SECRETARY, GOVERNMENT OF INDIA & ORS. versus DHARMBIR SINGH on 20 September 2019

SUPREME COURT REPORTS

[2019] 13 S.C.R.

ATHE SECRETARY, GOVERNMENT OF INDIA & ORS.

v.

DHARMBIR SINGH

(Civil Appeal No. 4981 of 2012)

BSEPTEMBER 20, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Entitlement Rules for Casualty Pensionary Awards, 1982– rr.12, 13, 17 & 19– Admissibility of disability pension, when personnelCof Armed Forces are on leave – Respondent joined the Army in1981– While he was granted two days casual leave from Jan.25,1999 to Jan.26, 1999, he met with an accident riding scooter andsuffered head injury, fracture – Court of Inquiry conducted toinvestigate into the circumstances under which he sustained injuries–Having rendered pensionable service, the respondent wasDdischarged from service on Dec.13, 1999 in view of Medical Board’sreport which held the disability to be 30%– Claim for disabilitypension rejected by Medical Board– Armed Forces Tribunal heldthe respondent entitled to disability pension – On appeal, held: Interms of Leave Rules, the casual leave and annual leave count asEduty– However, in terms of Rule 11(a) of the said Rules, an individualon casual leave is not deemed to actually perform duty during suchleave – 1982 Rules give expansive definition to the expression ‘duty’– It includes the period when Armed Forces personnel is proceedingfrom his leave station or returning to duty therefrom– It includeseven an accident which occurs when a man is not strictly on dutyFprovided it involved risk which was definitely enhanced in kind ordegree by the nature, conditions, obligations or incidents of hisservice and that the same was not a risk common to human existencein modern conditions in India – However, as per Regulation 423 ofthe Medical Regulations, such injury has to have causal connectionGwith military service or such injury is aggravated by military service– In the instant case, Commanding Officer reported that the injuryis not attributable to military service, but the Brigade Commanderendorsed that the injury is attributable to military services – Therewas no material available to the Brigade Commander to return suchfinding when the evidence of the witnesses and the conclusion H

given by the Commanding Officer is that no one is to be blamed forthe accident– Since the accident occurred when the respondent waspurchasing house hold articles, it cannot be said that there is anycausal connection between the injury and the military service –Order of the Tribunal set aside – Leave Rules for the Services,Volume-I (Army)– rr.10, 11(a)– Medical Regulations– Regulation423 (a), (b) and (d) – Army Act, 1950 – ss.3(i), 9 – PensionRegulations for Army, 1961 – Regulation 173 – Pension Regulationsfor 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 orannual leave, is to be treated on duty – Armed Forces.

Army Act, 1950 – s.3(i) – Respondent in Army, was on twodays casual leave when he met with an accident while riding scooterand suffered injuries– Discharged from service – Claim for disabilitypension – Held: Determining factor is causal connection betweenthe accident and the military duties – Injury or death must beintervention of armed service, howsoever remote it may be– Further,in terms of s.3(i), “active service” means time during which a personwho is subject to the Act, is attached to, or forms part of, a Forcewhich is engaged in operations against an enemy engaged in militaryoperations in, or is on the line of march to, a country or placewholly or partly occupied by an enemy, or is attached to or formspart of a Force which is in military occupation of a foreign country– Present is not the case covered by the said definition – When theperson is going on scooter to purchase house hold articles, suchactivity, even remotely has no causal connection with the militaryservice – Medical Regulations – Regulation 423 – Armed Forces.

Armed Forces – Medical Regulations – Regulation 423(b) –Contradiction with r.12(f) of 1982 Rules – Discussed – EntitlementRules for Casualty Pensionary Awards, 1982 – r.12(f).

Armed Forces – Claim for disability pension on account ofinjury suffered due to accident – Court of Inquiry assembled toinvestigate the circumstances leading to injury – Scope of, vis-a-visassessment by the Medical Board – Discussed.

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124SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1.1 Pension Regulations for Army, 1961, have nowbeen substituted by Pension Regulations for the Army, 2008.Pension Regulations for Army, 1961 and Pension Regulationsfor the Army, 2008 are substantially same in respect ofBadmissibility of disability pension. The Entitlement Rules forCasualty Pensionary Awards, 1982 apply to service personnelwho become non-effective on or after January 1, 1982. Prior to1982 Rules, the Entitlement Rules of 1950 were in force whichare similar to the 1982 Rules as far as factors consideringdisablement as attributable to military service are concerned.CRegulation 423 of the Medical Regulations also explains theinjuries 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 activeservice means time during which a person who is subject to theDAct, is attached to, or forms part of, a Force which is engaged inoperations against an enemy engaged in military operations in,or is on the line of march to, a country or place wholly or partlyoccupied by an enemy, or is attached to or forms part of a Forcewhich is in military occupation of a foreign country. The presentEis not the case covered by the definition of Section 3(i) of the Act.Section 9 of the Act empowers the Central Government to declarethat any person or class of persons subject to the Act, withreference to any area in which they may be serving or withreference to any provision of this Act or of any other law for thetime being in force, will be deemed to be on active service withinFthe meaning of the Act. In pursuance of such provision, the CentralGovernment has notified that all persons who are subject to theAct shall, wherever they may be serving, be deemed to be inactive service within the meaning of the Act and of any other lawfor the time being in force. Still further, in terms of leave rules,Gthe casual leave and annual leave count as duty. However, in termsof Rule 11(a) of the Leave Rules for the Services, Volume-I(Army), an individual on casual leave is not deemed to actuallyperform duty during such leave. 1982 Rules provide that a personis on duty when he is proceeding from his leave station or H

