IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 13522 of 1997
0. RAVINDRAN P.M. (EX.NK.NO.6650140)
... Petitioner
1. RAVINDRAN P.M.
Vs
0. UNION OF INDIA,REPRESENTED BY
... Respondent
0. CONTROLLER OF DEFENCE ACCOUNTS
0. OFFICER I/C A.S.C. RECORDS
1. UNION OF INDIA
For Petitioner :SRI.M.RAJAGOPALAN
For Respondent :SMT.NARAYANIKUTTY CHETTUR,ADDL.CGSC
The Hon'ble MR. Justice M.RAMACHANDRAN
The Hon'ble MR. Justice S.SIRI JAGAN
Dated : 27/07/2005
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M.Ramachandran & S.Siri Jagan, JJ.@@
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O.P. No. 13522 of 1997 @@
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Siri Jagan, J.@@
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In this original petition, the petitioner is
challenging Exts. P4 and P11 orders of the
respondents by which the petitioner’s claim for
disability pension was rejected on the ground that
the injury sustained by him consequent to which he
was invalided out of military service was not
attributable to military service. The issue to be
decided in this original petition is as to whether
the accident in which the petitioner sustained injury
is attributable to military service. The brief facts
necessary for deciding this issue are as under.
2. The petitioner was enrolled in the Army on
10-1-1980. While he was serving in one of the units
of the Army in a forward area, on 13-3-1986, while
travelling on out pass with permission from his
superior authority for attending to some personal
affairs in the University nearby , he was hit by a
truck in which accident, he sustained serious
injuries. He sustained permanent disability which
was assessed at 40% by the Medical Board. Later, he
was invalided out of the military service because of
the disability suffered by him. The petitioner
preferred an application for disability pension,
which was rejected. Therefore, he filed
O.P.No.10360/1990 before this Court in which this
Court directed the respondents to re-examine the
claim of the petitioner for disability with reference
to the medical records. Pursuant to the said
direction, the 2nd respondent passed Ext.P11 order
again rejecting the claim of the petitioner for
disability pension. Therefore, he filed this
original petition challenging the said order also.
3. When the original petition came up for hearing
before a learned Single Judge of this Court, the
petitioner sought to buttress his claim on the basis
of a decision of another learned Single Judge of this
Court in O.P.No.9107/1988. However, the learned
Single Judge who heard the present original petition,
doubted the correctness of the said decision and,
therefore, referred the matter for consideration by a
Division Bench by order dated 4-3-1999. Pursuant to
the said order, the Hon’ble Chief Justice has
directed the original petition to be posted for
hearing by us. It is under the above circumstances
that the matter has come up before us.
4. We have heard arguments of Sri.M.Rajagopalan,
learned counsel for the petitioner as also
Sri.Jalaludeen, Additional Central Government
Standing counsel. The issue arising for
consideration in this original petition, as we have
already indicated, is as to whether the injury
sustained by the petitioner on 13-3-1986 while he had
gone on out pass for a private work to Rohail Khand
University in a traffic accident, can be considered
as injury attributable to military service entitling
the petitioner to claim disability pension.
5. The relevant provision in the Pension
Regulations for the Army regarding grant of
disability pension is Regulation 173 in Section IV of
the Pension Regulations for the Army, 1961, Part I.
The same reads as follows:
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“173. Unless otherwise specifically provided, a@@
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disability pension may be granted to an
individual who is invalided from service on
account of a disability which is attributable to
or aggravated by military service and is assessed
at 20 per cent or over.”
The question whether a disability is attributable@@
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to or aggravated by military service shall be
determined under the Rules in Appendix II.”
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As is clear from the said regulation, the question as
to whether a disability is attributable to military
service should be determined in accordance with the
Rules in Appendix II. Appendix II is the Entitlement
Rules. Rule 2(a) thereof reads as follows:
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“2. Disablement or death shall be accepted as@@
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due to military service provided it is certified
that:-
(a) the disablement is due to a wound, injury or@@
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disease which-
(i) is attributable to military service; or@@
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(ii) existed before or arose during military@@
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service and has been and remains aggravated
thereby;
xx xx xx”
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The petitioner relies on this Rule to contend that
his disablement is attributable to military service
since the disablement is due to an injury which arose
during military service and remains aggravated
thereby as provided in Rule 2(a)(ii). Counsel for
the petitioner lays stress on the words “which arose
during military service.” He also relies on the
judgment of a learned Single Judge in
O.P.No.9107/1988 as also the decision of the Hon’ble
Supreme Court of India in Madan Singh Shekhawat v.@@
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Union of India & others, 2000(2)-VI All India Service@@
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Law Journal 178.
6. On the other hand, learned Additional Central
Government Standing Counsel appearing for the
respondents submits that since the petitioner was not
actually on duty at the time of accident.
