PARDEEP vs UNION OF INDIA AND ORS.

2024-04-05 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: April 05, 2024

+ W.P.(C) 4967/2024
(35) PARDEEP ….. Petitioner
Through: Ms. Smritee Relan, Mr. Rakesh Chahar, Mr. Faguni Katyal and Mr. Sushant Dahiya, Advs.

Versus

UNION OF INDIA & ORS. ….. Respondents
Through: Mr. Farman Ali, SPC with Mr. Adil Hussain Taqvi, GP with Ms. Usha Jamnal, Adv. for UOI
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE SAURABH BANERJEE

SAURABH BANERJEE, J. (ORAL)

CM APPL. 20349/2024 (exemption)
Allowed, subject to just exceptions.
The application is disposed of.
W.P.(C) 4651/2024

1. Briefly, the facts involved are that the petitioner herein joined the Indian Navy as MER on 12.01.2003 in SHAPE-1 Medical Category. On 13.04.2017, when the petitioner was holding the rank of Petty Officer (under water control-1) while serving with Project Amber at Delhi, he was granted long weekend leave w.e.f. 13.04.2017 to 17.04.2017. During the said leave, on 15.04.2017, the petitioner met with an accident while returning home from the market and suffered a severe head injury.
2. The petitioner was first taken to PGI, Rohtak, and was then transferred to the military hospital i.e. RR Hospital Delhi. After surgery, he was transferred to the Base Hospital, Delhi Cantt. for further treatment. The Specialist of the Base Hospital opined the petitioner to be invalided out of service in Low Medical Category1 S5A5 with 100% disability for life. Based thereon, the Release Medical Board2 conducted on 05.12.2017 in lieu of the Invalidating Medical Board3, assessed the disability of the petitioner at 100% for life, neither attributable to nor aggravated by military service. The petitioner was accordingly discharged from service on the expiry of the initial engagement of 15 years w.e.f. 28.02.2018, with only service pension.
3. Aggrieved thereby, the petitioners wife approached the Competent Authority seeking disability pension and attendant allowance, which was rejected. The petitioner thereafter filed his First Appeal dated 17.12.2018, however, no response qua the same was received. The petitioner then filed O.A. 1754/2019 before the Armed Forces Tribunal4, seeking quashing of the RMB as also constitution of a fresh IMB and if disability was assessed at 20% or more, to grant him disability element of the disability pension.
4. The learned AFT, vide impugned order dated 01.08.2023, dismissed the O.A. filed by the petitioner, holding thereunder:
a. The petitioner was invalidated out of service after rendering of 15 years, 1 month and 16 days of qualifying service, and he was in receipt of service pension. Thus, the need for convening the IMB for reassessment of disability does not arise as the petitioner has already been sanctioned service pension which is equivalent to invalid pension.
b. Though the extent of the disability of the petitioner was assessed at more than 20%, which was the bare minimum for grant of disability pension, however, the disability was rightly held to be neither attributable nor aggravated by military service as there was no causal connection between the injury of the petitioner and military service. Relying upon Union of India v. Dharambir Singh, (2020) 14 SCC 582, it was held that since at the time of injury, the petitioner was not performing any duty whatsoever assigned to him by the superior authorities which may be termed under the ambit of military duty, the petitioner is not entitled to disability pension.
5. Aggrieved thereby, the petitioner has now filed the present petition under Article 226 of The Constitution of India, seeking quashing and setting aside of the impugned judgment dated 01.08.2023 and the RMB dated 05.12.2017 and to direct the respondents to constitute a fresh IMB to medically examine him, and if the disability is assessed at 20% or more, to grant disability element of disability pension from the date of release and in the case of 100% disability, to also grant attendant allowance, and lastly to pay the arrears of disability element within 90 days, and in default, to pay the arrears @12% interest.
6. Learned counsel for the petitioner submits that the impugned order is liable to be set aside as the learned AFT erred in holding that there was no causal connection of military service with the petitioners disability. He submits that the injury report clearly states that the petitioner was on authorized leave and in any event, even in case of leave, since the petitioner was amenable to the Navy Code, he is to be considered to be on duty and any injury incurred during such period is attributable to military service.
7. He further relies upon the judgment in Dharamvir Singh v. Union of India, (2013) 7 SCC 316, to submit that the petitioner was found medically fit at the time of induction into military service, and was discharged in LMC, hence any such disability/ injury sustained thereafter, is attributable to military service and the petitioner is entitled to disability element of the disability pension.
8. Learned SPC for the respondents, appearing on advance notice, opposes the present petition, submitting that the petitioner is not entitled to the disability element of the disability pension and has been rightly awarded only service pension as the injury was sustained by the petitioner while he was on leave, and when he was not performing any duty which can be termed as military service. He submits that since there is no connection whatsoever between the injury of the petitioner and military service, the disability cannot be said to be attributable to or aggravated by military service and hence the petition be dismissed.
9. Based upon what has been argued by the learned counsel for the parties as also what the perusal of the record and judgments cited by them disclose, we are to adjudicate whether the case of the petitioner is, in fact such, which calls for his fresh medical examination by IMB and/ or is he entitled to grant of disability element of the disability pension and arrears.
10. For the above, we have to bear in mind that the grant of disability pension cannot be claimed as a matter of right and it depends upon various surrounding circumstances to be taken into consideration collectively. A personnel, such as the petitioner in the present case, must fulfill the criteria as per Para 28 of the Navy (Pension) Regulations, 1964 which reads as under:-
28. Disability Pension when admissible.-An officer who is retired from service on account of a disability which is attributable to or aggravated by such service and which is assessed at twenty percent or over may, on retirement, be awarded a disability pension consisting of a service element and a disability element in accordance with the regulations in this section.
11. Admittedly, in the present case, the petitioner initially met with an accident while on long weekend leave, when he was returning to his home from the market, whereafter, though the RMB assessed his disability at 100% for life, but, opined that since the petitioner was not performing any act which could be termed as military duty and since there was no causal connection between the injury sustained by the petitioner and the military service, the disability suffered by him could neither be attributable nor aggravated by military service, and thus he was denied the disability element of the disability pension.
12. Succinctly put, this is/ was because though the disability of the petitioner is/ was more than 20%, but since that alone cannot entitle the petitioner to disability pension, in the absence of the injury being attributable to or aggravated by military service, the petitioner cannot claim such disability pension.
13. In fact, the learned AFT in the impugned order, relying upon Union of India v. Dharambir Singh (supra), also held that, since, at the time of his injury, the petitioner was not performing any duty whatsoever assigned to him by the superior authorities which may be termed under the ambit of military duty, the petitioner is not entitled to disability pension. The relevant observations of the Supreme Court in Union of India v. Dharambir Singh (supra) are as under:
36. We find that summing up of the following guiding factors by the Tribunal in Jagtar Singh v. Union of India [Jagtar Singh v. Union of India, TA No. 61 of 2010, order dated 2-11-2010 (Tri)] and approved in Sukhwant Singh [Sukhwant Singh v. Union of India, (2012) 12 SCC 228 : (2013) 3 SCC (L&S) 438] and in Vijay Kumar [Union of India v. Vijay Kumar, (2015) 10 SCC 460 : (2016) 1 SCC (L&S) 105] do not warrant any change or modification and the claim of disability pension is required to be dealt with accordingly : (Sukhwant Singh case [Sukhwant Singh v. Union of India, (2012) 12 SCC 228 : (2013) 3 SCC (L&S) 438] , SCC pp. 230-31, para 5)