returning to duty from his leave station. Still further, in terms ofclause (f) of Rule 12 of the 1982 Rules, an accident can be said tobe attributable to service when a man is not strictly ‘on duty’ asdefined, provided that it involved risk which was definitelyenhanced in kind or degree by the nature, conditions, obligationsor incidents of his service and that the same was not a riskcommon to human existence in modern conditions in India.Therefore, a person if killed or injured by another person for thereason he belongs to the Armed Forces, he shall be deemed tobe ‘on duty’. Thus, it is held that when Armed Forces personnelis 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 theexpression ‘duty’ being undertaken by the personnel of the ArmedForces. It includes the period when Armed Forces personnel isproceeding from his leave station or returning to duty from hisleave station. It includes even an accident which occurs when aman is not strictly on duty provided that it involved risk whichwas definitely enhanced in kind or degree by the nature,conditions, obligations or incidents of his service and that thesame was not a risk common to human existence in modernconditions in India. However, as per Regulation 423 of theMedical Regulations, such injury has to have causal connectionwith military service or such injury is aggravated by militaryservice. In Regulation 423(a) of the Medical Regulations, it hasbeen specifically mentioned that it is immaterial whether thecause giving rise to the disability or death occurred in an areadeclared to be a field service or active service area or undernormal peace conditions, will be deemed to be duty. Regulation423(a) mandates that it is essential to establish whether thedisability or death bore a causal connection with the serviceconditions. All evidence, both direct and circumstantial, will betaken into account and benefit of reasonable doubt, if any, will begiven to individual. Clause (b) of Regulation 423 of the MedicalRegulations presumes that disability or death resulting fromwound or injury, will be regarded as attributable to service if thewound or injury was sustained during actual performance of ‘duty’in Armed Forces. This is in contradiction to”deemed to be duty”

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Aas per Rule 12(f) of 1982 Rules, as the Rule is when a man is notstrictly on duty. However, the injuries which are self-inflicting ordue to individual’s own serious negligence or misconduct evenin the cases of active duty, are not to be conceded unless, it isestablished that service factors were responsible for such action.The question whether a disability or death is attributable to orBaggravated by military service or not, is to be decided by theMedical Board. The opinion of Medical Board with regard toactual cause of disability or death and the circumstances underwhich it originated will be regarded as final in terms of Rule 17 of1982 Rules which is to the effect that at initial claim stage, medicalCviews on entitlement and assessment shall prevail for decisionsin accepting or rejecting the claim. [Paras 15-18][141-F-H; 142-A-B, D-F]

1.4 Regulation 423(d) provides that the question whethera disability or death is attributable to or aggravated by service orDnot, will be decided as regards to its medical aspects by a MedicalBoard/ medical officers. Such opinion of the Medical Board insofaras it relates to the actual cause of disability or death and thecircumstances in which originality will be regarded as final. TheCommanding Officer has to record his opinion as to whetherinjured person was on duty and whether he or she was to blameEin a COI. Therefore, the scope of COI is to examine the conductof the injured person to determine whether the person has madehimself liable to be proceeded against departmentally. In respectof the injury, causal connection of injury to the army service isnot final in the COI proceedings. In view of Regulation 423 clausesF(a), (b) and (d), there has to be causal connection between theinjury or death caused by the military service. The determiningfactor is a causal connection between the accident and the militaryduties. The injury or death must be connected with militaryservice howsoever remote it may be. The injury or death mustbe intervention of armed service and not an accident which couldGbe attributed to risk common to human beings. When a person isgoing 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 ServicesRegulations, a certificate on I.A.F.Y.-2006 is required to beforwarded by the Medical Officer In-charge to the CommandingOfficer. The COI is assembled to investigate the circumstancesleading to injury (clause c). The Commanding Officer has torecord his opinion as to whether injured person was on or offduty including as to whether he or she was to blame. Theproceedings are then to be sent to Brigade Commander or theofficer authorized under Section 8 of the Act to record reasons asto whether disability or death was attributable to military serviceand whether it occurred on field service. The Commanding Officerhas reported that the injury is not attributable to military service,but I.A.F.Y.-2006 produced before the Court at the time of hearingof the present appeal shows that the Brigade Commander hasendorsed that the injury is attributable to military service. Therewas no material available to the Brigade Commander to return afinding that disability was attributable to military service whenthe evidence of the witnesses and the conclusion given by theCommanding Officer is that no one is to be blamed for the accidentas per column 3 (c) reproduced in the earlier part of this order.Since the accident has occurred when the respondent waspurchasing house hold articles, it cannot be said that there is anycausal connection between the injury and the military service.Though, the attributability assessment of injury cases is differentthan the disease cases but, unable to accept the argument that ininjury cases, the finding of COI is final. Therefore, unable tohold that the opinion of the Brigade Commander in all situationswill be final in respect of an injury suffered. It has been held inAnswer to Question No. 2 that the opinion of Medical Board isfinal in terms of Rule 17 of 1982 Rules and Regulation 423 (d) ofthe Medical Regulations. The purpose of investigation by theCOI is to examine nature of injuries whether such injuries weresuffered on or off duty. However, para 520 is not to the effect thatthe opinion of the Brigade Commander is final on the basis ofwhich the grant of disability pension is dependent. The percentageof disability as well as whether the disability is attributed to oraggravated by military service has to be assessed by the MedicalBoard. The purpose of COI is to examine the conduct of the AB

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Apersonnel of the Armed Forces, whereas, the Medical Boardexamines, the causal connection with the injury with the militaryservices and also the extent of disability. Thus, the COI and theopinion of the Medical Board both have different objects andpurposes to achieve. The order of the Tribunal is not sustainable.The Order passed by the Tribunal is set aside and the OriginalBApplication filed by the respondent is dismissed. [Paras 22, 23and 37][145-G-H; 146-A-G; 151-B]

Renu Devi v. Union of India & Ors. 2019 (12) SCALE730; Union of India & Ors. v. Vijay Kumar No.3989606P, Ex-Naik (2015) 10 SCC 460 : [2015] 14 SCR295– relied on.

