- (1.) The petitioner has filed the present writ petition under Articles 226/227 of the Constitution of India against the order dated 2.11.2010 (Annexure P-11) passed by the Chandigarh Regional Bench of the Armed Forces Tribunal (hereinafter referred to as 'the Tribunal') whereby the application filed by him for seeking quashing of order dated 1.6.2009 (Annexure P-8) passed by the Government of India declining his prayer for disability pension on the ground that invalidating disease was neither attributable to nor aggravated by military service, had been dismissed.
(2.) According to the petitioner, he was enrolled in the Indian Army as Sepoy on 9.5.1988. When he was at his home for 15 days from 2.3.2004 to 17.3.2004, he slipped from the terrace of his house while playing Holi and sustained 'Open Fracture Tibia and Fibula Right'. As a result thereto, he was admitted in the Base Hospital. A Court of Inquiry was held which in its report dated 25.9.2004 (Annexure P-1) held that the injury suffered by him was attributable to military service. His case was, thereafter, sent to the Brigade Commander for information and vide report dated 13.11.2004 on accidental and self inflicted injuries, the Brigade Commander opined that the injury sustained by him was attributable to military service. Despite the same, on 1.6.2005, he was invalided out from military service after being placed in medical category "A-3 (permanent)". After invalidation from the service his case was taken up by the ASC (South) Records, Bangalore with the Principal Controller of Defence Accounts (Pension), Allahabad for adjudication of his claim for disability pension but the same was rejected. The appeal preferred by him was rejected on 19.9.2007. Even the second appeal preferred by him was dismissed on 1.6.2009. Aggrieved of the same, the petitioner filed CWP No. 13375 of 2009 in this Court which after establishment of the Tribunal was transferred to and entertained by the Tribunal as T. A. No. 285 of 2010.
(3.) The application (T. A. No. 285 of 2010) filed on behalf of the petitioner and couple of similar original applications and transfer applications was taken up by the Tribunal together. After discussing the various judgments on the issue as to what would be the guiding factors for deciding the attributability of or aggravation by military service where the disability or fatality occurs during the time the individual is on authorised leave of any kind, the Tribunal summed up the following principles:- (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 be connected to his being on duty as understood in the sense contemplated by Rule 12 of the Entitlement Rules 1982, it would not be legislative intention or nor to our mind would be permissible approach to generalize the statement that every injury suffered during such period of leave would necessarily be attributable. (c) The act, omission or commission 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 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 Forces 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 un-connected 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 matters 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 behavior. (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. ";