Punjab-Haryana High Court
Union Of India And Others vs Sumanjit Singh on 19 May, 2009
Author: A.N. Jindal
Bench: Uma Nath Singh, A.N. Jindal
In the High Court of Punjab and Haryana at Chandigarh
LPA No. 49 of 2009 (O&M)
Date of decision: May 19, 2009
Union of India and others
... Appellants
Vs.
Sumanjit Singh
... Respondent
L.P.A. No. 61 of 2009 Union of India and another ... Appellants Vs. Balbir Singh ... Respondent L.P.A. No. 66 of 2009 Union of India and another ... Appellants Vs. Chhaju Ram ... Respondent Coram: Hon'ble Mr. Justice Uma Nath Singh Hon'ble Mr. Justice A.N. Jindal Present: Mr. Hemen Aggarwal, and Mr. S.K. Sharma, Addl. Central Government Standing counsel.
A.N. Jindal, J These L.P.As are against the judgment dated 21.5.2008 passed by the learned Single Judge, whereby he allowed all the four writ petition Nos. 6531 of 2005, 8384 of 2005, 10299 of 2005 and 12095 of 2006, involving the common question of law which reads as under :-
LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -2- "Whether an army personnel while on leave suffers injuries resulting disability exceeding 25% is entitled to disability pension?"
The learned Single Judge while allowing the aforesaid petitions observed that the petitioners having disability exceeding 20% were entitled to disability pension from the date of invalidation from service. The petitioners were also allowed interest @ 4% per annum if the arrears of pension are not paid within stipulated period under the provisions of para 173 of the Pension Regulation of the Army, 1961 which envisages that only those candidates are entitled for disability pension whose disability is assessed as 20% or more. The aforesaid para is re-produced as under :-
"Para 173. 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 a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 per cent or over."
Mr. Heman Aggarwal, & Mr. S.K. Sharma, Advocates appearing on behalf of Union of India while urging that any injury suffered by the army personnel while on leave, and otherwise on active duty in the army, if suffers any disability, then the same cannot be said to be attributable or aggravated to the military service, has placed reliance on the judgment delivered by the Division LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -3- Bench of this Court in CWP No.20348 of 2005 and 6959 of 2004. Whereas the learned Single Judge has placed reliance upon the Division Bench judgment delivered by this Court in C.W.P. No. 12434 of 1999 decided on 22.9.2006, wherein the facts were that "a Sepoy in the Indian Army was on leave to his home town and while moving on scooter, he met with an accident with a truck and suffered injuries, resulting amputation of his leg. He was invalidated from service being low medical category. His claim for disability was rejected by the authorities. This Court, while further relying upon the Division Bench judgments of this Court in Jarnail Singh vs. Union of India and others 1997 (3) SCT 484, and Naik Kishan Singh vs. Union of India and others, CWP No.5531 of 2007 decided on 27.3.2007 the claim for disability pension was allowed with the following observations:-
"No doubt, when the petitioner met with an accident, he was on annual leave, but the accident was beyond control of the petitioner who was not performing any act, he ought not to have done. In view of the settled law by the Apex Court, a person on casual/annual leave is deemed to be on duty and there must be apparent nexus between normal living of person subject to military law while on leave and injuries suffered by him. A person on annual leave is subject to Army Act and can be recalled at any time as leave is at discretion of authorities."
Another judgment referred to by Single Judge is Gurjit Singh vs. Union of India and others, CWP No.648 of 2007, decided on LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -4- 20.2.2008. The reasons for relying upon the aforesaid Division Bench judgments of this court has been given by the learned Single Judge, as under
:-
"All the above referred cases are squarely covered by the judgments of Division Bench referred to hereinabove. As a matter of fact, the Hon'ble Division Bench relied upon the judgment of the Apex Court in the case of Union of India vs. Baljeet Singh 1997 (1) SLR 98."
As a matter of fact, the words "injury attributable to" or "aggravated by the military services" refers to any non battle casualty. As per para 173 of the Pension Regulations of the Army, 1961 these words are to be determined on the basis of the parameters as set down in Appendix-II. The words "disability" attributable to or aggravated by the military service has been explained in Appendix-II of the Pension Regulation Rules. The relevant extract of the Appendix-II is reproduced for facility of reference :-
"12. A personel 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 them.
