Delhi High Court
Ex. Nk Dilbag vs Uoi & Ors. on 22 August, 2008
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C)6959/2004 & CM Nos. 6869/04 & 10898/04
# EX NK DILBAG ....Petitioner through
! Mr. S.M. Dalal, Adv.
-versus-
$ UOI & ORS. .....Respondent through
^ Mr. Darpan Wadhwa, Adv. with
Major S. S. Pandey for
Respondents 2 to 4.
WITH
W.P.(C)20348/2005
EX NK RAMESH KUMAR ....Petitioner through
Mr. S.M. Dalal, Adv.
-versus-
UOI & ORS. .....Respondent through
Mr. Darpan Wadhwa, Adv. with
Major S. S. Pandey for
Respondents 2 to 4.
Date of Hearing : 01st August, 2008
% Date of Decision : 22nd August, 2008
CORAM:
* HON‟BLE MR. JUSTICE VIKRAMAJIT SEN
HON‟BLE MR. JUSTICE SANJIV KHANNA
HON‟BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may be
allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
WP(C)6959/2004 & WP(C)20348/2005 Page 1 of 38
VIKRAMAJIT SEN, J.
JUDGMENT
1. We are called upon to impart an interpretation on the
words - "a disability which is attributable to or aggravated by
military service", as occurring in Regulation 173 of the
Pension Regulations for the Army, 1961 (for short „Pension
Regulations‟). Reference to the Full Bench was originally
necessitated because of the divergence of opinion of two
Division Benches, in terms of the Order dated 9.3.2006 in
WP(C) 11128/2005 titled Sunita Devi -vs- Union of India
passed by the Bench comprising Mukul Mudgal and H.R.
Malhotra, JJ. Our learned Brothers detected diametrically
different dialectics of Division Benches, the unreported
decision in WP(C) 4619/1993 titled Ex Sepoy Vijay Pal Singh
-vs- UOI and in Ex Singnalman Shri Bhagwan -vs- UOI,
103(2003) DLT 269. The cause has become even more
confounded and complicated owing to yet another decision of
the Division Bench comprising Swatanter Kumar and G.S.
Sistani, JJ. decided on 19.10.2006 reported as Jitendra
Kumar -vs- Chief of Army Staff, MANU/DE/9564/2006.
Broadly stated, the submission of the petitioners is that any
injury or fatality suffered by military personnel on casual
leave would per se entitle them to claim Disability Pension in
addition to ordinary Family Pension. The Respondents
contend that the factum of casual leave is irrelevant and what
has to be ascertained in every case is whether the injury was
sustained while the person was doing an act ascribable to
military service. So far as the situs or location where the
injury came to be encountered is concerned, it is again
irrelevant whether it was in a Field Service/Active Service
area or under normal peace conditions. What is imperative,
according to the Respondents, is that the claimant must
establish that the disability or death bore a causal connection
with his military duties.
2. Regulation 173 of the Pension Regulations, within the
parameters of which every claim of a non-commissioned
personnel for Disability Pension must perforce be predicated,
concerns „Primary conditions for the grant of disability
Pension‟ and reads thus:-
"Unless otherwise specifically provided, a disability
pension may be granted to an individual who is
invalided from service on account of a disability
which is attributable to or aggravated by military
service and is assessed at 20 per cent or over.
The question whether a disability is attributable to or
aggravated by military service shall be determined
under the Rules in Appendix II".
These provisions are similar to Regulation 48 in Chapter 2 of
the Pension Regulations, which deals with claims of
commissioned officers, which is in these words:-
48. (a) Unless otherwise specifically provided a
disability pension consisting of service element and
disability element may be granted to an officer who
is invalided out of service on account of a disability
which is attributable to or aggravated by military
service in non-battle casualty cases and is assessed
at 20 per cent or more.
(b) The question whether a disability is attributable
to or aggravated by military service shall be
determined under the rules in Appendix II.
3. The relevant Rules which are placed in Appendix-II are
reproduced for facility of reference:-
"12. A person subject to the disciplinary code of
the Armed Forces is on "duty":-
(a) When performing an official task or a task,
failure to do which would constitute an offence,
triable under the disciplinary code applicable to him.
(b) When moving from one place of duty to another
place of duty irrespective of the mode of movement.
(c) During the period of participation in recreation
and other unit activities organized or permitted by
Service authorities and during the period of
travelling in a body or singly by a prescribed or
organized route.
(d) When proceeding from his duty station to his
leave station or returning to duty from his leave
station, provided entitled to travel at public expense,
i.e. on railway warrant, on concessional voucher, on
cash TA (irrespective of whether railway
warrant/cash TA is admitted for the whole journey or
for a portion only), in government transport or when
road mileage is paid/payable for the journey.
(e) When journeying by a reasonable route from
one‟s official residence to and back from the
appointed place of duty irrespective of the mode of
conveyance, whether private or provided by the
Government.
