REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4981 OF 2012

THE SECRETARY, GOVERNMENT OF INDIA &  ORS. .....APPELLANT(S)

VERSUS

DHARAMBIR SINGH .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1) The challenge in the present appeal is to an order dated March 7,

2011 passed by the Armed Forces Tribunal, Chandigarh, Regional

Bench  at  Chandimandir1,  granting  disability  pension  to  the

respondent  Dharambir  Singh,  as  the  injury  was  found  to  be

attributed to military service.

2) The  undisputed  facts  are  that  the  respondent  joined  Territorial

Army on December 28, 1981 and was discharged on December 13,

1999.  He was granted two days casual  leave from January 25,

1999 to January 26, 1999 when posted at Jalandhar Cantt.  During

the leave period, he met with an accident while riding a scooter

and  suffered  head  injury  with  Faciomaxillary  and  compound

fracture 1/3rd Femur (LT).   A Court  of  Inquiry2 was conducted to

investigate  into  the  circumstances  under  which  the  respondent

1  for short, ‘Tribunal’ 2  for short, ‘COI’

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sustained injuries.  The Brigade Commander has given its Report

dated August 18, 1999 that the injuries, occurred in peace area,

are  attributable  to  military  service.   One of  the  findings  of  the

Report recorded under Column 3(c) is reproduced hereunder:

“(c) Was anyone else to blame for  the  accident?  (If  so, indicate  how  and  to  what extent).

No one is to be blamed.  In fact, he lost control of his own scooter.”

3) After rendering pensionable service of 17 years and 225 days, the

respondent was discharged from service on December 13, 1999

pursuant to the report of the Medical Board dated November 29,

1999 which held the disability to be 30%.  However, the claim for

disability pension was rejected by the Medical Board on the ground

that the disability was neither attributable to nor aggravated by

military service.   An appeal filed by the respondent  against the

rejection  of  his  claim for  disability  pension was  rejected by  the

Additional Directorate General, Personnel Services.  It is thereafter

the  respondent  invoked  the  jurisdiction  of  the  Tribunal.   The

learned Tribunal referred to the judgment of this Court in  Madan

Singh Shekhawat v.  Union of India & Ors.3 and held that the

respondent is entitled to disability pension.   

4) Learned  counsel  for  the  appellants  argued  that  though  the

respondent  would  be  treated  to  be  on  duty  even  if  he  was  on

casual leave or annual leave but the injuries suffered must have

causal  connection  as  attributable  to  or  aggravated  by  military

service.  The respondent in this case was admittedly going on a

3  (1999) 6 SCC 459

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scooter  to  purchase electrical  goods  for  his  sister  when he lost

control  while  saving  a  cyclist,  therefore,  there  is  no  causal

connection between the injuries resulting in disability and military

service.  Learned counsel for the appellants relied upon two recent

judgments of this Court in Renu Devi v. Union of India & Ors.4

and Union of India & Ors. v. Vijay Kumar No.3989606 P, Ex-

Naik5.  This Court in  Vijay Kumar examined the admissibility of

disability pension, when personnel of Armed Forces are on leave.

The Court declined the claim with the following findings:

“23.  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 the 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.”

5) Per contra, Mr. Rajesh Sehgal, learned counsel for the respondent,

argued that the claim of disability pension arises under two heads:

one,  under  ‘injury’  and  the  other,  under  ‘disease’  cases.   It  is

argued that the opinion of the Medical Board in respect of disease

cases is final but, in respect of injury cases, the finding of the COI is

final and is to be made basis of grant of disability pension.  He

refers to Para 520 of the Defence Services Regulations published in

the year 1986, which we shall reproduce at the relevant stage.  The

reliance is placed upon various judgments of the Tribunal as also

Full Bench judgment of Punjab & Haryana High Court in Union of

4  Decided on July 03, 2019 in Civil Appeal arising out of Diary No.37356 of 2017 & Anr. 5  (2015) 10 SCC 460

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India & Ors.  v.  Khushbash Singh6 followed by Division Bench

judgment in Barkat Masih v. Union of India & Ors.7 delivered by

one of us (Justice Hemant Gupta) as a Judge of Punjab & Haryana

High Court.  It is argued that any injury caused by an activity which

is not an  “unmilitary activity” has to be deemed to be an injury

attributed to or aggravated by military service.  The Division Bench

in Barkat Masih concluded as under:

“20.  In view of the judgment of Hon'ble Supreme Court in Madan  Singh  Shekhawat's case  (supra), Balbir Singh's case (supra) and that of Full Bench judgment of this court in Khushbhash Singh's case (supra),  we find that  the  injuries  suffered  by  the  petitioner  when  on casual  leave  entitles  the  petitioner  for  a  disability pension as the injury would be deemed to have been attributed  to  military  service.  Consequently,  the  writ petition is allowed.”

