caselaws
Supreme Court of India
Uoi & Others vs No. 3989606 P, Ex-Nk Vijay Kumar on 26 August, 2015Author: R Banumathi
Bench: T.S. Thakur, R. Banumathi
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6583 OF 2015
(Arising out of CAD No.13923 of 2014)
UNION OF INDIA & ORS. ..Appellants
Versus
3989606 P, EX-NAIK VIJAY KUMAR ..Respondent
J U D G M E N T
R. BANUMATHI, J.
Delay condoned.
2. This appeal is filed against the order dated 13.07.2011 in
Original Application No.248 of 2011 and order dated 31.10.2012 in
M.A.Nos.795 and 796 of 2012 passed by the Armed Forces Tribunal, Regional
Bench, Chandigarh (for short ‘the tribunal’) whereby the tribunal allowed
the application filed by the respondent observing that the respondent is
entitled to get disability pension for 75% disability from the date of his
invalidation.
3. Brief facts which led to the filing of this appeal are as
under:- On 25.02.1989, the respondent was enrolled in Indian Army from
Branch Recruiting Office Palampur and after completion of his basic
Military Training at Dogra Regiment, the respondent was posted to 12 Dogra
on 05.01.1990. The respondent was granted thirty days annual leave from
14.05.2005 to 12.06.2005. However, during the leave period, on 19.05.2005
the respondent went from Himachal Pradesh to Jalandhar Cantt where his
sister resides for making purchase of ornaments and clothes and articles
for marriage of his younger brother. On the same day, on 19.05.2005 in
Jalandhar at the house of his sister which was on second floor at about
8.00 p.m., while the respondent was climbing stairs to go to the roof of
the quarter for smoking and at that time lights went off and due to
darkness he slipped accidentally and fell down from the stairs and
sustained multiple injuries. The respondent was initially admitted to
Christian Hospital, Maqsuda where he was given first aid treatment for a
night and next day on 20.05.2005, he was transferred to Military Hospital,
Jalandhar for treatment of his multiple injuries. The respondent underwent
four operations, he was treated in military hospital for three to four
months. However, the respondent was placed in Low Medical Category A3 (T)
for 6/12 years. The respondent was sent for six weeks sick leave and he
reported back for review. The respondent was brought before the Release
Medical Board, wherein the RMB opined that respondent should be released
from military service in Permanent Low Medical Category A-3 for six
disabilities he sustained. The Release Board assessed the disabilities at
Military Hospital Faizabad and composite assessment was assessed at 60%.
After due procedure, the respondent was invalidated from service with
effect from 28.02.2006 after completion of seventeen years of service.
4. The respondent was paid monetary benefits due and payable to
him and also other pensionary benefits. The respondent’s claim for
disability pension was however rejected by the competent authority stating
that respondent’s disabilities are neither attributable to nor aggravated
due to military service. Aggrieved by the order, the respondent filed an
appeal dated 09.05.2007 before the appellate authority for grant of
disability pension. The respondent also sent two representations dated
01.10.2007 and December 2007. After due inquiry, appeal was rejected by the
Appellate Committee vide order dated 13.04.2007 holding that respondent was
not entitled to disability pension in terms of Rule 12 of Entitlement Rule
for Casualty Pensionary Award.
5. Aggrieved by the order, respondent filed O.A.No. 248 of 2011
before the tribunal. The tribunal vide impugned order dated 13.07.2011
allowed the application of the respondent holding that the respondent is
entitled to disability pension for 75% disability for life by giving the
benefit of rounding off from the date of invalidation. This appeal assails
the correctness of the impugned order.
6. Mr. P.S. Patwalia, learned Additional Solicitor General
appearing for the appellants contended that under Regulation 173 disability
pension is granted to an individual who is invalidated out of service on
account of disability which is either attributable to or aggravated by
military service. It was submitted that in the facts of the case, the act
of the respondent was not even remotely connected to his military duty and
while so, the tribunal erred in directing grant of disability pension to
the respondent.
7. Per contra, learned counsel for the respondent submitted that
the Medical Board opined that the disability of the respondent is
aggravated “due to stress and strain of military service” and once the
Medical Board gives its finding to the advantage of the disabled soldier,
it cannot be changed by any other authority and hence the respondent is
entitled for grant of disability pension and tribunal rightly directed
payment of disability pension to the respondent.
8. We have heard learned counsel for the parties and have gone
through the orders passed by the tribunal and the material placed on
record.
9. The primary conditions for grant of disability pension are
mentioned under Regulation 173 of the Pension Regulations for the Army
1961. Regulation 173 reads as under:-
“Unless otherwise specifically provided a disability pension consisting
of service element and disability element may be granted to an individual
who is invalidated out of service on account of disability which is
attributable to or aggravated by military service in non-battle casualty
or is assessed at 20% or over.”
