ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 3690 of 2013

Transcription

1 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 3690 of 2013 Baldev Singh Petitioner(s) Vs Union of India and others Respondent(s) -.- For the Petitioner (s) : Brig(Retd) Rajindar Kumar, Advocate For the Respondent(s) : Mr R N Sharma, CGC Coram: Justice Prakash Krishna, Judicial Member. Lt Gen DS Sidhu (Retd), Administrative Member. -.- ORDER The petitioner, who joined the Army service on 17 th July, 1974 and discharged on 31 st July, 1996 has, by means of present petition, claimed for grant of disability element of disability pension. He was on 12 days casual leave w.e.f. 1 st November 1993 to 12 th November, 1993 and during leave on 8 th November, 1993 he suffered injury in road accident. 2. The case of the petitioner is that he suffered injury while on casual leave and in army, casual leave is considered as duty, therefore, he is entitled for disability pension for the injury suffered by him in road accident on 8 th November, A Court of Inquiry was held and it opined that the injury is attributable to military service as there was no fault on the part of the petitioner in the said accident. The injury attributable to military service has also been recorded by the Commanding Officer. He was brought before the medical board at the time of his discharge and the medical board has found that the petitioner is suffering with disability/ multiple injuries. The injuries were sustained by the petitioner in a road accident while he was on casual leave in the year 1993 and is, therefore, aggravated by military service. The said disability was assessed 30% for two years. The papers for grant of disability pension were forwarded to the Pension Sanctioning Authority who refused to grant disability element of disability pension vide letter dated 11 th April, 2001 on the ground that

2 -2- the said injury received in road accident is neither attributable to nor aggravated by military service. He carried the matter in appeal dated 12 th April, 2004 which too has been dismissed on 15 th June, 2004 vide Annexure R- IX. Hence the present petition. 3. The learned counsel for the petitioner, on the strength of judgment of Principal Bench in OA 218/2014 Ex HMT Rajinder Singh Versus Union of India & others, decided on 18 th March, 2015, submitted that the petitioner is entitled to get disability element of disability pension as the competent authority i.e. Commanding Officer has held that the injury sustained by the petitioner is attributable to military service. 4. Before taking into consideration the aforesaid relied upon judgment by the learned counsel for the petitioner, it would be appropriate to consider the legal position with regard to the issue involved as to whether the petitioner who has suffered injury during casual leave while doing his private job is entitled to disability pension or not, as adjudicated upon by Apex Court and this Tribunal from time to time. 5. Statement of the petitioner with regard to the incident as given by him before the Court of Inquiry, for the sake of convenience, is reproduced below : MAIN 8/11/93 SHAM KO BAHIN KE GHAR MAIN AMBALA JA RAHA THA RASTE MAIN GHAR SE 6 K.M. CHALNE KE BAD GAON MALAKPUR KE PAS JO SHAHJADPUR- SAHA SADAK PAR HEI EK CHHOTE SE MAUR PAR PICHHE SE EK METADOR MERE KO MARTE HUAI CHALA GAYA AUR MAIN USI SAMAYA BEHOSH HO GAYA 6. On the above facts, the question of disability pension to the petitioner is up for consideration. 7. The Pension Regulations for the Army 1961, Regulation 173 dealing with primary conditions for the grant of disability pension and Regulation 179 deals with disability at the time of retirement/ discharge are reproduced below:-

3 -3- Primary conditions for the grant of disability pension Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed 20 per cent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II. Disability at the time of retirement/discharge An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or attaining the age of 50 years irrespective of their period of engagement, if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is less than 20 per cent or more and service element if the degree of disability is less than 20 per cent. The service pension/service gratuity, if already sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be. (2) The disability element referred to in clause(1) above shall be assessed on the accepted degree of disablement at the time of retirement/discharge on the basis of the rank held on the date on which the wound/injury was sustained or in the case of disease on the date of first removal from duty on account of that disease. Note:- In the case of an individual discharged on fulfilling the terms of his retirement, his unwillingness to continue in service beyond the period of his engagement should not effect his title to the disability element under the provision of the above regulation. Then reference can be made to Entitlement Rules Appendix-II of Clause 12 which defines the word duty with regard to a person subject to disciplinary code of the Armed Forces. It reads as follows:- DUTY: 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 organised or permitted by Service Authorities and during the period of travelling in a body or singly by a prescribed or organised route. (see Judgments in this book also) Note:1 (a)personnel of the Armed Forces participating in (i) Local/national/international sports tournaments as member of service teams, or (ii) Mountaineering expeditions/gliding organised by service authorities, with the approval of Service Hqrs. will be deemed to be on duty for purposes of these rules.