6) Before we consider the respective arguments of learned counsel for

the  parties,  the  provisions  of  the  Army  Act,  19508,  Notification

issued by the Central Government on November 29, 1962, Rules

and  Regulations  which  are  applicable  in  respect  of  grant  of

disability pension need to be extracted hereunder:

“Army Act, 1950 Section 3 (i)

(i) “active service”, as applied to a person subject to this Act, means the time during which such person –  

(a)  is  attached to,  or  forms part  of,  a  force  which is engaged in operations against an enemy, or  

(b) is engaged in military operations in, or is on the line of  march  to,  a  country  or  place  wholly  or  partly

6  2010 (3) SLR 103 7  2014 SCC OnLine P&H 10564 8  for short, ‘Act’

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occupied by an enemy, or  

(c) is attached to or forms part of a force which is in military occupation of a foreign country.”

“Section 9  

Power to declare persons to be on active service. Notwithstanding  anything  contained  in  clause  (i)  of section 3, the central Government may, by notification, declare that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to any provision of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of this Act.”

“Notification dated 29.11.1962 S.R.O. 6.E - New Delhi, the 28th November 1962

In exercise of the powers conferred by section 9 of the Army Act, 1950 (46 of 1950), the Central Government hereby  declares  that  all  persons  subject  to  that  Act, who are not on active service under clause (I) of section 3  thereof,  shall,  wherever  they  may  be  serving,  be deemed to be on active service within the meaning of that  Act for the purposes of  the said Act  and of  any other law for the time being in force.”

“Leave Rules for the Services, Volume-I (Army)

Rule  10.  Casual  leave  counts  as  duty  except  as provided for in Rule 11 (a).

It cannot be utilized to supplement any other form of leave or absence, except as provided for in clause (A) of Rule 72 for personnel  participating in sporting events and tournaments.

Casual leave due in a year can only be taken within that year. If, however, an individual is granted casual leave at the end of the year extending to the next year, the period failing in the latter year will be debited against the casual leave entitlement of that year.

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Rule 11 (a) -  Annual leave, for the year may at the discretion of the sanctioning authority, be extended to the next calendar year without prejudice to the annual leave  authorised  for  the  year  in  which  the  extended leave expires;  (b) Annual leave may be taken in instalments within the same year.  (c) The annual leave year is the calendar year, viz., 1st January to 31st December.  (Leave  11  substituted.  Auth:  MoD  letter  No.  B/33922/AG/PS- (b)/642/D(AG) dated 4th April 2011).”

“Disability  Element for Disability at  the time of Discharge/Retirement (2008)

Regulation  53(a) –  An  individual  released/retired /discharged on completion of term of engagement or on completion  of  service  limits  or  on  attaining  the prescribed  age  (irrespective  of  his  period  of engagement),  if  found  suffering  from  a  disability attributable to or aggravated by military service and so recorded  by  Release  Medical  Board,  may  be  granted disability  element  in  addition  to  service  pension  or service gratuity from the date of retirement/discharge, if  the accepted degree of disability is assessed at 20 percent or more.”

Regulation  82 -  For  determining  the  pensionary benefits on death or disability which is attributable to or aggravated  by  Military  service  under  different circumstance, the cases shall be broadly categorized as follows: -

Category A Death  or  disability  due  to  natural  causes  neither attributable  to  nor  aggravated  by  military  service  as determined  by  the  competent  medical  authorities. Examples would be ailments of nature of constitutional diseases  as  assessed  by  medical  authorities,  chronic ailments  like  heart  and  renal  diseases,  prolonged illness, accidents while not on duty.  

Explanation: The cases of death or disability due to natural causes falling  under  Category  A  entitles  ordinary  family pension  or  invalid  pension  or  invalid  gratuity  as  the case may be.

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Category B Death or disability due to causes which are accepted as attributable  to  or  aggravated  by  military  service  as determined  by  the  competent  medical  authorities. Disease contracted because of continued exposure to hostile work environments subject to extreme weather conditions or occupational hazards resulting in death or disability would be examples.

