ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR

-.- OA 2543 of 2012 Tejbir Singh …… Petitioner(s) Vs Union of India and others …… Respondent(s)

-.- For the Petitioner (s) : Mr. Surajmal Kundu , Advocate For the Respondent(s) : Mr. Suveer Sheokand, CGC.

Coram: Justice Rajesh Chandra, Judicial Member. Air Marshal (Retd) SC Mukul, Administrative

Member. -.-

ORDER 02.05.2014

-.- 1. By this petition the petitioner prays for grant of War Injury

Pension w.e.f. 1.3.2001 and all consequential benefits with interest.

2. Brief facts of the case are that the petitioner was enrolled in

the Army on 25.06.1997 and discharged on 28.02.2001 under Rule

13(3) III (V) of Army Rule 1954 in low medical category S1H1A3(G)

P1E1. On 15.01.1999, while deployed in CI OPS in OP-RAKSHAK

(J&K) at Coy post in field, the petitioner slipped down due to slippery icy

patch and sustained injury to his left shoulder. The court of inquiry

found the injury to be attributable to military service. Based on

assessment of the injury “Recurrent Dislocation Lt shoulder” by the

Release Medical Board to the extent of 20% for five years, the petitioner

was granted disability element for 20% disability for five years w.e.f.

1.3.2001 to 5.1.2006 and service element w.e.f. 1.3.2001 for life vide

PPO NO. D/010173/2001. The next RSMB assessed disability of the

petitioner at 20% for life vide MH Ambala AFMSF-17 dated 26.9.2006

and disability element continued for life. The petitioner was also granted

benefit of broad banding of disability since he was discharged from

service on 1.3.2001.

3. In the present OA filed on 20.09.2012 the petitioner avers that

since his discharge, he is entitled to receive „War Injury Pension‟ as per

Special Army Order 8/S/85 Note 11. It has further been alleged that AO

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1/2003 Para 1(g) says that the casualties occurring while operating on

the International Border or Line of Control due to illness caused by

climatic conditions will be treated as Physical Casualties for statistical

purpose and battle casualties for financial purposes. He was posted to

Bailik Post in the operational area and on 15.01.1999 while trying to

open route in snow bound track he fell down and sustained injury to his

shoulder which is war injury.

4. The respondents in their written statement bring out that while

serving with 8 JAT deployed in OP Rakshak (J&K), during the course of

route opening the petitioner sustained injury on left shoulder as he

slipped over an ice patch on 15th January,1999. He was downgraded to

low medical category CEE (permanent) w.e.f. 22.5.2000. Consequent

to non availability of sheltered appointment commensurate to

permanent LMC, the petitioner was discharged from service w.e.f.

28.2.2001 on medical grounds under 13(3)III(v) of Army Rules 1954.

Before discharge he was brought before the Release Medical Board

which assessed the disability at 20% for two years as attributable to

military service. The petitioner was granted disability element for 20%

disability for five years w.e.f. 1.3.2001 to 5.1.2006 and service element

w.e.f. 1.3.2001 for life vide PPO NO. D/010173/2001. The next RSMB

assessed disability of the petitioner at 20% for life vide MH Ambala

AFMSF-17 dated 26.9.2006 and disability element continued for life.

The petitioner was also granted benefit of broad banding of disability

from the date of his discharge i.e. 1.3.2001.

5. It is further averred that the cause of injury “Recurrent

Dislocation (Lt) Shoulder” does not come under the provisions of para

No.4.1. Category “E” of Govt. of India, MoD letter dated 31.1.2001.

Hence, the claim of the petitioner for grant of war injury pension does

not hold ground. In the instant case the laid down parameters i.e. cause

of the circumstances as specified vide Para 69 (a) (iv) to the Army

Order 1/MP/2003 that injury sustained due to accident because of

natural/environmental reasons like avalanche, crevasse, landslide, flash

flood etc while in action against enemy/militants was not met.

6. We have heard the learned counsel for the parties and have

gone through the record of the case.

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7. It is not in dispute that the petitioner sustained injury while

serving with 8 JAT deployed in OP Rakshak (J&K) during the course of

route opening. The Court of Inquiry held at the unit (placed at A-2)

brings out that since there was a lot of snow on route to the post, the

Coy of the applicant was given the task of opening the route for

maintenance by beating the track leading to another platoon post of the

Coy. While beating the track the petitioner slipped and sustained injury

to his left shoulder. A Court of Inquiry was held at the unit level.

Details are:-

(a) Findings of the Court:

1. No.3190512 H Sep Tejbir Singh of ‘C” Coy formed part of the route opening party which was tasked to open the route to the coy post on 15 Jan 99.

2. During the course of route opening, the individual slipped over a slippery icy patch enroute. As a result, he fell down and banged his left shoulder against a rock.

3. The individual was brought back to the post where he was given first aid and medicines.

4. The individual felt relieved after proper medical case and rest and proceeded on two months Annual Leave wef 22 Jan 99 to 22 Mar 99.

5. After rejoining the Unit, the individual felt pain in his left shoulder. He reported sick and was later referred to 92 BH on 09 May 99.

6. The individual sustained injury on his left shoulder while performing bona fide military duty. There is no foul play involved and nobody is to be blamed. Therefore, the injury sustained by the individual is attributable to military service.”

(b) Opinion of the Commanding Officer:

1. No. 3190512 H Sep Tejbir Singh of 2 JAT sustained injury on his left shoulder which performing bona fide military duty on 15 Jan 99 which deployed in CI Ops in OP-RAKSHAK.

2. The injury sustained by the individual is attributable to military service and no one is to be blamed for the same.”

8. From above it is clear that injury was sustained during

routine work at the unit which has already been declared attributable to

military service.