4 -4- (b) Personnel of the Armed Forces participating in the above named sports tournaments or in privately organised mountaineering expeditions or indulging in gliding as a hobby in their individual capacity, will not be deemed to be on duty for purposes of these rules, even though prior permission of the competent service authorities may have been obtained by them. (c) Injuries sustained by the personnel of the Armed Forces in impromptu games and sports outside parade hours, which are organised by, or disability arising from such injuries, will continue to be regarded as having occurred while on duty for purposes of these rules. Note: 2 The personnel of the Armed Forces deputed for training at courses conducted by the Himalayan Mountaineering Institute, Darjeeling shall be treated on par with personnel attending other authorised professional courses or exercises for the Defence Services for the purpose of the grant of disability family pension on account of disability/death sustained during the courses. (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) When journeying by a reasonable route from one s quarter to and back from the appointed place of duty, under organised arrangements or by a private conveyance when a person is entitled to use service transport but that transport is not available. (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. 9. We now proceed to consider as to how these and the related provisions have been interpreted by the Apex Court from time to time. 10. To begin with, in Secretary, Ministry of Defence and others Vs Ajit Singh, 2009(8) SCR 934, the individual who was enrolled in the Army during the course of his service sustained 20% disability on account of electric shock suffered by him while he was on casual leave. On account of this, he was declared medically unfit and ultimately discharged. The individual claimed disability pension which was granted by the courts. However, the Supreme Court by placing reliance on its earlier decisions in Union of India and others

5 -5- Vs Keshar Singh (2007) 12 SCC 675 and Union of India and others Vs Surinder Singh Rathore (2008) 5 SCC 747 has held that disability is not attributable to or aggravated by military service and thus the individual is not entitled to disability pension. 11. In Union of India and others Vs Jujhar Singh, (2011) 7 SCC 735 also the individual was on annual leave. He met with a road accident at his native place and sustained grievous injuries resulting in permanent disability. He continued in military service till he was superannuated but was not granted disability pension, although was granted normal service pension. A claim for disability element of pension was laid by the individual. The Apex Court after quoting Regulation 179 of the Pension Regulations has considered the question in the background of its earlier decision delivered in Regional Director, E.S.I. Corporation and another Vs Francis De Costa and another, (1996) 6 SCC 1. The said decision arose under the Employees State Insurance Act, 1948 but the Apex Court opined that there is a similar provision therein i.e. the accident should have its origin in the employment and the same should have arisen out of and in the course of employment. The Apex Court has held that the said principle is applicable to the case which was on their hands. Having said so, it noted the fact that in the case of Regional Director, E.S.I. Corporation (Supra), the employee while going to his place of employment (Factory), met with an accident at a place which was about only one kilometer away from the factory which resulted in collar bone fracture. The question arose whether the said injury amounted to employment injury within the meaning of Employees State Insurance Act, 1948 entitling the employee to claim disablement benefit. It was answered in negative. The relevant portion as reproduced in the case of Jujhar Singh from the case of Regional Director, E.S.I. Corporation(Supra), is reproduced below:- A road accident may happen anywhere at any time. But such accident cannot be said to have arisen out of employment, unless it can be shown that the employee was doing something incidental to his employment. 12. The other salient feature of the decision of the Apex Court of the case of Jujhar Singh is, its approval by a Full Bench judgment of

6 -6- Delhi High Court in Ex. Nk Dilbagh Singh Vs Union of India, 2008(106) Delhi Reported Judgments 865. It has reproduced, therein, Paragraph 24 of the said Full Bench judgment. We are reproducing the same here as under, where in no uncertain terms it settled the legal position beyond doubt. 24. To sum up our analysis, the foremost feature consistently highlighted by the Hon ble Supreme Court, is that it requires to be established that the injury or fatality suffered by the concerned military personnel bears a causal connection with military service. Secondly, if this obligation exists so far as discharge from the Armed Forces on the opinion of a Medical Board the obligation and responsibility a fortiori exists so far as injuries and fatalities suffered during casual leave are concerned. 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. 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. Fifthly, the Hon ble Supreme Court has simply given effect to this 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 Pension. 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 service. 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 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.