Category C Death or disability due to accidents in the performance of duties such as: (i)  Accidents  while  travelling  on  duty  in  Government vehicles or public/private transport. (ii) Accidents during air journeys (iii) Mishaps at sea while on duty. (iv) Electrocution while on duty etc. (v)  Accidents  during  participation  in  organised  sports events/adventure activities/expeditions or training.

Explanation: Invalidment case falling under Category B and Category C due to disease contracted or injury sustained or cause of  death  if  accepted  by  medical  authority  and/  or competent  authority  attributable  to  or  aggravated by Military service the individual may be granted disability pension or special family pension as the case may be.

Category D Death or  disability  due to acts  of  violence /attack by terrorists, anti  – social 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  aid  of  civil  power  and  also  while dealing with natural calamities.  

Explanation: Cases  falling  under  Category  D  entitles  liberalised disability  pension or  liberalised family  pension as the case may be.

Category E Death or disability arising as a result of: - (i) Enemy action in international war (ii)  Action  during  deployment  with  a  peace  keeping

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mission abroad (iii) Border skirmishes (iv)  During  laying  or  clearance  of  mines  including enemy mines as also mine sweeping operations. (v) On account of accidental explosions of mines while laying  operationally  oriented  mine  field  or  lifting  or negotiating mine field laid by the enemy or own forces in operational  areas near international  borders or the line of control. (vi)  War  like  situations,  including  cases  which  are attributable to/aggravated by:- (1) extremist acts, exploding mines etc, while on way to an operational area (2)  battle  inoculation  training  exercises  or demonstration with live ammunition (3) Kidnapping by extremists while on operational duty (vii) An act of violence/attack by extremists, anti-social elements etc. while on operational duty. (viii) Action against extremists, antisocial elements etc. death/disability while employed in the aid of civil power in quelling agitation,  riots  or  revolt  by demonstrators shall be covered under this category. (ix)  Operations  specially  notified  by  the  Government from time to time.

Explanation : Death or injury sustained in the circumstances falling under Category E entitles liberalised family pension or war-injury pension as the case may be.

Note:  The  illustrations  given  in  each  category  above from ‘A’  to  ‘E’  are  not  exhaustive.  Case  not  covered under  these  categories  shall  be  dealt  with  as  per Entitlement Rules for Casualty Pensionary Awards, 1982 as contained in APPENDIX IV of these Regulations.”

7) Pension Regulations for Army, 1961, have now been substituted by

Pension Regulations for the Army, 2008.  Pension Regulations for

Army,  1961  and  Pension  Regulations  for  the  Army,  2008  are

substantially same in respect of admissibility of disability pension.

Regulation  173  of  the  Pension  Regulations  for  the  Army,  1961,

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reads as under:

“173. The grant of pensionary awards to personnel of the Defence Security Corps shall  be governed by the same Regulations as are applicable to Personnel Below Officer  Rank  of  the  Army,  except  where  they  are inconsistent  with  the  provisions  of  the Regulations  in this chapter.”

8) The Entitlement Rules for Casualty Pensionary Awards, 19829 apply

to service personnel who become non-effective on or after January

1, 1982.  Prior to 1982 Rules, the Entitlement Rules of 1950 were in

force  which  are  similar  to  the  1982  Rules  as  far  as  factors

considering  disablement  as  attributable  to  military  service  are

concerned.   Rules  12,  13,  17  and  19  of  the  1982  Rules  are

reproduced hereunder:

“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 organized or permitted by Service Authorities and during the period of travelling in a body or single by a prescribed or organized route.

NOTE: 1

(a) xxx xxx

(b) xxx xxx

(c) xxx xxx

9  1982 Rules

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NOTE: 2 xxx xxx

(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) XXX                                         XXX

(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.”

“13.  In respect of accidents or injuries, the following rules shall be observed:-

(a) Injuries sustained when the man is “on duty” as defined, shall be deemed to have resulted from military service,  but in  cases of  injuries due to serious  negligence/misconduct  the  question  of reducing the disability pension will be considered.