9. We would like to address ourselves to the question as to

whether the petition has been filed within limitation or not. In this

connection we may refer sections 21 and 22 of the Armed Forces

Tribunal, Act,2007 which are relevant for the purpose. These are

reproduced as under :

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“Section 21 : Application not to be admitted unless other

remedies exhausted – (1) The Tribunal shall not ordinarily admit an

application unless it is satisfied that the applicant had availed of the

remedies available to him under the Army Act,1950 (46 of 1950) or the Navy

Act,1957 (62 of 1957) or the Air Force Act,1950 (45 of 1950), as the case may be,

and respective rules and regulations made thereunder.

(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the Army Act 1950 (46 of 1950) or the Navy Act,1957 (62 of 1957) or the Air Force Act,1950 (45 of 1950) and respective rules and regulations –

(a) If a final order has been made by the Central Government or other authority or officer or other person competent to pass such order under the said Acts, rules and regulations, rejecting any petition preferred or representation made by such person ;

(b) Where no final order has been made by the Central Government or other authority or officer or other person competent to pass such order with regard to the petition preferred or representation made by such person, if a period of six months from the date on which such petition was preferred or representation was made has expired.

Section 22. Limitation : (1) The Tribunal shall not admit an application- (a) in a case where a final order such as is mentioned in clause (a) of sub section (2) of section 21 has been made unless the application is made within six months from the date on which such final order has been made ; (b) in a case where a petition or a representation such as is mentioned in clause (b) of sub-section (2) of section 21 has been made and the period of six months has expired thereafter without such final order having been made; (c) in a case where the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which jurisdiction, powers and authority of the Tribunal became exercisable under this Act, in respect of the matter to which such order relates and no proceedings for the redressal of such grievance had been commenced before the said date before the High Court. (2) Notwithstanding anything contained in sub-section (1), the Tribunal may admit an application after the period of six months referred to in clause (a) or clause (b) of sub-section (1), as the case may be, or prior to the period of three years specified in clause (c), if the Tribunal is satisfied that the applicant had sufficient cause for not making the application within such period. ”

10. Section 22(2) clearly laid down that the Tribunal may admit an

application after expiry of six months referred to in clause (a) or clause

(b) of sub section (1),as the case may be, or prior to the period of three

years specified in clause (c) , if the Tribunal is satisfied that the

applicant had sufficient cause for not making the application within such

period.

11. So far section 22 (I) (a) and (b) are concerned, the period of

limitation is six months. Sub section (c) of section 22(I) only applies to

the cases in which the grievance had arisen by reason of any order

made at any time during the period of three years immediately

preceding the date on which jurisdiction, powers and authority of the

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Tribunal became exercisable i.e. three years prior to the constitution of

the Tribunal. But so far as approaching the Tribunal is concerned the

period is of six months.

12. We may at this place refer to the judgment of the Principal Bench

of the Tribunal of 17.02.2012 passed in OA No. 55 of 2012, Rakesh

Kumar Vs. Union of India. It appears that in Rakesh Kumar’s case

the petitioner had filed a Civil Writ Petition No.3746 of 2000 in the

Delhi High Court which writ was decided on 15.11.2002 and it appears

that a direction was given in that writ for deciding the representation of

the petitioner afresh. In view of the said order dated 15.11.2002 of the

Delhi High Court ,the case of the petitioner was examined de-novo by

the government and it was found that the disability of the petitioner is

neither attributable to nor aggravated by service and accordingly, the

claim was disallowed vide order dated 23.04.2004. This order was

under challenge before the Principal Bench in above said OA No.55 of

2012 Rakesh Kumar Versus Union of India.

13. In Rakesh Kumar’s case the Principal Bench referred to and

relied upon a recent judgment of Hon‟ble the Supreme Court in the case

of D.C.S. Negi Vs. Union of India, being SLP (civil) No. 3709 of 2011,

decided on 07.03.2011, wherein judgment of the Central Administrative

Tribunal was challenged before Hon‟ble the Supreme Court, and the

observations made by Hon‟ble the Supreme Court were quoted by the

Principal Bench, which we also gainfully quote as under:-

“A reading of the plain language of the above reproduced section makes it clear

that the Tribunal cannot admit an application unless the same is made within the

time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order

is passed in terms of sub-section (3) for entertaining the application after the

prescribed period. Since Section 21(1) is couched in negative form, it is the duty

of the Tribunal to first consider whether the application is within limitation. An

application can be admitted only if the same is found to have been made within

the prescribed period or sufficient cause is shown for not doing so within the

prescribed period and an order is passed under Section 21(3). In the present, the

Tribunal entertained and decided the application without even adverting to the

issue of limitation. Learned counsel for the petitioner tried to explain this omission

by pointing out that in the reply filed on behalf of the respondents, no such

objection was raised but we have not felt impressed. In our view, the Tribunal

cannot abdicate its duty to act in accordance with the statute under which it is

established and the fact an objection of limitation is not raised by the

respondent/non applicant is not at all relevant.”

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14. The Principal Bench in the aforesaid judgment further observed

that all Tribunals, functioning all over India, are creation of statute under

the Armed Forces Tribunal Act, 2007. They are all statutory Tribunals

and are bound by statutory provisions. Then the Principal Bench

dismissed the petition by holding as under :

“In the present case, petitioner was discharged way back in 1981 and he approached the Hon‟ble Delhi High Court some where in 2000 and Hon‟ble Delhi High Court passed the order in 2002. In compliance of order of Hon‟ble Delhi High Court dated 15.11.2002, respondents passed an order dated 23.04.2004. Now almost after eight years, the order passed by the respondents on 23.04.2004 has been challenged vide present petition. This kind of inordinate delay cannot be entertained. More so, there is no justification for condonation of delay in this case. Hence, we hold that objection taken by the respondents is correct and petition suffers from inordinate delay and latches. Petition is accordingly dismissed. No order as to costs.”

