SAW/234/2009 of UNION OF INDIA AND ORS Vs SISH RAM on 21 December 2018

Judgment

This special appeal has been filed against the orderdated 22[nd] August, 2008, passed by learned Single Judge. Bythe aforesaid order, the writ petition preferred by thepetitioner to seek benefit of disability pension along withinterest @ 6% per annum was allowed.-BRIEF FACTS OF THE CASE:

The petitioner-respondent Sish Ram was enrolled inArmy on 5[th] March, 1976 with Medical Category ‘A’. It was inthe operational areas of Army from February, 1977 to July,1977 and December, 1981 to December, 1983. He wasgranted casual leave w.e.f. 4[th] April, 1984 and while on leavethe petitioner Sish Ram met with an accident. He fell downfrom the roof of his residence and sustained injuries.

The Court of Enquiry examined the matter to find out the reason of injuries. It is found that petitioner fell downfrom the roof of his residence but an individual cannot beblamed for such injuries. The injuries were said to beattributable to military service. The view of the Court ofEnquiry was supported by the Commandant of Unit where thepetitioner was serving. The petitioner was thereupon placedin Medical Category ‘C’ w.e.f. 31[st] August, 1984 and Category‘C’ permanent w.e.f. 27[th] March, 1985. The petitioner wasdischarged from service on 28[th] July, 1985 in lower MedicalCategory ‘C’ permanent. He was at the age of 27 years atthe time of discharge.

The Medical Board considered the disability and foundthat 50 per cent is attributable to military services. The claimfor disability pension was thus made under Rule 4 ofEntitlement Rules. It was with the prayer that the petitionershould be treated to have invalidated out of the service underRule 5 of those Rules. The petitioner thus claimed benefit ofdisability pension but the respondents rejected his claim videthe order dated 04/04/1986. It was given out that disability isnot attributable to military services.

An appeal was preferred by the petitioner to challengethe order dated 04/04/1986. The appeal was dismissed bythe Government of India vide its order dated 20[th] July, 2004.The petition was pressed in reference to various judgmentsreferred by the learned Single Judge in the impugned order.

The writ petition was thereupon allowed in reference tothe judgment of the Supreme Court in the case of JoginderSingh Vs. U.O.I & Ors., reported in 1996 (2) SLR 149, apartfrom other judgments.

ARGUMENTS OF THE APPELLANTS-

Shri R.D. Rastogi, Additional Solicitor General, appearing for the appellants, has assailed the order of thelearned Single Judge in reference to subsequent judgmentsof the Apex Court in the case of Union of India and Ors. Vs.Vijay Kumar; reported in 2015 (10) SCC 460 and Union ofIndia and Ors. Vs. Jujhar Singh; reported in 2011 (7) SCC735. A reference to the rules has also been given. It is toshow that if an employee is on casual or annual leave andmeets with an accident then he would not be entitled todisability pension.

Conclusion

It is stated that the relevant rules were not referred bythe counsel who appeared in the case of Joginder Singh(Supra) which were referred by the Court in subsequentjudgments. It is not a case where an army personnel metwith an accident on the way after causal or annual leave butis at the place of his residence. The rule provides for disabilitypension if the military personnel meets with an accident onthe way after the leave or to join the duties. In view of the above, prayer is made to cause interference in the orderpassed by learned Single Judge. It is more so when the orderto deny disability pension and thereupon the order on appealwere not challenged.

None appears for the respondent/petitioner to opposethe appeal.

This Court finds that counsel is not appearing to defendthe case for last many occasions. The appeal is old by nineyears, thus heard finally.

-DISCUSSION BY THE COURT

The main issue for our consideration is as to whether amilitary personnel is entitled to disability pension even if hemeets with an accident while on casual or annual leave. Thefacts of the case have been narrated. The petitioner sustainedinjuries when he fell down from the roof of his house while oncasual leave.

In view of the above, the judgments referred by Mr. R.D.Rastogi, learned Additional Solicitor General, are required tobe taken into consideration. It is subsequent to the judgmentin the case of Joginder Singh (Supra). The Apex Court in thecase of Jujhar Singh (Supra) and also Vijay Kumar (Supra)considered the issue extensively. It was in reference to therules. The disability pension in similar circumstances has beendenied. Paras 7, 11, 12, 13, 14, 15, 16, 17 and 18 of thejudgment in the case of Jujhar Singh (Supra) are reproducedhereunder for ready reference:- “7. The questions that arise for consideration in thisappeal are:

(a) Whether the case of the respondent for disabilityis covered under Regulation 179 of the PensionRegulations for the Army (Part I) 1961?