(b) In cases of  self-inflicted injuries  whilst  on duty, attributability shall not be conceded unless it is established that service factors were responsible for such action; in cases where attributability is conceded,  the  question  of  grant  of  disability pension  at  full  or  at  reduced  rate  will  be considered.”

xx xx xx

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“17.  Medical Opinion: At initial claim stage, medical views on entitlement and assessment are given by the IMB/RMB.   Normally,  these  views  shall  prevail  for decisions in accepting or rejecting the claim.  In cases of doubt the Ministry/CCDA (Pensions) may refer such cases  for  second  medical  opinion  to  MA  (Pensions) Sections in the office of the DGAFMS/Office of CCDA(P), Allahabad,  respectively.   At  appeal  stage,  appropriate appellate medical authorities can review and revise the opinion  of  the  medical  boards  on  entitlement  and assessment.”

xx xx xx

“19.  Aggravation: if it is established that the disability was not caused by service, attributability shall not be conceded.   However,  aggravation by service is  to  be accepted unless any worsening in his condition was not due to his service or worsening did not persist on the date of discharge/claim.”   

9) Regulation 423 of the Medical Regulations also explains the injuries

which are attributable to service.  Such Regulation reads as under:

“Regulation 423. Attributability of 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 causal connection with the service conditions…

b) The  cause  of  a  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-inflection,  negligence  or misconduct.  

xxx xxx xxx

d) The  question,  whether  a  disability  or  death  is attributable to or aggravated by service or not, will

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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,  insofar  as  it relates to 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 CO unit will furnish a report on:

 (i) AFMS F-81 in all cases other than those due to  

injuries. (ii) IAFY 2006 in all  cases of injuries other than   

battle injuries.  

f) In  cases  where  award  of  disability  pension  or reassessment of disabilities 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 office in the latter case will be furnished on a Medical Board form and countersigned  by  the  ADMS  (Army)/  DMS (Navy)/DMS(Air).”

10) In  view  of  the  provisions  reproduced  above,  we  find  that  the

following questions arise for consideration:

(i) Whether,  when  armed  forces  personnel  proceeds  on

casual leave, annual leave or leave of any other kind, he is

to be treated on duty?

(ii) Whether  the injury or  death caused even if,  the armed

forces  personnel  is  on  duty,  has  to  have  some  causal

connection with military service so as to hold that such

injury or death is either attributable to or aggravated by

military service?

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(iii) What  is  the  effect  and  purpose  of  COI  into  an  injury

suffered by armed forces personnel?

Answer to Question No.1

11) In terms of Section 3(i) of the Act, the active service means time

during which a person who is subject to the Act, is attached to, or

forms part of, a Force which is engaged in operations against an

enemy engaged in military operations in, or is on the line of march

to, a country or place wholly or partly occupied by an enemy, or is

attached to or forms part of a Force which is in military occupation

of a foreign country.  The present is not the case covered by the

definition of Section 3(i) of the Act.

12) Section 9 of the Act empowers the Central Government to declare

that  any  person  or  class  of  persons  subject  to  the  Act,  with

reference  to  any  area  in  which  they  may  be  serving  or  with

reference to any provision of this Act or of any other law for the

time being in force, will be deemed to be on active service within

the meaning of the Act.  In pursuance of such provision, the Central

Government has notified that all persons who are subject to the Act

shall,  wherever they may be serving, be deemed to be in active

service within the meaning of the Act and of any other law for the

time being in force.

13) Still further, in terms of leave rules, the casual leave and annual

leave count as duty.  However, in terms of Rule 11(a) of the Leave

Rules  for  the Services,  Volume-I  (Army),  an  individual  on  casual

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leave is not deemed to actually perform duty during such leave.

1982 Rules provide that a person is on duty when he is proceeding

from his leave station or returning to duty from his leave station.

Still further, in terms of clause (f) of Rule 12 of the 1982 Rules, an

accident can be said to be attributable to service when a man is

not strictly ‘on duty’ as defined, 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.   Therefore, a person if killed or injured by another person for

the reason he belongs to the Armed Forces, he shall be deemed to

be ‘on duty’.   

14) Thus, it is held that when Armed Forces personnel is availing casual

leave or annual leave, is to be treated on duty.  

 Answer to Question No.2

15) The 1982 Rules give expansive definition to the expression ‘duty’

being undertaken by the personnel of the Armed Forces. It includes

the period when Armed Forces personnel is  proceeding from his

leave station or returning to duty from his leave station. It includes

even an accident which occurs when a man is not strictly on duty

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.    However,  as  per

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Regulation 423 of the Medical Regulations, such injury has to have

causal connection with military service or such injury is aggravated

by military service.   