(f) An accident which occurs when a man is not
strictly „on duty‟ as defined may also be attributable
to service, provided that it involved risk which was
definitively enhanced in kind or degree by the
nature, conditions, obligations or incidents of his
service and that the same was not a risk common to
human existence in modern conditions in India. Thus
for instance, where a person is killed or injured by
another party by reason of belonging to the Armed
Forces, he shall be deemed „on duty‟ at the relevant
time. This benefit will be given more liberally to the
claimant in cases occurring on active service as
defined in the Army/Navy/Air Force Act."
"13. In respect of accidents or injuries, the following
rules shall be observed:
(a) Injuries sustained when the man is „on duty‟ as
defined, shall be deemed to have resulted from
military service, but in cases of injuries due to
serious negligence/misconduct the question of
reducing the disability pension will be considered.
(b) In cases of self-inflicted injuries whilst on duty,
attributability shall not be conceded unless it is
established that service factors were responsible for
such action; in cases where attributability is
conceded, the question of grant of disability pension
at full or at reduced rate will be considered".
4. Regulation 423 of Medical Service of Armed Forces
Regulation, 1983 seeks to define the term „attributability to
service‟ and incidents which will fall within the parameters of
this phrase:
423. Attributability to Service:
(a) For the purpose of determining whether the
cause of a disability or death is or is not attributable
to service, it is immaterial whether the cause giving
rise to the disability or death occurred in an area
declared to be a Field Service/Active Service area or
under normal peace conditions. It is, however,
essential to establish whether the disability or death
bore a causal connection with the service conditions.
All evidence both direct and circumstantial will be
taken into account and benefit of reasonable doubt, if
any, will be given to the individual. The evidence to
be accepted as reasonable doubt, for the purpose of
these instructions, should be of a degree of cogency,
which though not reaching certainty, nevertheless
carry the high degree of probability. In this
connection, it will be remembered that proof beyond
reasonable doubt does not mean proof beyond a
shadow of doubt. If the evidence is so strong against
an individual as to leave only a remote possibility in
his favour, which can be dismissed with the sentence
"of course it is possible but not in the least probable"
the case is proved beyond reasonable doubt. If on the
other hand, the evidence be so evenly balanced as to
render impracticable a determinate conclusion one
way or the other, then the case would be one in
which the benefit of doubt could be given more
liberally to the individual, in cases occurring in Field
Service/Active Service areas.
(b) The cause of a disability or death resulting from
wound or injury will be regarded as attributable to
service if the wound/injury was sustained during the
actual performance of "duty" in armed forces. In case
of injuries which were self inflicted or due to an
individual's own serious negligence or misconduct,
the Board will also comment how far the disability
resulted from self-infliction, negligence or
misconduct.
(c) The cause of a disability or death resulting from a
disease will be regarded as attributable to service
when it is established that the disease arose during
service and the conditions and circumstances of duty
in the armed forces determined and contributed to
the onset of the disease. Cases, in which it is
established that service conditions did not determine
or contribute to the onset of the disease but
influenced the subsequent course of the disease, will
be regarded as aggravated by the service. A disease
which has led to an individual's discharge or death
will ordinarily be deemed to have arisen in service if
no note of it was made at the time of the individual's
acceptance for service in the armed forces. However,
if medical opinion holds, for reasons to be stated that
the disease could not have been detected on medical
examination prior to acceptance for service, the
disease will not be deemed to have arisen during
service.
(d) The question, whether a disability or death is
attributable to or aggravated by service or not, will
be decided as regards its medical aspects by a
medical board or by the medical officer who signs the
death certificate. The medical board/medical officer
will specify reasons for their/his opinion. The opinion
of the medical board/medical officer, in so far as it
relates to the actual cause of the disability or death
and the circumstances in which it originated will be
regarded as final. The question whether the cause
and the attendant circumstances can be attributed to
service will, however, be decided by the pension
sanctioning authority.
(e) To assist the medical officer who signs the death
certificate or the medical board in the case of an
invalid, the C.O. unit will furnish a report on:
(i) AFMS F-81 in all cases other than those due to
injuries.
(ii) IAFY-2006 in all cases of injuries other than battle
injuries.
(f) In cases where award of disability pension or
reassessment of disabilities is concerned, a medical
board is always necessary and the certificate of a
single medical officer will not be accepted except in
case of stations where it s not possible or feasible to
assemble a regular medical board for such purposes.
The certificate of a single medical officer in the latter
case will be furnished on a medical board form and
countersigned by the ADMS (Army)/DMS
(Navy)/DMS (Air).
5. The legal nodus confronting us has, to some extent,
been considered by the Supreme Court of India, in the
decisions reported as Joginder Singh -vs- Union of India,
1996(2) SLR 149 = 1995 Suppl.(3) SCC 232 decided on
16.8.1993 [Kuldip Singh and B.P. Jeevan Reddy, JJ.] ; Union of
India -vs- Baljit Singh, (1996) 11 SCC 315 decided on
11.10.1996 [K. Ramaswamy and G.B. Pattanaik, JJ.] and
Madan Singh Shekhawat -vs- Union of India, AIR 1999 SC
3378 decided on 17.8.1999 [S.P. Bharucha and N. Santosh
Hegde, JJ.]. It is trite that we are duty-bound to apply the
ratio decidendi of these pronouncements of the Apex Court.