15. In the said judgment the Principal Bench also observed that

Section 21 of the Administrative Tribunals Act is in pari-materia with

Section 22 of the Armed Forces Tribunal Act, and as such, the judgment

of Hon‟ble the Supreme Court in D.C.S. Negi’s case (supra) squarely

covers this case, and, accordingly, the petition was dismissed. Not only

that, a copy of the judgment of that order was ordered to be circulated to

all Regional Benches of Armed Forces Tribunals, so as to maintain

uniformity. Obviously, on the face of this judgment, Section 22 is

required to be given its due weight.

16. The cause of action means right and infringement of the right.

Where a right of a person is infringed, cause of action immediately

accrues to him/her and limitation starts running against him. Once

period of limitation starts, it does not stop.

No order bears a label of its being valid or invalid on its

forehead. Any one affected by any such order ought to seek redress

against the same within the period permissible for doing so. We may in

this regard refer to the following oft quoted passage in Smith v. East

Elloe Rural District Council (1956) 1 All ER 855. The following are the

observations regarding the necessity of recourse to the Court for getting

the invalidity of an order established:

“An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders”.

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This must be equally true even where the brand of invalidity is

plainly visible : for there also the order can effectively be resisted in

law only by obtaining the decision of the court. The necessity of

recourse to the court has been pointed put repeatedly in the House of

Lords and Privy Council without distinction between patent and latent

defects.”

The above case was approved by the Apex Court in Krishnadevi

Malchand Kamathia & Ors. v. Bombay Environmental Action Group and

Ors. (2011) 3 SCC 363, where the Court observed:

“19. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the Petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person.

To the same effect is the next decision Pune Municipal

Corporation v. State of Maharashtra and Ors (2007) 5 SCC 211,

where the Court discussed the need for determination of invalidity of

an order for public purposes:

“36. It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As Prof. Wade states: "The principle must be equally true even where the 'brand of invalidity' is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the Court".

It further states:

“The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another.”

xx xx xx xx

38. A similar question came up for consideration before this Court in State of Punjab and Ors. v. Gurdev Singh (1991) 4 S.C.C. 1.

39. Setting aside the decree passed by all the Courts and referring to several cases, this Court held that if the party aggrieved by invalidity of the order intends to approach the Court for declaration that the order against him was inoperative, he must come before the Court within the period prescribed by limitation. "If the statutory time of limitation expires, the Court cannot give the declaration sought for".”

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17. Reference may also be made to the decisions of Apex Court in

R.Thiruvirkolam v. Presiding Officer and Anr. (1997) 1 SCC 9, State

of Keralav. M.K. Kunhikannan Nambiar Manjeri Manikoth,

Naduvil (dead) and Ors.(1996) 1 SCC 435 and Tayabbhai M.

Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. etc.

(1997) 3 SCC 443, where the Court has held that an order will remain

effective and lead to legal consequences unless the same is declared

to be invalid by a competent court.

18. In this case the petitioner, after his discharge on 28.02.2001, was

granted disability element for 20% disability for five years i.e. from

01.03.2001 to 05.01.2006 and the service element with effect from

01.03.2001 for life vide PPO No.D/010173/2001. It is clear that the war

injury pension was not allowed to the petitioner. He did not complain to

anybody that he is entitled for war injury pension and has not been

granted the same. Then the Re-survey Medical Board (RSMB) was held

which re-assessed the percentage of the disability of the petitioner and

the same was found 20% for life on 16.09.2005 and as such disability

element was continued with effect from 01.01.2006 for life vide PPO

D/RA/530/2006. The petitioner was also granted the benefit of rounding

off of the disability element from 20% to 50% from the date of his

discharge. The petitioner did not complain even after this assessment

and remained satisfied with what was allowed to him by the authorities.

It is apparent that at the time of discharge on 28.02.2001 the petitioner

was granted disability pension and not war injury pension. If the

petitioner feels that he was entitled to war injury pension, the cause of

action for the same arose to the petitioner on 28.02.2001 itself.

19. As we may observe, the cause of action to the petitioner on

28.02.2001. He did not claim any war injury pension till filing of this OA

nor made any representation to the authorities concerned. Under

section 22 (2) of the Armed Forces Tribunal Act powers have been

given to the Tribunal to condone the delay beyond the prescribed

,period of six months if the Tribunal is satisfied that the applicant had

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sufficient cause for not making the application within such period. In the

case in hand the petitioner has not moved any application for

condonation of delay. The petitioner has not assigned any reason as to

why he did not take any action for grant of war injury pension in the year

2001 itself when only the disability pension was allowed to the petitioner

In the petition in para 6 meant for “ Details of remedies exhausted” the

petitioner has mentioned that the petitioner has already written to the

concerned authorities that he has not been granted war injury pension.

However, the petitioner has not filed any letter or representation

indicating that before filing of this OA he ever applied for grant of war

injury pension. The petitioner has approached this Tribunal in the year

2012 i.e. after 11 years for grant of war injury pension without availing

the remedies available under Army Act, Rules and Regulations and as

such his petition is not entertainable under the provisions of Section 21

of the Armed Forces Tribunal Act, 2007. However, we are not laying

much stress on this point as after reply filed by the respondents we

have heard learned counsel for the parties at length on merits of the

case as well.

