L.P.A. No.978 of 2009 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No.978 of 2009 Date of Decision. 31.03.2010 Union of India through Secretary, Ministry of Defence, New Delhi and others ........Appellants Versus Khushbash Singh, Ex. Naib Subedar, resident of Village Lotan, Tehsil Naraingarh, District Ambala. ....Respondent 2. L.P.A. No.49 of 2009 Union of India through Secretary, Ministry of Defence, New Delhi and others ........Petitioners Versus No.3978268 Ex-Sep. Sumanjit Singh ....Respondent Present: Mr. Anil Rathee, Advocate and Mr. Hemen Aggarwal, Advocate for the appellants. Mr. Bhim Sen Sehgal, Advocate for the respondent. CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE K. KANNAN HON'BLE MR. JUSTICE ALOK SINGH 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. I. The issue at stake and the cause for reference to Full Bench 1. The above two cases address the same issue with reference to the entitlement of disability pension by an Army Personnel, who suffered a disability in an accident during leave. In both the cases, the disability had arisen through accidents during leave. The entitlement to disability pension is anchored to para 173 of the Pension Regulation of the Army Act that provides for L.P.A. No.978 of 2009 -2- disability pension arising on account a disability, which is attributable or aggravated by Military Service in non-battle casualty and is assessed at 20% or over. The expressions of a causal connection of disability that is attributable to Military Service in a non-combat situation would take us to examine what types of activities could be taken to have connection to Military Service. The issue would again be whether a person, who is on casual leave or annual leave would be subjected to any different yardsticks in assessing this causal connection. The reference to a Full Bench itself has arisen on account of a Division Bench of which one of us (Justice Adarsh Kumar Goel) was a party, noticed that there had been a conflict of opinions between a Division Bench judgment of this Court in Jarnail Singh Vs. Union of India 1998(1) SLR 418 on the one hand and the three other decisions of this Court in Gurjit Singh Vs. Union of India and others 2008(2) SCT 333, Pooja and another Vs. Union of India and others 2009(1) SCT 491 and Pargat Singh Vs. Union of India and another in C.W.P. No.12434 of 1999 decided on 22.09.2006 on the other. II. Setting the cases in their factual matrix and their litigious journey 2. To set the factual position in both the cases correctly in order to appreciate the law involved, in LPA No.978 of 2009, the respondent Khushbash Singh joined as Sepoy in Army on 08.02.1974 and was on casual leave when he had gone to his village in the year 1988. He met with an accident while traveling on a scooter that resulted 60% disability leading to his discharge from the year 1991. The service element of pension was given to him but L.P.A. No.978 of 2009 -3- disability pension claimed by him was disallowed on the ground that the same was not admissible. In LPA No.49 of 2009, the writ petition had served the Army from 1979 to 1982, when he was on annual leave in the year 1992 and when he had gone to Mata Chintpurani. He was invalidated out of service on medical ground but denied disability pension on the ground that the injury was not attributable to Army Service. 3. The respondent in LPA No.978 of 2009 had filed the writ petition challenging the rejection of his claim for disability pension and it was allowed by learned Single Judge following the judgment of the Hon’ble Supreme Court in Madan Singh Shekhawat Vs. Union of India AIR 1999 SC 3378 and a Division Bench of the Delhi High Court in Ex. Sepoy Hayat Mohammed Vs. Union of India and others 2008 (1) SCT 425. When the appeal came up for hearing before the Division Bench, it was pointed out that the Division Bench judgment of the Delhi High Court in Ex. Sepoy Hayat Mohammed’s case had been over-ruled by a Full Bench of the Delhi High Court in Dilbagh Singh and others (Ex. Nk) Vs. Union of India and others 2008(4) SCT 432. The latter Full Bench judgment was cited in Union of India and others Vs. Sumanjit Singh 2009(4) SCT 44, which was a subject of appeal in L.P.A. No.49 of 2009 when originally a Division Bench had, while allowing the appeal filed by the Union of India, held that no disability pension would be claimable by a person, who had suffered the disability in an accident on annual leave. This judgment had been rendered in the absence of the counsel appearing for the L.P.A. No.978 of 2009 -4- respondent (the army employee) and on an application for review, the decision had been set aside and it has also come up for consideration on merit along with other appeal. III. The lynchpin Pension Regulations 4. To consider the question arising in these two appeals, it will be fruitful to reproduce para 173 of Pension Regulation of the Army, 1961: “Unless otherwise specifically provided, a disability consisting of service element and disability element may be granted to an individual, who is invalidated out of service on account of disability which is attributable or aggravated by Military Service in non-battle casualty and is assessed at 20% or over.” Two other sets of Regulations will have also to be examined, which make reference to the expression “attributable to or aggravated by” and the provisions relating to “leave”, since we are considering the question of disability arising out of accidents during casual leave and annual leave. Appendix II to the Pension Regulation to the Army Act of 1961 is directed to be read along with Regulation 48, 173 and 185. Rule 48 of the Pension Regulations provides that