EX. SEPOY HAYAT MOHAMMED Vs. UNION OF INDIA
LAWS(DLH)-2007-1-188
HIGH COURT OF DELHI
Decided on January 11,2007

Ex. Sepoy Hayat Mohammed Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

SWATANTER KUMAR, J. - (1.) ON 30th September, 1988, the petitioner was enrolled as Sepoy in the Indian Army and was posted in 13 Grenadiers. He was obviously subjected to strict medical and physical standards. He served the Indian Army to the satisfaction of all concerned. During his service, the petitioner claims to have taken part in Operation Meghdoot in Siachen Glacier, J and K, Operation Rakshak in Counter Insurgency Area in J and K and Operation Vijay in Indo -Pak War in Kargil. On 24th August, 1999, the petitioner proceeded on leave to go to his home town. While he was in his house a huge steel beam and a cemented stone fell on the petitioner from the roof of the house, which was being repaired. This resulted in total paralysis of 3 fingers in right hand and amputation of left hand. The petitioner was treated and was placed in permanent low medical category 'EEE'. He was subjected to Invaliding Medical Board. The Medical Board had recommended the disability of the petitioner as 60% for grant of disability pension and the petitioner was discharged from military service. The case of the petitioner was forwarded for grant of disability pension. However, on 9th May, 2001, the CCDA, Allahabad rejected the disability pension without assigning any reasons for disagreement and not following the report of the Medical Board. Against the order of rejection, the petitioner filed an appeal, which was also rejected vide order dated 6th January, 2004. Being aggrieved from the order of the authorities as well as appellate authority, the petitioner has filed the present writ petition challenging the said orders passed by the respondents and further praying for grant of disability pension.
(2.) THE case of the petitioner is that irrespective of the fact that petitioner was on leave, he would continue to be subjected to military law and the injury of the petitioner in view of Section 2(2) of the Army Act should not be viewed myopically as 'not on military duty at that point of time' but viewed in a broader spectrum of 'being in military service'. The petitioner has also relied upon para 7(b) of Appendix H in Pension Regulations for the Army, 1961 to say that the disability would be attributable to military service. Reliance was placed upon the judgment of the Supreme court in the case of Lance Dafedar Joginder Singh v. Union of India 1995 SCC 1149 where it was held that a person on casual leave would be a person on duty. The respondents, during the course of hearing, had produced the records though no detailed counter affidavit has been filed. It is not disputed that petitioner had served the Army without any hazards or problems and fit in all respects with effect from 1988 till 27th May, 2000 when he was invalided out of military service. The question in relation to a person being on duty while on casual/annual/recruitment leave is no more rest integra and has been squarely settled by the judgments of different High Courts including the judgment of the Supreme Court in the case of Lance Dafedar Joginder Singh (supra) as well as a detailed judgment of this Court in the case of Mr. Jitendra Kumar v. Chief of Army Staff and Ors. WPC No. 19839/2005 decided on 19th October, 2006 where the Court had discussed various judgments, regulations, pension rules and provisions of the Act at some length and while granting disability pension to persons, who were on recruit leave in one case and casual leave in another, had also discussed the applicability of attributability/aggravation of disease/injury during such period and had commented upon the distinction between 'casual' and/or 'causal' connection between the 'injuries suffered' and 'duty' and held as under: 9. In fact, in view of the stand taken by majority of the counsel appearing for the respondents as well as the clear stand taken by counsel appearing for the respondent in WP (C) No. 19839/2005, the question loses its pertinence but in view of the fact that it was raised by some counsel, it will be suffice to notice direct judgments on these issues as the question of kind of leave and its relation to attributability or aggravation on the basis of 'deemed to be on duty' is no more rest integra and has been answered by different Courts clearly. We may refer to the judgment of a Division Bench of Punjab and Haryana High Court in the case of Jarnail Singh v. Union of India 1998 (1) SLR 418 wherein after considering various relevant provisions and the judgments on the subject, the Court held as under: 5. Firstly we have to consider, whether the period of casual leave of a person subject to Army Act can be termed as period of duty or not? Secondly, whether every injury suffered by such person during the period of his casual leave arising from any kind of act, omission of commission, would necessarily be attributable to or aggravated by military service or not? 6. With regard to first question there could be hardly any controversy as the matter has been well settled by various pronouncements of the Hon'ble Supreme Court of India as well as of this Court. In the case of Smt. Charanjit Kuar v. Union of India and Ors. 1994 2 PLR 663 : 1994 (1) SLR 479, where the husband of the petitioner who was commissioned as Lieutenant in the Indian Army and was subsequently promoted as Major, had died in mysterious circumstances, the Court while awarding compensation and treating him on duty held as under: In the aforesaid facts, the conclusion is, thereforee, inescapable that the officer died while in service in mysterious circumstances and his death is attributable to and aggravated by the military service. The responsibility of his death is prima facie traceable to the action of criminal omissions and commissions on the part of the concerned authorities. The petitioner is, thereforee, entitled to suitable compensation as well as to the Special Family Pension and the Children Allowance according to the relevant rules. 