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

Madan Singh Shekhawat v. Union of India & Ors.(1999) 6 SCC 459; Madan Singh Shekhawat, PensionSanctioning Authority, PCDA (P), Allahabad & Ors. v.M.L. George, Ex. SGT (2015) 15 SCC 319; NandKishore 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 MahadeshwaraSahakara Sakkare Karkhane Limited, Kollegal (2019)4 SCC 376 : [2019] 3 SCR 411; Lance DafedarJoginder Singh v. Union of India & Ors. 1995 Supp 3SCC 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] 4Suppl. 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) 12SCC 228; Union of India & Ors. v. Jujhar Singh (2011)

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THE SECRETARY, GOVERNMENT OF INDIA & ORS.v. DHARMBIR SINGH

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

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4981of 2012.

From the Judgment and Order dated 07.03.2011 of the LearnedArmed Forces Tribunal Chandigarh Bench at Chandigarh in O.A. No.687 of 2010.

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Ms. Ruchira Gupta, Ms. Akanksha Kaul, Ms. Mona Sinha,A.K. Sharma and B.V. Balaram Das, Advs. for the Appellants.

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130SUPREME COURT REPORTS

ARajesh Sehgal and Avijit Bhattacharjee, Advs. for the Respondent.The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order dated MarchB7, 2011 passed by the Armed Forces Tribunal, Chandigarh, RegionalBench at Chandimandir[1], granting disability pension to the respondentDharambir Singh, as the injury was found to be attributed to militaryservice.

2. The undisputed facts are that the respondent joined TerritorialArmy on December 28, 1981 and was discharged on December 13,C1999. He was granted two days casual leave from January 25, 1999 toJanuary 26, 1999 when posted at Jalandhar Cantt. During the leaveperiod, he met with an accident while riding a scooter and suffered headinjury with Faciomaxillary and compound fracture 1/3[rd] Femur (LT). ACourt of Inquiry[2] was conducted to investigate into the circumstancesDunder which the respondent sustained injuries. The Brigade Commanderhas given its Report dated August 18, 1999 that the injuries, occurred inpeace area, are attributable to military service. One of the findings ofthe Report recorded under Column 3(c) is reproduced hereunder:

3. After rendering pensionable service of 17 years and 225 days,the respondent was discharged from service on December 13, 1999pursuant to the report of the Medical Board dated November 29, 1999Fwhich held the disability to be 30%. However, the claim for disabilitypension was rejected by the Medical Board on the ground that thedisability was neither attributable to nor aggravated by military service.An appeal filed by the respondent against the rejection of his claim fordisability pension was rejected by the Additional Directorate General,GPersonnel Services. It is thereafter the respondent invoked the jurisdictionof the Tribunal. The learned Tribunal referred to the judgment of thisCourt in Madan Singh Shekhawat v. Union of India & Ors.[3] and heldthat the respondent is entitled to disability pension.

1 for short, ‘Tribunal’2 for short, ‘COI’H3 (1999) 6 SCC 459

4. Learned counsel for the appellants argued that though therespondent would be treated to be on duty even if he was on casualleave or annual leave but the injuries suffered must have causalconnection as attributable to or aggravated by military service. Therespondent in this case was admittedly going on a scooter to purchaseelectrical goods for his sister when he lost control while saving a cyclist,therefore, there is no causal connection between the injuries resulting indisability and military service. Learned counsel for the appellants reliedupon two recent judgments of this Court in Renu Devi v. Union ofIndia & Ors.[4] and Union of India & Ors. v. Vijay Kumar No.3989606P, Ex-Naik[5]. This Court in Vijay Kumar examined the admissibility ofdisability pension, when personnel of Armed Forces are on leave. TheCourt declined the claim with the following findings:

“23. In the light of the above discussion, it is clear that the injurysuffered by the respondent has no causal connection with themilitary service. The Tribunal failed to appreciate that the accidentresulting in the injury to the respondent was not even remotelyconnected to his military duty and it falls in the domain of anentirely private act and therefore the impugned orders cannot besustained.”

5. Per contra, Mr. Rajesh Sehgal, learned counsel for therespondent, argued that the claim of disability pension arises under twoheads: one, under ‘injury’ and the other, under ‘disease’ cases. It is arguedthat the opinion of the Medical Board in respect of disease cases is finalbut, in respect of injury cases, the finding of the COI is final and is to bemade basis of grant of disability pension. He refers to Para 520 of theDefence Services Regulations published in the year 1986, which weshall reproduce at the relevant stage. The reliance is placed upon variousjudgments of the Tribunal as also Full Bench judgment of Punjab &Haryana High Court in Union of India & Ors. v. Khushbash Singh[6]followed by Division Bench judgment in Barkat Masih v. Union ofIndia & Ors.[7] delivered by one of us (Justice Hemant Gupta) as aJudge of Punjab & Haryana High Court. It is argued that any injurycaused by an activity which is not an “unmilitary activity” has to be 4 Decided on July 03, 2019 in Civil Appeal arising out of Diary No.37356 of 2017 &Anr.

