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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6583  OF 2015 (Arising out of CAD No.13923 of 2014)

UNION OF INDIA & ORS.                  ..Appellants

Versus

3989606 P, EX-NAIK VIJAY KUMAR        ..Respondent

J U D G M E N T

R. BANUMATHI, J  .

Delay condoned.

2. This appeal is filed against the order dated 13.07.2011

in  Original  Application  No.248  of  2011  and  order  dated

31.10.2012  in  M.A.Nos.795  and  796  of  2012  passed  by  the

Armed Forces Tribunal, Regional Bench, Chandigarh (for short

‘the tribunal’) whereby the tribunal allowed the application filed

by the respondent observing that the respondent is entitled to get

disability  pension  for  75%  disability  from  the  date  of  his

invalidation.

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3. Brief facts which led to the filing of this appeal are as

under:- On 25.02.1989, the respondent was enrolled in Indian

Army  from  Branch  Recruiting  Office  Palampur  and  after

completion of his basic Military Training at Dogra Regiment, the

respondent  was  posted  to  12  Dogra  on  05.01.1990.  The

respondent  was  granted  thirty  days  annual  leave  from

14.05.2005 to 12.06.2005. However, during the leave period, on

19.05.2005  the  respondent  went  from  Himachal  Pradesh  to

Jalandhar Cantt where his sister resides for making purchase of

ornaments and clothes and articles for marriage of his younger

brother. On the same day, on 19.05.2005 in Jalandhar at the

house of his sister which was on second floor at about 8.00 p.m.,

while the respondent was climbing stairs to go to the roof of the

quarter for smoking and at that time lights went off and due to

darkness he slipped accidentally and fell  down from the stairs

and  sustained  multiple  injuries.  The  respondent  was  initially

admitted to Christian Hospital, Maqsuda where he was given first

aid treatment for a night and next day on 20.05.2005, he was

transferred to Military Hospital, Jalandhar for treatment of his

multiple injuries. The respondent underwent four operations, he

was  treated  in  military  hospital  for  three  to  four  months. 2

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However,  the  respondent  was placed in Low Medical  Category

A3 (T) for 6/12 years. The respondent was sent for six weeks sick

leave  and  he  reported  back  for  review.  The  respondent  was

brought  before  the  Release  Medical  Board,  wherein  the  RMB

opined that respondent should be released from military service

in Permanent Low Medical  Category A-3 for  six disabilities  he

sustained. The Release Board assessed the disabilities at Military

Hospital  Faizabad and composite  assessment  was assessed at

60%.  After due procedure, the respondent was invalidated from

service with effect from 28.02.2006 after completion of seventeen

years of service.  

4. The respondent was paid monetary benefits due and

payable  to  him  and  also  other  pensionary  benefits.  The

respondent’s claim for disability pension was however rejected by

the competent authority stating that respondent’s disabilities are

neither  attributable  to  nor  aggravated  due  to  military  service.

Aggrieved  by  the  order,  the  respondent  filed  an  appeal  dated

09.05.2007 before the appellate authority for grant of disability

pension.  The  respondent  also  sent  two  representations  dated

01.10.2007 and December 2007. After due inquiry, appeal was

rejected by the Appellate Committee vide order dated 13.04.2007 3

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holding that respondent was not entitled to disability pension in

terms of  Rule  12 of  Entitlement  Rule  for  Casualty  Pensionary

Award.

5. Aggrieved by the order, respondent filed O.A.No. 248 of

2011  before  the  tribunal.   The  tribunal  vide  impugned  order

dated  13.07.2011  allowed  the  application  of  the  respondent

holding that the respondent is entitled to disability pension for

75% disability for life by giving the benefit of rounding off from

the date of invalidation. This appeal assails the correctness of the

impugned order.

6. Mr. P.S. Patwalia, learned Additional Solicitor General

appearing  for  the  appellants  contended that  under  Regulation

173  disability  pension  is  granted  to  an  individual  who  is

invalidated out of service on account of disability  which is either

attributable to or aggravated by military service. It was submitted

that in the facts of the case, the act of the respondent was not

even remotely connected to his military duty and while so, the

tribunal  erred  in  directing  grant  of  disability  pension  to  the

respondent.

7. Per  contra,  learned  counsel  for  the  respondent

submitted that the Medical Board opined that the disability of 4

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the respondent is aggravated “due to stress and strain of military

service”  and  once  the  Medical  Board  gives  its  finding  to  the

advantage of the disabled soldier, it cannot be changed by any

other authority and hence the respondent is entitled for grant of

disability  pension  and  tribunal  rightly  directed  payment  of

disability pension to the respondent.