7. The Division Bench of this Court in the case of Shri Krishan Dahiya v. Union of India and Anr. 1996 3 PLR 468 : 1997 (1) SLR 607, where a Hawaldar in the Army Medical Corps suffered an injury while on casual leave and he was traveling in private vehicle, was treated to be on duty, after detailed discussion the Court held as under: 2. It is not disputed on behalf of the respondents that an officer, subject to Army Act, while he is on casual leave is considered to be on duty. Moreover, in view of the judgment of the Apex Court in Joginder Singh v. Union of India 1996 (2) SLR 149 and a Division Bench judgment of this Court in Chatroo Ram v. Secretary defense and Ors. 1991 (1) SLR 678, it cannot be even disputed that an officer subject to the Army Act while on casual leave is to be treated on duty..If a person subject to Army Act is considered to be on duty while on casual leave, it could not make any difference, whether he travels from duty station to leave station on his own expense or public expense as that cannot be sine qua non for determining whether the person is on duty or not. He referred to a judgment of the Delhi High Court reported as Harbans Singh v. Union of India, through Secretary, Ministry of defense, New Delhi : AIR1971Delhi227 , wherein the officer in that case was to travel from Walong in N.E.F.A., his duty station, to Patiala, his leave station. He had travelled from Walong to Jorhat and from Jorhat to Calcutta by air at public expense. From Calcutta to Ambala Cantt., he travelled on form D and from there, he travelled on road by his own scooter to his leave station Patiala. It was while traveling on scooter from Ambala to Patiala that he met with an accident which resulted in his disability. The High Court held that though he was traveling at his own expense and by his own conveyance during the part of his journey from Patiala to Rajpura, he was still to be treated on duty and entitled to disability pension..Can it be said that he is not on duty because he was not traveling at public expense? To our mind the answer has to be that still he would be entitled to be treated as on duty. Still in another case of Ex. Gnr. Gaj Raj v. Union of India 1996 (4) RSJ 17, the Court took the same view and held that the member of armed force while on casual leave can be considered on duty for the purpose of pensionary benefits and in that case held that it is to be attributable to military service. Similar view was expressed by Division Bench of this Court in R.V. Suvaranan v. Union of India and Ors. CWP 2535 of 1995 decided on 11.9.1995 and held as under: Further the petitioner was going to the Railway Station at the time of accident for the purpose of purchasing return journey ticket to join the duty. thereforee, it cannot be said that the petitioner was not on duty at the time when he met with an accident. We are, thereforee, of the opinion that the petitioner was on duty and the injury sustained by him in the course of accident was attributable to military service. 8. Hon'ble Supreme court of India in a very recent case of Joginder Singh v. Union of India 1996 (2) SLR 149 wherein the proprietor who was proceeding on casual leave from his duty station met with an accident while boarding the bus at the railway station, held as under: The question for our consideration is whether the appellant is entitled to the disability pension. We agree with the contention of Mr. B. Kanta Rao, learned Counsel for the appellant that the appellant being in regular Army there is no reason why he should not be treated as on duty when he was on casual leave. No Army Regulation or Rule has been brought to our notice to show that the appellant is not entitled to disability pension. It is rather not disputed that an Army personnel on casual leave is treated to be on duty. We see no justification whatsoever in denying the disability pension to the appellant. 9. Thus from the consistent view taken by various Courts including the Hon'ble Apex Court, it appears to us that the first question has to be answered against the respondents as it is really no longer res -integra and has been fairly and elaborately answered in the above pronouncements. thereforee, we have no hesitation in holding that a person subject to provisions of the Army Act, even if proceeds on casual leave, would be treated on duty and would be entitled to the benefits accruing there from in accordance with law.... 16. The expression 'attributable to or aggravated by military service' must be read ejusdem generis with Rule 2 in Appendix II and opening line of Regulation 173. It must be read in conjunction with the scheme of these provisions and has to be given purposeful meaning. To understand this phrase better it may be appropriate to make reference to the phrase 'arising out of and in the course of his employment.' This expression occurs in the provisions of the Employees State Insurance Act, 1948. The Supreme Court in the case of Regional Director, ESI Corporation and Anr. v. Francis De Costa : (1997)ILLJ34SC observed as under: The injuries suffered by the respondent in the instant case did not arise in any way out of his employment. Unless it can be said that his employment began as soon as he set out for the factory from his home, it cannot be said that the injury was caused by an accident 'arising out of...his employment'. A road 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. By using the words arising out of...his employment', the legislature gave a restrictive meaning to 'employment injury'. The injury must be of such an extent as can be attributed to an accident or an occupational disease arising out of his employment. 