20. The contention of the learned counsel for the petitioner is that

since it is a pension matter, limitation is not applicable and the petitioner

may aproach the Tribunal at any time and if the case of the petitioner for

war injury pension is found by the Tribunal in favour of the petitioner,

then the Tribunal may restrict the arrears to three years prior to the filing

of the petition. We have considered over this argument and we are

satisfied that the same does not contain any water. It is not a case

relating to pension. The petitioner, in this case, is already getting

disability pension and now he is claiming additional benefit of war injury

pension which is dependent on an adjudication in favour of the

petitioner that the injury sustained by him was a war injury entitling war

injury pension. For coming to this conclusion the Tribunal is required to

set aside the decision of the respondents by which the claim for war

injury pension has been rejected but we find that there is no such order

of the respondents rejecting the war injury pension claim as the

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petitioner has never applied for any war injury pension. The alleged

wrongful act of the authorities of granting only the disability pension and

not the war injury pension was complete when the authorities concerned

granted only the disability pension in the year 2001. The petitioner did

not challenge this order at any time before filing this OA and as such we

are satisfied that the petition is clearly barred by limitation. Had it been

a case where inspite of findings of the Court of Inquiry that the injury

was attributable to military service and the Invaliding Medical Board

assessed the disability at 20% or more, the disability pension had not

been allowed then the relief could have been granted to the petitioner

even after a long delay in seeking the remedy as in those circumstances

it would be a case of continuing wrong creating a continuing source of

injury. Similarly, in cases where an armed forces personnel dies in

harness and family pension is not allowed to the widow or next of kin or

in cases relating to fixation of pension, the claim may be based on the

ground that it is a continuing wrong creating continuing source of injury

and in such cases the relief can be granted even after a long delay. No

such continuing injury took place in this case. The petitioner was

satisfied with the grant of disability pension for 11 years and now he

cannot reopen the closed chapter alleging that it is a continuing wrong

which in our opinion is not. The claim attained finality in the year 2001

which the petitioner did not challenge in time.

21. In view of the above we are satisfied that the claim for war injury

pension is barred by limitation and is liable to be dismissed on this

ground.

22. Now we may have to look to the merits of the case.

23. The learned counsel for the petitioner vehementally argued that as

per Para 11 of Special Army Order 8/S/85 and Para 1(g) of Army Order

1/2003 the injury caused to the petitioner is the battle casualty as the

injury has been caused due to natural calamities. It has further been

argued that since the disability has been sustained in an operational

area, the petitioner is entitled to war injury pension under category E(i)

of Government of India,Ministry of Defence letter dated 31.01.2001.

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Moreover, almost all the circumstances detailed in SAO 8/S/85 or AO

1/2003 as battle casualties are covered either in category „D‟ or „E‟ of

the Government of India, Ministry of Defence letter dated

31.01.2001,hence, in all battle casualties cases the individuals are

entitled to war injury pension as per letter dated 31.01.2001.

24. Before we deliberate on the submissions of the learned counsel

for the petitioner ,we may mention that the concept of Liberalised

Pensionary Awards was introduced vide Government of India, Ministry

of Defence letter No.200847/Pen-C/71, dated 24th February, 1972 and

different benefits were admitted to the war widows and war disbiled

servicemen. In this letter it has been detailed as to in what type of cases

the death or disability will entitle for Liberalised Pensionary Awards. The

letter runs as under :

No.200847/Pen-C/71 Government of India, Bharat Sarkar Ministry of Defence, RAKSHA MANTRAYALAYA New Delhi, the 24th February, 1972. To, The Chief of the Army Staff The Chief of Naval Staff The Chief of Air Staff Subject : Liberalised pensionary awards for war widows and war disabled servicemen. Sir, In partial modification of the existing rules and orders relating to the grant of special family pensionary awards and disability pension, I am directed to convey the sanction of the President to payments being made , as indicated in Annexures I and II to this letter, in the case of officers and personnel, as well as NCsE of armed forces ( including the Army Postal Service and the embodied units of the Territorial Army and officers and personnel of the Defence Security Corps, killed in action or disabled on account of injuries sustained in the recent operations against Pakistan commencing from 3rd December, 1971. The awards sanctioned in this letter will be admissible also in the case of the above categories of personnel killed in action or disabled on account of injuries sustained –

(i) In the international wards of 1965 (including Kutch and Kargil operations), 1962 and 1947-48 (Kashmir operations), as well as the Goa and Hyderabad operations.

-12- (ii)(a) as a result of fighting in war-like operations or border skirmishes, either with Pakistan on the case-fire line or any other country. (b) while fighting against armed hostiles like Nagas and Mizos. (c) during fighting in service with peace-keeping missions abroad On or after 15 August 47 (iii) During laying or clearance of mines including enemy mines, as also mine-sweeping operations, between one month before the commencement and three months after the conclusion operations ; as per Ministry of Defence letter No.A/14670/Vii/AG/PD4(d)/142-S/Pen-C, dated the 2nd September,1970 and

2. The benefits will be admissible with effect from 1st February,1972 or the date of death or disablement of the serviceman, as the case may be, whichever is later. 3. Payments already made on account of pensionary awards only in respect of any period following the above dates otherwise than in accordance with this letter will be adjusted against payments admissible here under. 4. The awards sanctioned in this letter are in the nature of a special dispensation and will not be subject to alteration as receipt of any revision of pay and pension structure as may be sanctioned in future. Temporary and/or ad-hoc increase in addition to these special awards. However, where and for so long as awards admissible under the existing rules and orders happen to be more favourable than those sanctioned hereunder, the higher entitlements will be applicable and no difference will be allowed as ad-hoc grant. Payment of these increase or reliefs were allowed to be admissible wef 1 Jan 81 vide Min of Def letter No.B/39206/AG/PS4(d)/2417/Pen-C dated 23rd April 81. 5. This issues with the concurrence of Ministry of Finance (Defence) vide their u.o.No.563/Addl.FA(D) of 1972. Yours faithfully; Sd/ Under Secretary to the Government of India

25. Annexure I to the above letter deals with special family pensionary

awards in death cases of officers/JCOs and Ors. Annexure II to the

letter deals with war injury pay to officers and PBORs who were

invalided out of service on account of disabilities sustained under the

circumstances mentioned in the above letter.

26. It is thus clear from the said letter that the liberalised pensionary

awards were admitted to those armed forces personnel who sustained

injuries and were killed in action in operations against Pakistan

commencing from 3rd December,1971. The benefits were also extended

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to those who were killed in action or disabled on account of injuries

sustained :

(a) In international wars of 1965 (including Kutch and Kargil

operations), 1962 and 1947-48 (Kashmir operations), as well

as the Goa and Hyderabad operations.

