SC:Army personnel even if on casual/annual leave to be treated as on duty

The Hon’ble Supreme Court, in the matter of The Secretary, Government Of India & Ors. v. Dharambir Singh, on 20th September 2019, observed that when Armed Forces personnel is availing casual leave or annual leave, is to be treated on duty. However, any injury or death caused when a person is going on a scooter to purchase house hold articles shall not be attributable to military service because such activity, even remotely has no causal connection with the military service.

Questions before the Hon’ble Supreme Court / Hon’ble Supreme Court’s Observations

Whether, when armed forces personnel proceeds on casual leave, annual leave or leave of any other kind, he is to be treated on duty?

In terms of Section 3(i) of the Army Act, 1950, the active service means time during which a person who is subject to the Act, is attached to, or forms part of, a Force which is engaged in operations against an enemy engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or is attached to or forms part of a Force which is in military occupation of a foreign country. (Para 11)

Section 9 of the Act empowers the Central Government to declare that any person or class of persons subject to the Act, with reference to any area in which they may be serving or with reference to any provision of this Act or of any other law for the time being in force, will be deemed to be on active service within the meaning of the Act. In pursuance of such provision, the Central Government has notified that all persons who are subject to the Act shall, wherever they may be serving, be deemed to be in active service within the meaning of the Act and of any other law for the time being in force. (Para 12)

Still further, in terms of leave rules, the casual leave and annual leave count as duty. However, in terms of Rule 11(a) of the Leave Rules for the Services, Volume-I (Army), an individual on casual eave is not deemed to actually perform duty during such leave. The Entitlement Rules for Casualty Pensionary Awards, 1982 provide that a person is on duty when he is proceeding from his leave station or returning to duty from his leave station. Still further, in terms of clause (f) of Rule 12  of The Entitlement Rules for Casualty Pensionary Awards, an accident can be said to be attributable to service when a man is not strictly ‘on duty’ as defined, 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. Therefore, a person if killed or injured by another person for the reason he belongs to the Armed Forces, he shall be deemed to be ‘on duty’. (Para 13)

When Armed Forces personnel is availing casual leave or annual leave, is to be treated on duty.  (Para 14)

Whether the injury or death caused even if, the armed forces personnel is on duty, has to have some causal connection with military service so as to hold that such injury or death is either attributable to or aggravated by military service?

The Entitlement Rules for Casualty Pensionary Awards give expansive definition to the expression ‘duty’ being undertaken by the personnel of the Armed Forces. It includes the period when Armed Forces personnel is proceeding from his leave station or returning to duty from his leave station. It includes even an accident which occurs when a man is not strictly on duty 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. However, as per Regulation 423 of the Medical Regulations, such injury has to have causal connection with military service or such injury is aggravated by military service.  (Para 15)

In Regulation 423(a) of the Medical Regulations, it has been specifically mentioned that it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service or active service area or under normal peace conditions, will be deemed to be duty. Regulation 423(a) mandates that it is essential to establish whether the disability or death bore a causal connection with the service conditions. All evidence, both direct and circumstantial, will be taken into account and benefit of reasonable doubt, if any, will be given to individual. (Para 16)

Clause (b) of Regulation 423 of the Medical Regulations presumes that disability or death resulting from wound or injury, will be regarded as attributable to service if the wound or injury was sustained during actual performance of ‘duty’ in Armed Forces. This is in contradiction to “deemed to be duty” as per Rule 12(f) of The Entitlement Rules for Casualty Pensionary Awards as the Rule is when a man is not strictly on duty. However, the injuries which are self-inflicting or due to individual’s own serious negligence or misconduct even in the cases of active duty, are not to be conceded unless, it is established that service factors were responsible for such action. (Para 17)

The question whether a disability or death is attributable to or aggravated by military service or not, is to be decided by the Medical Board. The opinion of Medical Board with regard to actual cause of disability or death and the circumstances under which it originated will be regarded as final in terms of Rule 17 of The Entitlement Rules for Casualty Pensionary Awards which is to the effect that at initial claim stage, medical views on entitlement and assessment shall prevail for decisions in accepting or rejecting the claim. (Para 18)

Regulation 423(d) provides that the question whether a disability or death is attributable to or aggravated by service or not, will be decided as regards to its medical aspects by a Medical Board/ medical officers. Such opinion of the Medical Board insofar as it relates to the actual cause of disability or death and the circumstances in which originality will be regarded as final. The Commanding Officer has to record his opinion as to whether injured person was on duty and whether he or she was to blame in a COI. Therefore, the scope of court of inquiry is to examine the conduct of the injured person to determine whether the person has made himself liable to be proceeded against departmentally. In respect of the injury, causal connection of injury to the army service is not final in the court of inquiry proceedings. (Para 19)

In view of Regulation 423 clauses (a), (b) and (d), there has to be causal connection between the injury or death caused by the military service. The determining factor is a causal connection between the accident and the military duties. The injury or death must be connected with military service howsoever remote it may be. The injury or death must be intervention of armed service and not an accident which could be attributed to risk common to human beings. When a person is going on a scooter to purchase house hold articles, such activity, even remotely has no causal connection with the military service. (Para 20)

In terms of Rule 12 Note 2 (d) of 1982 Rules read with Regulation 423(a), any injury or death while returning from or going to duty has a causal connection with the military service and, thus, such injury or death is considered attributable to or aggravated by military service.  (Para 25)

The rules and regulations framed under the Army Act provide for disability pension only if there is causal connection of injuries with the military service, thus warranting a positive finding. The ‘unmilitary activity’ is not an expression used in the rules or regulations and is based on negative proof. What is unmilitary activity is vague, indefinite and is based upon surmises and conjectures. Therefore, we find that in terms of the provisions of the Act, Rules and instructions keeping in view the policy decisions, the disability pension is admissible only if injury is either attributable to or aggravated by military service and not that any activity which is unmilitary activity. (Para 26)

What is the effect and purpose of Court of Inquiry into an injury suffered by armed forces personnel?

In terms of para 520 of the Defence Services Regulations, a certificate on I.A.F.Y.-2006 is required to be forwarded by the Medical Officer In-charge to the Commanding Officer. The court of inquiry is assembled to investigate the circumstances leading to injury (clause c). The Commanding Officer has to record his opinion as to whether injured person was on or off duty including as to whether he or she was to blame. The proceedings are then to be sent to Brigade Commander or the officer authorized under Section 8 of the Army Act, 1950, to record reasons as to whether disability or death was attributable to military service and whether it occurred on field service. (Para 22)

The purpose of investigation by the Court of Inquiry is to examine nature of injuries whether such injuries were suffered on or off duty. However, para 520 is not to the effect that the opinion of the Brigade Commander is final on the basis of which the grant of disability pension is dependent. The percentage of disability as well as whether the disability is attributed to or aggravated by military service has to be assessed by the Medical Board. The purpose of Court of Inquiry is to examine the conduct of the personnel of the Armed Forces, whereas, the Medical Board examines, the causal connection with the injury with the military services and also the extent of disability. Thus, the COI and the opinion of the Medical Board both have different objects and purposes to achieve.  (Para 23)

Copy of judgement: Judgement_20-Sep-2019

-Adv. Tushar Kaushik

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