'Out of', in this context, must mean caused by employment. In order to succeed, it has to be provided by the employee that (1) there was an accident; (2) the accident had a casual connection with the employment, and (3) the accident was suffered in the course of employment. In the instant case the employee was unable to prove that the accident had any casual connection with the work he was doing at the factory and in any event, it was not suffered in the course of employment 17. The injury or disability must be incidental to military service. The Hon'ble Supreme Court in the case of Union of India and Anr. v. Baljit Singh 1997 (1) SLR 98 while declining to interfere with the judgment of the High Court held 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. However having regard to the facts and circumstances of this case, we do not think that it is an appropriate case for interference. 18. On proper analysis of the above discussion the position that emerges is that an accident or injury suffered by a member of the Armed Forces must have some casual connection to the aggravation or attribute ability to 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. The nexus between the two is not apparently one so as to cover every injury or accident. 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. The fine line of distinction has to be drawn between the matters connected, aggravated or attributable to military service and the matters entirely alien to such service. What falls ex -facie in the domain of an entirely private act which may even extend to the sphere of undesirable and unlawful activity of such member, 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 force. At least remote attribute ability to service and expected standards of behavior and living, of the member of the force appears to be the condition precedent to claim under Rule 173. The act of omission on the part of the member of the force must satisfy the test of prudence, reasonableness and expected standards of behavior. 19. We may elucidate the above principle by giving a very simple example that if a person on casual leave and subject to this act goes to canteen to buy things or takes his children for treatment to hospital and in the way meets with an accident, may be arising out of his negligence or contributory negligence, suffers injuries causing permanent disability, in our view, would be entitled to claim the benefit under Rule 173. Similarly a person who joins Army is not found to be suffering from any disease, but subsequently suffers from a disease which renders him liable for being invalidated out of Army on such ill health, such a disease would be attributable and/or aggravated by military service and would entitle him to take benefit of these regulations. 20. Thus, to sustain a claim of disability pension, the member of the Armed force 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 disciplined force. It is so primarily for the reason that no unlawful activity or commission can validly by support a lawful claim. Violation of expected standards cannot form a fair ground for raising a claim under these provisions. Every rule is expected to be understood so as to be implemented lawfully and to achieve its object, but equally true is that no lawful activity can be brought to the aid of an unlawful act and that too by stretching the rules of present kind because it may ultimately result in abuse of the benefit sought to be granted by such rule. It has to be understood that no strait -jacket formula could be provided for such cases and each case has to be judged on its own merits. We have attempted to provide certain guiding principles which could help the authorities concerned while deciding such a claim. 21. In the present case, we are not able to see that working in the fields or keeping him occupied in agricultural activity of occupation, during casual leave would be an act attributable to military service. An independent occupation privately undertaken by him cannot be said to be squarely falling in line with the views expressed by us above. May be the petitioner is entitled to other benefits but we are afraid that he cannot avail the benefits of Rule 173. 22. We are unable to find this silver lining of nexus between the injury suffered by the petitioner in the present case and nature of functions which would bring the same within the expression 'attributable to military service'. Consequently, we dismiss this writ petition, however, without any order as to costs. 