We must, therefore, be clear in our minds of the manner in
which the ratio decidendi of a decision is to be drawn.
Municipal Corporation of Delhi -vs- Gurnam Kaur, AIR 1989
SC 38 lays down that the ratio decidendi is the principle upon
which the case is decided and statements which do not
partake of this character are obiter dicta which do not have
authoritative force.
6. The frequently quoted opinion of the House of Lords in
Quinn -vs- Leathem, 1901 AC 495 : (1900-3) All ER Rep 1 is
to the effect that "every judgment must be read as applicable
to the particular facts proved or assumed to be proved .... The
other is that a case is only an authority for what is actually
decides". These quotations have been reiterated in Goodyear
India Ltd. -vs- State of Haryana, (1990) 2 SCC 71 and State of
Orissa -vs- Sudhansu Sekhar Misra, AIR 1968 SC 647. In the
latter case, the Court explicitly opined that "a decision on a
question which has not been argued cannot be treated as a
precedent". Their Lordships, in turn, referred back to the
previous opinion in Rajput Ruda Meha -vs- State of Gujarat,
AIR 1980 SC 1707 in which it had similarly been stated that
where an issue has neither been raised nor argued any
decision by the Court, even after 'pondering over the issue in
depth', would not become a binding precedent. Similar
observations have been made by the Constitution Bench in
Padma Sundara Rao -vs- State of T.N., 2002(3) SCC 533, as is
evident from the following extract:
"Courts should not place reliance on decisions
without discussing as to how the factual situation fits
in with the fact situation of the decision on which
reliance is placed. There is always peril in treating
the words of a speech or judgment as though they
are words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the
setting of the facts of a particular case, said Lord
Morris in Herrington v. British Railways Board,
(1972) 2 WLR 537. Circumstantial flexibility, one
additional or different fact may make a world of
difference between conclusions in two cases.
7. Bhavnagar University -vs- Palitana Sugar Mills Pvt.
Ltd., (2003) 2 SCC 111 cautions that - "a little difference in
facts or additional facts may make a lot of difference in the
precedential value of a decision". In Director of Settlement,
A.P. -vs- M.R. Apparao, (2002) 4 Supreme Court Cases 638, a
Three Judge Bench has opined that "Article 141 of the
Constitution unequivocally indicates that the law declared by
the Supreme Court shall be binding on all courts within the
territory of India. The aforesaid Article empowers the
Supreme Court to declare the law. It is, therefore, an
essential function of the Court to interpret a legislation. The
statements of the Court on matters other than law like facts
may have no binding force as the facts of two cases may not
be similar. But what is binding is the ratio of the decision and
not any finding of facts. It is the principle found out upon a
reading of a judgment as a whole, in the light of the questions
before the Court that forms the ratio and not any particular
word or sentence. To determine whether a decision has
"declared law" it cannot be said to be a law when a point is
disposed of on concession and what is binding is the principle
underlying a decision. A judgment of the Court has to be read
in the context of questions which arose for consideration in
the case in which the judgment was delivered. An "obiter
dictum" as distinguished from a ratio decidendi is an
observation by the Court on a legal question suggested in a
case before it but not arising in such manner as to require a
decision. Such an obiter may not have a binding precedent as
the observation was unnecessary for the decision
pronounced, but even though an obiter may not have a
binding effect as a precedent, but it cannot be denied that it
is of considerable weight. The law which will be binding
under Article 141 would, therefore, extend to all observations
of points raised and decided by the Court in a given case".
The Constitution Bench has also reiterated this view in
Islamic Academy of Education -vs- State of Karnataka, (2003)
6 SCC 697 = 2003(6) Scale 325, viz. that the ratio decidendi
of a judgment can be obtained only from a reading of its
entirety. The opinion of the Apex Court in Bharat Petroleum
Corporation Ltd. -vs- N.R. Vairamani, (2004) 8 SCC 579 is in
similar vein. Their Lordships observed that - "Observations
of Courts are neither to be read as Euclid‟s theorems nor as
provisions of the statute and that too taken out of their
context. These observations must be read in the context in
which they appear to have been stated. Judgments of Courts
are not to be construed as statutes". This is also the opinion
of the Court in Punjab National Bank -vs- R.L.Vaid, (2004) 7
SCC 698. In State of Gujarat -vs- Akhil Gujarat Pravasi, AIR
2004 SCC 3894, the Hon'ble Supreme Court has observed
that "any observation made during the course of reasoning in
a judgment should not be read divorced from the context in
which they were used". In Zee Tele Films -vs- Union of India,
AIR 2005 SC 2677, the Apex Court has unequivocally
declared that "a decision is not an authority for the
proposition which did not fall for its consideration." In M/s A-
One Granites -vs- State of U.P., AIR 2001 SC 1203: (2001) 3
SCC 537 it had been contended that the controversy was
covered on all fours by a previous decision of the Court. The
contention was rejected in these words-
This question was considered by the Court of
Appeal in Lancaster Motor Co. (London) Ltd. v.