5 (2015) 10 SCC 460

6 2010 (3) SLR 103

7 2014 SCC OnLine P&H 10564

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Adeemed 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 MadanSingh Shekhawat’s case (supra), Balbir Singh’s case (supra)and that of Full Bench judgment of this court in KhushbhashBSingh’s case (supra), we find that the injuries suffered by thepetitioner when on casual leave entitles the petitioner for a disabilitypension as the injury would be deemed to have been attributed tomilitary service. Consequently, the writ petition is allowed.”

6. Before we consider the respective arguments of learned counselCfor the parties, the provisions of the Army Act, 1950[8], Notification issuedby the Central Government on November 29, 1962, Rules and Regulationswhich are applicable in respect of grant of disability pension need to beextracted hereunder:

“Army Act, 1950DSection 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 inoperations against an enemy, or E

(b) is engaged in military operations in, or is on the line of marchto, a country or place wholly or partly occupied by an enemy, or

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

F“Section 9

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

H8 for short, ‘Act’

“Notification dated 29.11.1962

S.R.O. 6.E - New Delhi, the 28[th] November 1962

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

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

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

It cannot be utilized to supplement any other form of leave orabsence, except as provided for in clause (A) of Rule 72 forpersonnel 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 theyear extending to the next year, the period failing in the latter yearwill be debited against the casual leave entitlement of that year.

Rule 11 (a) - Annual leave, for the year may at the discretion ofthe sanctioning authority, be extended to the next calendar yearwithout prejudice to the annual leave authorised for the year inwhich the extended leave expires; (b) Annual leave may be taken in instalments within the sameyear.

(c) The annual leave year is the calendar year, viz., 1st January to31st 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 oncompletion of term of engagement or on completion of servicelimits or on attaining the prescribed age (irrespective of his period A

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of engagement), if found suffering from a disability attributable toor aggravated by military service and so recorded by ReleaseMedical Board, may be granted disability element in addition toservice pension or service gratuity from the date of retirement/discharge, if the accepted degree of disability is assessed at 20percent or more.”

Regulation 82 - For determining the pensionary benefits on deathor disability which is attributable to or aggravated by Militaryservice under different circumstance, the cases shall be broadlycategorized as follows: - Category A

Death or disability due to natural causes neither attributable tonor aggravated by military service as determined by the competentmedical authorities. Examples would be ailments of nature ofconstitutional diseases as assessed by medical authorities, chronicailments like heart and renal diseases, prolonged illness, accidentswhile not on duty.

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

Category B

Death or disability due to causes which are accepted as attributableto or aggravated by military service as determined by thecompetent medical authorities. Disease contracted because ofcontinued exposure to hostile work environments subject toextreme weather conditions or occupational hazards resulting indeath or disability would be examples.

Category C

Death or disability due to accidents in the performance of dutiessuch as:

(i) Accidents while travelling on duty in Government vehicles orpublic/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 todisease contracted or injury sustained or cause of death if acceptedby medical authority and/ or competent authority attributable to oraggravated by Military service the individual may be granteddisability 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 operationalduty or even when not on duty. Bomb blasts in public places ortransport, indiscriminate shooting incidents in public etc. would becovered under this category, besides death/disability occurring whileemployed in aid of civil power and also while dealing with naturalcalamities.

Cases falling under Category D entitles liberalised disability pensionor 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 mission abroad

(iii) Border skirmishes

(iv) During laying or clearance of mines including enemy minesas also mine sweeping operations.

(v) On account of accidental explosions of mines while layingoperationally oriented mine field or lifting or negotiating mine fieldlaid by the enemy or own forces in operational areas nearinternational borders or the line of control.

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(vi) War like situations, including cases which are attributable to/aggravated by:-

(1) extremist acts, exploding mines etc, while on way to anoperational 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 elementsetc. while on operational duty.

(viii) Action against extremists, antisocial elements etc. death/disability while employed in the aid of civil power in quellingagitation, riots or revolt by demonstrators shall be covered underthis category.

(ix) Operations specially notified by the Government from time totime.

Explanation :

Death or injury sustained in the circumstances falling underCategory E entitles liberalised family pension or war-injury pensionas the case may be.

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

7. Pension Regulations for Army, 1961, have now been substitutedby Pension Regulations for the Army, 2008. Pension Regulations forArmy, 1961 and Pension Regulations for the Army, 2008 are substantiallysame in respect of admissibility of disability pension. Regulation 173 ofthe Pension Regulations for the Army, 1961, reads as under:

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

8. The Entitlement Rules for Casualty Pensionary Awards, 1982[9]apply to service personnel who become non-effective on or after January1, 1982. Prior to 1982 Rules, the Entitlement Rules of 1950 were inforce which are similar to the 1982 Rules as far as factors consideringdisablement as attributable to military service are concerned. Rules 12,13, 17 and 19 of the 1982 Rules are reproduced hereunder:

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“12. A person subject to the disciplinary code of the Armed Forcesis on “duty”:- (a) When performing an official task or a task, failure to do whichwould constitute an offence triable under the disciplinary codeapplicable to him.

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(b) When moving from one place of duty to another place ofduty irrespective of the mode of movement.

(c) During the period of participation in recreation and other unitactivities organized or permitted by Service Authorities andduring the period of travelling in a body or single by aDprescribed or organized route.

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(d) When proceeding from his leave station or returning to dutyfrom his leave station, provided entitled to travel at publicexpenses i.e. on railway warrants, on concessional voucher,on cash TA (irrespective of whether railway warrant/cashTA is admitted for the whole journey or for a portion only), inGgovernment transport or when road mileage is paid/payablefor the journey.