(b) Whether the disability in an accident suffered bythe respondent during his annual leave while doinghis personal work would amount to the disabilityattributable to or aggravated by military service?11) In order to answer the abovereferred questions,it is useful to refer Regulation 179 which reads thus: “179."Disabilityatthetimeofretirement/discharge(1) Anindividualretired/discharged on completion of tenure or oncompletion of service limits or on completion ofterms of engagement or attaining the age of 50years (irrespective of their period of engagement), iffound suffering from a disability attributable to oraggravated by military service and recorded byService Medical Authorities, shall be deemed to havebeen invalidated out of service and shall be granteddisability pension from the date of retirement, if theaccepted degree of disability is less than 20 per centor more, and service element if the degree ofdisability is less than 20 per cent. The servicepension/service gratuity, if already sanctioned andpaid, shall be adjusted against the disabilitypension/service element, as the case may be.

(2) the disability element referred to in clause (1)above shall be assessed on the accepted degree ofdisablement at the time of retirement/discharge onthe basis of the rank held on the date on which thewound/injury was sustained or in the case of diseaseon the date of first removal from duty on account ofthat disease."

12. It is clear that if a person concerned is foundsuffering from disability attributable to or aggravatedby military service, he shall be granted disabilitypension. The other condition is that the disability isto be examined/assessed by Service MedicalAuthorities and based upon their opinion a decisionhas to be taken by the authority concerned. TheRespondent should satisfy the conditions specified inthe Regulation. In this case, it is the definite stand ofthe authorities that disability has neither occurred inthe course of employment nor attributable to oraggravated by military service. We have alreadypointed out and it is not in dispute that theRespondent was on annual leave when he met with ascooter accident as a pillion rider and sustainedinjuries on 26.03.1987 at his native place. He wasnot on military duty at the time of the accident interms of Para 12 (d) of Entitlement Rules, 1982 asclarified vide Government of India, Ministry referred letter No. 1(1)/81(PEN)C/Vol.II dated 27.10.1998. Inview of the same, the injuries sustained cannot beheld to be attributable to the military service.

13. In this background, it is useful to refer decisionof this Court in ESI Corpn. v. Francis De Costa-Though this decision arose under the Employees'State Insurance Act, 1948, we are of the view thatsince there is a similar provision in the Employees'State Insurance Act, namely, that the accidentshould have its origin in the employment and thesame should have arisen out of and in the course ofemployment, the same is applicable to the case onhand. In that case, the Respondent employee whilegoing to his place of employment (a factory), metwith an accident at a place which was about only onekilometer away from the factory. The accidentoccurred at 4.15 p.m. while his duty-shift was tocommence at 4.30 p.m. As a result of the accident,the Respondent's collar bone was fractured. Thequestion before this Court was whether the saidinjury amounted to "employment injury" within themeaning of Section 2(8) of the Employees' StateInsurance Act, 1948 entitling the Respondent toclaim disablement benefit. Answering in thenegative, this Court held: (Francis De Costa case,SCC p.5, para 5)

“5…..a road accident may happen anywhere at anytime. But such accident cannot be said to have arisenout of employment, unless it can be shown that theemployee was doing something incidental to hisemployment.”

14. In Union of India and Anr. v. Baljit Singh therespondent therein was enrolled in the Army as anapprentice on 30.03.1975 and was appointed in theservice on regular basis w.e.f. 27.03.1977 in the EME177 Battalion. While he was in service he hadsustained moderately severe injury. On the basis ofthe opinion of the Medical Board, he was dischargedfrom service as an invalidated man on 31.05.1981.In the writ petition filed by him, the High Court ofHimachal Pradesh directed the authorities to pay himdisability pension. This was challenged by the Unionof India before this Court by way of appeal by specialleave. From the materials placed, this Courtconcluded that it cannot be said that the sustenanceof injury per se is on account of military service. Thereport of the Medical Board of doctors shows that itis not due to military service.

15. Finally, it was held by this Court as under: (BaljitSingh case, SCC p. 316 para 6)

“6…...In each case, when a disability pension issought for and made a claim, it must be affirmativelyestablished, as a fact, as to whether the injurysustained was due to military service or wasaggravated which contributed to invalidation for themilitary service. Accordingly, we are of the view thatthe High Court was not totally correct in reachingthat conclusion.”