Bremith Ltd., (1941) 1 KB 675, and it was laid down
that when no consideration was given to the
question, the decision cannot be said to be binding
and precedents sub silentio and without arguments
are of no moment. Following the said decision, this
Court in the case of Municipal Corporation of Delhi
v. Gurnam Kaur, (1989) 1 SCC 101: (AIR 1989 SC 38)
observed thus (at p. 43 of AIR):
"In Gerard v. Worth of Paris Ltd. (K), (1936) 2
All ER 905 (CA), the only point argued was on
the question of priority of the claimant's debt,
and on this argument being heard, the Court
granted the order. No consideration was given
to the question whether a garnishee order
could properly be made on an account standing
in the name of the liquidator. When, therefore,
this very point was argued in a subsequent case
before the Court of Appeal in Lancester Motor
Co. (London) Ltd. v. Bremith Ltd., (1941) 1 KB
675, the Court held itself not bound by its
previous decisions. Sir Wilfrid Greene, M.R.,
said that he could not help thinking that the
point now raised had been deliberately passed
sub silentio by counsel in order that the point of
substance might be decided. He went on to say
that the point had to be decided by the earlier
Court before it could make the order which it
did; nevertheless, since it was decided "without
argument, without reference to the crucial
words of the rule, and without any citation of
authority", it was not binding and would not be
followed. Precedents sub silentio and without
argument are of no moment. This rule has ever
since been followed."
In State of U.P. v. Synthetics and Chemicals
Ltd., (1991) 4 SCC 139, reiterating the same
view, this Court laid down that such a decision
cannot be deemed to be a law declared to have
binding effect as is contemplated by Article 141
of the Constitution of India and observed thus:
"A decision which is not express and is not
founded on reasons nor it proceeds on
consideration of issue cannot be deemed to be
a law declared to have a binding effect as is
contemplated by Article 141."
In the case of Arnit Das v. State of Bihar, 2000
(5) SCC 488 : (2000 AIR SCW 2037 : AIR 2000
SC 2264 : 2000 Cri LJ 2971), while examining the
binding effect of such a decision, this Court
observed thus (Para20):
"A decision not expressed, not accompanied by
reasons and not proceeding on a conscious
consideration of an issue cannot be deemed to
be a law declared to have a binding effect as is
contemplated by Article 141. That which has
escaped in the judgment is not the ratio
decidendi. This is the rule of sub silentio, in the
technical sense when a particular point of law
was not consciously determined."
Thus we have no difficulty in holding
that as the question regarding applicability
of Rule 72 of the Rules having not been even
referred to, much less considered by this
Court in the earlier appeals, it cannot be
said that the point is concluded by the same
and no longer res integra and accordingly
this Court is called upon to decide the same.
8. We have gone into some detail on the principle of stare
decisis since it is our considered opinion that the Division
Benches have incorrectly applied the above-mentioned
decisions of the Supreme Court. It is imperative that the facts
of each case must first be noticed with clarity and precision
and only thereafter, in the context of the facts determinative
of the decision, should the enunciation of the law by the
Court be distilled. It also seems plain to us that their
Lordships whilst passing „Order‟ in contradistinction to the
„Judgment‟ intend to dispose of the controversy before them
restricted to the fact situation therein, with no intention to lay
down any principle of law.
9. In Baljit Singh the injury occurred while he was in
service, thus diminishing, if not distinguishing, the relevance
of that case from the pivotal question before us, viz. nature of
injury received during casual leave which would nevertheless
qualify for grant of Disability Pension. Even though Baljit
Singh suffered the subject injury while he was discharging his
duties, their Lordships cautioned that - "In each case where a
disability pension is sought for and made a claim, it must be
affirmatively established, as a fact, as to whether the injury
sustained was due to military service or was aggravated
which contributed to invalidation for the military service". A
fortiori, where the claimant is on casual leave the causal
connection becomes acutely critical. So far as the aspect of
liability for injury leading to discharge from service is
concerned there is a plethora of precedents present for
perusal, including Union of India -vs- Dhir Singh China,
(2003) 2 SCC 382, Controller of Defence Accounts (Pension) -
vs- S. Balachandran Nair, (2005) 13 SCC 128 decided on
21.10.2005, Union of India -vs- Keshar Singh, JT 2007 (6) SC
20 : 2007 (6) Scale 17 : (2007) 12 SCC 675 and Union of India
-vs- Surinder Singh Rathore, JT 2008 (4) SC435 : 2008(4)
Scale 468 : (2008) 5 SCC 747. It was in these circumstances
that Rule 173 must be considered and applied.
10. China retired in the rank of Colonel and his claim for
Disability Pension was therefore governed by Chapter 2
Section III comprising Regulations 47-64 of the Pension
Regulations. After noting that the Medical Board had opined
that the two disabilities suffered by China were not
attributable to or aggravated by military service, their
Lordships opined that he could not derive any benefit from
the said fasciculus dealing with "Disability Pensionary
Awards". The facts as well as the conclusion are almost
identical to Rathore and Keshar where the Medical Board
had recommended the release of Rathore due to an eye
ailment. The Apex Court reversed the decision of the Single
Judge as well as the Division Bench of the High Court holding
that Rathore and Keshar were not entitled to Disability
Pension.
