JUDGMENT ( )

Transcription

1 OA No.635 of IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH NEW DELHI. O.A.No. 635 of 2010 Major (Retd.) AK Suhag...Petitioner Versus Union of India & Ors. Respondent For the Petitioner : Shri S.R.Kalkal, Advocate For the Respondents: Shri Anil Gautam,Advocate C O R A M: HON BLE MR. JUSTICE A.K.MATHUR, CHAIRPERSON HON BLE LT.GEN. S.S.DHILLON, MEMBER (A) BY CHAIRPERSON: JUDGMENT ( ) 1. Petitioner by this petition has prayed that directions be issued to respondent for releasing war injury 100% disability in respect of the applicant w.e.f. the date of discharge from service along with arrears and 12% interest there upon.

2 OA No.635 of Petitioner was granted permanent commission on after having been found physically & medically fit by a properly constituted Medical Board. The applicant was posted to 402 Lt. Air Defence Regt which was located at Batalik Sector during OP Vijay (Kargil War). The petitioner participated actively during Kargil War and was awarded OP Vijay Medal and OP Vijay Star respectively. While moving from Batalik post to Leh in a Jeep on to attend a Conference at Headquarter 8 Mtn. Div, the vehicle in which the applicant was travelling fell down from the road in a deep water stream(nalla). The applicant was immediately evacuated to military hospital in an unconscious condition. Thereafter, he was transferred to Command Hospital, Western Command, Chandimandir. 3. A Court of Inquiry was convened to investigate the circumstances of the accident and the Court of Inquiry found that the injury sustained by the petitioner is attributable to Military Service in operational /HAA area. The applicant was treated for a considerable time for

3 OA No.635 of severe head injury and fractured ribs left but could not be completely cured. He was brought before a properly constituted Medical Board. The Medical Board recommended the applicant to be invalidated from service with 100% disability and for grant of war injury pension and constant attendant allowance w.e.f The petitioner was granted Disability Pension to the extent of 100% by PCDA, Allahabad ignoring his War Injury Pension vide their PPO dated The respondent authority on sent a letter to the PCDA, Allahabad stating that applicant has suffered 100% disability + 20% and had been accepted as Battle Casualty, therefore, he should be granted War Injury Pension alongwith constant attendance allowance, but same was rejected by the authorities. Hence, the petitioner approached this tribunal by filing the present petition & claimed the war injury pension as per para 4.1(E)(F) Govt. Of India, Ministry of Defence letter dated

4 OA No.635 of The petition has been contested by the respondent by filing a reply and respondent has pointed out in their reply that injury was sustained by the officer in vehicle accident while on bonafide military duty from Kargil to Leh. But this injury cannot be classified as a war injury. It is pointed out that death/injury shall not be classified as a battle casualty merely because it has taken place in an operational area. The cardinal factor in terms of the policy on the subject in classifying a death or injury as a battle casualty is that the casualty should have taken place directly during the enemy action or action by terrorists or while preparing for such action, in mine blast, aid to civil authorities during natural calamities or in quelling agitation or riots, battle inoculation training exercises, etc. It is also pointed out that though the injury had occurred in operational area it should be terms as physical casualty and not battle casualty. Therefore, authorities treated the injury of the petitioner as covered under physical category C of the Govt. Of India, Ministry of Defence letter dated