8. We  have  heard  learned  counsel  for  the  parties  and

have gone through the orders passed by the tribunal  and the

material placed on record.  

9. The primary conditions for grant of disability pension

are mentioned under Regulation 173 of the Pension Regulations

for the Army 1961.  Regulation 173 reads as under:-   

“Unless  otherwise   specifically   provided  a  disability  pension consisting  of  service  element  and  disability  element  may  be granted to an individual who is invalidated  out of  service on account of disability  which is attributable to or aggravated  by military service in non-battle casualty or is assessed at 20% or over.”  

10. In  terms  of  Rule  12  of  the  Entitlement  Rules  for

Casualty  Pensionary  Awards  1982,  a  person  subject  to  the

disciplinary note  of  the armed forces is  treated on duty while

performing anyone of the functions mentioned in paragraphs (a),

(b) and (c) of the Pension Regulations.  Notes (1) and (2) of the

Entitlement Rules elaborate the scope and purport of the term 5

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‘duty’. Para (b) to Note (2) deals with accident which occurs when

the armed forces personnel is not strictly “on duty” as defined in

Rule 12.  For such situations, the expression “on duty” is given

an extended  meaning  inasmuch as  an  accident  which  occurs

when  the  person  concerned  is  not  strictly  “on  duty”  is  also

deemed  to  be  on  duty.   We  may  usefully  extract  Rule  12  of

Entitlement Rules and para (a) to (f) of Notes (1) &  (2) as under:-

“Rule 12: Duty:- The Entitlement Rules 1982

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  singly  by  a  prescribed  or organized route.

Note 1:  xx xx xx xx xx xx xx xx

Note 2:  (d)  Personnel while travelling between place of  duty to leave station and vice versa to be treated on duty irrespective of whether  they  are  in  physical  possession  of  railway warrant/concession vouchers/cash TA etc or not. An individual on authorized leave would be deemed to be entitled to travel at public expense. (e) The time of occurrence of injury should fall within the time an

individual would normally take in reaching the leave station from duty station or vice versa using the commonly authorized mode(s) of transport. However, injury beyond this time period during the leave would not be covered.

(f) An accident which occurs when a man is not strictly ‘on duty’ as defined may also be attributable to service, provided that it

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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.”

11. This  Court  in  Sukhwant  Singh vs.  Union  of  India

through the Secretary,  Ministry of  Defence And Ors.,  (2012) 12

SCC 228 after referring to the judgment of the tribunal affirmed

the legal position as summed up by the tribunal and the same

reads as under:-

“To sum up in our view the following principles should be the guiding  factors  for  deciding  the  question  of  attributability  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 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 is in no way connected to his being on duty as understood in the sense contemplated by Rule 12 of the Entitlement Rules, 1982, it would neither be the legislative intention nor to our mind would it be the 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 of 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  the  force,  nor  is  remotely  connected  with  the  functions  of military  service,  cannot  be  termed  as  injury  or  disability

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attributable to military service. An accident or injury suffered by a member of the armed force must have some causal 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 unconnected 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 a 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 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.”

The principles enunciated in the above judgment were referred to

and reiterated by this Court in  Union of India And Anr. vs.  Ex

Naik Surendra Pandey, 2015 (2) SCALE 361 to which both of us

were parties.  

12. Entitlement Rules for the Casualty Pensionary Awards

1982 are beneficial in nature and ought to be liberally construed.

In terms of Rule 12, the disability sustained during  the course of

an accident which occurs when the personnel of the armed forces

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is  not  strictly  on duty  may also  be  attributable  to  service  on

fulfilling of certain conditions  enumerated therein. But there has

to  be  a  reasonable  causal  connection  between  the  injuries

resulting in disability and the military service.

13. Applying  the  ratio  of  various  cases  in  Secretary,

Ministry of Defence & Ors. vs.  Ajit Singh, (2009) 7 SCC 328 and

relying upon the principles laid down in Union of India & Ors. vs.

Keshar Singh, (2007) 12 SCC 675 and Union of India & Ors. vs.

Surinder Singh Rathore, (2008) 5 SCC 747, this Court rejected the

claim  of  the  respondent  for  disability  pension  on  account  of

electric shock sustained by him while he was on casual leave.

14. In  Union of India And Ors. vs.  Jujhar Singh (2011) 7

SCC 735, this Court was dealing with the question whether the

respondent who had met with an accident in his native place and

sustained grievous injury resulting in permanent disability was

entitled to disability pension.  The respondent in that case had

upon  recovery  from  injury  continued  in  military  service  and

superannuated with normal  service  pension.  In the said case,

this Court held that the member of armed forces who is claiming

disability  pension  must  be  able  to  show  a  reasonable  nexus

between the act, omission or commission resulting in an injury to 9

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the person and the normal expected standard of duties and a

way of life expected from a member of armed forces.