(b) As a result of fighting in war like operations or border

skirmishes either with Pakistan on the cease-fire line or any

other country.

(c) While fighting against armed hostiles like Nagas and Mizos.

(d) During fighting in service with peace keeping missions abroad.

(e) During laying or clearance of mines including enemy mines, as

also mine sweeping operations, between certain periods as

given in clause (iii) of para 1 of the said letter.

27. The circumstances given in the letter clearly indicate that armed

forces personnel were held entitled to liberalised pensionary awards

when death and disability took place during fight or war like operations

or during the circumstances specifically mentioned in para 1(iii) of the

above letter.

28. Learned counsel for the petitioner has referred to Special Army

Order 8/S/85. We have gone through this SAO and find that the

Heading „Definitions‟ covers Paras 2 to 10. The relevant Paras 2 to 8

are reproduced as under :

Definitions

“2. For the purpose of these instructions, definitions of various terms used herein will be as in the succeeding paragraphs.

3. Physical Casualties – Physical Casualties are those which occur in non- Operational areas or in operational areas where there is no fighting, or whilst in aid to civil power to maintain internal security. Such casualties fall in to the following categories:-

(a) Died or killed. (b) Seriously or dangerously ill. (c) Wounded or injured (including self-inflicted) (d) Missing. 4. Battle Casualties- Battle Casualties are those sustained in action against enemy forces or whilst repelling enemy air attacks. Casualties of this type consist of the following categories :- (a) Killed in action. (b) Died of wounds or injuries (other than self-inflicted). (c) Wounded or injured ( other than self-inflicted). (d) Missing. NOTES : (i) Air raid casualties are those sustained as a direct or indirect result of enemy air raids. These will be treated as Battle Casualties.

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(ii) Casualties in fighting against armed hostiles and those whilst in aid of civil power to maintain internal security are classified as „physical‟ for statistical purposes, but are treated as battle casualties for financial benefits.

(iii)Casualties due to encounter with troops or armed personnel or border police of a foreign country, or during fighting in service with peace-keeping missions abroad under Government orders, will be classified as battle casualty.

(i) Accidental injuries and deaths which occur in action in an operational area will be treated as battle casualties. (ii) Accidental injuries which are not sustained in action and not in proximity to the enemy, if these have been caused by fixed apparatus (eg, land mines, booby traps, barbed wire or any other obstacle) laid as defences against the enemy, as distinct from those employed for training purposes and if the personnel killed, wounded or injured were on duty and are not to blame will be classified as battle casualties, notwithstanding the place or occurrence or agency laying those, viz. Own troops or enemy ; provided the casualties occur within the time limits laid down by the government. (iii) Saboteurs, even of own country, will be treated as enemy for the purpose of classifying their actions as enemy action, and encounters against them as encounters against the enemy. (iv) All casualties during peace time as a result of fighting in war like operations, or border skirmishes with a neighbouring country, will be classified as battle casualties. (v) Accidental deaths/injuries sustained due to natural calamities (such as floods, avalanches, landslides and cyclones) or drowning in river crossing at the time of performance of operational duties/movements whilst in action against enemy forces will be treated as battle casualties. (vi) Reports regarding personnel wounded or injured inaction will specify the nature of the wound or injury and will also state whether the personnel remained on duty. (vii) Reports on personnel missing in action will indicate, if possible, their likely fate, eg, „believed liked‟, ‟believed prisoner of war „ or „believed drowned‟. (viii) Casualties occurring while operating on the international border or line of control due to natural calamities and illness caused by climatic conditions will be treated as physical casualties for statistical purposes and battle casualties for financial purposes.(added vide Corrigendum to SAO 8/S/85 on 15 May 1991). (ix) Casualties taking place while carrying out battle inoculation/training will be treated as physical casualties for statistical purposes and battle casualties for financial purposes. (Added vide Corrigendum to SAO 8/S/85 on 15 May 1991). 1. Battle Accidents – Battle Accidents are those which take place in operational areas during the period of active hostilities but not in proximity to the enemy. ) If the accident occurs in proximity to the enemy, it is classified as battle casualty.

2. Operational Area – Any geographical area occupied by a field force ordered to participate in specific operations/active hostilities against an enemy or insurgents. It will include all the areas within which operations are intended to be conducted as well as the locations of its integral, logistical and administrative installations providing support to the field force. 3. Active Hostilities –Active Hostilities cover actual operations against the enemy, including preparatory activities, eg, reconnaissance and deployment prior to declaration of war, and all military moves and measures subsequent to a case-fire.

4. Proximity to Enemy – Any area dominated by enemy by small arms fire or

observation coupled with mortar/artillery shelling or patrolling and ambush or sabotage

activities will come within the purview of this term.

29. From the definitions given above, it is clear that when the death or

disability occurs in non-operational areas or in operational areas where

there is no fighting or whilst in aid to civil power to maintain internal

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security, such casualties are „physical casualties‟ (Para 3 above). When

death occurs or the disability is sustained in action against enemy

forces or whilst repelling enemy air attacks, these casualties have been

termed as „battle casualties‟(Para 4 above). After defining „battle

casualties‟ there are 12 Notes given thereafter. In Notes (i) to

(v),(vii),(viii) and Notes (xi) and (xii) various other circumstances have

been mentioned under which the death or disability may be treated as

„battle casualties‟.