10. In terms of Rule 12 of the Entitlement Rules for Casualty
Pensionary Awards 1982, a person subject to the disciplinary note of the
armed forces is treated on duty while performing anyone of the functions
mentioned in paragraphs (a), (b) and (c) of the Pension Regulations. Notes
(1) and (2) of the Entitlement Rules elaborate the scope and purport of the
term ‘duty’. Para (b) to Note (2) deals with accident which occurs when the
armed forces personnel is not strictly “on duty” as defined in Rule 12.
For such situations, the expression “on duty” is given an extended meaning
inasmuch as an accident which occurs when the person concerned is not
strictly “on duty” is also deemed to be on duty. We may usefully extract
Rule 12 of Entitlement Rules and para (a) to (f) of Notes (1) & (2) as
under:-
“Rule 12: Duty:- The Entitlement Rules 1982
A person subject to the disciplinary code of the Armed Forces is on duty:-
When performing an official task or a task, failure to do which would
constitute an offence triable under the disciplinary code applicable to
him;
When moving from one place of duty to another place of duty irrespective of
the mode of movement;
During the period of participation in recreation and other unit activities
organized or permitted by service authorities and during the period of
travelling in a body or singly by a prescribed or organized route.
Note 1: xx xx xx xx
xx xx xx xx
Note 2: (d) Personnel while travelling between place of duty to leave
station and vice versa to be treated on duty irrespective of whether they
are in physical possession of railway warrant/concession vouchers/cash TA
etc or not. An individual on authorized leave would be deemed to be
entitled to travel at public expense.
The time of occurrence of injury should fall within the time an individual
would normally take in reaching the leave station from duty station or vice
versa using the commonly authorized mode(s) of transport. However, injury
beyond this time period during the leave would not be covered.
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.”
11. This Court in Sukhwant Singh vs. Union of India through the
Secretary, Ministry of Defence And Ors., (2012) 12 SCC 228 after referring
to the judgment of the tribunal affirmed the legal position as summed up by
the tribunal and the same reads as under:-
“To sum up in our view the following principles should be the guiding
factors for deciding the question of attributability or aggravation, where
the disability or fatality occurs during the time the individual is on
authorized leave of any kind:
(a) The mere fact of a person being on ‘duty’ or otherwise, at the place of
posting or on leave, is not the sole criteria 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 is in no way connected
to his being on duty as understood in the sense contemplated by Rule 12 of
the Entitlement Rules, 1982, it would neither be the legislative intention
nor to our mind would it be the permissible approach to generalise the
statement that every injury suffered during such period of leave would
necessarily be attributable.
(c) The act, omission or commission of which results in injury to the
member of the force and consequent disability or fatality must relate to
military service in some manner 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 the force, nor
is remotely connected with the functions of military service, cannot be
termed as injury or disability attributable to military service. An
accident or injury suffered by a member of the armed force must have some
causal connection with military service and at least should arise from such
activity of the member of the force as he is expected to maintain or do in
his day-to-day life as a member of the force.
(e) The hazards of army service cannot be stretched to the extent of
unlawful and entirely unconnected acts or 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 a 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
Rule 173. The act of omission and commission on the part of the member of
the force must satisfy the test of prudence, reasonableness and 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.”
The principles enunciated in the above judgment were referred to and
reiterated by this Court in Union of India And Anr. vs. Ex Naik Surendra
Pandey, 2015 (2) SCALE 361 to which both of us were parties.
12. Entitlement Rules for the Casualty Pensionary Awards 1982 are
beneficial in nature and ought to be liberally construed. In terms of Rule
12, the disability sustained during the course of an accident which occurs
when the personnel of the armed forces is not strictly on duty may also be
attributable to service on fulfilling of certain conditions enumerated
therein. But there has to be a reasonable causal connection between the
injuries resulting in disability and the military service.
13. Applying the ratio of various cases in Secretary, Ministry of
Defence & Ors. vs. Ajit Singh, (2009) 7 SCC 328 and relying upon the
principles laid down in Union of India & Ors. vs. Keshar Singh, (2007) 12
SCC 675 and Union of India & Ors. vs. Surinder Singh Rathore, (2008) 5 SCC
747, this Court rejected the claim of the respondent for disability pension
on account of electric shock sustained by him while he was on casual leave.
14. In Union of India And Ors. vs. Jujhar Singh (2011) 7 SCC 735,
this Court was dealing with the question whether the respondent who had met
with an accident in his native place and sustained grievous injury
resulting in permanent disability was entitled to disability pension. The
respondent in that case had upon recovery from injury continued in military
service and superannuated with normal service pension. In the said case,
this Court held that the member of armed forces who is claiming disability
pension must be able to show a reasonable nexus between the act, omission
or commission resulting in an injury to the person and the normal expected
standard of duties and a way of life expected from a member of armed
forces.