5. (a) The mere fact of a person being on duty or otherwise, at the place of posting or on leave, is not the sole criteria for deciding attributability of disability/death. There has to be a relevant and reasonable causal connection, howsoever remote, between the incident resulting in such disability/death and military service for it to be attributable. This conditionality applies even when a person is posted and present in his unit. It should similarly apply when he is on leave; notwithstanding both being considered as duty.
(b) If the injury suffered by the member of the armed force is the result of an act alien to the sphere of military service or in no way connected to his being on duty as understood in the sense contemplated by Rule 12 of the Entitlement Rules, 1982, it would neither be the legislative intention nor to our mind would it be the permissible approach to generalise the statement that every injury suffered during such period of leave would necessarily be attributable.
(c) The act, omission or commission of which results in injury to the member of the force and consequent disability or fatality must relate to military service in some manner or the other, in other words, the act must flow as a matter of necessity from military service.
(d) A person doing some act at home, which even remotely does not fall within the scope of his duties and functions as a member of the force, nor is remotely connected with the functions of military service, cannot be termed as injury or disability attributable to military service. An accident or injury suffered by a member of the armed force must have some causal 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.
(e) The hazards of Army service cannot be stretched to the extent of unlawful and entirely unconnected acts or omissions on the part of the member of the force even when he is on leave. A fine line of distinction has to be drawn between the matters connected, aggravated or attributable to military service, and the matter entirely alien to such service. What falls ex facie in the domain of an entirely private act cannot be treated as legitimate basis for claiming the relief under these provisions. At best, the member of the force can claim disability pension if he suffers disability from an injury while on casual leave even if it arises from some negligence or misconduct on the part of the member of the force, so far it has some connection and nexus to the nature of the force. At least remote attributability to service would be the condition precedent to claim under Rule 173. The act of omission and commission on the part of the member of the force must satisfy the test of prudence, reasonableness and expected standards of behaviour.
(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.

14. Interestingly, we find that prior thereto also, the Honble Supreme Court while considering the similar issues in Union of India v. Baljit Singh (1996) 11 SCC 315, Ministry of Defence v. A.V. Damodaran (2009) 9 SCC 140 as also in Dharamvir Singh (supra) held that the question whether the disability is attributable to or aggravated by military service is to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II (Regulation 173) and it is essential to establish the conditions and circumstances of military service that contributed to such disability, in the absence of which, the disability shall not be attributable or aggravated by military service.
15. In the present case, the petitioner herein has been unable to establish any such nexus between the injury sustained by him and military service. Moreover, being on authorized leave, in our opinion, cannot be itself enough to entitle the petitioner to disability pension as even in case of leave, it is essential to establish that the petitioner was performing an act within the ambit of military service to come under the umbrella of disability attributable to and aggravated by military service. Under such existing circumstances, the petitioner in the present case, cannot claim grant of disability element of the disability pension.
16. As regards the prayer for constitution of the fresh IMB, since the petitioner has been held to be disentitled to disability element, the constitution of IMB shall serve no purpose as the petitioner is already in receipt of the service element of the pension. Thus, in our opinion, the need for constitution of the IMB also does not arise in the present case.
17. For the aforesaid reasonings and findings and also since we are in complete agreement with the findings of the learned AFT and in view of the settled position of law, there is no occasion for us to interfere with the findings arrived at by the learned AFT and/ or the RMB.
18. Accordingly, the present petition is dismissed with no order as to costs.

SAURABH BANERJEE, J.

V. KAMESWAR RAO, J.
APRIL 05, 2024/akr

1Hereinafter referred as LMC
2Hereinafter referred as RMB
3Hereinafter referred as IMB
4Hereinafter referred as AFT
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