30. It is abundantly clear from the definitions given above that any

injury suffered in an operational area will not necessarily be covered

under the definition of „battle casualties‟ merely because it has been

caused in operational area as the definition of „physical casualties‟

clearly indicates that physical casualties may occur in non-operational

area as well as in operational area. In other words, it may be said that

any death or disability caused either in non-operational areas or in

operational areas where there is no fighting, such death or disability

will be covered within the definition of „physical casualties‟ entitling the

individual only for disability pension. For declaring a death or disability

as a battle casualty the case must fall in the definition of „battle casualty‟

or in any of the „Notes‟ appended below the definition of „battle

casualty‟. Thus this argument of the learned counsel for the petitioner

cannot be accepted that merely because an injury has been caused in

the operational area it should be treated as a battle causality.

31. A perusal of the said SAO 8/S/85 does not indicate as to what

benefits were given to battle casualties cases but subsequently

liberalised pensionary awards were granted to all battle casualties

cases as per Part „IV” of Government of India, Ministry of Defence Letter

No.1(5)87/D (Pensions/Services) Dated 30th October,1987. The relevant

portion of the said letter is being reproduced as under :

Government of India,Ministry of Defence Letter No.1(5)87/D (Pensions/Services) Dated 30th October,1987. Subject : Implementation of the Govt. decisions on the recommendations of the Fourth Central Pay Commission regarding pensionary benefits for the

-16- Armed Forces officers and personnel below officer rank retiring or dying in harness on or after 1.1.86

Sir, I am directed to refer to the Govt. decisions on the recommendations of the Fourth Pay Commission as notified vide Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension & Pensioners Welfare Resolution No.2/13/87-PIC dated 18th March 1987 and convey the sanction of the President to the modifications, to the extent specified in this letter, in the rules/regulations concerning pensionary benefits of the commissioned Officers (including MNS and territorial Army Officers) and personnel below officer rank (including NCs (E) of the three services, Defence Security Corps and the territorial Army) ( hereinafter collectively referred to as armed Forces personnel). 1.1 The provisions of the Pension Regulations of the three Services and various instructions/ Govt. orders which are not affected by kthe provisions of this letter, will remain unchanged.

PART-I Date of effect and Definitions

(a) The provisions of this letter shall apply to the Armed Forces personnel who were in service as on 1.1.1986 or joined/join service thereafter. “PART IV – Liberalised Pensionary Awards ( Battle Casualty and such other cases as may be specifically notified by Government) War Injury Pension 18.1 War Injury Pay will now be known as War Injury Pension which will henceforth not consist of service element and disability element but will be a consolidated amount. War Injury Pension for 100% disability shall be equal to the reckonable emoluments last drawn, as defined in para 3 above on the date of invalidment. 18.2 Where disability is less than 100% the amount of Ward Injury Pension as in para 18.1 above shall be proportionately reduced. In no case, however, the amount of War Injury Pension shall be less than 60% of the reckonable emoluments last drawn in the case of officers and 80% of the reckonable emoluments last drawn in the case of personnel below officer rank. 18.3 The minimum amounts of War Injury Pension prescribed in para 18.2 above shall be admissible in case the degree of disability is assessed at below 20% at the time of invalidment or at any subsequent reassessment stage. 18.4 In addition to the War Injury Pension, the individual shall be entitled to retirement Gratuity as per para 12.1. Retirement Gratuity shall be calculated on the basic or reckonable emoluments on the date of invalidment but counting of service upto the date on which he would have normally retired in that rank plus weightage of 5 years ( total not exceeding 33 years) 18.5 Separate orders will be issued (i) for regulating communication of War Injury Pension and (ii) regarding the War Injury Pension that would be admissible to Armed Forces personnel who are retained in service in spite of the disability due to war injury and retire subsequently. ”

32. From the Heading of PART IV it is clear that in all battle casualties

cases liberalised pensionary Awards have been allowed. In case of

disability War Injury Pension is allowed under para 18.1 etc. whereas in

death cases liberalised family pension is allowed under para 19.1

onwards.

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33. We may now refer the relevant provisions of AO 1/2003/MP which

has been relied upon by the learned counsel for the petitioner. After

implementation of 5th Central Pay Commission Army order 1/2003/MP

was issued by Adjutant General‟s Branch. In this Army Order under the

Heading „Definitions‟ there are 11 paragraphs. The relevant paragraphs

2 to 9 are reproduced as under :

Definitions “2. For the purpose of these instructions, definitions of various terms used herein will be as in the succeeding paragraphs. 3. Physical Casualties – Physical Casualties are those, which occur in non-operational areas or in operational areas where there is no fighting. Casualties of this type consist of the following categories:- (a) Died or killed. (b) Seriously or dangerously ill. (c) Wounded or injured (including self-inflicted) (d) Missing. 4. Battle Casualties- Battle Casualties are those casualties sustained in action against enemy forces or whilst repelling enemy air attacks. Casualties of this type consist of the following categories :- (a) Killed in action. (b) Died of wounds or injuries (other than self-inflicted). (c) Wounded or injured ( other than self-inflicted). (d) Missing. 5. Circumstances for classification of Physical/Battle Casualties are listed in Appendix „A‟. 6. Operational Area – Any geographical area occupied by a field force ordered to participate in specific operations/active hostilities against an enemy or insurgents. It will include all the areas within which operations are intended to be conducted as well as the locations of its integral, logistical and administrative installations providing support to the field force. 7. Battle Accidents ; Battle accidents are those which take place in operational areas during the period of active hostilities, but not in proximity to the enemy. (If the accident occurs in proximity to the enemy, iot is called as battle casualty).

5. Proximity to Enemy – Any area dominated by enemy by small arms fire or observation, coupled with mortar/artillery shelling or patrolling and ambush or sabotage activities will come within the purview of this term.

6. Active Hostilities –Active Hostilities cover actual operations against the enemy or insurgents, including preparatory activities, eg, reconnaissance and deployment prior to declaration of war, and all military moves and measures subsequent to a case-fire.