15. In  yet  another  case,  Union  of  India  And Anr. 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”

while playing with children which seriously damaged his left eye.

This Court in para (12) observed thus:-

“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, (2009) 7 SCC 328.”

16. Applying these principles and Rule 12 and mandate of

Regulation 173, admittedly in the instant case as mentioned in

the proceedings before the Board Officer that during the annual

leave  respondent  went  to  Jalandhar  on  19.05.2005  from

Himachal  Pradesh to  purchase  ornaments  and clothes  for  his

brother’s marriage.  He was staying at his sister’s place and in

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the night at about 8.00 p.m. while he was climbing the stairs to

get to the roof for smoking and at that time the lights went off

and due to sudden darkness he lost his balance and fell down

and  lost  his  senses.  He  was  admitted  in  civil  hospital  in

Jalandhar  and  after  first  aid,  he  was  transferred  to  military

hospital Jalandhar for multiple fracture injuries.  It is apparent

that  the  injury  sustained  by  Vijay  Kumar  was  accidental  in

nature and nobody can be blamed for the same.  Respondent’s

act of going towards the roof for smoking at his sister’s house

and falling down at no stretch of imagination can be attributed to

military service.

17. Learned  counsel  for  the  respondent  heavily  placed

reliance upon the judgment of this Court in Union of India & Anr.

vs. Ex Naik Surendra Pandey, (2015) 2 SCALE 361, in which the

respondent went  on annual  leave and was travelling from the

place  of  his  duty  to  the  place  where  his  family  was  residing

(Sewan).  The respondent boarded the bus from Hajipur to reach

Patna to join his family and at that time, he met with an accident

which  resulted  in  disability  assessed  at  20%  by  the  Medical

Board. In the said case, it was the specific case of the respondent

that  although  the  respondent’s  hometown  is  Gopalganj,  his 11

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family  was  residing  at  Patna  and  it  was  for  that  reason  he

claimed to be travelling by train beyond Sewan upto Hajipur by

train to catch a bus to reach Patna to join his family. Considering

the  facts  and  circumstances  of  the  said  case  and  that

respondent’s family was residing at Patna, this Court held that

there was a reasonable nexus and causal connection between the

disability and the military service of respondent at the relevant

time.  In para (12), it was held that “…..The case may have been

different if the respondent had reached the destination engaged in

some activity, unrelated to military service and in the course of

such activity  met  with  an accident  resulting  in  a  disability….”.

Thus, Ex Naik Surendra Pandey case is clearly distinguishable on

facts.

18. Learned counsel for the respondent contended that the

composite  assessment  for  the  respondent’s  disability  was

assessed at 60% by the Medical Board and the same was found

to be attributable and aggravated “due to stress and strain of

military service” and as per settled law once medical board gives

its finding to the advantage of the disabled soldier, findings of the

Medical Board cannot be changed.  The above contention does

not merit acceptance.  By perusal of record issued by Medical 12

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Board AFMSF-16/17, it is seen that the assessment by the Board

is recommendatory in nature and is subject to acceptance by the

Pension  Sanctioning  Authority.  It  is  also  mentioned  in  the

Medical Abstract Records as:-  

“1.  Though the disablement has been mentioned in percentage in para 6 of Part V, this does not mean eligibility for disability pension since the Invalidating Disabilities  is/are  neither  attributable  to  nor aggravated by service.”    

When  the  opinion  of  the  assessment  by  the  Board  is

recommendatory in nature and is subject to acceptance by the

Pension Sanctioning Authority, the opinion of the Medical Board

by  itself  cannot  confer  right  upon  the  respondent  to  claim

disability  pension.  Further,  after  accident  the  respondent  was

treated in the military hospital for three to four months and he

was placed in low medical category.  The respondent went for six

weeks sick leave and reported back for review and invalidated

from service with effect from 28.2.2006.  After the accident when

the respondent was not actually performing military service, the

opinion of the Medical Board “aggravated due to stress and strain

of military service” does not appear to be in proper perspective.

After  the  accident,  when  the  respondent  was  not  actually

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performing  his  duties  and  therefore  disability  cannot  be

attributed to  military  service  nor  can it  be  said  to  have  been

aggravated due to stress and strain of military service.

19. 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  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.  

20. In the result, the impugned order of the tribunal is set

aside and the appeal is allowed. In the facts and circumstances

of the case, we make no order as to costs.   

                           ….……………………J.         (T.S. THAKUR)     

                                                                  …..……………………J.             (R. BANUMATHI))   

New Delhi; August 26, 2015

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