O R D E R - Armed Forces Tribunal

FORM NO – 21
(See Rule 102 (1)
ARMED FORCES TRIBUNAL, KOLKATA BENCH
APPLICATION NO : TA 89 OF 2010 {WP 15633(W)/2007}
THURSDAY, THIS TWENTY-FIRST DAY OF APRIL, 2011
CORAM : Hon’ble Mr. Justice Sadhan Kumar Gupta, Member (Judicial)
Hon’ble Lt. Gen. K.P.D. Samanta, Member (Administrative)
Harun-Al-Rashid son of Abdul Rakib retired
Subedar , JC-188326L has retired from Signals
Records , Jabalpur ( M.P) and mpw residing at
Vill and P O Salinda Tehshil-Kandi, Dist .
Mursidabad, W B Pin 742401
-VS –
……….. Petitioner
1. Union of India through the Secretary , Ministry of
Defence , South Block New Delhi 110001.
2. The Additional Director General, Personnel Services,
Adjutant General‟s Branch , Intrigrated Head Quarter of
Ministry of Defence (Army) , DHQ P O New Delhi –
110011.
3. The Principal Controller of Defence Accounts (P)
Allahabad.
4. The Records Signals, Jabalpur ( M P ) Pin 482001
For the petitioner : Mr. Kalyan Sarkar, Advocate
For the respondents : Mr. Souvik Nandy, Advocate
O R D E R
Per Justice Sadhan Kumar Gupta, MEMBER (Judicial)
………. Respondents
The applicant initially filed the writ petition before the Hon‟ble High Court
at Calcutta under Art. 226 of the Constitution of India. Subsequently, due to
advent of the Armed Forces Tribunal Act, 2007, said writ petition was transferred
to this Tribunal for disposal.

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2. The case of the applicant, in short, is that he was enrolled in the Army
and retired from service on and from 3l.12.2004. After his retirement, normal
pension was sanctioned in his favour.
3. According to the applicant, while he was posted in Amritsar, at that time
on 5. 7. 1992, he met with an accident within the Cantonment area. The said
accident took place due to the negligent driving of an army driver of a military
vehicle. As a result of this accident, the applicant was seriously injured and had
to be admitted in the Amritsar Army Hospital and it was declared that he
sustained injury of “Compound Fracture Tibia/Fabula”. Immediately after the
accident, a court of enquiry was held. Although the said court of enquiry held that
the accident was caused due to the negligence on the part of the Army driver,
still, it was of the opinion that the injury, as sustained by the applicant, was not
attributable to military service. The claim of the applicant praying for disability
pension was rejected by the authority and it was communicated to him by the
letter dt. 19.2.2005. In the said letter it was observed that as per injury report dt.
8.7.92, it was found that the accident was not attributable to the military service
and as such, the claim of disability pension was not admissible. The applicant
claims that due to the accident, his right leg was shortened by 1.5 cm and as a
result of that he is unable to perform his day to day activities and for that he is
dependent upon his wife and others.
4. The applicant submitted an appeal with the appropriate authority stating all
these facts and also that the injury was caused due to careless driving by an
army driver inside the cantonment compound and the finding of the court of
enquiry was also to the effect that due to the negligence of the army driver such
accident took place. As such, the applicant prayed that the appellate authority
should consider this aspect and should grant him disability pension to which he is
legally entitled. Ultimately on 31.5.2007, the applicant was informed that the first
appellate authority, by the order dt. 29.3.2007, was pleased to reject the said
appeal on the ground that the said accident was not attributable to military

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service as per rule 12 of the Entitlement Rules for Casualty Pensionary Awards,
1982. Being aggrieved and dissatisfied with such decision of the appellate
authority, the applicant filed the writ petition, which has now been transferred to
this Tribunal for disposal.
5. The claim of the applicant was contested by the respondents by way of
filing counter affidavit wherein the allegations, as made in the application, were
denied on all material points. However, the fact of the injury sustained by the
applicant was not denied by the respondents. At the same time, they have
claimed that since the injury could not be attributable to military service, so the
question of granting disability pension does not arise at all and as such, his claim
was rightly rejected. They have prayed for dismissal of the application.
6. Against this counter affidavit, the applicant has filed a rejoinder wherein he
has further elaborated his claim for his entitlement to get disablement pension
and in support of that claim, several decisions of the Apex court and High Courts
have been relied upon.
7. We have taken into consideration the submissions made by the ld.
Advocates for both the sides as well as the documents, which have been
annexed in connection with this application. Admittedly, the applicant was injured
in the year 1992 while he was driving a scooter for going to the local market for
purchasing daily necessities at about 5.15 PM. It is the further admitted position
that at that time, the applicant met with an accident, as his scooter collided with
an Army heavy vehicle. It is also not in dispute that as a result of this accident,
the applicant was seriously injured and was admitted in the Army Military
Hospital where his right leg was shortened by 1.5 cm. It appears from the
documents, as available in the record, that the applicant was placed before the
Medical Board, who opined that the disability sustained by the applicant was 30%
and it was for life. However, this Medical Board was of the opinion that this injury,
as sustained by the applicant, could not be said to be attributable to military