16) In  Regulation  423(a)  of  the  Medical  Regulations,  it  has  been

specifically  mentioned  that  it  is  immaterial  whether  the  cause

giving rise to the disability or death occurred in an area declared to

be a field service or  active service area or  under normal  peace

conditions, will be deemed to be duty.  Regulation 423(a) mandates

that it is essential to establish whether the disability or death bore

a causal 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 individual.  For the sake of

repetition, the said clause reads as under:

“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  causal connection with the service conditions…”

17) Clause (b) of Regulation 423 of the Medical Regulations presumes

that  disability  or  death  resulting  from  wound  or  injury,  will  be

regarded  as  attributable  to  service  if  the  wound  or  injury  was

sustained  during  actual  performance  of  ‘duty’ in  Armed  Forces.

This is in contradiction to “deemed to be duty” as per Rule 12(f) of

1982 Rules,  as  the  Rule  is  when a  man is  not  strictly  on  duty.

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However, the injuries which are self-inflicting or due to individual’s

own serious negligence or misconduct even in the cases of active

duty, are not to be conceded unless, it is established that service

factors were responsible for such action.  

18) The  question  whether  a  disability  or  death  is  attributable  to  or

aggravated  by  military  service  or  not,  is  to  be  decided  by  the

Medical Board.  The opinion of Medical Board with regard to actual

cause of disability or death and the circumstances under which it

originated will  be regarded as final  in terms of Rule 17 of  1982

Rules which is to the effect that at initial claim stage, medical views

on  entitlement  and  assessment  shall  prevail  for  decisions  in

accepting or rejecting the claim.

 19) Regulation 423(d) provides that the question whether a disability

or death is attributable to or aggravated by service or not, will be

decided  as  regards  to  its  medical  aspects  by  a  Medical  Board/

medical officers. Such opinion of the Medical Board insofar as it

relates  to  the  actual  cause  of  disability  or  death  and  the

circumstances in which originality will be regarded as final.  The

Commanding  Officer  has  to  record  his  opinion  as  to  whether

injured person was on duty and whether he or she was to blame in

a COI.  Therefore, the scope of COI is to examine the conduct of the

injured person to determine whether the person has made himself

liable to be proceeded against departmentally.  In  respect of  the

injury, causal connection of injury to the army service is not final in

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the COI proceedings.  

20) In view of Regulation 423 clauses (a), (b) and (d), there has to be

causal  connection  between  the  injury  or  death  caused  by  the

military  service.   The determining  factor  is  a  causal  connection

between the accident and the military duties.  The injury or death

must be connected with military service howsoever remote it may

be.  The injury or death must be intervention of armed service and

not  an  accident  which  could  be  attributed  to  risk  common  to

human beings.  When a person is going on a scooter to purchase

house  hold  articles,  such  activity,  even  remotely  has  no  causal

connection with the military service.

Answer to Question No.3

21) Before we answer Question No.3, para 520 of the Defence Services

Regulations needs to be reproduced, which is as under:

“520.  Injury to a Person Subject to Army Act.-(a) When an officer, JCO, WO, OR or nurse, whether on or off  duty,  is  injured  (except  by  wounds  received  in action), a certificate on IAFY-2006 will be forwarded by the medical officer in charge of the case to the injured person’s CO as soon as possible after the date on which the patient has been placed on the sick list, whether in quarters or in hospital.  In the case of injuries which are immediately  fatal,  a  report  of  the  court  of  inquiry proceedings referred to in sub-para (c) (i) will take the place of IAFY-2006.

(b) If the medical officer certifies that the injury is of a trivial character, unlikely to cause permanent ill-effects, no  court  of  inquiry  need  be  held,  unless  considered necessary under sub-para (c) (ii), (iii), (iv) or (v).  In any event, however, IAFY-2006 will be completed and in all cases,  except  those  of  JCOs,  WOs  and  OR  will  be forwarded  through  the  prescribed  channels  to  Army Headquarters,  Org  Dte  in  the  case  of  non-medical

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officers and Medical Dte in other cases, a copy being retained  at  command  or  other  headquarters.   In  the case of a JCO, WO or OR, IAFY-2006 will be forwarded to the  officer  i/c  records  for  custody  with  the  original attestation, after the necessary entry, stating whether he was on duty and whether he was to blame, has been made by the CO in  the Primary  Medical  examination report (AFMSF-2A).

(c)In  the  following  cases  a  court  of  inquiry  will  be assembled to investigate the circumstances:-

(i) If the injury is fatal or certified by the medical officer to be of a serious nature.  Where an inquest is held, a copy of the coroner’s report of the proceedings will be attached to the court of inquiry proceedings.

