the appellant refused to take food when he was ordered. Considering the nature of offences for which the red ink entries were made, we are of the opinion that on the basis of such red ink entries, the appellant could not have been discharged from service and that 7 too after rendering 13 years of service and when he was about to complete the pensionable service. From the impugned judgment and order, it appears that the appellant has been discharged from service mechanically and solely on the basis of award of four red ink entries. we find that there is nothing on record to suggest that the authority concerned has taken into consideration the long service rendered by the appellant. There is nothing on record to suggest that the nature of the mis­conduct leading to the award of red ink entries was so unacceptable that the competent authority had no option but to direct his discharge to prevent indiscipline in the force. Even considering the offences for which the red ink entries were awarded, it cannot be said that the mis­conduct and/or offences are such which would justify the discharge of the appellant. The offences for which the red ink entries are awarded, cannot be said to be such gross mis­conduct which would make the appellant indiscipline and liable to be discharged from service and that too, after a period of long service rendered by him.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 7452­7453 OF 2019
[Diary No. 40813 of 2015]
Narain Singh .. Appellant
Versus
Union of India & Ors. .. Respondents
J U D G M E N T
M. R. SHAH, J.
1. Leave to appeal is granted.
2. Feeling   aggrieved   and   dissatisfied   with   the   impugned
judgment and order dated 6.2.2015 passed by the Armed Forces
Tribunal Bench at Jaipur, Rajasthan in T.A. No. 2 of 2011, by
which   the   learned   Tribunal   has   dismissed   the   application
preferred by the appellant herein and has confirmed the order
2
passed by the respondents discharging the appellant from service
under   Rule   13(3)(III)(v)   of   the   Army   Rules,   1954,   original
applicant has preferred the present appeals.
3. The appellant was enrolled in the Indian Army as a Driver
on 15.10.1980.  He was promoted as ALD and lastly granted the
rank of Lance Dafedar.  That the appellant suffered four red ink
entries during the period between 7.6.1993 and 3.5.1994.  That
for every red ink entry he was separately punished.   That the
respondents discharged the appellant under Rule 13(3)(III)(v) of
the Army Rules from the Army solely on the ground of four red
ink entries.   At this stage, it is required to be noted that the
appellant came to be discharged when he had served for 13 years
7   months   and   6   days   and   before   he   could   complete   the
pensionable service.     That the appellant was discharged from
service 1 year 5 months and 24 days before he could complete
pensionable service.  That the appellant challenged the order of
discharge before the Armed Forces Tribunal. By the impugned
judgment and order, the learned Tribunal has dismissed the said
application.     The   appellant   thereafter   preferred   the   review
3
application, which also came to be dismissed.  Hence, the present
appeals.
4. Shri   Shoumit   Mukherjee,   learned   advocate   appearing   on
behalf   of   the   appellant   has   vehemently   submitted   that   the
appellant came to be discharged from service solely on the basis
of four red ink entries which the appellant suffered after a period
of 13 years of his service and that too during the period between
7.6.1993 and 3.5.1994.  It is further submitted that it is a clear
case   of   victimization   and   all   the   four   red   ink   entries   were
awarded within a short span of one year.  It is submitted that as
the appellant did not comply with certain illegal directions given
to the appellant by Captain D. Mahapatra, he was given the
punishment.
4.1 Shri Mukherjee, learned advocate appearing on behalf of the
appellant has taken us through the four red ink entries and the
allegations/charge on the basis of which the red ink entries were
made.   He has vehemently submitted that on the basis of such
four   red   ink   entries,   the   appellant   could   not   have   been
discharged from service and that too after rendering a service of
4
13   years   or   more   and   when   he   was   about   to   complete   the
pensionable service.
4.2 Learned advocate appearing on behalf of the appellant has
further   submitted   that   the   respondents   have   discharged   the
appellant from service mechanically and solely on the basis of
four red ink entries.  It is submitted that mere awarding of four
red ink entries does not make the discharge mandatory.     It is
submitted that, as held by this Court in the case of Veerendra
Kumar Dubey v. Chief of Army Staff and Others 2016 (2) SCC
627,   the   Commanding   Officer   after   award   of   such   entries   is
required to consider the nature of offence for which such entries
are awarded; long service rendered by an individual etc.     It is
submitted that therefore the learned Tribunal ought to have set
aside the order of discharge.
5. The present appeals are vehemently opposed by Shri K. M.
Natraj, learned Additional Solicitor General of India appearing on
behalf of the respondents. 
5.1 It   is   vehemently   submitted   by   the   learned   Additional
Solicitor General appearing on behalf of the respondents that it is
5
an admitted position that there were four red ink entries awarded
to   the   appellant   and   the   same   were   not   challenged   by   the
appellant at any point of time.   It is submitted that therefore the
appellant   was   rightly   discharged   from   service   in   exercise   of
powers under Rule 13(3)(III)(v) of the Army Rules.   It is further
submitted   by   learned   Additional   Solicitor   General   that   before
discharging the appellant, requisite procedure of law was fully
followed.       It   is   further   submitted   by   the   learned   Additional
Solicitor General that the appellant was discharged from service
with   a   view   to   maintain   the   discipline   in   the   Army.       It   is
submitted that therefore the learned Tribunal rightly refused to
interfere with the order of discharge which was passed in exercise
of powers under Rule 13(3)(III)(v) of the Army Rules.
