Secretary,Govt.Of India . vs Dharambir Singh

2) The undisputed facts are that the respondent joined Territorial Army on December 28, 1981 and was discharged on December 13, 1999. He was granted two days casual leave from January 25, 1999 to January 26, 1999 when posted at Jalandhar Cantt. During the leave period, he met with an accident while riding a scooter and suffered head injury with Faciomaxillary and compound fracture 1/3rd Femur (LT). A Court of Inquiry 2 was conducted to investigate into the circumstances under which the respondent 1 for short, ‘Tribunal’ 2 for short, ‘COI’ 1 sustained injuries. The Brigade Commander has given its Report dated August 18, 1999 that the injuries, occurred in peace area, are attributable to military service. One of the findings of the Report recorded under Column 3(c) is reproduced hereunder:

(d) The court of inquiry will not give an opinion, but the injured person’s CO will record his opinion on the evidence, stating whether the injured person was on duty and whether he or she was to blame. When no evidence as to the circumstances attending the injury beyond that of the injured person is forthcoming it should be stated in the proceedings. The proceedings will then be sent to the brigade commander or the officer who has been authorised under Section 8 of the Army Act to exercise the legal and disciplinary powers of a brigade commander who will record thereon his decision whether disability or death was attributable to military service and whether it occurred on field service. After confirmation, the medical officer will, in all cases 18 except those of JCOs, WOs and OR, record his opinion in the proceedings as to the effect of the injury on the injured person’s service. The proceedings will then be forwarded by the CO through the prescribed channel to Army Headquarters, Org Dte in the case of non-medical officers and Medical Dte in other cases, a copy being retained at command or other headquarters. In the case of a JCO, WO or OR a record will be made in the primary medical examination report (AFMSF-2A) by the CO that a court of inquiry has been held, and also as to whether the man was on duty and whether he was to blame. The primary medical examination report will then be passed to the medical officer who will record his opinion as to the effect of the injury on the man’s service. The proceedings of the court of inquiry will then be forwarded to the officer i/c records for enclosure with the injured person’s original attestation (see sub-para (b) above), except in the case of a court of inquiry under sub-para (c)(v) above, in which case the proceedings, together with a copy of the medical opinion as to the effect of the injury on the man’s service, will be forwarded without delay to Army Headquarters.

28) However, the reliance of Mr. Sehgal upon Division Bench judgment in Barkat Masih is not tenable. We find that the judgment is correct to the limited extent that personnel of Armed Forces when on leave are also on duty. However, the subsequent question, whether an injury or death suffered by a personnel has some causal connection with military service, was not examined except referring to Full Bench judgment of that Court wherein, it was held that unmilitary service activity alone will be excluded from the expression ‘death’ or ‘injury’ caused by military service or aggravated to military service. We find that such conclusion is not sustainable as per the applicable rules and regulations.

36) We find that summing up of the following guiding factors by the Tribunal in Jagtar Singh v. Union of India & Ors 23 and approved in Sukhwant Singh and in Vijay Kumar do not warrant any change or modification and the claim of disability pension is required to be dealt with accordingly:-

23 T.A. No. 61 of 2010 decided on November 2, 2010 by the Tribunal 26 casual connection with military service and at least should arise from such activity of the member of the force as he is expected to maintain or do in his day-to-day life as a member of the force.

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

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

SEPTEMBER 20, 2019.