(ii) If, in the opinion of the CO, doubt exists as to the cause of the injury.

(iii)  If,  in  the  opinion  of  the  CO,  doubt  exists  as  to whether the injured person was on or off duty at the time he or she received the injury.

(iv)  If,  for  any  reason,  it  is  desirable  thoroughly  to investigate the cause of the injury.

(v) If the injury was caused through the fault of some other person.

In cases where the injured person is a JCO, WO or OR, the court may consist of one officer as presiding officer, with two JCOs, WOs or senior NCOs as members.

(d) The court of inquiry will not give an opinion, but the injured  person’s  CO  will  record  his  opinion  on  the evidence,  stating  whether  the  injured  person  was  on duty and whether he or she was to blame.  When no evidence as to the circumstances attending the injury beyond  that  of  the  injured  person  is  forthcoming  it should be stated in the proceedings.  The proceedings will  then  be  sent  to  the  brigade  commander  or  the officer who has been authorised under Section 8 of the Army Act to exercise the legal and disciplinary powers of  a  brigade  commander who will  record  thereon  his decision whether disability or death was attributable to military service and whether it occurred on field service. After confirmation, the medical officer will, in all cases

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except those of JCOs, WOs and OR, record his opinion in the proceedings as to  the effect of  the injury on the injured person’s service.  The proceedings will then be forwarded by the CO through the prescribed channel to Army Headquarters, Org Dte in the case of non-medical officers and Medical Dte in other cases, a copy being retained  at  command  or  other  headquarters.   In  the case of a JCO, WO or OR a record will be made in the primary medical examination report (AFMSF-2A) by the CO that a court of inquiry has been held, and also as to whether the man was on duty and whether he was to blame.   The  primary  medical  examination  report  will then be passed to the medical officer who will record his opinion  as  to  the  effect  of  the  injury  on  the  man’s service.   The proceedings of  the court  of  inquiry  will then  be  forwarded  to  the  officer  i/c  records  for enclosure with the injured person’s original attestation (see sub-para (b) above), except in the case of a court of  inquiry under sub-para (c)(v)  above,  in which case the proceedings, together with a copy of the medical opinion  as  to  the  effect  of  the  injury  on  the  man’s service,  will  be  forwarded  without  delay  to  Army Headquarters.

(e) When an officer, JCO, WO, OR or nurse, not on duty, is injured in any way by or through the fault of a civilian or  civilians,  and  receives  compensation  from  such civilian or civilians, in lieu of any further claim, this will be recorded in the proceedings of the court of inquiry.

(f) A Court of inquiry need not necessarily be held to investigate deaths or injuries sustained through taking part  in  organized  games,  sports  and  other  physical recreations as defined in para 271.

In all cases where a court of enquiry is not held, IAFY- 2006  will  be  completed  with  the  statements  of witnesses  as  required  by  item  4  thereon  and  when applicable, the CO will certify that the games, sports, or physical recreations were organized ones.

(g) The injury report will  be submitted to the brigade commander  or  the  officer  who  has  been  authorised under Section 8 of the Army Act to exercise the legal and disciplinary powers of a brigade commander only if the injury is severe or moderately severe or if a court of inquiry to  enquire into the causes of  injury has been held.  The brigade commander or the officer who has

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been authorised  under  Section  8  of  the  Army Act  to exercise the legal and disciplinary powers of a brigade commander will record on the form his decision whether or  not  the injury  was  attributable  to  military  service, and whether it occurred on field service.  In all  other cases, the CO will record his opinion.”

22) In  terms  of  para  520  of  the  Defence  Services  Regulations,  a

certificate  on  I.A.F.Y.-2006  is  required  to  be  forwarded  by  the

Medical Officer In-charge to the Commanding Officer.  The COI is

assembled  to  investigate  the  circumstances  leading  to  injury

(clause c).  The Commanding Officer has to record his opinion as to

whether injured person was on or off duty including as to whether

he or she was to blame.  The proceedings are then to be sent to

Brigade Commander or the officer authorized under Section 8 of

the Act to record reasons as to whether disability or death was

attributable  to  military  service  and whether  it  occurred  on  field

service.  The Commanding Officer has reported that the injury is

not  attributable  to  military  service,  but  I.A.F.Y.-2006  produced

before the Court at the time of hearing of the present appeal shows

that  the  Brigade  Commander  has  endorsed  that  the  injury  is

attributable to military service.  We find that there was no material

available  to  the  Brigade  Commander  to  return  a  finding  that

disability was attributable to military service when the evidence of

the witnesses and the conclusion given by the Commanding Officer

is that no one is to be blamed for the accident as per column 3 (c)