7 After reproducing the aforesaid paragraph, the Apex Court fully endorsed the view expressed by the Full Bench of the Delhi High Court. Logically it follows that the requirement of law is that it has to be established that the injury or fatality suffered by the concerned military personnel bears causal connection with military service. Whether the injury or death has occurred during annual leave or casual leave or at the place of posting or during working hours, is not relevant because attributability to military service is a factor which is required to be established in all such cases. A fair reading of the judgment given in the case of Dilbag Singh (Supra) would show that it considers the definition of word duty as given in Appendix-II, Regulation 423 of Medical Services of Armed Forces Regulations 1983 defining the attributability to service. Besides considering judgments of the various High Courts, the Full Bench of Delhi High Court also considered the judgment of the Apex Court, took into consideration the principle of stare decisis. It also considered the judgments of the Apex Court in the case of Madan Singh Shekhawat Vs Union of India, AIR 1999 SC 3378 and other Supreme Court judgments to come to the conclusion that these judgments of the Apex Court, Madan Singh Shekhawat in particular, are not applicable to the controversy. 14. In paragraph 94, it has made a reference of the judgment of Apex Court Union of India and others Vs Baljit Singh (1996) 11 SCC 315 wherein their Lordships have cautioned that :- in each case where a disability pension is sought for and made 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. 15. The upshot of the above discussion is that the principle of law laid down in the case of Dilbag Singh(Supra) that there should be a causal connection in between, the act or omission of the Army personnel with discharge of military duty is sine qua non for the claim of disability element of pension. This principle of law laid down in the case of Dilbag Singh(Supra) finds approval by the Apex Court in the case of Jujhar Singh (Supra).

8 Yet subsequently in Union of India and another 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 in the play of children which seriously damaged his left eye. 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. 17. 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. 18. 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, the 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 Union of India Vs. Ex Nb Sub Khushbash Singh s 2010 L.P.A. No.978 of 2009 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 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

9 -9- 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 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. 19. The matter was carried further in appeal by some 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 and the judgment of

10 -10- 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.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.

11 -11- 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 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 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) 20. 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 seen in the domain of an entirely

12 -12- private act cannot be treated as legitimate basis for claiming the relief under these provisions. 21. Recently, the Apex Court in Civil Appeal No.6583 of 2015 Union of India & others Versus Ex Naik Vijay Kumar, vide its judgment dated 26 th August, 2015 has held that if the injury suffered or death caused to an individual, has no causal connection with the military service, it cannot be said that the said disability or death is attributable to military service. In the said judgment, the apex court has considered para 12 of the judgment given in another case Union of India and Another Vs. Talwinder Singh (2012) 5 SCC 480 which is reproduced as below : 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 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 Now we take up the judgment given in the case of Ex HMT Rajinder Singh (supra) relied upon by the learned counsel for the petitioner. It is also a case of injury during casual leave. The individual was travelling on a Motor Cycle when he met with an accident and suffered injuries. There the Court of Inquiry found that the individual s disability is attributable to military service. The Commanding Officer also held the disability of the individual attributable to military service. However, he was denied disability pension on the ground that the disability is neither attributable to nor aggravated by military service. After noticing the above facts, the Tribunal took into consideration Regulation 520 of Defence Service Regulations for the Army and concluded that in the case of injury, in view of Regulation 520 (j) Brigade Commander or the Commanding Officer will record whether or not the injury was attributable to military service and whether it had occurred on private service. It concluded therein that a final decision with regard to point whether the

13 -13- injury is attributable to military service is that of Commanding Officer. It is further observed in para 23 of the judgment that the judgment given by the full bench of Punjab & Haryana High Court in the case of Khushbash Singh fully supports their view. For the sake of convenience para 23 of the judgment of the Armed Forces Tribunal, Principal Bench, New Delhi is reproduced below : It will be worthwhile to mention in the case of Khushbash Singh (supra) issue has been considered with more detail by the full Bench of Punjab and Haryana, High Court which fully supports our view, rather say, we have been benefited by the reasons given in the Khusbash Singh case. It is submitted by the counsel for the petitioner that the SLP against Khushbash Singh s case was already dismissed. 23. There cannot be possibly be any quarrel with regard to competent authority as provided for under Regulation 520 of Chapter XII of Defence Service Regulations to form decision whether or not the injury was attributable to military service. The question is whether the opinion of such competent authority can be subjected to judicial review or not. In other words can it be said that the competent authority has final say in the matter and is it so sacrosanct that it cannot be challenged before the court/tribunal. 24. Every administrative order can be subject matter of judicial scrutiny, as and when called for. An order of competent authority as to whether the injury is attributable to military service can be challenged before the court by any aggrieved person as and when in a giving situation such a situation arises. To error is human. Even a competent authority may pass incorrect order, may be due to misunderstanding of law or fact. 25. The Apex Court in A.K.Kraipak and others v. Union of India and others AIR 1970 SC 150 has held that the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an