Officer, who is retired from Military Service on account of disability, which is attributable or aggravated by such service and is assessed at 20% or over may on retirement be awarded with disability pension. The said Rule provides that the question whether a disability is attributable or aggravated by Military Service shall be determined under the Rules and Appendix II. Regulation L.P.A. No.978 of 2009 -5- 185 refers to the period of grant of disability pension when invalidating disability is capable of improvement and therefore, it addresses a slightly different position and we need not refer to it here. Appendix II outlines the relevant situations for applying the Pension Regulation and Entitlement Rules for Casualty Pensionary Awards of 1982. Rules 1 to 4 deal with the applicability of the Rules to classes of persons, who were in employment between specified periods and Rule 5 sets out the evaluation of disability with certain presumptions of how a person shall be presumed to be in sound physical and mental condition and Rule 6 sets out the nature of certification that would be necessary. Rule 8 is important, which is reproduced: “Attributability/aggravation shall be conceded, if causal connection between death/disablement in Military Service is certified by appropriate Medical Authority.” Rule 9 sets out the issue of onus of proof, which is again of importance and hence reproduced: “The claimant shall not be called upon to prove the conditions of entitlement. He/she will receive the benefit of any reasonable doubt. This benefit will be given more liberally to the claimant in field/afloat service cases.” Rules 10 and 11 refer to post discharge claims. Rule 10 addresses the situation of a person’s disability that arises within a particular number of years after the discharge of service, which could be recognized as attributable to service. Since we are examining the case of disability arising out of an accident, we are not examining the same. Rule 11 speaks about a disability arising during the time when a person who is receiving disability pension dies at home. We L.P.A. No.978 of 2009 -6- are not again examining the situation of a person dying at home when a disability pension had already been assessed. Rule 12 defines “duty” and since the point of reference to the Full Bench is of an interpretation of attributability or aggravation of Military Service, it is required to be reproduced: “12. Duty A person subject to the disciplinary code of the Armed Forces is on ‘duty’:- a. While 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 movement. c. During the period of participation in recreating and other unit activities organized or permitted by service authorities and during the period of traveling in a body of single by a prescribed or organized route. Note. a. Personnel of the Armed Forced participating in i. Local/National/International sports tournament as member of service team, or ii. mountaineering expeditions/gliding organized by service authorities with the approval of service Headquarter will be deemed to be ‘ON DUTY’ for purpose of these rules. iii. Personnel of the Armed Forces participating in the abovenamed sports tournaments or in privately organized mountaineering expeditions or indulging in gliding as a hobby in their individual capacity, will not be deemed to be on duty for the purpose of these rules, even though prior permission of the competent service authorities may have been obtained by them. Note 2. The personnel of the Armed Forces deputed for training at courses conducted by the Himalayan Mountaineering L.P.A. No.978 of 2009 -7- Institute, Darjeeling shall be treated on par with personnel attending other authorized professional courses or exercises for the Defence Service for the purpose of the grant of disability/family pension on account of the disability/death sustained during the courses. 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 expenses i.e. on railway warrants, on concessional vouchers, on cash TA is (irrespective of whether railway warrant/cash T.A. is admitted for the whole journey of 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 quarter to and back from the appointed place of duty, under organized arrangements or by a private conveyance when a person is entitled to use service transport but that transport is not available. 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 definitely enhanced in kind or degree by the nature, conditions, obligations or incidents of his service and that the same was not a risk common to human existence in modern conditions in India. Thus for instance, when 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 also be given more liberally to the claimant in case occurring on active service as defined in the Army/Navy/Air Force Act. IV. Notional extension of duty dispels the need to prove causal connection in accident situations 5. Rule 12 has relevance to us for considering the issue of the attributability to Military Service since we are literally applying a deeming provision. In both the cases, the petitioners were on duty and they were not actually engaged in military operations nor were they confined within areas of military activity. Each one of L.P.A. No.978 of 2009 -8- the situations, which Rule 12 contemplates, assumes that a person is on duty not merely by marking his attendance in the register. For instance, participation in sports tournament as a member of service team, mountaineering expedition, his travel from his duty station to his leave station or when his accident occurs by the identification of a person as an Army Personnel, which is not normally a risk common to human existence in modern conditions. This