34. Para 5 says that the circumstances for classification of

Physical/Battle casualties are listed in Appendix „A‟. This Appendix „A‟ is

also reproduced as under :

CIRCUMSTANCES FOR CLASSIFYING CASUALTIES AS BATTLE OR PHYSICAL

Battle Casualties : 1. The Circumstances for classifying personnel as battle casualties are as under :-

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(a) Casualties due to encounter with troops or armed personnel or border ;police of a foreign country, or during operations while in service with peace keeping missions abroad under Government orders.

(b) Air raid casualties sustained as a direct or indirect result of enemy air action.

(c) Casualties during action against armed hostiles and in aid to civil authorities, to maintain internal security and maintenance of essential services.

(d) Accidental injuries and deaths which occur in action in an operational area.

(e) Accidental injuries which are not sustained in action and not in proximity to the enemy, but have been caused by fixed apparatus (e.g. land mines, booby traps, barbed wire or any other obstacle) laid as defences against the enemy, as distinct from those employed for training purposes, and if the personnel killed, wounded or injured were on duty and are not to blame, will be classified as Battle Casualties, not-withstanding the place of occurrence or agency laying those, viz. Own troops or enemy, provided the casualties occur within the period laid down by the Government.

(f) Casualties during peace time as a result of fighting in war like operations, or border skirmishes with a neighbouring country.

(g) Casualties occurring while operating on the International Border or Line of Control due to natural calamities and illness caused by climatic conditions.

(h) Casualties occurring in aid to civil authorities while performing relief operations during natural calamities like flood relief and earthquake.

(j) Casualties occurring while carrying out battle inoculation/training or operationally oriented training in preparation for actual operations due to gun shot wounds/explosion of live ammunition/explosives/ mines. (k) Army personnel killed/wounded unintentionally by own troops during course of duty in an operational area. (l) Casualties due to vehicle accident while performing bonafide military duties in war/border skirmishes with neighbouring countries including action on line of control and in counter insurgency operations. (m) Casualties occurring as a result of IED/bomb blasts by saboteurs/ANEs in trains/buses/ships/aircraft during mobilization for deployment in war/war like operations. (n) Casualties occurring due to electrocution/snake bite/drowning during the course of action in counter insurgency war. (o) Accidental death/injuries sustained during the course of move of arms/explosive/ammunition for supply of own forces engaged in active hostilities. (p) Death due to poisoning of water by enemy agents resulting in death/physical disabilities of own troops deployed in operational area in active hostilities. (q) Accident death/injuries sustained due to natural calamities such as floods, avalanches, land slide, cyclones, fire and lightening or drowning in river while performing operational duties/movements in action against enemy forces and armed hostilities in operational area to include deployment on International Border or Line of Control. (r) Army personnel killed/wounded by own troops running amok in an operational area. (s) Army personnel killed/wounded due to spread of terror during leave/in transit because of their being army personnel.

Physical Casualties 2. Death caused due to natural causes/illness/ accident/ suicide/murder due to family disputes in operational and non-operational areas will be treated as Physical Casualties.

-19- Miscellaneous Aspects 3. (a) Saboteurs, even of own country, will be treated as enemy for the purpose of classifying their actions as enemy action and encounters against them as encounters against the enemy.

(b) Report regarding personnel wounded or injured in action will specify the nature of the wound or injury and will also state whether the personnel remained on duty.

(c) Reports on personnel missing in action will indicate, if possible, their likely fate, e.g. „believed killed‟, „believed prisoner of war‟ or „believed drowned‟ etc. (d) Any casualty occurring during deployment/ mobilisation of troops, for taking part in war or war like operations, will be treated as battle casualty.

35. From the definition of „Physical Casualties‟ as given above it is

clear that if any death or disability occurs either in a non-operational

area or in an operational area, where there is no fighting, it is a

physical casualty and not a battle casualty. Battle Casualties are those

casualties which are sustained in action against enemy forces or whilst

repelling enemy air attacks or which are covered in any of the clauses of

Appendix „A‟ above.

36. At this stage it would be appropriate to mention that the authorities

were not oblivious of the fact that the Units have tendency to classify all

wounded casualties although only merited attributibility to military

service. The authorities, to make a system of classification of wounded

casualties more transparent, decided to lay down certain parameters for

declaring a wounded casualty as a battle casualty. The relevant paras

of Army Order 1/2003/MP are Paras 68,69 and 70 which are

reproduced as under :

“68. Units have a tendency to classify all wounded casualties as Battle

Casualties, even if the case only merits attributibility to military serve. Attributibility is

decided by the Formation Commander of the rank of Brigadier. With a view to make the

system of classification of wounded casualties moiré transparent, unit commanders will

adhere to certain, parameters given in succeeding paras.

69. Cause and Nature of Injury : The classification of wounded battle

casualty will be guided by the parameters of cause/circumstances and the severity of injury

sustained. Only when both these parameters are met, the casualty would be classified as a

Battle Casualty.

(a) Parameter No.1. The cause or the circumstances under which the injury

has occurred. These are :-

(i) Gun shot wound/splinter injuries sustained in action against

enemy/militants.

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OR

(ii) Gun shot wound/splinter injuries sustained accidentally/due to firing

by own troops while carrying out operations against enemy/militants.

OR

(iii) Mine Blast/IED blast injuries sustained in explosion of mines/IEDs

caused by enemy/militants. Mines to include those planted by own troops

against enemy.

OR

(iv) Injuries sustained due to accidents because of

natural/environmental reasons like avalanche, crevasse,

landslides, flash floods etc. while in action against enemy/militants.

OR

(v) Injuries sustained during enemy air raids, NBC warefare and hand-to-

hand fights which are other than gunshot/splinter injuries must also be

included.

(b) Parameter No.2. The injury should at least be of grievous nature. The

following will be governing factors :-

(i) Emasculation.

(ii) Permanent privation of the sight of either eye.

(iii) Permanent privation of hearing of either ear.

(iv) Privation of any member or joint.

(v) Destruction or permanent impairing of the power of

any member or joint.

(vi) Permanent disfiguration of the head or face.