(e) XXX XXX

SUPREME COURT REPORTS

A(f)An accident which occurs when a man is not strictly on dutyas defined may also be attributable to service, provided thatit involved risk which was definitely enhanced in kind ordegree by the nature, conditions, obligations or incidents ofhis service and that the same was not a risk common to humanexistence in modern conditions in India. Thus, for instance,Bwhere a person is killed or injured by another party by reasonof belonging to the Armed Forces, he shall be deemed ‘onduty’ at the relevant time. This benefit will be given moreliberally to the claimant in cases occurring on active serviceas defined in the Army/Navy/Air Force Act.”

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“13. In respect of accidents or injuries, the following rules shallbe observed:- (a) Injuries sustained when the man is “on duty” as defined, shallbe deemed to have resulted from military service, but in casesDof injuries due to serious negligence/misconduct the questionof reducing the disability pension will be considered.

(b) In cases of self-inflicted injuries whilst on duty, attributabilityshall not be conceded unless it is established that servicefactors were responsible for such action; in cases whereattributability is conceded, the question of grant of disabilitypension at full or at reduced rate will be considered.”

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“17. Medical Opinion: At initial claim stage, medical views onentitlement and assessment are given by the IMB/RMB. Normally,Fthese views shall prevail for decisions in accepting or rejectingthe claim. In cases of doubt the Ministry/CCDA (Pensions) mayrefer 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 appellateGmedical authorities can review and revise the opinion of the medicalboards on entitlement and assessment.”

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“19. Aggravation: if it is established that the disability was notcaused by service, attributability shall not be conceded. However, H

aggravation by service is to be accepted unless any worsening inhis condition was not due to his service or worsening did not persiston the date of discharge/claim.”

9. Regulation 423 of the Medical Regulations also explains theinjuries which are attributable to service. Such Regulation reads asunder:

“Regulation 423. Attributability of Service

a) For the purpose of determining whether the cause of a disabilityor death is or is not attributable to service, it is immaterialwhether the cause giving rise to the disability or death occurredin an area declared to be a field service/active service area orunder normal peace conditions. It is, however, essential toestablish whether the disability or death bore a causalconnection with the service conditions…

b) The cause of a disability or death resulting from wound orinjury, 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-inflictedor due to an individual’s own serious negligence or misconduct,the Board will also comment how far the disability resultedfrom self-inflection, negligence or misconduct.

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d) The question, whether a disability or death is attributable to oraggravated by service or not, will be decided as regards itsmedical aspects by a Medical Board or by the medical officerwho signs the death certificate. The Medical Board/medicalofficer will specify reasons for their/his opinion. The opinionof the Medical Board/medical officer, insofar as it relates tothe actual cause of the disability or death and the circumstancesin which it originated will be regarded as final. The questionwhether the cause and the attendant circumstances can beattributed to service will, however, be decided by the pensionsanctioning authority.

e) To assist the medical officer who signs the death certificateor the Medical Board in the case of an invalid, the CO unitwill furnish a report on:

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A(i)AFMS F-81 in all cases other than those due toinjuries.

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

f)In cases where award of disability pension or reassessmentof disabilities is concerned, a Medical Board is alwaysBnecessary and the certificate of a single medical officer willnot be accepted except in case of stations where it is notpossible or feasible to assemble a regular Medical Board forsuch purposes. The certificate of a single medical office inthe latter case will be furnished on a Medical Board form andCcountersigned by the ADMS (Army)/ DMS (Navy)/DMS(Air).”

10. In view of the provisions reproduced above, we find that thefollowing questions arise for consideration:

(i) Whether, when armed forces personnel proceeds on casualDleave, annual leave or leave of any other kind, he is to betreated on duty?

(ii) Whether the injury or death caused even if, the armed forcespersonnel is on duty, has to have some causal connectionwith military service so as to hold that such injury or death isEeither attributable to or aggravated by military service?

(iii) What is the effect and purpose of COI into an injury sufferedby armed forces personnel?

Answer to Question No.1F11. In terms of Section 3(i) of the Act, the active service meanstime during which a person who is subject to the Act, is attached to, orforms part of, a Force which is engaged in operations against an enemyengaged in military operations in, or is on the line of march to, a countryor place wholly or partly occupied by an enemy, or is attached to orforms part of a Force which is in military occupation of a foreign country.GThe present is not the case covered by the definition of Section 3(i) ofthe Act.

12. Section 9 of the Act empowers the Central Government todeclare that any person or class of persons subject to the Act, withreference to any area in which they may be serving or with reference toH

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. Inpursuance of such provision, the Central Government has notified thatall persons who are subject to the Act shall, wherever they may beserving, be deemed to be in active service within the meaning of the Actand of any other law for the time being in force.

13. Still further, in terms of leave rules, the casual leave and annualleave count as duty. However, in terms of Rule 11(a) of the Leave Rulesfor the Services, Volume-I (Army), an individual on casual leave is notdeemed to actually perform duty during such leave. 1982 Rules providethat a person is on duty when he is proceeding from his leave station orreturning 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 attributableto service when a man is not strictly ‘on duty’ as defined, provided thatit involved risk which was definitely enhanced in kind or degree by thenature, conditions, obligations or incidents of his service and that thesame was not a risk common to human existence in modern conditionsin India. Therefore, a person if killed or injured by another person for thereason he belongs to the Armed Forces, he shall be deemed to be ‘onduty’.

14. Thus, it is held that when Armed Forces personnel is availingcasual 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 includesthe period when Armed Forces personnel is proceeding from his leavestation or returning to duty from his leave station. It includes even anaccident which occurs when a man is not strictly on duty provided that itinvolved risk which was definitely enhanced in kind or degree by thenature, conditions, obligations or incidents of his service and that thesame was not a risk common to human existence in modern conditionsin India. However, as per Regulation 423 of the Medical Regulations,such injury has to have causal connection with military service or suchinjury is aggravated by military service.

