- (1.)This appeal arises out of an order dated 10th May, 2010 passed by the Armed Forces Tribunal, Regional Bench, Lucknow whereby Transferred Application No. 191 of 2009 filed by the Respondent has been allowed, orders passed by the Appellants herein set aside and the Respondent held entitled to claim disability pension to the extent of 20% with effect from the date of his discharge. Respondent was serving as a Sepoy in the Indian Army's Air Defence Corps. Having served for nearly 17 years he was discharged from service on 1st July, 2004 upon completion of the tenure. It is not in dispute that service pension admissible to him has been released in his favour. Since, however, the Respondent had suffered a disability while in service he appears to have claimed disability pension also which was declined by the Appellants on the ground that the disability was neither attributable nor aggravated by military service. Aggrieved by the said refusal the Respondent filed W.P. No. 3649 of 2008 before the High Court of Judicature at Allahabad, Lucknow Bench, which came to be transferred to the Armed Forces Tribunal, Regional Bench, Lucknow, after setting up of the said Tribunal under the Armed Forces Tribunal Act, 2007. Respondent's case in the writ petition and so also before us is that while posted in a field area in the State of Jammu and Kashmir he was authorised to go on annual leave for a period of two months. His further case is that having started his homeward journey from Jammu on 25th March, 1997 he travelled to Hajipur, ahead of Sewan in the State of Bihar, by train. On 27th March, 1997 while boarding a bus from Hajipur to reach Patna to join his family he met with an accident that resulted in a disability, assessed at 20% by the Medical Board concerned. A Court of Inquiry ordered into the incident recorded a finding that the accident and the resultant injury suffered by the Respondent were not attributable to military service. The claim for payment of disability pension was on that finding declined by the Appellants, according to whom the Respondent was authorised to travel upto Gopalganj-his home station via Lucknow, Gorakhpur and Sewan. Any accident involving the Respondent at Hajipur was, according to the Appellants, in no way related to military service or the time requisite for completing the homeward journey which the Respondent was authorised to undertake.
The Respondent approached the Armed Forces Tribunal inn T.P. No. 191 of 2009 to challenge the order rejecting his claim. The Tribunal examined the rival versions and held that the disability was indeed attributable to military service inasmuch as the Respondent was on annual leave hence deemed to be on duty at the time the same was suffered. The Tribunal has consequently set aside the orders passed by the Appellants refusing the pension and issued directions for payment of the dues with effect from the date of his discharge from service. The present appeal filed by the Appellants assails the correctness of the said order of the Tribunal, as noticed earlier.

(2.)We have heard learned Counsel for the parties at some length who have taken us through the orders passed by the Tribunal as also other documents on record. Apart from the fact that an appeal under the provisions of Section 31 of the Act, aforementioned, is maintainable only in case the same involves a substantial question of law of general/public importance/interest which does not appear to be arising in this case, we are of the view that the order passed by the Tribunal does not even otherwise warrant any interference by us. We say so because in terms of Rule 12 of the Entitlement Rules for Casualty Pensionary Awards, 1982 a person subject to the disciplinary code of the Armed Forces is treated on duty while performing any one of the functions mentioned in paras (a), (b) and (c) of the Pension Regulations. Notes 1 and 2 to the entitlement Rules elaborate the scope and the purport of the term "duty". Para (f) to note 2 deals with accidents which occur when a man is not strictly "on duty" as defined in Rule 12. For such situations the expression "on duty" is given an extended meaning inasmuch as an accident which occurs when the person concerned is not strictly speaking on duty is also deemed to be on duty provided it involves risk which was definitely enhanced in kind or degree by the nature, conditions, obligations or incidents of his service so long as the same was not a risk common to human existence in modern conditions in India. Para (a) to (f) to Notes 1 and 2 Under Rule 12 of the said Entitlement Rules may be extracted at this stage:-
"Rule 12: Duty:-The Entitlement Rules 1982

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;

(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.

Note 1: xx xx xx xx

XX XX XX XX

Note 2: (d) Personnel while travelling between place of duty to leave station and vice versa to be treated on duty irrespective of whether they are in physical possession of railway warrant/concession vouchers/cash TA etc or not. An individual on authorized leave would be deemed to be entitled to travel at public expense.

(e) The time of occurrence of injury should fall within the time an individual would normally take in reaching the leave station from duty station or vice versa using the commonly authorised mode (s) of transport. However, injury beyond this time period during the leave would not be covered.

(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.

(3.)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 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." The question here is whether the extended meaning of the expression "on duty" within the purview of para (f) above, is attracted to the facts and circumstances of the case at hand. The Tribunal has, it appears relying upon two decisions one each rendered by the High Courts of Allahabad and Himachal Pradesh, taken the view that any accident involving a person serving in the army while he is on annual leave, is deemed to be attributable to military service. That proposition appears to us to be rather broadly stated. In our view the expression "duty" as set out in Regulation 12 postulates only specified situations in which an Army personnel can be said to be performing his duty for purposes of Entitlement Rules. But by reason of the extended meaning given in terms of Notes 1 and 2, situations in which a person is not strictly speaking "on duty" are also by a legal fiction presumed to be tantamount to discharging military duty.