11. Nair also concerns a discharge from military service
owing to Nair having been relegated to an unacceptable
medical category (EEE). Baljit Singh was applied since the
factual matrix was akin. Dealing in some detail with Nair is
justified in order to underscore that if Disability Pension is
not automatically available for a medical condition which had
manifested itself during the discharge of duties, the claim for
an injury suffered during leave would be on a much weaker
foundation. While discharging his duties in the border area in
Punjab, Nair developed medical problems which had not been
detected at the time of his enrolment, for which he received
prolonged treatment, but had eventually to be boarded out
being in category "EEE". The Apex Court concluded in Nair
that "the Medical Board‟s opinion was clearly to the effect
that the illness suffered by the respondent was not
attributable to the military service, both the learned Single
Judge and the Division Bench were not justified in their
respective conclusions. The respondent is not entitled to
disability pension". If "attributablity" is required to be
"affirmatively proved" by the claimant even when the
condition was discovered during discharge of duty, it follows
that the burden of proof is even greater when the occurrence
transpires during leave. There is no room at all to invoke the
principle of res ipsa loquitur, viz., "the thing speaks for itself"
to such claims. Although this maxim is usually employed in
tortuous liability predicated on negligence, we mention it
because the Petitioners would have us hold that any injury
received while on military rolls would per se and inexorably
and inevitably lead to eligibility for Disability Pension. We
record our inability to subscribe to this contention.
12. Indubitably, Joginder Singh is a leading authority
relevant to the conundrum before us. The Petitioner was
proceeding on casual leave from duty station when he
suffered injuries as a result of his falling down from the train
[similar to Shri Krishan Dahiya (infra)]. It was in this
regard that the oft referred to passage came to be articulated
by their Lordships:-
5. The question for our consideration is whether
the appellant is entitled to the disability pension.
We agree with the contention of Mr. B. Kanta Rao,
learned counsel for the appellant that the appellant
being in regular Army there is no reason why he
should not be treated as on duty when he was on
casual leave. No Army Regulation or Rule has been
brought to our notice to show that the appellant is
not entitled to disability pension. It is rather not
disputed that an Army personnel on casual leave is
treated to be on duty. We see no justification
whatsoever in denying the disability pension to the
appellant.
13. We are unable to perceive this precedent to lay down
that each and every injury suffered by military personnel
while on casual leave would justify a claim for payment of
Disability Pension. Journeys to and fro the place of posting
are specifically covered by Rule 12(d) in Appendix-II of the
Pension Regulations which was palpably not brought to the
notice of the Supreme Court. Furthermore, it is trite that
concessions or mistakes of an advocate of the parties,
especially in pointing out the provisions of law will undermine
the precedential value of the decision. Their Lordships were
not called upon nor did they intend to lay down that any
injury suffered whilst availing of/enjoying casual leave in
contradistinction to en route to and fro duty station would
create an eligibility to claim Disability Pension.
14. In Shekhawat learned counsel neglected to highlight
that the petitioner was a non-commissioned personnel and
therefore it was Chapter 3, Section III (being the pandect
comprising Regulations 172-190) which applied to the case.
However, since these provisions are identical in material and
relevant particulars to Chapter 2, the decision would remain
the same. Their Lordships specifically took note of Rule 48
read with Rule 12(d) of the Pension Regulations while
emphasising that "a person is also considered to be on duty
when proceeding to his leave station or return to his duty
from his leave station at public expense". It was not in
dispute that Shekhawat was travelling from Jodhpur to his
home station on authorised casual leave. It was contested
that he had lost his eligibility to make a claim for Disability
Pension since he was allegedly not travelling "at public
expense". It was in this context that the Court observed that a
beneficial provision must be interpreted liberally so as to give
a wider meaning rather than a restrictive meaning which
would negate the very object of the Rule. Their Lordships
observed that they were of the opinion that the "rule-makers
did not intend to deprive the Army Personnel of the benefit of
the disability pension solely on the ground that the cost of
journey was not borne by the public exchequer. If the journey
was authorised, it can make no difference whether the fare
for the same came from the public exchequer or the Army
Personnel himself". This is the ratio of the Judgment which is
most often misconstrued; the Apex Court did not enunciate
that any and every injury suffered while availing casual leave,
regardless of whether it had a causal connection with military
service, would inexorably result in grant of Disability Pension.
15. In Harbans Singh -vs- Union of India, AIR 1971 Delhi
227 the petitioner was posted at Walong in N.F.E.A. He
applied for and was granted sixty days annual leave. He flew
from Walong to Jorhat and thence to Calcutta. The last leg of
his homewards journey from Ambala Cantonment to Patiala
was undertaken by him, with the permission of his superior
officers, on his own scooter and in this segment that he met
with an accident as a result of which he was invalidated out
of the Army. The Pension Regulations, as well as the Rules in
Appendix-II, were applied by the Division Bench, which
provisions inter alia stipulate that - "a person is also
considered to be on duty when proceeding to his leave station
or returning to duty from his leave station on public
expense". The following passage is palpably the precursor to
the pronouncements in Shekhawat :
21. Therefore, the resulting position in the present
case is that the travel by the petitioner from
Calcutta to Patiala was partly at public expense.