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service. From the documents, it further appears that after the accident, a court of
enquiry was held and the opinion of the court of enquiry was to the effect that the
accident was caused due to the negligence on the part of the army driver, who
was driving the army heavy vehicle and the said accident took place inside the
military campus. Now, in spite of all these things, the concerned authority did not
grant disability pension in favour of the applicant, presumably, due to the opinion
of the Medical Board. Normally, the opinion of the Medical Board should not be
interfered with without any cogent reason. However, it appears from the opinion
of the medical Board that the disability sustained by the applicant was 30% and it
was recommended for life. Therefore, there cannot be any dispute in respect of
this part or the opinion. However, the Medical Board opined that such injury could
not be attributable to military service. We must remember that it is not a case of
any disease being developed during the course of military service. It was an
accident resulting such injury and as such, whether it is attributable to military
service or not, that should not come within the purview of the Medical Board‟s
opinion. The concerned authority is to consider this aspect as per provisions laid
down in the Rules for Casualty Pensionary Awards of 1982. The main question
that has to be considered is, whether at the material time, when the accident had
occurred, the applicant should be treated to be “on duty” or not. In this respect,
the ld. Advocate for the applicant has heavily relied upon a Full Bench decision of
the Punjab & Haryana High Court, as reported in 2011(1) ESC (P&H) 33 (Union
of India through Secretary, M/o Defence, New Delhi & Ors –versus-
Khushbash Singh, Ex. Naib Subedar, etc. etc.). The Hon‟ble Full Bench of
the Punjab & Haryana High Court while delivering the judgement relied upon
series of decisions of the Hon‟ble supreme Court as also of other High Courts.
This Full Bench decision, in our opinion, must be treated to be an important
guideline for coming to a decision, so far as this application is concerned. In the
said decision, the Hon‟ble Full Bench was pleased to quote different provisions of
Army Pension Regulations and entitlement rules for Casualty Pensionary

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Awards, 1982. It may be pointed out here that in order to grant disability pension,
para 173 of Army Pension Regulations, 1961 has to be followed. Said para 173
runs as follows :-
“Unless otherwise specifically provided, a disability consisting of
service element and disability element may be granted to an individual,
who is invalidated out of service on account of disability, which is
attributable or aggravated by Military Service in non-battle casualty and is
assessed at 20% or over.”
8. This provision is to be looked into along with the provisions of Entitlement
Rules for Casualty Pensionary Awards of 1982. We have already pointed out that
the main thing that is to be considered, so far this matter is concerned, is as to
whether the applicant should be treated to be “on duty” when the accident took
place or not. In this respect, rule 12 of the said Rules for Casualty Pensionary
Awards, 1982 is most relevant, which runs as follows :-
“12. Duty- A person subject to the disciplinary code of the Armed
Forces is on „duty‟ :
a. While 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 movement.
c. During the period of participation in recreating and other unit
activities organized or permitted by service authorities and during
the period of travelling in a body of single by a prescribed or
organized route.
Note :-
a. Personnel of the Armed forces participating in -
i. Local/National/International sports tournament as member of
service team, or
ii. mountaineering expeditions/gliding organized by service authorities
with the approval of service Headquarters will be deemed to be
“ON DUTY” for purpose of these rules.
iii. Personnel of the Armed Forces participating in the above-named
sports tournament s or in privately organized mountaineering expeditions
or indulging in gliding as a hobby in their individual capacity , will not be
deemed to be on duty for the purpose of these rules, even though prior
permission of the competent service authorities may have been obtained
by them.