16. In Ministry of Defence and Ors. v. A.V.Damodaran (dead) through L.Rs. and Ors. theopinion of the Medical Board and acceptability orotherwise for awarding disability pension wasconsidered. The short question that was consideredin that case was whether the High Court was justifiedin ignoring the report of the Medical Board in which itwas clearly mentioned that disability of A.V.Damodaran was neither attributable to noraggravated by military service. On examination, theMedical Board had opined that the disability of A.V.Damodaran was not attributable to the militaryservice nor has it been aggravated thereby and it isnot connected with the service as schizophrenia is aconstitutional disease. The legal representatives ofA.V. Damodaran filed original writ petition before theHigh Court praying for grant of disability pension. Byorder dated 20.12.2000, the learned Single Judgeallowed the original petition and declared that theindividual was eligible to get disability pension underthe provisions contained in the Pension Regulationsfor the Army, 1961 and such other enablingprovisions. The Department filed a writ appeal beforethe High Court. The Division Bench dismissed thesaid appeal finding no reason to interfere with thediscretion exercised by the learned Single Judge.After considering Regulation 173 which speaks aboutprimary conditions for the grant of disability pensionand various other earlier decisions, this Courtconcluded that the Medical Board is an expert bodyand its opinion is entitled to be given due weight,value and credence.

17. In Damodaran case, the Medical Board hasclearly opined that the disability of late A.V.Damodaran was neither attributable nor aggravatedby military service. In this way, this Court concludedthat the legal representatives of A.V. Damodaran arenot entitled to disability pension. However, in thefacts and circumstances of that case, this Courtdirected that the amounts which have already beenpaid to the L.Rs. of deceased A.V. Damodarantowards disability pension may not be recoveredfrom them.

18. In N.K. Dilbag v. Union of India and Ors. a FullBench of the Delhi High Court had an occasion toconsider the similar issue and eligibility of disabilitypension by Armed Forces Personnel. After advertingto various decisions of this Court as well as of theHigh Courts, it concluded thus: (DRJ Mr. N.S.Dhakad-pp. 880-81, para 24)

“24. To sum up our analysis, the foremost feature,consistently highlighted by the Hon'ble SupremeCourt, is that it requires to be established that theinjury or fatality suffered by the concerned militarypersonnel bears a causal connection with militaryservice. Secondly, if this obligation exists so far asdischarge from the Armed Forces on the opinion of aMedical Board the obligation and responsibility afortiori exists so far as injuries and fatalities sufferedduring casual leave are concerned. Thirdly, as anatural corollary it is irrelevant whether theconcerned personnel was on casual or annual leaveat the time or at the place when and where theincident transpired. This is so because it is the causalconnection which alone is relevant. Fourthly, sincetravel to and fro the place of posting may not appearto everyone as an incident of military service, aspecific provision has been incorporated in thePension Regulations to bring such travel within theentitlement for Disability Pension if an injury issustained in this duration. Fifthly, the Hon'bleSupreme Court has simply given effect to this Ruleand has not laid down in any decision that each andevery injury sustained while availing of casual leavewould entitle the victim to claim Disability Pension.Sixthly, provisions treating casual leave as on dutywould be relevant for deciding questions pertainingto pay or to the right of the Authorities to curtail orcancel the leave. Such like provisions have beenadverted to by the Supreme Court only to buttresstheir conclusion that travel to and fro the place ofposting is an incident of military service. Lastly,injury or death resulting from an activity notconnected with military service would not justify andsustain a claim for Disability Pension. This is soregardless of whether the injury or death hasoccurred at the place of posting or during workinghours. This is because attributability to militaryservice is a factor which is required to beestablished.”

In the light of our discussion, we fully endorse theviews expressed by the Full Bench.”

The paras quoted above deal with the issue before us.The Apex Court has decided the issue after referring the rulesas well as the earlier judgments on the issue.

Similar view has been taken in the case of Vijay Kumar(Supra). The entitlement towards disability pension has notbeen accepted if one sustains injury while on casual or annualleave. It is not on the way to join the duties. It is not taken tobe the case of injuries attributable or aggravated out of themilitary services which otherwise was accepted by the ApexCourt in the case of Joginder Singh (Supra). Therein, relevantrules were not referred by the counsel who appeared for theUnion of India.

-CONCLUSION

In view of the subsequent judgment of the Apex Courtreferred to above and as the petitioner even failed tochallenge the impugned order, we are inclined to interfere inthe order passed by the learned Single Judge. Accordingly, itis set aside.The appeal is allowed with the aforesaid.

(GOVERDHAN BARDHAR),J

(M.N.BHANDARI),J

Ashu/18