The question then is whether, in those
circumstances, he can be considered to have
proceeded or travelled to his leave station (Patiala)
at public expense and, therefore, to have been on
duty at the time of the accident within the meaning
of Rule 6(c) in Appendix-II to the Pension
Regulations for the Army. The contention of Shri
Brij Bans Kishore on behalf of the respondent was
that the journey from the starting station (Walong)
to the destination station (Patiala) should be
entirely at public expense if the provision in Rule
6(c) is to be attracted. In our opinion, the said
contention of the learned counsel cannot be
accepted as it would result in an odd or anomalous
position. The provision in Rule 6(c) is intended to
lay down when the officer can be deemed or
considered to be "on duty". It provides that he will
be considered to be "on duty" when proceeding to
his leave station or returning to duty from his leave
station at public expense. As pointed out above, in a
situation like the one in which the petitioner was,
the journey to or from the leave station would be
partly at public expense and partly at the officer‟s
own expense and the officer has to be considered to
be partly "on duty" and partly "not on duty". This
odd or anomalous result can be avoided by
interpreting the words "at public expense" in Rule
6(c) in one of two ways viz. (1) that they mean that
the entire journey from the starting station to the
destination and back should be "wholly at public
expense" or (2) that they mean that the said journey
may be even "partly at public expense". In other
words, either the word "wholly" or the word
"partly" has to be introduced before the words "at
public expense" in order to avoid an odd result in
the application of Rule 6(c) to a situation like the
one in which the petitioner was placed. The
question then is as to which of the two
interpretations is to be preferred. The answer, we
consider, is to be found in Rule 4 in Appendix II to
the Pension Regulations for the Army. The said
Rule, as already pointed out earlier, provides that in
deciding on the issue of entitlement of an officer to
disability pension, all the evidence, both direct and
circumstantial will be taken into account, and the
benefit of reasonable doubt will be given to the
claimant. Applying the principle underlying the said
provision, if not the provision itself, the second of
the two interpretations mentioned above would, in
our opinion, be the proper and just interpretation of
the words "at public expense" in Rule 6(c) in
Appendix II to the Pension Regulations for the
Army. In that view, we hold that the petitioner was
travelling "at public expense" within the meaning of
Rule 6(c) and was, therefore, "on duty" at the time
of the accident which had resulted in his
disablement, that his disablement has to be
accepted as due to Military service by virtue of the
provision in Rule 2 in the aforesaid Appendix II, and
that he was, therefore, entitled to disability pension
under Rule 48 of the Pension Regulations for the
Army.
16. We shall now consider some Division Bench Judgments
of other High Courts on the point in issue. In Chatroo Ram -
vs- Secretary Defence, 1991(1) SLR 678 the Division Bench of
the High Court of Punjab and Haryana held the petitioner to
be entitled to Disability Pension since he met with an
accident during the journey back to his place of posting.
Regulation 173 of the Pension Regulations, together with
Rule 6 of Appendix-II framed under Rule 48 thereof, was
pressed into service. We approve this decision, which had, in
fact, applied Harbans.
17. Shri Krishan Dahiya -vs- Union of India, 1997(1) SLR
607 is also a decision of the Division Bench of the Punjab &
Haryana High Court. It referred to Joginder, Chatroo and
Harbans. It had been narrated at the commencement of the
Judgment that the petitioner had lost his legs while
attempting to board the train for returning to duty after
availing casual leave. One of the observations made, with
which we concur, prophetically of Shekhawat is that -
"expenses for the travel whether borne by the State or the
individuals cannot be made the sine quo non for the purposes
of determining whether the persons is on duty or not".
Disability Pension was granted to the petitioner.
18. The Division Bench of the High Court of Punjab &
Haryana had to adjudicate upon a claim for Disability Pension
in Jarnail Singh -vs- Union of India, 1998 (1) SLR 418, in
which the petitioner had lost his right hand while working a
thresher in his home/farm. At the time of the unfortunate
incident he was on casual leave. Swatanter Kumar, J., who
authored the Judgment, had analysed a host of decisions
before coming to the conclusion that agricultural activity
undertaken by a military personnel while on casual leave
could not be seen as attributable to military service.
Paragraphs 5 to 22(end) of this Judgment were reproduced
and adopted in Jitendra Kumar authored co-incidentally by
Swatanter Kumar, J. while presiding over a Division Bench of
this Court. Our learned Brother had repeatedly opined that
the "injury or disability must be incidental to military service"
and "must relate to military service in some manner or the
other" and that "causal connection certainly would not
include every act, deed or conduct which is neither ancillary
to nor in any way connected to the recognised sphere of
military service of a person on casual leave". We entirely
agree with this enunciation of the law but with respect are
unable to subscribe to the conclusion arrived at by the
Division Bench in Jitendra Kumar. The facts in Jitendra
Kumar appear to be that consequent upon his enrolment he,
along with other members of his batch, was granted twenty-
eight days „recruitment leave‟. At the end of this leave
period, Jitendra Kumar allegedly went to the market in
Bulandsahar in order to purchase items necessary/required
by him at his place of duty. After completing the purchase, on
his journey back home a bus had a frontal collision with him.