15. In yet another case, Union of India And Anr. vs. Talwinder
Singh, (2012) 5 SCC 480, the disability pension was claimed by the
individual enrolled in the army who was on annual leave for a period of
two months in his home town, got injured during the leave period by a small
wooden piece “Gulli” while playing with children which seriously damaged
his left eye. This Court in para (12) observed thus:-
“12. A person claiming disability pension must be able to show a reasonable
nexus between the act, omission or commission resulting in an injury to the
person and the normal expected standard of duties and way of life expected
from such person. As the military personnel sustained disability when he
was on an annual leave that too at his home town in a road accident, it
could not be held that the injuries could be attributable to or aggravated
by military service. Such a person would not be entitled to disability
pension. This view stands fully fortified by the earlier judgment of this
Court in Ministry of Defence v. Ajit Singh, (2009) 7 SCC 328.”
16. Applying these principles and Rule 12 and mandate of Regulation
173, admittedly in the instant case as mentioned in the proceedings before
the Board Officer that during the annual leave respondent went to Jalandhar
on 19.05.2005 from Himachal Pradesh to purchase ornaments and clothes for
his brother’s marriage. He was staying at his sister’s place and in the
night at about 8.00 p.m. while he was climbing the stairs to get to the
roof for smoking and at that time the lights went off and due to sudden
darkness he lost his balance and fell down and lost his senses. He was
admitted in civil hospital in Jalandhar and after first aid, he was
transferred to military hospital Jalandhar for multiple fracture injuries.
It is apparent that the injury sustained by Vijay Kumar was accidental in
nature and nobody can be blamed for the same. Respondent’s act of going
towards the roof for smoking at his sister’s house and falling down at no
stretch of imagination can be attributed to military service.
17. Learned counsel for the respondent heavily placed reliance upon
the judgment of this Court in Union of India & Anr. vs. Ex Naik Surendra
Pandey, (2015) 2 SCALE 361, in which the respondent went on annual leave
and was travelling from the place of his duty to the place where his family
was residing (Sewan). The respondent boarded the bus from Hajipur to reach
Patna to join his family and at that time, he met with an accident which
resulted in disability assessed at 20% by the Medical Board. In the said
case, it was the specific case of the respondent that although the
respondent’s hometown is Gopalganj, his family was residing at Patna and it
was for that reason he claimed to be travelling by train beyond Sewan upto
Hajipur by train to catch a bus to reach Patna to join his family.
Considering the facts and circumstances of the said case and that
respondent’s family was residing at Patna, this Court held that there was a
reasonable nexus and causal connection between the disability and the
military service of respondent at the relevant time. In para (12), it was
held that “…..The case may have been different if the respondent had
reached the destination engaged in some activity, unrelated to military
service and in the course of such activity met with an accident resulting
in a disability….”. Thus, Ex Naik Surendra Pandey case is clearly
distinguishable on facts.
18. Learned counsel for the respondent contended that the composite
assessment for the respondent’s disability was assessed at 60% by the
Medical Board and the same was found to be attributable and aggravated “due
to stress and strain of military service” and as per settled law once
medical board gives its finding to the advantage of the disabled soldier,
findings of the Medical Board cannot be changed. The above contention does
not merit acceptance. By perusal of record issued by Medical Board AFMSF-
16/17, it is seen that the assessment by the Board is recommendatory in
nature and is subject to acceptance by the Pension Sanctioning Authority.
It is also mentioned in the Medical Abstract Records as:-
“1. Though the disablement has been mentioned in percentage in para 6 of
Part V, this does not mean eligibility for disability pension since the
Invalidating Disabilities is/are neither attributable to nor aggravated by
service.”
When the opinion of the assessment by the Board is recommendatory in nature
and is subject to acceptance by the Pension Sanctioning Authority, the
opinion of the Medical Board by itself cannot confer right upon the
respondent to claim disability pension. Further, after accident the
respondent was treated in the military hospital for three to four months
and he was placed in low medical category. The respondent went for six
weeks sick leave and reported back for review and invalidated from service
with effect from 28.2.2006. After the accident when the respondent was not
actually performing military service, the opinion of the Medical Board
“aggravated due to stress and strain of military service” does not appear
to be in proper perspective. After the accident, when the respondent was
not actually performing his duties and therefore disability cannot be
attributed to military service nor can it be said to have been aggravated
due to stress and strain of military service.
19. In the light of the above discussion, it is clear that the
injury suffered by the respondent has no causal connection with the
military service. The tribunal failed to appreciate that the accident
resulting in injury to the respondent was not even remotely connected to
his military duty and it falls in the domain of an entirely private act and
therefore the impugned orders cannot be sustained.
20. In the result, the impugned order of the tribunal is set aside
and the appeal is allowed. In the facts and circumstances of the case, we
make no order as to costs.
….……………………J.
(T.S. THAKUR)
…..……………………J.
(R. BANUMATHI))
New Delhi;
August 26, 2015
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