10. The above view is in consonance with the settled principles and we would adopt the same reasoning for rejecting the contention raised by the respondents before us even in the present writ petitions. This view can also be buttressed from other judgments of the Supreme Court and even this Court. The concept of attribute ability to and aggravation by service is quite similar to the expression 'Accident arising out of and in the course of his employment' which occurs in Section 3 of the Workman Compensation Act.' This provision was subject of scrutiny by the Supreme Court in the case of General Manager, B.E.S.T. Undertaking, Bombay v. Mrs. Agnes : (1963)IILLJ615SC and the Court held that the driver of petitioner's undertaking met with an accident while going home from duty, would be covered by this expression entitling the driver's family for receiving the compensation as the accident occurs during the course of employment. Applying the principles of 'Notional extension at both entry and exist by time and space', the Court while reading such extensions as part of duty also held that circumstances of the case would have a bearing on such subject. Still in the case of Madan Singh Shekhawat v. Union of India and Ors. : AIR1999SC3378 , the Supreme Court while determining the question in relation to grant of disability pension held that a person on 'casual leave' while traveling, even at his own expense, suffers from an injury or death, such an injury or death would be attributable to the military service entitling the person to receive such pension. The Court, thus, enlarged the scope and meaning of the word 'at public expense' appearing in Clause 12(d) of Appendix II, Regulation 173 and held as under: 12. If the expression 'at public expense' is to be construed literally then under the Rules referred to above, an Army Personnel incurring a disability during his travel at his own expense will not be entitled to the benefit of Rule 6(c) 48(c) (supra). The object of the rule, as we see, is to provide relief to a victim of accident during the travel. If that be so, the nature of expenditure incurred for the purpose of such travel is wholly alien to the object of the rule. 13. It is the duty of the Court to interpret a provision, especially a beneficial provision, liberally so as to give it a wider meaning rather than a restrictive meaning which would negate the very object of the Rule. 14. In Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155, Lord Denning, J.J. (as he then was) held: When a defect appears a Judge cannot simply fold his hands and blame and draftsman. He must set to work on the constructive task of finding the intention of parliament - and then he must supplement the written word so as to give 'force and life' to the intention of the legislature.... A Judge should ask himself the question how, if the makers of the Act had themselves come across this rock in the texture of it, they should have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases. 15. This rule of construction is quoted with approval by this Court in M. Pentiah v. Muddala Veeramallappa : [1961]2SCR295 and also referred to by Beg, C.J. In Bangalore Water Supply and Sewerage Board v. A. Rajappa : (1978)ILLJ349SC and in Hameedia Hardware Stores, represented by its Partner S. Peer Mohammed v. B. Mohan Lal Sowcar : [1988]3SCR384 . 16. Applying the above rule, we are of the opinion that the rule -makers did not intend to deprive the Army Personnel of the benefit of the disability pension solely on the ground that the cost of journey was not borne by the public exchequer. If the journey was authorised, it can make no difference whether the fare for the same came from the public exchequer or the Army Personnel himself. 17. We, thereforee, construe the words 'at public expense' used in the relevant part of the rule to mean travel which is undertaken authorisedly. Even an Army Personnel entitled to casual leave may not be entitled to leave his station of posting, n Army Personnel uses what is known as 'travel warrant' whichis issued at public expense, same will not be issued if person concerned is traveling unauthorisedly. In this context, we are of the opinion, the words, namely, 'at public expense' are used rather loosely for the purpose of connoting the necessity of proceedings or returning from such journey authorisedly. Meaning thereby, if such journey is undertaken even on casual leave but without authorisation to leave the place of posting, the person concerned will not be entitled to the benefit of the disability pension since his act of undertaking the journey would be unauthorised. 18. Since on facts there is no allegation in this case that the appellant while traveling to his leave station on the fateful day was traveling unauthorisedly, we are of the opinion that he is entitled to the benefit of disability pension as provided under the Rules. 11. The dictum of the Supreme Court in the above judgments, thus, is amply clear that a person on casual leave is on duty and injuries suffered by him would be attributable to military service entitling him to claim of disability pension. The judgment of the Supreme Court also emphasized the need for application of Rule of liberal construction to such provisions. In both the cases that we are dealing with in the present judgment, the persons were either on casual, annual or sick leave. All these leaves were authorised by the respondents and thus they have to be treated as on duty, of course subject to other objections of the respondents, which we would now proceed to discuss.... 13. With reference to above provisions, the respondents contended that causal connection between disablement and military service is an essential prerequisite, which has to be definite and directly connected with military service. Clause 12 of the Appendix II relates to a person, subject to disciplinary code of armed forces, who unless is on duty and suffers an injury covered under any of the Clauses 12 and 13 specifically and on their strict construction, would not be entitled to claim disability pension. 