Entitlement Rules as per the provisions of which
eligibility for disability pension has to be decided
do not enable the petitioner to claim disability
pension in so far as the injury sustained by the
petitioner while on out pass for his private purpose,
is unconnected with military service, and, therefore,
cannot be regarded as attributable to military
service.
7. We shall first deal with the argument of the
petitioner’s counsel on the basis of Rule 2(a)(ii) of
Appendix II of the Pension Regulations for the Army.
Placing reliance on the words “arose during military
service” counsel argues that in order to enable the
petitioner to get disability pension, it is not
necessary that he should have been actually on duty
at the time when the accident occurred. He would
submit that even when a person is off-duty, if
accident occurs within the general area where the
petitioner is stationed, the same should be taken as
injury which arose during military service. This,
the counsel submits on the premise that an armyman is
expected to be on duty 24 hours. He has relied on
the decision of the learned Single Judge in
O.P.No.9170/1988 in support of this contention.
8. The said original petition related to claim
for family pension by the next of kin of an Artillery
Sepoy who died in an accident caused by a civilian
bus of the Haryana Roadways while the Sepoy was on
casual leave for two days. The learned Single Judge
took the view that the Sepoy happened to be at the
place where the accident occurred only because of his
stay in the barracks of the Regiment in which he was
attached to. However, there was no reference to the
Entitlement Rules and no consideration of the case or
discussion with reference to the Entitlement Rules or
any other Rules for that matter. Therefore, we are
of opinion that the said decision do not lay down the
correct law on the point. Hence, we are unable to
agree with the said argument or the decision. If
such an argument is accepted, it would mean that a
person who is in military service would be entitled
to disability pension even if the accident occurred
while he was at his home on leave. A reading of the
Entitlement Rules do not warrant such a conclusion.
Unless the injury itself had happened while on duty
or at least under the circumstances specifically
envisaged in the Entitlement Rules for treating as on
deemed duty, the same cannot be regarded as
attributable to military service. Although, counsel
for the petitioner would contend that when the
service personnel is on casual leave, he should be
deemed to be on duty since he is not permitted to
leave the station, we do not find support for such
contention in the Rules. Rule 6 details the
circumstances under which injuries can be taken as
injuries attributable to military service in cases of
accidents. Rule 6 reads as follows:
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6. In respect of accidents the following rules@@
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will be observed:-
(a) Injuries sustained when the man is on duty@@
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will be deemed to have arisen in or resulted from
Army/Naval/Air Force Service unless they were
self-inflicted or due to serious negligence or
misconduct in which case the question of
withholding the pension in full or in part will
be considered.
(b) A person subject to the Disciplinary Code of@@
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the Armed Force is `on duty’ during the period of
time when he is in the course of performance of an
official task or a task the failure to do which
would constitute an offence triable under the
Disciplinary Code applicable to him. The course
of performance of a task includes the journey or
transport by a reasonable route from one’s
quarters to and back from the appointed place of
duty under organised arrangements.
(c) A person is also deemed to be `on duty’ during@@
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the period of participation in recreation,
organised or permitted by Service Authorities and
of travelling in a body or singly under organised
arrangements. A person is also considered to be
`on duty’ when proceeding to his leave station or
returning to duty from his leave station at public
expense.
(d) An accident which occurs when a man is not@@
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strictly `on duty’ as defined may also be
attributable to service, provided that it is not
an accident which can be attributed to risk common
to human existence in modern conditions in India,
unless such risk is definitely enhanced in kind or
degree by the nature, conditions, obligations or
incidents of the person’s service. 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@@
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claimant in cases occurring on active service as
defined in the Army/Air Force Act.
Note 1:- (a) Personnel of the Armed Forces@@
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participating in–
(i) local/national/international sports@@
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tournaments as members of teams, or
(ii) mountaineering expeditions/gliding@@
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organised by the service authorities, with the
approval of Government-
will be deemed to be “on duty” for purposes of@@
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the post-March 1948 entitlement rules for
disability and family pensions;
(b) personnel of the Armed Forces participating in@@
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the above-mentioned sports tournaments or in
privately organised mountaineering expeditions or
indulging in gliding as a hobby, in their
individual capacity, will not be deemed to be “on
duty” for purposes of those rules, even though
prior permission from the competent Service
authorities may have been obtained by them.
(c) injuries sustained by personnel of the Armed@@
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Forces in impromptu games and sports outside
parade hours, which are organised by, or with the
approval of the local Service authority, and
deaths arising from such injuries will continue to
be regarded as having occurred while “on duty” for
purposes of these entitlement rules.
Note 2:- The personnel of the Armed Forces deputed@@
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for training courses conducted by the Himalayan
Mountaineering Institute, Darjeeling shall be
treated on par with personnel attending other
authorised professional course of exercises for
the Defence Services for the purpose of the grant
of disability family pensions on account of
disability/death sustained during the courses.”
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From a reading of this Rule, it is evident that in
order to qualify accidents for being counted for the
purpose of disability pension, essentially the injury
should have been sustained while on duty. Of course,
the Rules also envisage certain circumstances under
which a person is also deemed to have been on duty.