16. In Regulation 423(a) of the Medical Regulations, it has beenspecifically mentioned that it is immaterial whether the cause giving riseto the disability or death occurred in an area declared to be a field service A

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Aor active service area or under normal peace conditions, will be deemedto be duty. Regulation 423(a) mandates that it is essential to establishwhether the disability or death bore a causal connection with the serviceconditions. All evidence, both direct and circumstantial, will be takeninto account and benefit of reasonable doubt, if any, will be given toindividual. For the sake of repetition, the said clause reads as under:B

“a) For the purpose of determining whether the cause of adisability or death is or is not attributable to service, it isimmaterial whether the cause giving rise to the disability ordeath occurred in an area declared to be a field service/activeservice area or under normal peace conditions. It is, however,Cessential to establish whether the disability or death bore acausal connection with the service conditions…”

17. Clause (b) of Regulation 423 of the Medical Regulationspresumes that disability or death resulting from wound or injury, will beregarded as attributable to service if the wound or injury was sustainedDduring actual performance of ‘duty’ in Armed Forces. This is incontradiction 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 injurieswhich are self-inflicting or due to individual’s own serious negligence ormisconduct even in the cases of active duty, are not to be concededEunless, it is established that service factors were responsible for suchaction.

18. The question whether a disability or death is attributable to oraggravated by military service or not, is to be decided by the MedicalBoard. The opinion of Medical Board with regard to actual cause ofFdisability or death and the circumstances under which it originated willbe regarded as final in terms of Rule 17 of 1982 Rules which is to theeffect that at initial claim stage, medical views on entitlement andassessment shall prevail for decisions in accepting or rejecting the claim.

19. Regulation 423(d) provides that the question whether a disabilityGor death is attributable to or aggravated by service or not, will be decidedas regards to its medical aspects by a Medical Board/ medical officers.Such opinion of the Medical Board insofar as it relates to the actualcause of disability or death and the circumstances in which originalitywill be regarded as final. The Commanding Officer has to record hisopinion as to whether injured person was on duty and whether he or sheH

was to blame in a COI. Therefore, the scope of COI is to examine theconduct of the injured person to determine whether the person has madehimself liable to be proceeded against departmentally. In respect of theinjury, causal connection of injury to the army service is not final in theCOI proceedings.

20. In view of Regulation 423 clauses (a), (b) and (d), there has tobe causal connection between the injury or death caused by the militaryservice. The determining factor is a causal connection between theaccident and the military duties. The injury or death must be connectedwith military service howsoever remote it may be. The injury or deathmust be intervention of armed service and not an accident which couldbe attributed to risk common to human beings. When a person is goingon a scooter to purchase house hold articles, such activity, even remotelyhas no causal connection with the military service.

Answer to Question No.3

21. Before we answer Question No.3, para 520 of the DefenceServices Regulations needs to be reproduced, which is as under:

“520. Injury to a Person Subject to Army Act.-(a) When anofficer, 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 thecase to the injured person’s CO as soon as possible after the dateon which the patient has been placed on the sick list, whether inquarters or in hospital. In the case of injuries which are immediatelyfatal, a report of the court of inquiry proceedings referred to insub-para (c) (i) will take the place of IAFY-2006.

(b) If the medical officer certifies that the injury is of a trivialcharacter, unlikely to cause permanent ill-effects, no court of inquiryneed be held, unless considered necessary under sub-para (c) (ii),(iii), (iv) or (v). In any event, however, IAFY-2006 will becompleted and in all cases, except those of JCOs, WOs and ORwill be forwarded through the prescribed channels to ArmyHeadquarters, Org Dte in the case of non-medical officers andMedical Dte in other cases, a copy being retained at command orother headquarters. In the case of a JCO, WO or OR, IAFY-2006 will be forwarded to the officer i/c records for custody withthe original attestation, after the necessary entry, stating whether A

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he was on duty and whether he was to blame, has been made bythe CO in the Primary Medical examination report (AFMSF-2A).(c)In the following cases a court of inquiry will be assembled toinvestigate the circumstances:-

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

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

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

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

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(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 courtmay consist of one officer as presiding officer, with two JCOs, WOs orsenior NCOs as members.E(d) The court of inquiry will not give an opinion, but the injured E(d) The court of inquiry will not give an opinion, but the injuredperson’s CO will record his opinion on the evidence, stating whether theinjured person was on duty and whether he or she was to blame. Whenno evidence as to the circumstances attending the injury beyond that ofthe injured person is forthcoming it should be stated in the proceedings.The proceedings will then be sent to the brigade commander or theFofficer who has been authorised under Section 8 of the Army Act toexercise the legal and disciplinary powers of a brigade commander whowill record thereon his decision whether disability or death was attributableto military service and whether it occurred on field service. Afterconfirmation, the medical officer will, in all cases except those of JCOs,GWOs and OR, record his opinion in the proceedings as to the effect ofthe injury on the injured person’s service. The proceedings will then beforwarded by the CO through the prescribed channel to ArmyHeadquarters, Org Dte in the case of non-medical officers and MedicalDte in other cases, a copy being retained at command or otherheadquarters. In the case of a JCO, WO or OR a record will be made in H

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the primary medical examination report (AFMSF-2A) by the CO that acourt of inquiry has been held, and also as to whether the man was onduty and whether he was to blame. The primary medical examinationreport will then be passed to the medical officer who will record hisopinion as to the effect of the injury on the man’s service. The proceedingsof the court of inquiry will then be forwarded to the officer i/c recordsfor 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 medicalopinion as to the effect of the injury on the man’s service, will beforwarded without delay to Army Headquarters.