He was invalidated out of military service with eighteen per
cent Disability Pension. The Bench applied Clause 13(a) of
Appendix-II to arrive at the conclusion that the Petitioner was
"on duty" finding a causal connection between the injuries
and military service. With respect, as we have already noted,
we find no causal connection between the act of making
purchases in the market even if it pertained to items needed
in the discharge of duties, and military service. The second
petitioner had applied for grant of casual leave from
13.4.2000 to 27.4.2000 for attending the marriage of his
relative. On 18.4.2000 while he was journeying in a jeep to
attend the marriage his vehicle collided with a truck. He
suffered compound fractures to the proximal tibia, right knee,
left femur etc. He was invalidated from military service on
medical grounds. The Bench took into consideration that the
casual leave was sanctioned for a definite period, that is, to
attend the marriage of his brother. Respectfully, we see no
causal connection, whatsoever, between the accident and the
discharge of duties; attending a marriage cannot possibly be
seen as analogous to military duties. The ratio of Joginder
Singh is not applicable.
19. For similar reasons we are unable to subscribe to the
views in Ex. Sepoy Hayat Mohammed -vs- Union of India,
138(2007) DLT 539(DB) to the effect that the petitioner was
eligible for the grant of Disability Pension owing to the fact
that while on casual leave in his home he suffered several
injuries owing to a steel girder and roof slabs falling on him.
One of the reasons which appear to have persuaded the same
Division Bench was that persons on annual leave are subject
to the Army Act and can be recalled at any time as leave is at
the discretion of the Authorities concerned. A rule of this
nature is necessary to cover the eruption of insurgencies or
the breakout of a war. They neither envisage nor attempt to
deal with liability to pay Disability Pension. It is
impermissible to extrapolate a rule catering for a particular
situation to altogether different circumstances.
20. The Division Bench of this Court had applied
Shekhawat in G.D. Ishwar Chand -vs- Union of India,
2004(3) SLR 439. The petitioner had been sanctioned short
leave and while returning from his leave he had met with an
accident. The claim was examined under the CCS(EOP) Rules,
Rule 3(a) whereof provides as under:-
3-A(1)(a)"Disablement shall be accepted as due
to Government service, provided that it is certified
that it is due to wound, injury or disease which-
(i) is attributable to Government service, or
(ii) existed before or arose during Government
service and has been and remains aggravated
thereby".
(b) Death shall be accepted as due to Government
service provided it is certified that it was due to or
hastened by-
(i) a wound, injury or disease which was
attributable to Government service, or
(ii) the aggravation by Government service of a
wound, injury or disease which existed before or
arose during Government service.
The Petitioner was serving as a constable in the National
Security Guard (NSG). Our learned Brothers recorded that
Shekhawat had erased the distinction between public
expense and private expense for undertaking journeys to and
fro the place of posting and accordingly held in favour of the
petitioner.
21. Manjit Singh -vs- Union of India, (2000) 124 PLR 490 is
the decision of the same learned Judge who, as a member of
the Division Bench, had authored Jarnail Singh, in which it
had rightly been observed that "a person who may be doing
some act at home which even remotely does not fall within
the scope of his duties or function as member of the force nor
is remotely connected with the function of the military service
and expected standard and way of living of such member of
the force cannot be termed as an injury or disability
attributable to military service". With respect, whilst we
agree with the Division Bench in Jarnail Singh that an injury
sustained while operating a thresher is not attributable to
military service, we are unable to share the view of the
learned Single Judge that an accident in the course of
wedding celebrations can be so ascribed. We find ourselves
unable to agree with views of the same learned Judge on
behalf of the Division Bench in Jitendra Kumar that making
purchases in the market albeit for his requirements at his
place of duty and/or suffering injuries in a collision whilst
journeying to attend a relative‟s marriage has any close or
remote causal connection with the discharge of military
duties. With all respect, we are unable to concur with the
verdict of the same Division Bench in Hayat Mohammed.
Whether the act which resulted in the disability is in the
course of legal or normal activity is irrelevant; the central
consideration is whether or not it is attributable to military
service. While we empathise with the Hayat Mohammed
because he lost three fingers owing to the fall of a steel
girder and stone slabs which was part of the roof of his home,
we cannot conceive of this incident being part of or even an
incident of military service.
22. The Division Bench decision in Vijay Pal Singh has not
been reported and hence we are reproducing it, so as to make
this Judgment composite and comprehensive. With respect
our esteemed Brothers have not correctly extracted the ratio
of Joginder Singh, and hence we find ourselves unable to
uphold their opinion:
The petitioner was enrolled as Sepoy in the
Indian Army with effect from July 1, 1982. While
serving at Gauhati, he received a telegram informing
him that his mother was indisposed. The petitioner
thereupon applied for Casual leave, which was
sanctioned w.e.f. May 27, 1987 to June 3, 1987. The
petitioner while on casual leave in his native village
met with an accident on May 31, 1987.
It is not disputed by the respondent that the
accident took place when the petitioner was on casual
leave. It is also not denied that the accident resulted in
spinal injury to the petitioner. Our attention has also
been drawn to the medical certificate issued by the
Senior Advisor, Surgery and Orthopaedics, SCS Centre,
M O I/C, which certifies that the injury of the petitioner
is attributable to military service.