Therefore, the question now to be considered is as to
whether, although the petitioner was not on duty at
the time of accident, he could be deemed to have been
on duty at the time of the accident. Sub-clauses (a)
and (b) cannot evidently be applied to petitioner’s
case because the same relate to persons who have been
actually on duty. Of course, under clause (c), the
person will be deemed to be on duty under certain
circumstances. First part of clause (c) will not be
applicable to the petitioner’s case because it refers
to participation in recreation. In order to apply
the latter part of clause (c), the accident should
have occurred while proceeding to his leave station
or returning to duty from his leave station at public
expense. (This clause will have to be adverted to
for deciding the validity of the contentions of the
petitioner based on the Supreme Court decision supra
which he relies on, which we shall do later). Thus,
the latter part will not be applicable to the
petitioner in so far as, admittedly, he was not
either proceeding to his leave station or returning
to duty from his leave station.
9. Now, let us examine whether clause (d) is
applicable. Under clause (d), although a person is
not strictly on duty, an accident which occurs may
also be attributable to service provided it is not an
accident which can be attributed to risk common to
human existence in modern conditions in India, unless
such a risk is definitely enhanced in kind or degree
by the nature, conditions, obligations or incidents
of the person’s service. An example is also provided
to the effect that where a person is killed or
injured by another party by reason of belonging to
the Armed Forces, then, he shall be deemed to be on
duty at the relevant time. In the present case, the
accident occurred in a public place caused by a
civilian truck. The risk undertaken by the
petitioner was a risk which any common man should
have to take while travelling through that road, or
through any road for that purpose. Therefore, it
cannot be said that the accident in which the
petitioner was injured can be attributed to a risk
which is not common to human existence stipulated in
clause (d). As such, that accident had no nexus with
the petitioner being in the military service.
Therefore, we are of opinion that clause (d) also
would not come to the rescue of the petitioner in the
matter of deciding as to whether the injury sustained
by him in the particular accident is attributable to
military service.
10. In the circumstances, we are unable to hold
that the petitioner’s case falls under any of the
situations detailed in Rule 6 which would make him
entitled to disability pension. 11. Petitioner
further relies on a decision of the Supreme Court of
India in Madan Singh Shekhawat’s case supra. We are@@
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afraid that the same cannot also be of any assistance
to the petitioner in proving that the particular
accident which he suffered was attributable to
military service. That was a case where a military
personnel while alighting from the train on his way
to his home station on authorised casual leave
granted to him, met with an accident. At the time,
he was travelling at his own expense and not at
public expense. The question considered by the
Supreme Court in that case was whether in view of the
fact that he was travelling at that time at his own
expense, the latter portion of clause (c) of Rule 6
would be applicable and the Supreme Court,
ultimately, held that the military personnel in that
case cannot be denied disability pension on the
ground that at that time he was travelling at his own
expense. In this connection, it may be noted that
that particular provision is applicable only to a
situation where a person was either proceeding to his
leave station or returning to duty from his leave
station. Since, there is a specific provision in the
Rule itself for deeming such situation as on duty,
the said decision based on the interpretation of that
clause cannot also be of any help to the petitioner
in proving that the accident in which he was injured
also was while on deemed duty, since, in his case, he
was not proceeding to or returning from his leave
station.
12. Counsel for the petitioner submits that since
the Department did not take care to contest the motor
accident compensation case of the petitioner
appropriately, it came to be dismissed and,
therefore, the petitioner has been left high and dry
without either the compensation or any benefits from
the Army. Therefore, he submits that petitioner’s
case may be considered sympathetically in so far as
he is now incapable of doing any work to earn his
livelihood. We have no doubt in our mind that the
petitioner deserves sympathy. However,
unfortunately, sympathy cannot take the place of law
and we cannot decide cases on the basis of sympathy
alone regardless of the legal entitlement. Deciding
cases on considerations of sympathy doing violence to
statutory provisions would do more harm to the
justice system. Sympathy can, of course, be shown
within the frame work of law, but cannot go to the
extent of undermining the law itself which has to be
applied uniformly to all situations alike. While
deciding cases, we should bear in mind that decisions
on considerations of sympathy can also be used to
claim benefit in undeserving cases which may
ultimately result in undermining public confidence in
the efficacy of law which may not enure to the
benefit of the society at large in the long run.
13. In the above circumstances, we have no option
but to hold that the accident in which the petitioner
was injured is not covered by any of the situations
enumerated and, therefore, was not attributable to
military service. Therefore, the petitioner cannot
claim disability pension under Rule 173 of the
Pension Regulations for the Army. Hence, the
petitioner is not entitled to any reliefs in this
original petition and the original petition is
dismissed.
Tds/
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M.Ramachandran, Judge.@@
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S.Siri Jagan, Judge.@@
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M.Ramachandran
&
S.Siri Jagan, J.
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27th July, 2005.