deeming provision contained in Rule 12 gives us a clue that it takes a certain realistic approach that an Army Personnel who obtains a disability need not always prove that he was within the confines of his calls of duty. If any of the attendant circumstances existing within Rule 12 is attracted, no further question would require to be asked regarding the causal connection. A disability arising during the circumstances specified within Rule 12 would perforce be taken as a disability attributable to or aggravated by military service. V. Person on casual leave or annual leave shall be considered on duty, except when the person did not perform duty in that year 6. The issue simply does not end there. We are trying to examine whether beyond Rule 12, a normal activity of a person during leave that results in disability would also qualify for an expression of disability attributable to Military Service. Since we are examining the issue of disability arising during leave, the reference relating to Leave Rules also become relevant. Rule 10 refers to casual leave and Rule 11 refers to annual leave. It is apposite to reproduce to both the Rules: L.P.A. No.978 of 2009 -9- Casual Leave “10. Casual leave counts as duty except as provided for in Rule 11 (a). It cannot be utilized to supplement any other form of leave or absence, except as provided for in clause (A) of Rule 72 for personnel 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 the year extending to the next year, the period failing in the latter year will be debited against the casual leave entitlement of that year.” ANNUAL LEAVE “11.(a) Annual leave is not admissible in any year unless an individual has actually performed duty in that year. For purposes of this rule, an individual on casual leave shall not be deemed to have actually performed duty during such leave. The period spent by an individual on the 'Sick List Concession', shall however, be treated as actual performance of duty. (b) Annual leave, for the year may at the discretion of the sanctioning authority, be extended to the next calendar year without prejudice to the annual leave authorized for the year in which the extended leave expires, but further annual leave will not be admissible until the individual again performs duty. (c) Annual leave may be taken in instalments within the same year. d) The annual leave year is the calendar year, viz. Ist January to 31st December.” 7. In so far as, there is an express statement that a casual leave would count as duty, it should be taken as providing an additional feature to Rule 12. Rule 11 specifically states that a person on casual leave will not be deemed to be on duty during a leave that was not admissible in any year, if the individual had not actually performed duty in that year. Mode of consideration of a person on annual leave as on duty is itself not in doubt, for the L.P.A. No.978 of 2009 -10- exception contained in Rule 10 stated above is only when an individual had not performed duty in that year. VI. Disability arising out of accidents and out of natural causes – Primacy of medical opinion in latter cases 8. It is in this context that the reference to several other decisions, as regards the interpretation of the causal connection that Regulation 173 envisages, obtains relevance. A greater reliance that could be possible on medical evidence with reference to a disability as arising from the natural causes when a person is in service, may not be necessary in a case where we are examining causes of disability due to accident. Reliability of a medical evidence in the former may be necessary in view of the particular scientific knowledge that a medical professional may have in tracking the natural causes of a particular progression of disability as resulting from military service or is aggravated by such service. Medical evidence may not even be relevant in cases where we are examining cases of disability arising from accidents where the proximate cause for the disability is not far to seek. It is the accident itself that results in disability but the question is whether even an accident could be stated to be attributable to or aggravated by Military Service. 9. We will, therefore, try to keep out of reckoning those decisions where the disability was occasioned due to natural causes and not arising out of accidents and where there has been already a decision rendered by the Medical Board regarding the causal connection of the Military Service to the disability. Doubtless in such circumstances, the medical report itself will obtain primacy, L.P.A. No.978 of 2009 -11- for an assessment by a scientific medical examination whether the particular disability was attributable to Military Service or could have been aggravated by Military Service would require little intervention from Court as held in Union of India Vs. Surender Singh Rathore 2008(5) SCC 747. In that case, the Army Personnel was suffering from Maculopathy (RT) Eye, for which treatment had been given to him but there was no improvement found. He was referred to the Release Medical Board and the Board recommended the respondent's release in Medical Category “CEE Permanent”, which was lower than the category “AYE”. The Board opined that disability was neither attributable to nor aggravated by Military Service and the proceedings of the Board have been approved by the Competent Authority. Consequently, the respondent had also been discharged from service. The High Court interfered with the said decision and the Hon'ble Supreme Court held that there ought to have been no scope for intervention in such like matters. Union of India Vs. Dhir Singh China 2003(2) SCC 382 was again a