5 OA No.635 of Therefore, the question before us is whether the injury received by the incumbent can be said to be battle casualty or not. To appreciate the controversy involved in the matter, it would be relevant to refer to a brief history of battle casualty. Prior to this there was a Special Army Order dated The relevant portion of the AO reads as under: Scope 1. This Army Order lays down instructions for reporting of physical and battle casualties to various authorities, intimation to next of kin, submission of reports on accidents involving loss of life and injuries, issue of condolence letters and death certificates and presumption of death personnel reported missing. Definitions 2. For the purpose of these instructions, definitions of various terms used herein will be as in the succeeding paragraphs. 3. Physical Casualties Physical Casualties are those which occur in nonoperational areas or in operational areas where there is no fighting, or whilst in aid to civil power to maintain internal security. Such casualties fall in to the following categories:- (a) (b) (c) (d) Died or killed Seriously or dangerously ill Wounded or injured (including self-inflicted0 Missing 4. Battle Casualties - Battle Casualties are those sustained in action against enemy forces or whilst repelling enemy air attacks. Casualties of this type consist of the following categories:- (a) (b) (c) (d) Killed in action Died of wounds or injuries(other than self-inflicted) Wounded or injured (other than self-inflicted) Missing

6 OA No.635 of This order seems to have undergone further changes. While implementing the recommendations of 5 th Central Pay Commission, dated the Government issued the order The introduction clearly says that these are the new norms to be laid down for government s decisions on the recommendations of the Fifth Central Pay Commission. The relevant portion reads as under: Implementation of the Government Decisions on the Recommendations of the Fifth Central Pay Commission regarding disability pension / war injury pension/ special family pension / liberalised family pension / dependent pension / liberalised dependent pension for the armed forces officers and personnel below officer rank retiring invaliding or dying in harness on or after PART II PENSIONARY BENEFITS ON DEATH/DISABILITY IN ATTRIBUTABLE/AGGRAVATED CASES 4.1 For determining the pensionary benefits for death or disability under different circumstances due to attributable / aggravated causes, the cases will be broadly categorised as follows; Category A... Category B... Category C Death or disability due to accidents in the performance of duties such as:- (a) Accidents while travelling on duty in Government Vehicles or public / private transport

7 OA No.635 of (b) (c) (d) (e) (f) Accidents during air journeys Mishaps at sea while on duty Electrocution while on duty, etc. Accidents during participation in organised sports events/ adventure activities/expeditions/training The case of petitioner is that petitioner falls in the category of e, it says that Category D Death or disability due to acts of violence/attack by terrorists, antisocial 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 the aid of civil power in dealing with natural calamities. Category E Death of disability arising as a result of- (a) Enemy action in international war (b) Action during deployment with a peace keeping mission abroad (c) Border skirmishes (d) During laying or clearance of mines including enemy mines as also minesweeping operations (e) On account of accidental explosions of mines while laying operational oriented mine-field or lifting or negotiating borderers or the line of control (f) War like situations, including cases which are attributable to / aggravated by- (i) Extremist acts, exploding mines etc. while on way to an operational area (ii) Battle inoculation training exercises or demonstration with live ammunition (iii) Kidnapping by extremists while on operational duty (g) An act of violence/attack by extremists, anti-social elements etc. while on operational duty (h) Action against extremists, anti-social elements etc. Death/disability while employed in the aid of civil power in quelling agitation, riots or revolt by demonstrators will be covered under this category (i) Operations specially notified by the Govt. From time to time.

8 OA No.635 of Therefore, the Learned Counsel for the petitioner has tried to persuade us that since the petitioner has met with a motor accident while going from Batalik to Leh and this was an operational area therefore, it is covered by Category E (f) or alternatively E (j) since the whole areas has been notified as operational areas for the Kargil Operations. In either case, he met with an accident while going from Batalik to Leh and his injury arising in the operational area be treated as battle casualty. 8. We have bestowed our best of consideration made by the petitioner. In fact, plain reading of the Army notification dated and the Govt. notification dated , indicates that the injury received by the petitioner while travelling from Batalik to Leh does not fall under the category of a war casualty. In fact a close reading of Category E clearly entitles person receiving an injury where there is a war like situation and the injury is attributable or aggravated by military service, or when a person falls victim to Extremists Acts, exploding of mines, while on the way to an operational area, during battle

