Union Of India & Ors vs Jujhar Singh

Union of India & Ors. .... Appellant (s)

Versus

Jujhar Singh .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) This appeal by Union of India is directed against the

final judgment and order dated 04.01.2002 passed by the

High Court of Punjab and Haryana at Chandigarh in

L.P.A. No. 5 of 2002 whereby the Division Bench of the

High Court dismissed their appeal in limine.

2) Brief facts:

(a) The respondent was enrolled in the Army on

27.06.1978. In the year 1987, when he was on annual

1

leave to his native place, he met with an accident on

26.03.1987 and sustained severe injuries and was

admitted in the hospital from 26.03.1987 to 20.01.1989.

Subsequently, he was admitted in Military Hospital,

Dehradun and after treatment was placed in medical

category BEE (Permanent) and percentage of disability

was ascertained as 20%. After he joined the duty, he was

kept under observation by the Medical Board and his

disability was assessed as 60% for two years. The Medical

Board also opined that the disability was neither

attributable to nor aggravated by the military service.

(b) The respondent was superannuated from service

w.e.f. 01.07.1998 and he was granted normal service

pension. He made a representation before the authorities

claiming disability pension on the ground that he was

having disability on the date of retirement. The

representation was rejected by the authorities.

2 (c) Against the rejection of disability pension claim, the

respondent preferred a writ petition being C.W.P. No.

14290 of 1999 before the High Court of Punjab and

Haryana. Learned Single Judge of the High Court, by

order dated 20.07.2001, allowed the writ petition by

holding that the respondent herein is entitled for disability

pension under Regulation 179 of the Pension Regulations

for the Army, 1961 (hereinafter referred to as "the

Regulations").

(d) Challenging the said order, the appellants herein

preferred L.P.A. No. 5 of 2002 before the Division Bench of

the High Court. The Division Bench, by impugned

judgment dated 04.01.2002, dismissed the appeal in

limine. Aggrieved by the said judgment, the appellants

preferred this appeal by way of special leave petition

before this Court.

3 3) Heard Mr. R. Balasubramaniam, learned counsel for

the appellant-Union of India and Mr. Jujhar Singh

respondent, who appeared in person.

4) The questions that arise for consideration in this

appeal are:

(a) Whether the case of the respondent for disability

is covered under Regulation 179 of the Pension

Regulations for the Army (Part I) 1961?

(b) Whether the disability in an accident suffered by

the respondent during his annual leave while

doing his personal work would amount to the

disability attributable to or aggravated by

military service?

5) Discussion:

We have already narrated the required factual details.

It is seen that when the respondent was on annual leave,

he met with a road accident at his native place and

4

sustained grievous injuries resulting in permanent

disability. It is further seen that after treatment and

returning from his leave, he continued in military service

and w.e.f. 01.07.1998, the respondent was superannuated

from service and he was granted normal service pension.

According to the respondent, since on the date of

retirement, he was permanently disabled, he is entitled for

disability pension for which he made a representation

which was rejected by the authorities.

6) It was contended by the respondent before the

learned Single Judge that at the relevant time when he

had gone on leave he remained in military service and

while attending to his normal duties at home he suffered

disability and later superannuated with the said disability,

hence eligible for disability pension. The learned Single

Judge arrived at a conclusion that the writ petitioner-

respondent herein is entitled to disability pension as

envisaged under Regulation 179 of the Regulations since

5

he retired in normal course and he was not invalidated

from military service on account of his disability but the

fact is that he was suffering from disability on the date of

retirement which is above the degree of 20%. He also

concluded that as per Defence Service Regulations, when

a defence personnel goes on leave, he is counted on duty

unless the leave is determined as unauthorized leave. In

this way, relying on Regulation 179, the learned Single

Judge allowed the writ petition and directed the

authorities to process the case of the writ petitioner

(respondent herein) for granting disability pension in

accordance with law. When this order was challenged by

the Union of India before the Division Bench of the High

Court, the Division Bench, by impugned order dated

04.01.2002, dismissed their appeal without assigning any

reason.

6 7) In order to answer the above referred questions, it is

useful to refer Regulation 179 which reads thus:

"Disability at the time of retirement/discharge

179. An individual retired/discharged on completion of

tenure or on completion of service limits or on

completion of terms of engagement or attaining the age

of 50 years (irrespective of their period of engagement),

if found suffering from a disability attributable to or

aggravated by military service and recorded by Service

Medical Authorities, shall be deemed to have been

invalidated out of service and shall be granted disability

pension from the date of retirement, if the accepted

degree of disability is less than 20 per cent or more, and

service element if the degree of disability is less than 20

per cent. The service pension/service gratuity, if

already sanctioned and paid, shall be adjusted against

the disability pension/service element, as the case may

be.

(2) the disability element referred to in clause (1)

above shall be assessed on the accepted degree of

disablement at the time of retirement/discharge on the

basis of the rank held on the date on which the

wound/injury was sustained or in the case of disease

on the date of first removal from duty on account of that

disease."