(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 LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -5- 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.
(d) When proceeding from his duty station to his leave station or returning to duty from his leave station, provided entitled to travel at public expense i.e. on railway warrant, 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) When journeying by a reasonable route from one's official residence to and back from the appointed place of duty irrespective of the mode of conveyance, whether private or provided by the Government.
(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 definitively enhanced in kind or degree by a 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 LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -6- liberally to the claimant in cases occurring on active services as defined in the Army/Navy/Air Force Act."
Regulation 423 of the Medical Service of Armed Forces Regulation, 1983 seeks to define the term "attributability to service" and incidents which will fall within the parameters of this phrase :
"423. Attributability to 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 casual 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 the individual.
The evidence to be accepted as reasonable doubt, for the purpose of these instructions should be of a degree of cogency, which though not reaching certainty, nevertheless carry the high degree of probability. In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his favour, which can be dismissed with the sentence "of LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -7- course it is possible but not in the least probable" the case is proved beyond reasonable doubt. If on the other hand, the evidence be so evenly balanced as to render impracticable a determinate conclusion one way or the other, then the case would be one in which the benefit of doubt could be given more liberally to the individual, in cases occurring in Field Service/Active Service areas.
(b) The cause of 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-infliction, negligence or misconduct. © The cause of disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. Cases, in which it is established that service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease will be regarded as aggravated by the service. A disease which has led to an individual's LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -8- discharge or death will ordinarily be deemed to have arisen inservice if no note of it was made at the time of the individual's acceptance for service in the armed forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service.
(d) The question, whether a disability or death is attributable to or aggravated by service or not, will 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, in so far as it relates 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 C.O. unit will furnish a report on :
(i) AFMS F-81 in all cases other than those due to injuries.
LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -9-
(ii) IAFY-2006 in all cases of injuries other than battle injuries.
(f) In cases where award of disability pension or reassessment of disability 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 officer in the latter case will be furnished on a medical board form and countersigned by the ADMS (Army)/DMS (Navy)/DMS (Air)."
The Division Bench judgments of this court as referred to above, has mainly allowed the disability pension while relying upon the Apex Court judgment delivered in case Union of India vs. Baljeet Singh, 1997 (1) SLR 98, wherein it was observed as under :-
"6. ... It is seen that various criteria have been prescribed in the guidelines under the Regulations as to when the disease or injury is attributable to the military service. It is seen that under Regulation 173 disability pension would be computed only when disability has occurred due to wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -10- aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. This is made amply clear from Clauses (a) to (d) of para 7 which contemplates that in respect of a disease the rules enumerated thereunder required to be observed. Clause © provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. Unless these conditions satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for making a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service."
While taking notice of and distinguishing Baljeet Singh's case (supra), the Full Bench of the Delhi High Court in case Dilbagh Singh Ors. (Ex. Nk) vs. Union of India and Ors. 2008 (4) SCT 432 took a contrary view and summed up the matter while issuing the following LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -11- guidelines :-
"1. Firstly, it is required to be established that the injury or fatality suffered by the concerned military personnel bears a casual connection with military service.
2. Secondly, if this obligation exists so far as discharged from the Armed Forces on the opinion of the Medical Board the obligation and responsibility a fortiori exists so far as injuries and fatalities suffered during casual leave are concerned.
3. Thirdly, as a natural corollary it is irrelevant whether the concerned personnel was on casual or annual leave at the time or at the place when and where the incident transpired. This is so because it is the causal connection which alone is relevant.
4) Fourthly, since travel to and fro the place of posting may not appear to everyone as an incident of military service, a specific provision has been incorporated in the Pension Regulations to bring such travel within the entitlement for Disability Pension if an injury is sustained in this duration.
5) Fifthly, the Hon'ble Supreme Court has simply given effect to his Rule and has not laid down in any decision that each and every injury sustained while availing of casual leave would entitle the victim to claim Disability LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -12- Pension.