14. At the very outset, we may notice that the principle of strict construction or limited construction on a plain reading of the provisions can hardly be applied to such provisions. These provisions have to be construed liberally and upon proper analysis of the legislative intent behind these provisions and particularly the fact that these are welfare provisions. In the case of Madan Singh Shekhawat (supra), the Supreme Court in unambiguous terms has held that rule of liberal construction should apply to these two provisions rather than strict construction. Strict construction of these provisions is bound to defeat the intent of Regulation 173 and giving unreasonable restricted meaning to the clauses of this Appendix II, would hurt the very object of these provisions. Clauses 5, 6, 9 and more particularly 10 and 19 to 22 reasonably exhibit and demonstrate the legislative intent to enlarge the scope of these rules tilted towards grant of relief, rather than rejection of claim. Clause 10 of Appendix II in unambiguous term shows the intent of rule framers that up to to 10 years of discharge of his service, if it can be established medically that disability is a delayed manifestation of a pathological process set in motion by service conditions obtaining prior to discharge and that if the disability had been manifest at the time of discharge, the individual would have been invalided out of service on this account, then it would be recognised as attributable to service. Under Clause 19, if it is established that disability was not caused by service, attributability shall not be conceded. However, aggravation by service is to be accepted unless any worsening in his condition was not due to his service or worsening did not persist on the date of discharge/claim. Clause 21 provides that if there is delay in diagnosis including its adverse effects or complications, the attributability is to be conceded. These regulations have been enacted so as to amply demonstrate a liberal approach. Giving them a limited meaning or introducing uncalled for restrictions would not be in consonance with the known precepts of judicial interpretation of the Statute. They must be given their true and liberal meaning so as to satisfy the very purpose of these enactments. Deprivation of the benefit is exceptional while its grant subject to satisfaction of the conditions under Regulation 173, appears to be the purpose of rules. 15. The expression 'causal' appearing in Clause 8 of Appendix II to Regulation 173 on which heavy reliance was placed by the respondents, is capable of varied meanings. 'Causal' has been defined in Cambridge International Dictionary of English as 'No causal relationship has been established between violence on television and violent behavior (Violent behavior has not been shown to be a result of watching violent television programmes). Black's law dictionary explained this expression 'Causal' as 1. of relating to, or involving causation a causal link exists between the defendant's action and the plaintiff's injury. 2. Arising from a cause a causal symptom. Cf. Causative. 16. According to the respondents, 'Causal' is to be given again a strict interpretation so as to establish a restricted and direct nexus between the act causing injury to the person belonging to the force and his military service. Once this relationship is not satisfied on strict construction, then the claim of disability has to be declined. According to Law Lexicon, The Encyclopaedic Law Dictionary by P Ramanatha Aiyar, 1997 Edition, 'Causa' means 'The Immediate Cause' while 'Causa Proxima' means 'The immediate cause'. 'Causa Remota' means 'Remote cause; a cause operating indirectly by the intervention of other causes.' Further, Law Lexicon The Encyclopaedic Law Dictionary by P. Ramanatha Aiyar, 1997 Edition states 'Causal Relation' as under: Causal relation means that the plaintiff should prove that the breach of duty by the defendant was the legal cause of the damage complained of by him. Link in the chain of causation, relation between cause and the effect/result. 17. The black's law dictionary also give meaning to the word 'Casual' as 'Occurring without regularity; Occasional. 18. Casual could also be said to be accidental or fortuitous. Anything which can be expected or foreseen, may not be casual. 19. The expression 'Causal' may not be equitable strictly to the expression 'Casual' but it may include in its ambit the expression 'casual'. A person proceeding on casual leave may met with an accident, which is not foreseen by him, and suffers an injury. Such injury would be attributable to military service as that person is on duty in terms of Rule 10 of the Leave Rules for Army, which deals with the matter relating to casual leave. 20. The duty itself is an expression of wide 'connotation' and would be incapable of being defined strictly, particularly when a member of the armed force is on leave, duly sanctioned by the authorities. While a person is on leave whether casual, annual or sick, it is not expected of him to perform or discharge his regular military duties as if he was present in a unit. He is expected to live a normal life, which a member of the force is expected to live while on duty. The acts and deeds which are relatable and are part of the normal living of a member of the Force, during which he suffers an injury or death, would normally be attributable to the military service. Unless such an act or deed was entirely beyond the scope of normal behavior of member of the Force and had no nexus or even a casual nexus between the act and military force, in such circumstances, the injury suffered may not be attributable to the service. For e.g., a person on casual leave may suffer an injury while going to or coming from his leave station to his unit, by public or private transport, while performing his normal functions while on leave like dropping his children to school, going to the market to buy items of day -to -day needs, going to booking office for booking his train ticket for his travel and while doing so being hit by a vehicle on the road, would be attributable to the military service. While on the other hand, if he is performing the acts or deeds which have no relation to his military service and attempts to do acts for his personal gain or benefit of others like participating in some business, doing agricultural activities, getting drunk, fighting and suffering injuries or suffering injuries from agricultural activities, wheat thresher and other agricultural appliances, the same may not be attributable to or aggravated by military service as has also been held by this Court in recent judgments of this Court of even date in the cases of Ex. AC Somveer Rana v. Union of India and Ors. WP (C) No. 2418/2004 and Ex. Hav (AEC) Bhup Singh v. Union of India and Ors. WP (C) No. 2325/2002. 