8) It is clear that if a person concerned found suffering

from disability attributable to or aggravated by military

service, he shall be granted disability pension. The other

condition is that the disability is to be examined/assessed

by Service Medical Authorities and based upon their

7

opinion a decision has to be taken by the authority

concerned. The respondent should satisfy the conditions

specified in the Regulation. In this case, it is the definite

stand of the authorities that disability has neither

occurred in the course of employment nor attributable to

or aggravated by military service. We have already pointed

out and it is not in dispute that the respondent was on

annual leave when he met with a scooter accident as a

pillion rider and sustained injuries on 26.03.1987 at his

native place. He was not on military duty at the time of

the accident in terms of Para 12 (d) of Entitlement Rules,

1982 as clarified vide Government of India, Ministry

referred letter No.1(1)/81(PEN)C/Vol.II dated 27.10.1998.

In view of the same, the injuries sustained cannot be held

to be attributable to the military service.

9) In this background, it is useful to refer decision of

this Court in Regional Director, E.S.I. Corporation and

Another vs. Francis De Costa and Another, (1996) 6

8

SCC 1. Though this decision arose under the Employees'

State Insurance Act, 1948, we are of the view that since

there is a similar provision in the Employees' State

Insurance Act, namely, that the accident should have its

origin in the employment and the same should have

arisen out of and in the course of employment, the same is

applicable to the case on hand. In that case, the

respondent employee while going to his place of

employment (a factory), met with an accident at a place

which was about only one kilometer away from the

factory. The accident occurred at 4.15 p.m. while his

duty-shift was to commence at 4.30 p.m. As a result of

the accident, the respondent's collar bone was fractured.

The question before this Court was whether the said

injury amounted to "employment injury" within the

meaning of Section 2(8) of the Employees' State Insurance

Act, 1948 entitling the respondent to claim disablement

benefit. Answering in the negative, this Court held "a road

9

accident may happen anywhere at any time. But such

accident cannot be said to have arisen out of employment,

unless it can be shown that the employee was doing

something incidental to his employment."

10) In Union of India and Another vs. Baljit Singh

(1996) 11 SCC 315, the respondent therein was enrolled

in the Army as an Apprentice on 30.03.1975 and was

appointed in the service on regular basis w.e.f. 27.03.1977

in the EME 177 Battalion. While he was in service he had

sustained moderately severe injury. On the basis of the

opinion of the Medical Board, he was discharged from

service as an invalidated man on 31.05.1981. In the writ

petition filed by him, the High Court of Himachal Pradesh

directed the authorities to pay him disability pension.

This was challenged by the Union of India before this

Court by way of appeal by special leave. From the

materials placed, this Court concluded that it cannot be

said that the sustenance of injury per se is on account of

10

military service. The report of the Medical Board of

doctors shows that it is not due to military service.

Finally, it was held by this Court as under:

"In each case, when 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. Accordingly, we are of the view that

the High Court was not totally correct in reaching that

conclusion".

11) In Secretary, Ministry of Defence and Others vs.

A.V. Damodaran (dead) through LRs. and Others,

(2009) 9 SCC 140, the opinion of the Medical Board and

acceptability or otherwise for awarding disability pension

was considered. The short question that was considered

in that case was whether the High Court was justified in

ignoring the report of the Medical Board in which it was

clearly mentioned that disability of A.V. Damodaran was

neither attributable to nor aggravated by military service.

On examination, the Medical Board had opined that the

disability of A.V. Damodaran was not attributable to the

11

military service nor has it been aggravated thereby and it

is not connected with the service as schizophrenia is a

constitutional disease. The legal representatives of A.V.

Damodaran filed original writ petition before the High

Court praying for grant of disability pension. By order

dated 20.12.2000, the learned Single Judge allowed the

original petition and declared that the individual was

eligible to get disability pension under the provisions

contained in the Pension Regulations for the Army, 1961

and such other enabling provisions. The Department filed

a writ appeal before the High Court. The Division Bench

dismissed the said appeal finding no reason to interfere

with the discretion exercised by the learned Single Judge.

After considering Regulation 173 which speaks about

primary conditions for the grant of disability pension and

various other earlier decisions, this Court concluded that

the Medical Board is an expert body and its opinion is

entitled to be given due weight, value and credence. In

12

that case, the Medical Board has clearly opined that the

disability of late A.V. Damodaran was neither attributable

nor aggravated by military service. In this way, this Court

concluded that the legal representatives of A.V.

Damodaran are not entitled to disability pension.

However, in the facts and circumstances of that case, this

Court directed that the amounts which have already been

paid to the LRs of deceased A.V. Damodaran towards

disability pension may not be recovered from them.

12) In Ex. N.K. Dilbag vs. Union of India and Others,

2008 (106) Delhi Reported Judgment 865, a Full Bench of

the Delhi High Court had an occasion to consider the

similar issue and eligibility of disability pension by Armed

Forces Personnel. After adverting to various decisions of

this Court as well as of the High Courts, it concluded

thus:

"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

13

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."