9 OA No.635 of inoculation or training exercises or demonstration with live ammunition or kidnapping by extremists while on operational duty etc. and the case of the petitioner does not fall in any of these categories. May be he was in the operational area, but the petitioner is not victim of any of the situations mentioned in the sub-clause f of Category E. Neither does he fall in the category case of Operations specially notified by the Government from time to time. Meaning thereby that when certain operations are undertaken, like clearing of extremists from a particular area, then that particular area is notified and any one falls victim or any other contingency arises then such death or injury could be attributable to that operation. In normal case the petitioner falls in category C, which clearly says that accident while travelling on duty in govt. Vehicle or public/private transport. Therefore, this contingency in which petitioner received the injury falls specifically in Category C sub-clause (a). It may be that Leh and Batalik are on the Indo-Pak border but contingency which has been contemplated in the

10 OA No.635 of Category E does not cover this vehicular accident. Learned Counsel for petitioner has tried to refer to one of the decisions of this Tribunal as well as that of High Court of Punjab and Haryana in the case of Major Arvind Kumar Suhag Vs. State of Haryana [2010(4)SCT] in which the question related to payment of ex-gratia. In that context, the single Judge has taken the view that exgratia payment should be paid and the matter was taken before the Apex Court by way of SLP & same was dismissed in limini. This case is of no help to the petitioner. Learned Counsel has also invited our attention to the decisions of Hon ble Delhi High Court in the cases of Ex Nk Sultan Singh Vs. UOI & Ors [WP(C) No.7941 of 2003] and NK Jaswant Singh Vs. UOI & Ors. [W.P.(C) No.3316 of 2008] and the cases relating to this Tribunal in the case of Maj.PP Singh Vs. UOI & Ors. (TA No.57/09) and the case of Hav. MK Sharma Vs. UOI & Ors (TA No.691/2009). All these cases are distinguishable on peculiar facts. Therefore, we don t wish to overburden this judgement with reference to them.

11 OA No.635 of But we can say without fear of contradiction that none of these cases have a contingency such as has arisen in the present case. 9. Learned counsel invited our attention to a decision of Hon ble Supreme Court given in the case of K.J.S.Buttar Vs. UOI & Anr (2011 (2) SCT). This was the case in which person suffered a serious injuries of permanent nature and was invalidated from service and on the release of Medical Board held on proved the injury as a gun shot wound in left elbow and said to be attributable to military service and assessed the disability to 50% and petitioner was released from service in low medical category. The question was that the benefit of notification dated could be given to person who are invalidated out from service prior to or not. Therefore, this artificial fixation of date of pre and post was subject matter of challenge and their lordships observed that this artificial date of is not valid. It is observed by their lordships that that in our opinion in view of the instruction dated

12 OA No.635 of read with our opinion , the appellant was entitled to the War Injury Pension. It is pertinent to state that reading of para 6, 7 and 8 of the Notifications / Circular dated makes it absolutely clear tht the said benefits were available to pre 1996 retirees also but the rates were revised on and the revised rates were made applicable to post 1996 retirees only. But subsequently by means of Notification dated the revised rates were extended to pre 1996 retirees also. At any event, we have held that there will be violation of Article 14 of the Constitution if those who retired / were invalided before are denied the same benefits as given to those who retired after that date. In Any case, KJS Bhuttar suffered a bullet injury while undergoing battle inoculation which falls under category E (f)(ii) which reads Battle inoculation, training exercises or demonstration with live ammunition. Therefore this judgement also cannot come to the rescue of the petitioner in the present situation.

13 OA No.635 of Hence, as a result of above discussion, we hold that the injury received by the petitioner cannot be categorised as battle casualty and he is not entitled to benefit of war injury. The authorities have rightly examined the matter and there is no ground to interfere in this petition. Accordingly, it is dismissed. 11. No order as to costs. 1. rejec [Justice A.K. Mathur] Chairperson New Delhi 3 rd April, 2012 (Lt. Gen. SS Dhillon] Member (A)