case where the primacy of consideration of the Medical Board was noticed and the case of the particular disability as not attributable to or aggravated by Military Service was upheld while allowing the appeal filed by the Union and setting aside the decision of the Division Bench of the High Court. In Controller of Defence Accounts (Pension) Vs. S. Balachandran Nair 2005(13) SCC 128, an Army Personnel working in the office of Radio Machine in border area of Punjab was found to have developed 'Anxiety Neurosis” and after prolonged treatment was found to be unfit for continuing in L.P.A. No.978 of 2009 -12- service. Disability pension was claimed by him when the Medical Board opined that he was suffering from a constitutional disease in nature unconnected with service conditions. The opinion of the Medical Board, which was an expert body, was set aside by the High Court when the Hon'ble Supreme Court intervened again to say that an interference with opinion of expert body under Article 226 could not have been undertaken in such a case and characterized the interference with opinion as not called for. In all the above cases, it could be noticed that there was a disability above the particular percentage. This disability again arose when the person had been in service. The attributability test failed in each of these cases where the proximate cause of the disability was required to be assessed and found that the disability was not connected with the service condition. If a physiological defect or illness spurred by psychological factor exists, Doctor’s certification and his/her opinion would obtain the highest credibility. VII. Disability during ‘duty’ of army personnel – attributability shall be examined in the context of whether the act leading to accident is incompatible with military duty 10. Disability arising to an Army Personnel during occasions, which even the Rules specify as 'on duty' would be the second type of situations, which we need to examine. Here again, like in the first set of cases above, the fact that injury arose during the service or when he was on duty itself could not be in doubt. We have already outlined a deeming fiction obtained through the definition of “ON DUTY” as specified in Clause 12 of the Appendix II. They are simpler situations where although not actually on duty L.P.A. No.978 of 2009 -13- but by a fiction, the Army Personnel would be treated on duty and a disability arising during such time, as for example, when a person suffers a disability on transit from his duty station to the leave station when he was travelling by train, the disability should only be taken as attributable to army duty. This situation was addressed by the Hon'ble Supreme Court in Madan Singh Shekhawat Vs. Union of India 1999(6) SCC 459. The Hon'ble Supreme Court was examining the issue from the standpoint of what was contained under Regulation 48, of a person suffering injury while on duty and by reading it in the context of a person, who shall be considered to be on duty when proceeding to his leave station or returning to duty for his service station at public expense. The Hon'ble Supreme Court held that a person, who on casual leave travelled at his own expense to his home station and during journey met with an accident, which resulted in amputation of his hand, though not at public expense, that person could not be denied disability pension. The Hon'ble Supreme Court held that the expression public expense must be read down to mean that the Army Officer had been authorized to undertake journey for leave station. 11. It is the decision of the Hon'ble Supreme Court in Madan Singh Shekhawat's case (supra) that introduces the need to discard literal interpretation and to a consideration of the fact of a person who suffered a disability through an accident, during casual leave which through a legal fiction shall be treated as on duty. The proximate cause for the disability was, in this case, an accident. Here, while awarding disability pension, the attributability or L.P.A. No.978 of 2009 -14- aggravation test takes a back seat, although still a relevant test. The first issue is to see whether to a person, who is on duty, has an accident injury which is still treated as attributable to Army Service only, by inverting the approach from a negative standpoint, namely, whether the Army Personnel had done any act, which the Military Service could not have permitted him to do. If it was inconsistent with an activity which is normally in Military Service, then a disability suffered by such conduct could not be attributed to or aggravated by medical service. If it was not inconsistent but an accident when he was still deemed to be on duty, such disability would make possible a claim for disability pension. 12. The above interpretation could be explained in the context of how a person, who while on duty engages himself in a brawl due to drunkenness. It cannot certainly be termed to be an act which is consistent with a Military Service. Again, there could be a situation where he could be engaged in an activity, which if he had been on duty, he could not have engaged in, such as, when he is carrying on a different avocation or when he is attending to some other business. To take another illustration, suppose he is attending to agriculture. In each one of the above types of activities, the Army Personnel is doing an activity, which, he as a person in defence service could not have done if he has stayed back in the place of duty, say, the army camp. This difference is illustrated through some of the decisions, which the Hon'ble Supreme Court has itself considered. In Secretary, Ministry of Defence and others Vs.