WP(C)6959/2004 & WP(C)20348/2005 Page 1 of 38 * 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 2 of 38 VIKRAMAJIT SEN, J. J U D G M E N T 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 WP(C)6959/2004 & WP(C)20348/2005 Page 3 of 38 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. WP(C)6959/2004 & WP(C)20348/2005 Page 4 of 38 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. WP(C)6959/2004 & WP(C)20348/2005 Page 5 of 38 (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 WP(C)6959/2004 & WP(C)20348/2005 Page 6 of 38 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, WP(C)6959/2004 & WP(C)20348/2005 Page 7 of 38 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 WP(C)6959/2004 & WP(C)20348/2005 Page 8 of 38 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 WP(C)6959/2004 & WP(C)20348/2005 Page 9 of 38 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, WP(C)6959/2004 & WP(C)20348/2005 Page 10 of 38 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 WP(C)6959/2004 & WP(C)20348/2005 Page 11 of 38 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. WP(C)6959/2004 & WP(C)20348/2005 Page 12 of 38 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 WP(C)6959/2004 & WP(C)20348/2005 Page 13 of 38 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 WP(C)6959/2004 & WP(C)20348/2005 Page 14 of 38 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): WP(C)6959/2004 & WP(C)20348/2005 Page 15 of 38 “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 WP(C)6959/2004 & WP(C)20348/2005 Page 16 of 38 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 WP(C)6959/2004 & WP(C)20348/2005 Page 17 of 38 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 WP(C)6959/2004 & WP(C)20348/2005 Page 18 of 38 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