(e) When an officer, JCO, WO, OR or nurse, not on duty, is injuredin any way by or through the fault of a civilian or civilians, and receivescompensation 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 investigatedeaths or injuries sustained through taking part in organized games, sportsand other physical recreations as defined in para 271.

In all cases where a court of enquiry is not held, IAFY-2006 willbe completed with the statements of witnesses as required by item 4thereon 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 commanderor the officer who has been authorised under Section 8 of the Army Actto exercise the legal and disciplinary powers of a brigade commanderonly if the injury is severe or moderately severe or if a court of inquiry toenquire into the causes of injury has been held. The brigade commanderor the officer who has been authorised under Section 8 of the Army Actto exercise the legal and disciplinary powers of a brigade commanderwill record on the form his decision whether or not the injury wasattributable 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, acertificate on I.A.F.Y.-2006 is required to be forwarded by the MedicalOfficer In-charge to the Commanding Officer. The COI is assembled toinvestigate the circumstances leading to injury (clause c). TheCommanding Officer has to record his opinion as to whether injured A

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Aperson was on or off duty including as to whether he or she was toblame. The proceedings are then to be sent to Brigade Commander orthe officer authorized under Section 8 of the Act to record reasons as towhether disability or death was attributable to military service and whetherit occurred on field service. The Commanding Officer has reported thatBthe injury is not attributable to military service, but I.A.F.Y.-2006 producedbefore the Court at the time of hearing of the present appeal shows thatthe Brigade Commander has endorsed that the injury is attributable tomilitary service. We find that there was no material available to theBrigade Commander to return a finding that disability was attributable tomilitary service when the evidence of the witnesses and the conclusionCgiven by the Commanding Officer is that no one is to be blamed for theaccident as per column 3 (c) reproduced in the earlier part of this order.Since the accident has occurred when the respondent was purchasinghouse hold articles, it cannot be said that there is any causal connectionbetween the injury and the military service. Though, the attributabilityDassessment of injury cases is different than the disease cases but, weare unable to accept the argument raised by Mr. Sehgal that in injurycases, the finding of COI is final. Therefore, we are unable to hold thatthe opinion of the Brigade Commander in all situations will be final inrespect 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 1982ERules and Regulation 423 (d) of the Medical Regulations.

23. The purpose of investigation by the COI is to examine natureof injuries whether such injuries were suffered on or off duty. However,para 520 is not to the effect that the opinion of the Brigade Commanderis final on the basis of which the grant of disability pension is dependent.FThe percentage of disability as well as whether the disability is attributedto or aggravated by military service has to be assessed by the MedicalBoard. The purpose of COI is to examine the conduct of the personnelof the Armed Forces, whereas, the Medical Board examines, the causalconnection with the injury with the military services and also the extentGof disability. Thus, the COI and the opinion of the Medical Board bothhave different objects and purposes to achieve.

24. Having considered the provisions of the statutes, rules andregulations, we now refer to the judgments referred to by the learnedcounsel for the parties.H

25. The judgments in Madan Singh Shekhawat, PensionSanctioning Authority, PCDA(P), Allahabad & Ors. v. M.L. George,Ex. SGT[10], Nand Kishore Mishra v. Union of India & Ors.[11] andUnion of India & Anr. v. Surendra Pandey[12],are the cases where theArmed Forces personnel have suffered injuries while returning from orgoing on leave. In terms of Rule 12 Note 2 (d) of 1982 Rules read withRegulation 423(a), any injury or death while returning from or going toduty has a causal connection with the military service and, thus, suchinjury or death is considered attributable to or aggravated by militaryservice.

26. The Full Bench judgment of Punjab and Haryana High Courtin Khushbash Singh has devised a new expression ‘unmilitary activity’.Since the rules and regulations framed under the Act provide for disabilitypension only if there is causal connection of injuries with the militaryservice, thus warranting a positive finding. The ‘unmilitary activity’ isnot an expression used in the rules or regulations and is based on negativeproof. What is unmilitary activity is vague, indefinite and is based uponsurmises and conjectures. Therefore, we find that in terms of theprovisions of the Act, Rules and instructions keeping in view the policydecisions of the appellants, the disability pension is admissible only ifinjury is either attributable to or aggravated by military service and notthat any activity which is unmilitary activity.

27. Mr. Sehgal has relied upon Division Bench judgment of DelhiHigh Court in Vardip Singh & Anr. v. Union of India & Ors.[13]. It wasa case where a Captain saved 150-160 lives in a tragic fire incident inUphaar Cinema, New Delhi. The High Court has considered it appropriateto grant disability pension to the family of the deceased Major. Saidjudgment is in the peculiar facts of that case.

28. However, the reliance of Mr. Sehgal upon Division Benchjudgment in Barkat Masih is not tenable. We find that the judgment iscorrect to the limited extent that personnel of Armed Forces when onleave are also on duty. However, the subsequent question, whether aninjury or death suffered by a personnel has some causal connection withmilitary service, was not examined except referring to Full Bench 10 (2015) 15 SCC 31911 JT 2013 (10) SC 46612 (2015) 13 SCC 62513 2004 (3) SLR 500

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Ajudgment of that Court wherein, it was held that unmilitary service activityalone will be excluded from the expression ‘death’ or ‘injury’ caused bymilitary service or aggravated to military service. We find that suchconclusion is not sustainable as per the applicable rules and regulations.