21. 'Causal' depicts a link which exists between the act and the consequence. It has also been explained as arising from cause. A cause from which such a connection arises should be relatable to military service. The kind of leave does not have much of significance as per the respondents but in any case a person on casual leave, annual leave or even a sick leave, has been held to be on duty and if the act was otherwise having at least a casual connection or nexus between the nature of the act and the expected behavior of military services the petitioner would be entitled to the grant of disability pension. In addition to the above judgments reference can also be made to a Division Bench judgment of this Court in the case of G.D. Eshwar Chand v. Union of India and Ors. 2004 (3) SLR 439, judgments of Punjab and Haryana High Court in the case of Gurmeet Singh v. Union of India 2000 (5) SLR 596 and in the case of Ex. Naik Manjit Singh v. Government of India 2000 (1) SLR 100. The provisions of the Army Act and the Rules framed there under do not define the word 'duty'. This expression finds mention in Appendix II attached to Regulations 48, 173 and 185 of the Pension Regulations for the Army, 1961. In Clause 12 of the said appendix, this expression has been descriptively. It illustrates what could be a 'duty' for the purposes of determining attributability to military service or its aggravation. Such a clause which restrictively defines an expression would be incapable of being given a restricted meaning. Clause 'f' of Rule 12 even includes accidents which occurs when a man is not strictly 'on duty'. There are certainly acts and deeds which a member of the Force would be expected to perform while on actual duty in the Unit or while on leave. For example, going to the market to purchase his households, to go to drop his ward to school or going to some public office or booking office for booking a ticket or other such requirements. These are some of the acts, attributability to service whereof will not change by virtue of location or posting of the person subject to the Army Act. 22. Another aspect which the Court may examine in such cases is whether the authorities concerned exercise the same control and discipline over the person during his leave or the person is entirely free and outside the ambit and control of the authorities. Besides the relevant Regulations, terms like 'casual leave' to be treated as 'on duty' is also supported by the fact that during the period of leave, a person subject to Army Act is under the effective control and discipline of the Force and can be commanded to come back at any time by the concerned authorities. To such a command, he hardly has any right to raise any protest. The accident/incident as a result of which the petitioner suffered the injuries was beyond his control and the petitioner was not doing/performing any act, which he ought not to have done as a part of his normal living while on leave. In view of the above, a person on casual/annual leave is deemed to be on duty and there must be apparent nexus between the normal living of a person, subject to military law while on leave and the injuries suffered by him. The facts of the present case are not in dispute. In the summary and opinion of the Medical Board recorded on 25th January, 2000 at Pune, it is stated that the Individual had sustained injury to both his hands on 24.8.99 due to falling of a stone while making building while on leave. He was initially treated at Civil Hospital and then was transferred to Army Hospital where amputation of left hand through wrist was done. In view of the amputation, he was recommended to be placed in category 'EEE' and brought before the Invaliding Medical Board. In the proceedings of the Medical Board it was recorded as under: (d) In the case of a disability under 'O' the Board should state what exactly in their opinion is the cause thereof. Injury occurred while on A/L vide incompate infy -2006
(3.) OF course, it was also stated by the Board that the injury is not connected with the service but the case of the petitioner is squarely covered by catena of judgments of this Court. It is a settled principle of law and is not even disputed before us that a person on annual leave is subject to Army Act and can be recalled at any time as the leave is at the discretion of the authorities concerned. It was mere an accident with which the petitioner met and to which the petitioner no way contributed. No negligence or unauthorised act was attributable to the petitioner. In fact, the respondents did not even conduct any Court of Inquiry as contemplated under the Rules. In these circumstances, we are unable to contribute to the view taken by the authorities that the injury of the petitioner was not attributable to service.;


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