Note 2.
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The personnel of the Armed Forces deputed for training at courses
conducted by the Himalayan Mountaineering Institute, Darjeeling shall be
treated on par with personnel attending other authorized professional
courses or exercises for the Defence Service for the purpose of the grant
of disability/family pension on account of the disability/death sustained
during the courses.
d. When proceeding from his duty station to this leave station or
returning to duty from his leave station, provided entitled to travel at public
expenses i.e. on railway warrants, on concessional vouchers, on cash TA
is (irrespective of whether railway warrant/cash T.A is admitted for the
whole journey of for/ a portion only)k , in Government transport or when
road mileage is paid/payable for the journey.
e. When journeying by a reasonable route from one‟s quart er to
and back from the appointed place of duty , under organized
arrangements or by a private conveyance when a person is entitled to use
service transport but that transport is not available.
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. Thus for
instance , when 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 also be given more liberally to the claimant
in case occurring on active service as defined in the Army/Navy/Air Force
Act.”
9. The Hon‟ble Full Bench of the Punjab & Haryana High Court took into
consideration the said provisions of the Rules and thereafter came to the
conclusion that even in case a person is on casual leave and he meets with an
accident, then also, he should be considered to be „on duty‟ and should be taken
as his disability attributable to military service. The Hon‟ble Full Bench in para 10
of the said decision observes as follows :-
“…… We have already outlined a deeming fiction obtained through the
definition of “ON DUTY‟ as specified in clause 12 of the Appendix II. They
are simpler situations where although not actually on duty but by a fiction,
the Army Personnel would be treated on duty and a disability arising
during such time, as for example, when a person suffers a disability on
transit from his duty station to the leave station when he was travelling by
train, the disability should only be taken as attributable to army duty.”

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10. According to the Full Bench, such a person could not be denied the
disability pension. In the said decision, several examples were cited in order to
come to the conclusion that in such a case, the disability arising in a non-
combatant situation may also be taken to be a disability which was aggravated
by military service. The Full Bench further elaborated to the effect that –
“…..According to us, a person on casual leave or annual leave does not
cease to be on military duty and the injury that he sustains in an accident
could only be examined from the context of whether it was inconsistent
with a person in Military Service or not.”
11. So, the ratio, as decided in the Full Bench decision, is to the effect that
even if the person concerned was not performing military job, then by way of a
fiction he should always to be considered to be on duty of military service even if
he was on casual leave and the accident took place in his native place. If a
person, who is on casual leave and sustains injury in his native place, can be
awarded disability pension, as decided by the Full Bench, we fail to understand
as to why a person, who was in the active military service, at the time of the
accident, and who sustained injury inside the military campus and that too, due to
the negligent driving of an army driver who was driving army heavy vehicle and
the finding of the court of enquiry was also to the effect that such accident took
place due to negligence of the said driver, then why such a person should be
deprived of disability pension, as claimed by him.
12. We have already pointed out that the applicant was at that time staying in
the Amritsar Military Cantonment along with his family members and naturally he
must be in the active military service and if he was going at the material time to
the market for purchase of daily requirements, and met with an accident, then, it
cannot be said that since he was at the material time not performing any military
service, so he could not be considered to be „on duty‟, as claimed by the
authorities. If that position is accepted, then it will be an injustice to the person
concerned, who was compelled to stay in the military cantonment area along with

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his family members in connection with this military service. Such being the
position, we are of the opinion that the injury, as sustained by the applicant, must
be held to have been caused when the applicant was „on duty‟.
13. We have already pointed out that the Medical Board opined that the
applicant sustained injury to the extent of 30% and it was for life. We have
mentioned in the above discussion that it must be held that the injury as
sustained by the applicant, took place while he was „on duty. Under such
circumstances, we are of the view that as per medical opinion, the applicant
should be granted medical disability pension to the extent of 30% and it must be
for life since that injury, as sustained by the applicant, must be considered to be
attributable to military service, as discussed above. To our mind, the application
should be disposed of accordingly.
14. In the result, the application is allowed on contest but without cost. It is
declared that the applicant is entitled to disability pension to the extent of 30% for
life from the date of his discharge. The respondents are directed to pay disability
pension in favour of the applicant along with arrear amount within three months
from the date of communication of this order. If the arrear is not paid within three
months, as mentioned above, then in that event, such amount shall carry interest
at the rate of 8% per annum till the date of actual payment. The impugned order
dt. 29.3.2007 whereby the claim of disability pension of the applicant was
rejected, stands quashed.
15. Let plain copy of this order be handed over to the ld. Advocates for both
the parties.
(Lt. Gen. K.P.D.Samanta) ( Sadhan Kumar Gupta)
Member(Administrative) Member (Judicial)