In the light of our discussion, we fully endorse the views

expressed by the Full Bench.

14 13) Mr. R. Balasubramaniam, learned counsel appearing

for the Union of India has pressed into service the opinion

of the Medical Board which reads as under:

"1. Did the disability/ies exist before entering service?

No.

2. (a) In respect of each disability the Medical Board on

the evidence before it will express its views as to

whether?

(i) It is attributable to service during peace or under

field service condition; or

(ii) It has been aggravated thereby and remains so; or

(iii) It is not connected with service.

The Board should state fully the reasons in regard

to each disability on which its opinion is based.

Disability A B C

1. FRACTURE SHAFT OF No No Yes

TIBIA FEBULA (Lt) LOWER

1/3

2. SUPRA CONDYLAR

FRACTURE FEMUR (Lt)"

It is pointed out that A, B and C refers (i), (ii) and (iii)

which is not in dispute. The above opinion makes it clear

that the injury, particularly, the fracture is not

attributable to service and it is not connected with service.

15

14) The proceedings of the Court of Inquiry are as under:

"Proceedings of a Court of Inquiry

Assembled at 19 GUARDS (ATGM) C/o 56 APO

On the day of 10 Jul 90

IN the order of Commanding Officer 19 Guards

(ATGM)

For the purpose of Enquiring into the circumstances

Under which No. 1367100 H NK

Jujhar Singh met with an

accident on 26 Mar 87 during his

Annual leave.

(Vide BROS No. 160 dt. 06 May 89)

PRESIDING OFFICER 10-4743

Lt. KK Singh

Members 1. JC-115678A Sub

P.C. Sharma

2. JC-166001 XNb.Sub

Diwani Chand

The Court having assembled pursuant to order proceed to

examine the witnesses.

OPINION OF THE COURT

The opinion of the court is as under:-

a) Inquiry of severe nature sustained by No.13677100 H.

NK Jujhar Singh during his Annual Leave is not attributable

to the Military Service.

b) No. 1367100 H NK Jujhar Singh is not be blamed for

the injury sustained to him during accident.

Presiding Officer Sd xxx

IC47438 F Lt. KK Singh

Member Sd xx

JC-115678A Sub PC Sharma

Sd xx

JC 16600 I X Nb Sub Diwani Chand."

16

15) The above factual details and materials show that

first of all, the respondent herein sustained injuries in a

road accident at his home town during his annual leave

which was not attributable to the military service. It was

strengthened from the opinion of the Medical Board that

the injuries were not attributable to the service and it was

also not connected with the service. In A.V.

Damodaran's case (supra), this Court has emphasized

the importance of the opinion of the Medical Board which

is an expert body and its opinion is entitled to be given

due weight, value and credence.

16) We are of the view that the learned Single Judge

failed to appreciate that under Regulation 179 a personnel

can be granted disability pension only if he is found

suffering from disability which is attributable to or

aggravated by military service and recorded by Service

Medical Authorities. In the case on hand, medical

authorities have recorded a specific finding to the effect

17

that disability is neither attributable to nor aggravated by

the military service. This fact has not been appreciated

either by the learned Single Judge or by the Division

Bench of the High Court. The High Court has also failed

to appreciate that the Medical Board is a Specialized

Authority composed of expert medical doctors and it is the

final authority to give information regarding attributability

and aggravation of the disability to the military service

and the condition of service resulting in the disablement of

the individual. These relevant facts have not been

considered by the learned Single Judge and the Division

Bench of the High Court.

17) As rightly pointed by the counsel for the Union of

India, the High Court failed to appreciate that even though

the respondent sustained injuries while he was on annual

leave in 1987, he was kept in service till superannuation

and he was superannuated from service w.e.f. 01.07.1998.

It is relevant to point out that he was also granted full

18

normal pension as admissible under the Regulations. In

the case on hand, inasmuch as the injury which had no

connection with the military service even though suffered

during annual leave cannot be termed as attributable to or

aggravated by military service. The member of the Armed

Forces who is claiming disability pension must be able to

show a normal nexus between the act, omission or

commission resulting in an injury to the person and the

normal expected standard of duties and way of life

expected from member of such forces. Inasmuch as the

respondent sustained disability when he was on annual

leave that too at his home town in a road accident, the

conclusion of the learned Single Judge that he is entitled

to disability pension under Regulation 179 is not based on

any material whatsoever. Unfortunately, the Division

Bench, without assigning any reason, by way of a cryptic

order, confirmed the order of the learned Single Judge.

19 18) In view of our discussion, the judgments of the

learned Single Judge as well as the Division Bench are set

aside. We make it clear that the respondent is entitled to

"full normal pension" which he is already getting as per

the Regulations, but not entitled to "disability pension".

The appeal is allowed. No costs.

..........................................J.

(P. SATHASIVAM)

..........................................J.

(A.K. PATNAIK)

NEW DELHI;

July 15, 2011.

20