5.2 Making the above submissions, it is prayed to dismiss the
present appeals.
6. We have heard the learned counsel for respective parties at
length.
6.1 At the outset, it is required to be noted that at the time
when the appellant was discharged from service in exercise of
powers under Rule 13(3)(III)(v) of the Army Rules, he had served
6
for 13 years 7 months and 6 days.  That, at the time of discharge
from service, the appellant could not complete the pensionable
service and he was discharged from service 1 year 5 months and
24  days  before   he  could   complete   pensionable   service.     It  is
required to be noted that the appellant has been discharged from
service under Rule 13(3)(III)(v) of the Army Rules, solely on the
basis of four red ink entries awarded to him.  It is required to be
noted that from 1980 to 7.6.1993 there was nothing adverse
found against the appellant.  All these four red ink entries relate
to the period between 7.6.1993 and 3.5.1994. 
6.2 We have gone through the four red ink entries and the
nature of allegations and the charge on the basis of which four
read entries were awarded to the appellant.  It appears that, out
of four red ink entries, two entries pertain to 3.3.1994 and one
entry pertains to 3.5.1994.    Out of the aforesaid, with respect to
one of the red ink entries, the allegation was that the appellant
refused to take food when he was ordered.     Considering the
nature of offences for which the red ink entries were made, we
are of the opinion that on the basis of such red ink entries, the
appellant could not have been discharged from service and that
7
too after rendering 13 years of service and when he was about to
complete the pensionable service.  From the impugned judgment
and order, it appears that the appellant has been discharged
from service mechanically and solely on the basis of award of four
red   ink   entries.     As   observed   by   this   Court   in   the   case   of
Veerendra  Kumar  Dubey  (supra), mere award of four red ink
entries does not make the discharge mandatory.   It is further
observed that four red ink entries is not some kind of Laxman
Rekha, which if crossed would by itself render the individual
concerned   undesirable   or   unworthy   of   retention   in   the   force.
Award   of   four   red   ink   entries   simply   pushes   the   individual
concerned   into   a   grey   area   where   he   can   be   considered   for
discharge. But just because he qualifies for such discharge, does
not mean that he must necessarily suffer that fate. It is further
observed that it is one thing to qualify for consideration and an
entirely different to be found fit for discharge.     It is further
observed   that   four   red   ink   entries   in   that   sense   takes   the
individual closer to discharge but does not push him over. It is
axiomatic that the Commanding Officer is, even after the award
of such entries, required to consider the nature of the offence for
8
which such entries have been awarded and other aspects.  It is
further   observed   that   the   authority   exercising   the   power   of
discharge   is   expected   to   take   into   consideration   all   relevant
factors. That an individual has put in long years of service giving
more often than not the best part of his life to armed forces, that
he   has   been   exposed   to   hard   stations   and   difficult   living
conditions during his tenure and that he may be completing
pensionable service, are factors which the authority competent to
discharge would have even independent of the procedure been
required to take into consideration while exercising the power of
discharge.
6.3 Coming then to the case at hand, we find that there is
nothing on record to suggest that the authority concerned has
taken   into   consideration   the   long   service   rendered   by   the
appellant.   There is nothing on record to suggest that the nature
of the mis­conduct leading to the award of red ink entries was so
unacceptable that the competent authority had no option but to
direct his discharge to prevent indiscipline in the force.   Even
considering   the   offences   for   which   the   red   ink   entries   were
awarded, it cannot be said that the mis­conduct and/or offences
9
are such which would justify the discharge of the appellant.  The
offences for which the red ink entries are awarded, cannot be
said   to   be   such   gross   mis­conduct   which   would   make   the
appellant indiscipline and liable to be discharged from service
and that too, after a period of long service rendered by him.
6.4 Under   the   circumstances   and   in   the   facts   and
circumstances   of   the   case,   the   order   of   discharge   is   wholly
unjustified and not sustainable at law.   While discharging the
appellant from service, the Commanding Officer has failed to take
into consideration the relevant aspects noted hereinabove and
the order of discharge has been passed mechanically and on
mere four red ink entries.
7. In   the   result,   present   appeals   succeed   and   are   hereby
allowed.   The order of discharge passed against the appellant is
hereby   set   aside.     The   appellant   shall   be   entitled   to   all
consequential   benefits   as   if   the   order   of   discharge   was   not
passed.    Benefit of continuous service for all other purpose shall
be granted to the appellant including pension.     The monetary
benefits payable to the appellant shall be released expeditiously,
10
but not later than four months from the date of this order.  No
costs.
..................................J.
(ARUN MISHRA)
...................................J.
(M. R. SHAH)
New Delhi                                              ...................................J.
September 20, 2019                               (B. R. GAVAI)

When the claim for disability pension be granted to a Militaryman? 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 somecasual 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.”

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