ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- MA 8157 of 2014, MA 5369 of 2014 and OA 4230 of 2013

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1 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR MA 8157 of 2014, MA 5369 of 2014 and OA 4230 of 2013 Teja Singh Petitioner(s) Vs Union of India and others Respondent(s) For the Petitioner (s) : Mr Vishal Gupta, Advocate For the Respondent(s) : Mr RN Sharma, CGC Coram: Justice Prakash Krishna, Judicial Member. Lt Gen DS Sidhu (Retd), Administrative Member. ORDER MAs 8157 and 5369 of 2014 stand disposed of. 1. The petitioner was enrolled in the Army on 5 th October, 1974 and after rendering service of 19 years 7 months and 25 days was discharged on 31 st May Thereafter, he joined the Defence Security Corps on 11 th January, 1997 where from was discharged on 31 st January,2007 in low medical category of BEE(P). The case of the petitioner is that he was hale and hearty when he joined the Defence Security Corps and on 21 st November,2002 while performing his duties in the unit he suffered injury on his right knee and was treated in the Military Hospital. It was found that the petitioner suffered OPEN FRACTURE LATERAL CONDYLE (RT) FEMUR (OLD). The medical category was lowered down. Petitioner s claim for disability pension was denied on the ground that the injury suffered by the petitioner is neither attributable to nor aggravated by military service in terms of Regulation 71 of the Pension Regulations for the Army, His First appeal was dismissed on 21 st October 2008 and Second appeal was dismissed on 25 th June, Hence the present petition. 2. In reply, the respondents have come out with the case that the petitioner is not entitled to get disability pension as he suffered the injury not in connection with the military duties. The injury in question has no causal connection with the discharge of petitioner s duties in the Defence Security Corps. It cannot be said it was either

2 -2- attributable to or aggravated by military service. Further a Court of Inquiry was conducted to investigate the circumstances under which the petitioner sustained the injury. The Court of inquiry found that the disability suffered by the petitioner is neither attributable to nor aggravated by military service as the petitioner went out of the unit along with the Naik Avtar Singh on a motor cycle to buy a turban after obtaining oral permission. While coming back, the motor cycle was hit by a Car with the result the petitioner and his companion both sustained injuries. 3. Heard the learned counsel for the parties and perused the record. 4. The learned counsel for the petitioner submits that in view of the judgment of the apex court given in Dharamvir Singh Versus Union of India and others (2013) 7SCC 316, the injury in question was not recorded when the petitioner joined the Defence Security Corps (DSC),he is therefore, entitled to get disability element of pension. Elaborating the argument, it was submitted that the petitioner has joined the service being found full medically fit and the said injury had occurred during his service. 5. We are of the considered view that the relied upon judgment has no application to the facts of the present case. It is distinguishable. The present one is a case of injury sustained by an individual during his service and not a case of disease contacted during service. 6. The question which falls for consideration is under what circumstances an individual who has sustained injury during Army service, is entitled to get disability pension? 7. In OA 3691 of 2013 Hawa Singh versus Union of India and others, decided on 30 th September, 2014 we have considered this issue in the light of various judicial pronouncements of the High Courts and of the apex court. The apex court in the case of Union of India and others Versus Jujhar Singh (2011) 7SCC 735 has approved the Full Bench judgment of Delhi High Court in Ex NK Dilbagh Singh vs. Union of India,2008(106) 865 has held that it requires to be established that the injury or fatality suffered by the concerned military personnel bears a causal connection with military service.

3 -3-8. It will not be out of place to mention here that in a recent judgment of Punjab and Haryana High Court given in the case of -3- Barkat Masih Vs. Union of India,CWP No of 2013 (O & M) decided on a different view was being taken by the High Court. It brushed aside the full Bench judgment of the Delhi High Court passed in case of Dilbagh Singh (supra). This aspect of the matter has also been considered by us in the case of Hawa Singh (supra). But we respectfully preferred to follow the ratio as laid down by the apex court in the case of Jujhar Singh (supra) and also in Union of India Vs. Talwinder Singh (2012) 5SCC 480 wherein the disability pension 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 in the play of children which seriously damaged his left eye was denied. The Apex Court in Para 12 of the report has held as follows:- 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. 9. The above view has been reiterated by the Apex Court in Civil Appeal No of Jagtar Singh Vs Union of India and another decided on discussed in the later part of the judgment. 10. In a group of cases in T.A. 61 of 2010 Jagtar Singh Vs. Union of India & others, decided on 2 nd November,2010 by this Tribunal point as to whether for a claim of disability pension, arising out of an accident some causal connection is required with discharging military duty was up for a consideration. The Tribunal noted the Full Bench judgment of Punjab & Haryana High Court in Khushbash Singh s 2010(2)SC7,805 case and of Delhi High Court in the case of Dilbagh Singh (supra). The Tribunal by its judgment has held as follows :- To sum up in our view the following principles should be the guiding factors for deciding the question of attributibility or aggravation, where the