Learned counsel appearing for the respondent
submits that the petitioner is not entitled to disability
pension as the injury was caused while the petitioner
was on casual leave and the injury in these
circumstances cannot be attributable to military
service. Learned counsel for the petitioner on the other
hand has invited our attention to the decision of the
Supreme Court in Joginder Singh Vs Union of India &
Ors. (SLP 3118/93, decided on August 16, 1993) in
which it was held that the injury to an army personnel
even if sustained while he was on casual leave will still
entitle him for disability pension as the army personnel
on casual leave is treated to be on duty.
Having regard to the decision of the Supreme
Court, we are of the opinion that the petitioner would
be entitled to disability pension even though he
sustained the injury while he was on casual leave.
Accordingly, we direct the respondent to determine the
disability pension of the petitioner within one month
and the arrears be paid with 12% interest within two
months from today. The future disability pension be
paid month by month by 7th of each calendar month.
With these observations and directions writ
petition is disposed of.
23. We have also perused the detailed Judgment of the
Division Bench of this Court in Shri Bhagwan wherein
Jarnail Singh also came to be discussed. The Bench
observed that - "An individual may be "on duty" for all
practical purposes such as receipt of wages etc. but that does
not mean that he is "on duty" for the purpose of claiming
disability pension under the 1982 Entitlement Rules. .... A
person to be on duty is required, under the 1982 Entitlement
Rules, to be performing a task, the failure to do which would
constitute an offence triable under the disciplinary code
applicable to him. A person operating a wheat thresher while
on casual leave cannot, by any stretch of imagination, be said
to be performing an official duty or a task the failure to
perform which would lead to disciplinary action". We
respectfully affirm these views of the Division Bench.
24. To sum up our analysis, the foremost feature,
consistently highlighted by the Hon‟ble Supreme Court, is
that it requires to be established that the injury or fatality
suffered by the concerned military personnel bears a causal
connection with military service. Secondly, if this obligation
exists so far as discharge from the Armed Forces on the
opinion of a Medical Board the obligation and responsibility a
fortiori exists so far as injuries and fatalities suffered during
casual leave are concerned. Thirdly, as a natural corollary it
is irrelevant whether the concerned personnel was on casual
or annual leave at the time or at the place when and where
the incident transpired. This is so because it is the causal
connection which alone is relevant. Fourthly, since travel to
and fro the place of posting may not appear to everyone as an
incident of military service, a specific provision has been
incorporated in the Pension Regulations to bring such travel
within the entitlement for Disability Pension if an injury is
sustained in this duration. Fifthly, the Hon‟ble Supreme Court
has simply given effect to this Rule and has not laid down in
any decision that each and every injury sustained while
availing of casual leave would entitle the victim to claim
Disability Pension. Sixthly, provisions treating casual leave as
on duty would be relevant for deciding questions pertaining
to pay or to the right of the Authorities to curtail or cancel
the leave. Such like provisions have been adverted to by the
Supreme Court only to buttress their conclusion that travel to
and fro the place of posting is an incident of military service.
Lastly, injury or death resulting from an activity not
connected with military service would not justify and sustain
a claim for Disability Pension. This is so regardless of
whether the injury or death has occurred at the place of
posting or during working hours. This is because
attributability to military service is a factor which is required
to be established.
25. It is a matter of regret that despite our messages and
reminders Mr. S.M. Hooda, learned counsel for the
Petitioners in these writ petitions, did not appear or
address arguments on behalf of his clients before the Court.
Mr. Dalal had argued on behalf of the Petitioners with
diligence and detail. Likewise, on behalf of the Union of India
Mr. Wadhwa had taken us through the extant Rules and
Regulations and several precedents related to the issue
before us.
26. Returning to the facts of WP(C) 6959/2004 Ex. Naik
Dilbag while availing casual leave from 23.12.1993 to
29.12.1993 met with a road accident on 25.12.1993. After his
operation he was placed in Low Medical Category (CEE).
Even a bald pleading to the effect that the injury was
sustained in the course of military duty is conspicuously
absent from the pleadings in the writ petitions. No effort,
whatsoever, has been made to establish that the injury was
attributable to military service. The injury was not sustained
on the journey to and fro the place of posting. The Petitioner
is, therefore, not entitled to Disability Pension. In WP(C)
20348/2005 Ex. NK Ramesh Kumar sustained a head injury in
a road accident on Delhi-Panipat Road while he had gone for
the admission of his child to school. He was placed in
permanently low medical category (CEE). Far from proving
that the injury was attributable to military service the
Petitioner has failed even to make an asseveration to this
effect. The prayer recording Disability Pension is rejected. We
decline to record any finding pertaining to the claim under
the Army Group Insurance Scheme.
27. Writ Petitions are disposed of accordingly. All pending
applications also stand disposed of.
(VIKRAMAJIT SEN)
JUDGE
(SANJIV KHANNA)
JUDGE
August 22, 2008 (S.L. BHAYANA)
„tp‟ JUDGE