reproduced in the earlier part of this order.  Since the accident has

occurred when the respondent was purchasing house hold articles,

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it cannot be said that there is any causal connection between the

injury  and  the  military  service.   Though,  the  attributability

assessment of injury cases is different than the disease cases but,

we are unable to accept the argument raised by Mr. Sehgal that in

injury cases, the finding of COI is final.  Therefore, we are unable to

hold that the opinion of the Brigade Commander in all situations

will  be  final  in  respect  of  an  injury  suffered.   We have  held  in

Answer to Question No. 2 that the opinion of Medical Board is final

in terms of Rule 17 of 1982 Rules and Regulation 423 (d) of the

Medical Regulations.

23) The purpose of investigation by the COI is to examine nature of

injuries  whether  such  injuries  were  suffered  on  or  off  duty.

However,  para  520  is  not  to  the  effect  that  the  opinion  of  the

Brigade Commander  is  final  on  the  basis  of  which  the  grant  of

disability  pension is  dependent.   The percentage of  disability as

well  as  whether  the  disability  is  attributed  to  or  aggravated  by

military  service has to be assessed by  the Medical  Board.   The

purpose of COI is to examine the conduct of the personnel of the

Armed Forces,  whereas,  the Medical  Board examines,  the causal

connection with the injury with the military services and also the

extent of disability. Thus, the COI and the opinion of the Medical

Board both have different objects and purposes to achieve.

24) Having  considered  the  provisions  of  the  statutes,  rules  and

regulations,  we  now  refer  to  the  judgments  referred  to  by  the

21

learned counsel for the parties.

25) The  judgments  in  Madan  Singh  Shekhawat,  Pension

Sanctioning  Authority,  PCDA(P),  Allahabad & Ors. v.  M.L.

George, Ex. SGT10,  Nand Kishore Mishra v. Union of India &

Ors.11 and Union of India & Anr. v. Surendra Pandey12, are the

cases  where  the  Armed  Forces  personnel  have  suffered  injuries

while returning from or going on leave.  In terms of Rule 12 Note 2

(d) of 1982 Rules read with Regulation 423(a), any injury or death

while returning from or going to duty has a causal connection with

the military service and, thus, such injury or death is considered

attributable to or aggravated by military service.   

26) The  Full  Bench  judgment  of  Punjab  and  Haryana  High  Court  in

Khushbash  Singh has  devised  a  new  expression  ‘unmilitary

activity’.   Since the rules  and regulations  framed under  the Act

provide for disability pension only if there is causal connection of

injuries with the military service, thus warranting a positive finding.

The ‘unmilitary activity’ is not an expression used in the rules or

regulations  and is  based on  negative  proof.   What  is  unmilitary

activity  is  vague,  indefinite  and  is  based  upon  surmises  and

conjectures. Therefore, we find that in terms of the provisions of

the Act, Rules and instructions keeping in view the policy decisions

of the appellants, the disability pension is admissible only if injury

is either attributable to or aggravated by military service and not

10  (2015) 15 SCC 319 11  JT 2013 (10) SC 466 12  (2015) 13 SCC 625

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that any activity which is unmilitary activity.   

27) Mr. Sehgal has relied upon Division Bench judgment of Delhi High

Court in Vardip Singh & Anr. v. Union of India & Ors.13.  It was

a case where a Captain saved 150-160 lives in a tragic fire incident

in Uphaar Cinema, New Delhi.  The High Court has considered it

appropriate  to  grant  disability  pension  to  the  family  of  the

deceased Major.  Said judgment is in the peculiar facts of that case.

28) However, the reliance of Mr. Sehgal upon Division Bench judgment

in  Barkat  Masih is  not  tenable.  We  find  that  the  judgment  is

correct to the limited extent that personnel of Armed Forces when

on leave are  also  on  duty.   However,  the  subsequent  question,

whether  an  injury  or  death  suffered  by  a  personnel  has  some

causal connection with military service, was not examined except

referring to Full Bench judgment of that  Court wherein, it was held

that  unmilitary  service  activity  alone  will  be  excluded  from the

expression  ‘death’  or  ‘injury’  caused  by  military  service  or

aggravated to military service.  We find that such conclusion is not

sustainable as per the applicable rules and regulations.     