4 -4- 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 attributibility 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 under stood 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 generalize 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 attribute able to military service. An accident or injury suffered by a member of the Armed Forces must have some 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 hazard 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. 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 a rises 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 attributibility 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. 10. The matter was carried further in appeal by some of the petitioners therein before the Apex Court in CA No.1987 of 2011 Sukhwant Singh Versus Union of India & Others with CA No.1988 of 2011 Jagtar Singh Versus Union of India & others. Both these appeals were decided by common judgment dated

5 and the judgment of the Tribunal has been confirmed. The relevant portion reads as follows : We have heard Mr Bhim Sen Sehgal, learned counsel appearing for the appellants in both the appeals and we have also gone through the judgment of the Tribunal. The Tribunal has painstakingly examined a conspectus of decisions on the issue of disability pension and having carefully analyzed those decisions has summed up the legal position (at page 67 of the paper book) as under : To sum up in our view the following principles should be the guiding factors for deciding the question of attributibility or aggravation, where the disability or fatality occurs, during the time the individual is on au theorized 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 attributibility 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 under stood 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 generalize 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 all 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 attribute able to military service. An accident or injury suffered by a member of the Armed Forces must have some 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 hazard 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. 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 ha s some connection and nexus to the nature of the force. At least remote attributibility 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

6 -6- 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. In our view, the Tribunal has rightly summed up the legal position on the legal position on the issue of entitlement to disability pension resulting from any injuries etc and it has correctly held that in both cases there was no causal connection between the injuries suffered by the appellants and their service in the military and their cases are, therefore, clearly not covered by Regulation 173 of the Regulations. (emphasis supplied) 11. The legal position thus follows is that mere fact of a person being on duty or otherwise at the place of posting or on leave is not sole criteria for deciding attributibility of disability/death. The act, omission or commission which results in injury to the member of the force and consequent disability/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. A fine line of distinction has to be drawn between the matters connected, aggravated or attributable to military service. What ex-facie in the domain of an entirely private act cannot be treated as legitimate basis for claiming the relief under these provisions. 12. In view of the above discussion we are bound to follow the law as declared on the Apex Court from time to time, on the subject. The attention of the High Court in the case Barkat Masih,CWP No of 2013 (O & M),decided on was not brought towards the fact that the earlier Notification having been superseded is now no longer available to the army personnel together with the fact that the judgment of Dilbagh Singh (F.B), which has not been followed by the High Court, has been approved, by the Apex Court in the case of Jujhar Singh, thus, silencing the argument that each and every type of injury caused to an army personnel during casual leave, entitles him for grant of disability pension. 13. The petitioner received the injury while travelling on the scooter and coming back from the market after purchasing the Turban. He had gone to the market after taking oral leave. However, there is no

7 -7- evidence worth the name on record to show that the petitioner received the above injury in the discharge of military duty. The fact that the petitioner was on leave is not sufficient to grant him disability pension. An accident may happen anywhere at any time. But such an accident by itself cannot be said to have happened out of military duty unless it is shown that the person was doing some incidental act to his military duty. Therefore, the petitioner is not entitled to get disability pension. 14. Viewed as above, we do not find any merit in the petition and the petition is dismissed. However, in the two other cases being OA 3691 of 2013 Hawa Singh Vs. Union of India and others decided on 30 th September,2014 and OA 2230 of 2012 Bhagwan Singh Vs. Union of India and others decided on 17 th October, 2014 leave to appeal under section 31 of the Armed Forces Tribunal Act to the Supreme Court of India, has been granted. We accordingly grant leave to appeal to the Supreme Court in the present case also. 15. The petition is dismissed but no order as to costs. The record of Court of Inquiry be returned to learned counsel for the respondents. (Justice Prakash Krishna) (Lt Gen DS Sidhu (Retd)) tyagi Whether the judgment for reference to be put on internet-yes/no.

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