14 -14- administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuring from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as n administrative power some years back is now being considered as a quasi-judicial power. The following observations of Lord Parker C.J. in Regina v. Criminal Injuries Compensation Board, Ex. Parte Lain [1967] 2 Q.B.864 are instructive. 26. Viewed as above, it will be useful to refer para 3 of Preface of Defence Service Regulations which provides that - These regulations being non-statutory, are supplemental to the relevant statutory provisions, wherever they exist and do not supplant them. Officers are expected to interpret and apply these regulations reasonably and with due regard to the interests of the Service, bearing in mind that no attempt has been made to provide for necessary and self evident exceptions nor for such matters as should ordinarily be dealt with by local authorities. The above quoted para would show that Defence Regulations are non-statutory and are issued under the Government of India and covers salient aspects of the administration of the Regulations for the Army.

15 In addition to above, the judgment of Armed Forces Tribunal, Principal Bench would show that it was passed on the lines of the decision given by full bench of Punjab & Haryana High Court in the case of Khushbash Singh (supra). We may say that a full bench of Delhi High Court in Ex Nk. Dilbagh Singh s case (supra) did not agree with the ratio as laid down by the said full bench of Punjab & Haryana High Court. The matter had gone to the Apex Court and the Apex Court in the case of Jujhar Singh (supra) has approved the judgment of Delhi High Court given in the case of Ex.Nk Dilbagh Singh (supra). Thus the judgment of Khusbash Singh s case (supra) can no longer be treated as good law. 28. In the earlier part of the judgment we have mentioned a judgment of this Tribunal in the case of Jagtar Singh Versus Union of India (supra). Tribunal, Armed Forces Tribunal did not follow the ratio as given in the case of Khusbash Singh (FB). 29. The matter went to the Supreme Court in the case of Sukhwant Singh and others Versus Union of India 2012(12) SCC 288 and the judgment of Armed Forces Tribunal, Chandigarh has been confirmed. The relevant portion has already been reproduced in the earlier part of the judgment. 30. The Apex Court in a number of cases examined the issue and has laid down that an injury sustained by an Army personnel while doing his private job on leave casual or annual unconnected with the military service will not attract the grant of disability pension for the disability suffered. It appears that the fact that Khushbash Singh s judgment is no longer be considered as good law was not brought to the notice of Principal Bench, Armed Forces Tribunal, as also the judgment of this Armed Forces Tribunal, Chandigarh given in the case of Jagtar Singh (supra) which is earlier in point of time. 31. Recently again the same controversy came for consideration before the Apex Court in Civil Appeal No of 2015 (Arising out of CAD No of 2014) Union of India & others Versus P,EX- Naik Vijay Kumar, decided on 26 th August, 2015 wherein it again reiterated its earlier view. Reference has been made to

16 -16 Regulation 173 of the Pension Regulations for the Army, 1961, Rule 12 of the Entitlement Rules for Casualty Pensionary Awards 1982, Sukhwant Singh Vs. Union of India (2012) 12 SCC 228, Union of India & another Versus Ex Naik Surendra Pandey, 2015 (2) SCALE 361, Secretary of Defence & others Vs. Ajit Singh, (2009) 7 SCC 328, Union of India &others Vs. Keshar Singh (2007) 12 SCC 675, Union of India & others Vs. Surinder Singh Rathore (2008) 5 SCC 747, Union of India & others Vs. Jujhar Singh (2011) 7SCC 735 and Union of India & others Vs. Talwinder Singh (2012) 5SCC In the case of Ex Naik Vijay Kumar (supra) the Apex Court has held that the recommendations of Invaliding Medical Board is recommendatory in nature. The Pension Sanctioning Authority has a final decision. Unless a matter is placed before the pension sanctioning authority it would have no occasion to say anything in the matter. This position would arise after retirement and not earlier. 33. The Principal Bench, Armed Forces Tribunal obviously had not the advantage of the judgment of the Apex court in the case Ex Naik Vijay Kumar (supra), which is decided subsequently. 34. In view of the above, we find that the petitioner was not discharging any military service when he suffered injury in question on 8 th November, The argument, that the petitioner had visited his sister s place which is a social obligation and thus his visit is attributable to military service, has no substance. No other point was pressed. 35. The petition is dismissed. (Justice Prakash Krishna) /tyagi/raghav Whether the judgment for reference to be put on internet-yes/no. (Lt Gen DS Sidhu (Retd))