The Secretary, Government of India & Ors. vs Dharmbir Singh

423 (a), (b) and (d) – Army Act, 1950 – ss.3(i), 9 – Pension Regulations for Army, 1961 – Regulation 173 – Pension Regulations for the Army, 2008 – Armed Forces.

Leave Rules for the Services, Volume-I (Army) – rr.10, 11(a) – Held: When Armed Forces personnel is availing casual leave or annual leave, is to be treated on duty – Armed Forces. Army Act, 1950 – s.3(i) – Respondent in Army, was on two days casual leave when he met with an accident while riding scooter and suffered injuries– Discharged from service – Claim for disability pension – Held: Determining factor is causal connection between the accident and the military duties – Injury or death must be intervention of armed service, howsoever remote it may be– Further, in terms of s.3(i), “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 – Present is not the case covered by the said definition – When the person is going on scooter to purchase house hold articles, such activity, even remotely has no causal connection with the military service – Medical Regulations – Regulation 423 – Armed Forces.

Armed Forces – Medical Regulations – Regulation 423(b) – Contradiction with r.12(f) of 1982 Rules – Discussed – Entitlement Rules for Casualty Pensionary Awards, 1982 – r.12(f). Armed Forces – Claim for disability pension on account of injury suffered due to accident – Court of Inquiry assembled to investigate the circumstances leading to injury – Scope of, vis-a-vis assessment by the Medical Board – Discussed.

Allowing the appeal, the Court

HELD: 1.1 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. The Entitlement Rules for Casualty Pensionary Awards, 1982 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. Regulation 423 of the Medical Regulations also explains the injuries which are attributable to service. [Paras 7-9][136-F-G; 137-A-B; 139-B]

1.2 In terms of Section 3(i) of the Army Act, 1950, 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. 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. 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 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’. Thus, it is held that when Armed Forces personnel is availing casual leave or annual leave, is to be treated on duty. [Paras 11-14][140-F-H; 141-A-E]

1.3 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 Regulation 423 of the Medical Regulations, such injury has to have causal connection with military service or such injury is aggravated by military service. 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. 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. 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. 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. [Paras 15-18][141-F-H; 142A-B, D-F]

1.4 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 the COI proceedings. 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. [Paras 19-20][142-G-H; 143-A-C]

1.5 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. 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, 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, unable to accept the argument that in injury cases, the finding of COI is final. Therefore, unable to hold that the opinion of the Brigade Commander in all situations will be final in respect of an injury suffered. It has been 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. 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. The order of the Tribunal is not sustainable. The Order passed by the Tribunal is set aside and the Original Application filed by the respondent is dismissed. [Paras 22, 23 and 37][145-G-H; 146-A-G; 151-B]

Renu Devi v. Union of India & Ors. 2019 (12) SCALE 730; Union of India & Ors. v. Vijay Kumar No.3989606 P, Ex-Naik (2015) 10 SCC 460 : [2015] 14 SCR

295– relied on.

Union of India & Ors. v. Khushbash Singh 2010 (3) SLR 103; Barkat Masih v. Union of India & Ors. 2014 SCC OnLine P&H 10564 – held not good law.

Madan Singh Shekhawat v. Union of India & Ors. (1999) 6 SCC 459; Madan Singh Shekhawat, Pension Sanctioning Authority, PCDA (P), Allahabad & Ors. v. M.L. George, Ex. SGT (2015) 15 SCC 319; Nand

Kishore Mishra v. Union of India & Ors. JT 2013 (10) SC 466 : [2013] SCR 213; Union of India & Anr. v. Surendra Pandey (2015) 13 SCC 625; Vardip Singh & Anr. v. Union of India & Ors. 2004 (3) SLR 500; Khoday Distilleries Limited & Ors. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (2019)

4 SCC 376 : [2019] 3 SCR 411; Lance Dafedar

Joginder Singh v. Union of India & Ors. 1995 Supp 3 SCC 232; Union of India & Ors. v. Keshar Singh (2007)

12 SCC 675 : [2007] 5 SCR 408; Union of India & Anr. v. Baljit Singh (1996) 11 SCC 315 : [1996] 7 Suppl. SCR 626; Union of India & Ors. v. Dhir Singh China, Colonel (Retd.) (2003) 2 SCC 382 : [2003] 1 SCR 779; Controller of Defence Accounts (Pension) & Ors. v. S. Balachandran Nair (2005) 13 SCC 128 : [2005] 4 Suppl. SCR 431; Secretary, Ministry of Defence & Ors. v. Ajit Singh (2009) 7 SCC 328 : [2009] 8 SCR 934; Sukhwant Singh v. Union of India & Ors. (2012) 12 SCC 228; Union of India & Ors. v. Jujhar Singh (2011)

7 SCC 735 : [2011] 8 SCR 258; Jagtar Singh v. Union of India & Ors. Decision of the Armed Forces Tribunal dtd. November 2, 2010 in T.A. No. 61 of 2010 – referred to.