6) Sixthly, provisions treating casual leave as on duty would be relevant for deciding questions pertaining to pay or to the right of the authorities to curtail or cancel the leave. Such like provisions have been adverted to by the Supreme Court only to buttress their conclusion that travel to and fro the place of posting is an incident of military services.
7) Lastly, injury or death resulting from an activity not connected with military service would not justify and sustain a claim for Disability Pension. This is so regardless of whether the injury or death has occurred at the place of posting or during working hours. This is because attributability to military service is a factor which is required to be established."
The ratio of the judgment delivered in case Jarnail Singh vs. Union of India 1998 (1) SLR 418 was also discussed by the Full Bench of the Hon'ble Delhi High Court in case Dilbag and Ors. (Ex. Nk) vs. Union of India and Ors. 2008 (4) SCT 432 and observed as under :-
" We see no casual connection, whatsoever, between the accident and the discharge of duties; attending a marriage cannot possibly be seen as analogous to military duties. The ratio of Joginder Singh is not applicable."
LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -13- The main reason which influenced the Division Bench of this Court to grant Disability Pension was that persons on annual leave are subject to Army Act and can be recalled at any time as leave is at the discretion of the authorities concerned. But the Apex Court in case Ex. Sepoy Hayat Mohammed vs. Union of India, 2008 (1) SCT 425 observed that "the petitioner was eligible for the grant of Disability Pension owing to the fact that while on casual leave in his home he suffered several injuries owing to a steel girder and roof slabs falling on him. One of the reasons which appear to have persuaded the same Division Bench was that persons on annual leave are subject to the Army Act and can be recalled at any time as leave is at the discretion of the Authorities concerned. A rule of this nature is necessary to cover the eruption of insurgencies or the breakout of a war. They neither envisaged nor attempted to deal with liability to pay Disability Pension. It is impermissible to extrapolate a rule catering for a particular situation to altogether different circumstances."
The Apex Court in case Union of India and others vs. Surinder Singh Rathore, (2008) 5 SCC 747 while explaining the disability attributable to the service observed as under :-
"9 © The cause of a disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. Cases, LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -14- in which it is established that service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individual's acceptance for service in the armed forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service."
Thus, as a corollary of the aforesaid judgments, we construe the words "disability attributable to or aggravated by the military service" as under :-
1. Disability which has been attracted by the army personnel on account of the disease which occurred during his service on account of the conditions and incidents of the service.
2. If the petitioner was on his way to and from his residence to place of duty, during his period of leave, the disease or disability so attracted by the army personnel would be covered by the disability attributable to or aggravated by the Military Service LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -15-
3. If the personnel had no disease at the time of entry into service and the same was not detected on medical examination prior to his entry into service, however, it was detected at the time of boarding him out then the same would be deemed to have occurred during service.
The disease must have direct and approximately close connection between the injury suffered and the discharge of his duties.
4. The disability or the injury suffered by the personnel, by way of self infliction, negligence or misconduct, during his period of leave, or he suffers such injury at the hands of some one, or has been for a different motive, remotely connected with the army services would not amount to an injury attributable to aggravated by the military service.
5. If the army personnel is caused any type of injury or suffers any disability on account of the fact that he has been considered as traitor, rebellion or a member of a rival group of the armed forces, then such disability could be covered and could be termed as disability attributable to and aggravated by the military services.
6. Disability suffered by any army personnel on duty as defined in Appendix II of the Army Regulations Rules, 1961.
LPA No. 49 of 2009 (O&M), L.P.A. No. 61 of 2009 & L.P.A. No. 66 of 2009 -16- Thus, on examination of the cases before us, none of the cases is covered by the aforesaid principles and also by the guidelines issued by the Apex Court in Surinder Singh Rathore's case (supra) so also by the Full Bench of Delhi High Court in case Dilbagh Singh Ors. (Ex. Nk) vs. Union of India and Ors. 2008 (4) SCT 432.
Consequently, the Letters Patent Appeals are accepted and civil writ petitions filed by the petitioners stand dismissed.
(Uma Nath Singh) (A.N. Jindal)
Judge Judge
May 19, 2009
deepak