29) In Barkat Masih, such Armed Forces person was riding a scooter

which  was  hit  by  army  truck  in  the  cantonment  area.   Such

accident with the army truck has no causal  connection with the

military  service  as  the  deceased  was  on  casual  leave.   Even  a

civilian could meet with an accident with the army truck within or

13  2004 (3) SLR 500

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outside  the  cantonment  area.  Such  accident  has  no  causal

connection with the military service of an injured or the deceased.

Therefore, the Full Bench judgment of Punjab & Haryana High Court

in Khushbash Singh and that of the Division Bench of that Court

in  Barkat Masih are not the good law.  It  may be noticed that

special leave petition in the  Barkat Masih order was dismissed

but it was dismissed on the ground of delay, therefore, in view of

the judgment of this Court in Khoday Distilleries Limited & Ors.

v.  Sri Mahadeshwara Sahakara Sakkare Karkhane Limited,

Kollegal14, it does not amount to merger of the order passed by

the High Court with that of this Court.

30) Another  order  referred  by  the  respondent  is  Lance  Dafedar

Joginder Singh  v.  Union of India & Ors.15.   In that case, this

Court granted disability pension when no rules or regulations were

produced that the appellant was not entitled to disability pension.   

31) The  judgments  in  Union  of  India  &  Ors.  v.  Keshar  Singh16,

Union of India & Anr. v. Baljit Singh17, Union of India & Ors. v.

Dhir  Singh  China,  Colonel  (Retd.)18 and  Controller  of

Defence Accounts (Pension) & Ors. v. S. Balachandran Nair19

are the cases arising out of disability on account of some disease

which,  in  the  opinion  of  the  Medical  Board,  was  said  to  be

paramount.   Such judgments  are  not  applicable  in  the  cases of

14  (2019) 4 SCC 376 15  1995 Supp (3) SCC 232 16  (2007) 12 SCC 675 17  (1996) 11 SCC 315 18  (2003) 2 SCC 382 19  (2005) 13 SCC 128

24

injuries.   

32) In  Secretary, Ministry of Defence & Ors.  v.  Ajit Singh20, the

personnel had suffered disability on account of electric shock in his

house,  when  on  leave.   It  was  held  that  such  disability  is  not

attributable to or aggravated by military service.   

33) In Sukhwant Singh v. Union of India & Ors.21, the Armed Forces

personnel suffered injury in a scooter accident which rendered him

unsuitable for any further military service.  It was held that there

was no causal  connection between the injuries suffered and the

services in the army referring to judgment of this Court in  Union

of India & Ors. v. Jujhar Singh22.   

34) In Vijay Kumar, the person was climbing stairs of the house of his

sister.  He accidentally slipped on account of darkness on account

of  failure  of  electricity  supply.   This  Court  held  that  the  injuries

sustained were accidental in nature and nobody can be blamed for

the same. Thus, the order of the Tribunal granting disability pension

was set aside.   

35) Another  judgment  referred  to  by  the  learned  counsel  for  the

appellants is Renu Devi.  It is a case of special family pension on

account  of  death  of  the  Armed  Forces  personnel  during  casual

leave in a road accident.  The principles laid down are in tune with

the judgments where the causal connection of the injury with the

20  (2009) 7 SCC 328 21  (2012) 12 SCC 228 22  (2011) 7 SCC 735

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military service was not found and, therefore, the disability pension

cannot be granted.   

36) We find that summing up of the following guiding factors by the

Tribunal in Jagtar Singh v. Union of India & Ors23 and approved

in  Sukhwant  Singh  and  in  Vijay  Kumar  do  not  warrant  any

change  or  modification  and  the  claim  of  disability  pension  is

required to be dealt with accordingly:-

“(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 in no way be connected to his being on duty as understood 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 generalise 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 attributable to military service. An accident or injury suffered by a member of the Armed Force must have some

23  T.A. No. 61 of 2010 decided on November 2, 2010 by the Tribunal

26

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  hazards  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,  and  the  matter  entirely  alien  to  such 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 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 Rules 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.”

37) In view of the above discussion and the conclusions drawn by the

Tribunal in T.A. No. 61 of 2010, we find that the order of the Tribunal

is not sustainable. Consequently, the appeal is allowed.  The Order

passed by the Tribunal is set aside and the Original Application filed

by the respondent is dismissed.

.............................................J. (L. NAGESWARA RAO)

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.............................................J. (HEMANT GUPTA)

NEW DELHI; SEPTEMBER 20, 2019.

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