29. In Barkat Masih, such Armed Forces person was riding aBscooter which was hit by army truck in the cantonment area. Suchaccident with the army truck has no causal connection with the militaryservice as the deceased was on casual leave. Even a civilian could meetwith an accident with the army truck within or outside the cantonmentarea. Such accident has no causal connection with the military serviceof an injured or the deceased. Therefore, the Full Bench judgment ofCPunjab & Haryana High Court in Khushbash Singh and that of theDivision Bench of that Court in Barkat Masih are not the good law. Itmay be noticed that special leave petition in the Barkat Masih orderwas dismissed but it was dismissed on the ground of delay, therefore, inview of the judgment of this Court in Khoday Distilleries Limited &Ors. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited,DKollegal[14], it does not amount to merger of the order passed by theHigh Court with that of this Court.

30. Another order referred by the respondent is Lance DafedarJoginder Singh v. Union of India & Ors.[15]. In that case, this Courtgranted disability pension when no rules or regulations were producedEthat the appellant was not entitled to disability pension.

31. The judgments in Union of India & Ors. v. Keshar Singh[16],Union of India & Anr. v. Baljit Singh[17], Union of India & Ors. v.Dhir Singh China, Colonel (Retd.)[18] and Controller of DefenceAccounts (Pension) & Ors. v. S. Balachandran Nair[19] are the casesFarising out of disability on account of some disease which, in the opinionof the Medical Board, was said to be paramount. Such judgments arenot applicable in the cases of injuries.

32. In Secretary, Ministry of Defence & Ors. v. Ajit Singh[20],the personnel had suffered disability on account of electric shock in his G14 (2019) 4 SCC 37615 1995 Supp (3) SCC 23216 (2007) 12 SCC 67517 (1996) 11 SCC 315

18 (2003) 2 SCC 382

19 (2005) 13 SCC 128H20 (2009) 7 SCC 328

house, when on leave. It was held that such disability is not attributableto or aggravated by military service.

33. In Sukhwant Singh v. Union of India & Ors.[21], the ArmedForces personnel suffered injury in a scooter accident which renderedhim unsuitable for any further military service. It was held that therewas no causal connection between the injuries suffered and the servicesin the army referring to judgment of this Court in Union of India &Ors. v. Jujhar Singh[22].

34. In Vijay Kumar, the person was climbing stairs of the houseof his sister. He accidentally slipped on account of darkness on accountof failure of electricity supply. This Court held that the injuries sustainedwere 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 theappellants is Renu Devi. It is a case of special family pension on accountof death of the Armed Forces personnel during casual leave in a roadaccident. The principles laid down are in tune with the judgments wherethe causal connection of the injury with the military service was notfound and, therefore, the disability pension cannot be granted.

36. We find that summing up of the following guiding factors bythe Tribunal in Jagtar Singh v. Union of India & Ors[23] and approvedin Sukhwant Singh and in Vijay Kumar do not warrant any change ormodification and the claim of disability pension is required to be dealtwith accordingly:- “(a) The mere fact of a person being on ‘duty’ or otherwise, atthe place of posting or on leave, is not the sole criteria for decidingattributability of disability/death. There has to be a relevant andreasonable causal connection, howsoever remote, between theincident resulting in such disability/death and military service for itto be attributable. This conditionality applies even when a personis posted and present in his unit. It should similarly apply when heis on leave; notwithstanding both being considered as ‘duty’.

(b) If the injury suffered by the member of the Armed Force isthe result of an act alien to the sphere of military service or in no 21 (2012) 12 SCC 228

22 (2011) 7 SCC 735

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

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way be connected to his being on duty as understood in the sensecontemplated by Rule 12 of the Entitlement Rules 1982, it wouldnot be legislative intention or nor to our mind would be permissibleapproach to generalise the statement that every injury sufferedduring such period of leave would necessarily be attributable.

(c) The act, omission or commission which results in injury to themember of the force and consequent disability or fatality mustrelate to military service in some manner or the other, in otherwords, the act must flow as a matter of necessity from militaryservice.

(d) A person doing some act at home, which even remotely doesnot fall within the scope of his duties and functions as a Memberof Force, nor is remotely connected with the functions of militaryservice, cannot be termed as injury or disability attributable tomilitary service. An accident or injury suffered by a member ofthe Armed Force must have some casual connection with militaryservice and at least should arise from such activity of the memberof the force as he is expected to maintain or do in his day-to-daylife as a member of the force.

(e) The hazards of Army service cannot be stretched to the extentof unlawful and entirely un-connected acts or omissions on thepart of the member of the force even when he is on leave. A fineline of distinction has to be drawn between the matters connected,aggravated or attributable to military service, and the matter entirelyalien to such service. What falls ex-facie in the domain of anentirely private act cannot be treated as legitimate basis for claimingthe relief under these provisions. At best, the member of the forcecan claim disability pension if he suffers disability from an injurywhile on casual leave even if it arises from some negligence ormisconduct on the part of the member of the force, so far it hassome connection and nexus to the nature of the force. At leastremote attributability to service would be the condition precedentto claim under Rules 173. The act of omission and commission onthe part of the member of the force must satisfy the test ofprudence, reasonableness and expected standards of behaviour.

(f) The disability should not be the result of an accident whichcould be attributed to risk common to human existence in modern conditions in India, unless such risk is enhanced in kind or degreeby nature, conditions, obligations or incidents of military service.”

37. In view of the above discussion and the conclusions drawn bythe Tribunal in T.A. No. 61 of 2010, we find that the order of the Tribunalis not sustainable. Consequently, the appeal is allowed. The Order passedby the Tribunal is set aside and the Original Application filed by therespondent is dismissed.

Divya Pandey

Appeal allowed.

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