(vii) Fracture or dislocation of bone or tooth.

(viii) Any hurt, which endangers life or which causes the suffer to be

during the space of 20 days, in severe bodily pain or unable to follow his

ordinary pursuits.

70. It will be apparent that all grievous injuries may not end in permanent low

med category. However, during reporting of such injuries the hospital where

evacuated and medical diagnosis should be referred to. Only the casualties meeting

both the above criteria should be classified as battle casualties. All other

injuries/illness ( other than self inflicted) that occur while deployed in operational

areas should be treated as injuries/illness attributable to military service in

field/operational area and processed accordingly.”

37. From the above Paras it is crystal clear that both-parameter 1 and

parameter 2 were required to be fulfilled before a casualty can be

classified as battle casualty. A perusal of parameter 1 clearly indicates

that when the injuries are sustained „in action‟ against enemy/militant or

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due to natural calamities and are grievous in nature as defined in

parameter 2 ,only those casualties are „Battle Casualties‟.

38. During the course of arguments, learned counsel for the petitioner

drew our attention to the Government of India, Ministry of Defence letter

dated 31.01.2001 and argued that the case of the petitioner for war

injury pension is covered under Category E(i) of Para 4.1 of the said

letter as the disability has been caused in an operational area.

39. Paras 4.1,4.2,10 & 12 are as under :-

PART II-PENSIONARY BENEFITS ON DEATH/DISABILITY IN

ATTRIBUTABLE/AGGRAVATED CASES

4.1.For determining the pensionary benefits for death or disability under different

circumstances due to attributable/aggravated causes, the cases will be broadly

categorized as follows:-

Category A

Death or disability due to natural causes neither attributable to nor aggravated by

military service as determined by the competent medical authorities. Examples

would be ailments of nature of constitutional diseases as assessed by medical

authorities, chronic ailments like heart and renal diseases, prolonged illness,

accidents while not on duty.

Category B

Death or disability due to causes which are accepted as attributable to or aggravated

by military service as determined by the competent medical authorities. Disease

contracted because of continued exposure to a hostile work environment, subject to

extreme weather conditions or occupational hazards resulting in death or disability

would be examples.

Category C

Death or disability due to accidents in the performance of duties such as:-

(i) Accidents while travelling on duty in Government Vehicles or

public/private transport;

(ii) Accidents during air journeys;

(iii) Mishaps at sea while on duty‟

(iv) Electrocution while on duty, etc.

(v) Accidents during participation in organized sports

events/adventure activities/expeditions/training.

Category D

Death or disability due to acts of violence/attack by terrorists, anti-social elements,

etc. whether on duty other than operational duty or even when not on duty. Bomb

blasts in public places or transport, indiscriminate shooting incidents in public, etc.

-22-

would be covered under this category, besides death/disability occurring while

employed in the aid of civil power in dealing with natural calamities.

Following circumstances have been added in Category D vide

Government of India,Ministry of Defence, Department of Ex-serviceman

Welfare letter No.2(1)/2011-D (Pen/Policy),dated Feb 2011:-

“ Death or disability arising as a result of-

(i) Unintentional killing by own troops during the course of duty in

An operational area.

(ii) Electrocution/attack by wild animals and snake bite/drowning

During course of action in counter insurgency/war.

(iii) Accidental death/injury sustained due to natural calamities

such as flood avalanches, landslides, cyclone, fire and

lightening or drowning in river while performing operational

duties/movement in action against enemy forces and armed

hostilities in operation area to include deployment on

international border of line of control. “

Category E

Death or disability arising as a result of:-

a) Enemy action in international war. b) Action during deployment with a peace keeping mission abroad. c) Border skirmishes. d) During laying or clearance of mines including enemy mines as also

minesweeping operations. e) On account of accidental explosions of mines while laying operationally

oriented mine-field or lifting or negotiating mine-field laid by enemy or own forces in operational areas near international borders or the line of control.

f) War like situations, including cases which are attributable to/aggravated by (i) Extremist acts, exploding mines etc., while on way to an

operational area (ii) Battle inoculation training exercises or demonstration with live

ammunition. (iii) Kidnapping by extremists while on operational duty.

g) An act of violence/attack by extremists, anti-social elements etc while on operational duty.

h) Action against extremists, antisocial elements, etc. Death/disability while

employed in the aid of civil power in quelling agitation, riots or revolt by

demonstrators will be covered under this category.

i) Operations specially notified by the Govt. from time to time.

Following circumstance has been added in Category E vide

Government of India,Ministry of Defence, Department of Ex-serviceman

Welfare letter No.2(1)/2011-D (Pen/Policy),dated Feb 2011:- “(i) Death or disability arising as a result of poisoning of water by

enemy agents while deployed in operational area in active

hostilities.”

4.2 Cases covered under category „A‟ would be dealt with in accordance

with the provisions contained in the Ministry of Defence letter

No. 1(6)/98/D (Pen/Services) dated 3.2.98 and cases under category

„B‟ to „E‟ will be dealt with under the provisions of this letter.

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Notes:-

(i) The illustrations given in each category are not exhaustive. Cases not covered under these categories will be dealt with as per Entitlement Rues to casualty pensionary awards in vogue.

(ii) The question whether a death/disability is attributable to or aggravated by military service will be determined as per provisions of the Pension Regulations for the Armed Forces and the Entitlement Rules in vogue as amended from time to time.

(iii) In case of death while in service which is not accepted as attributable to or aggravated by Military Service or death after retirement/ discharge/ invalidment, Ordinary Family Pension shall be admissible as specified in Min of Def letter No 1 (6)/98/D (Pen/Ser) dated 03 Feb 98 as modified vide Ministry of Defence letter No. 1(1)99/D (Pen/Ser) dated 7.6.99.

(iv) Where an Armed Forces personnel is invalided out of service due to non-attributable/non-aggravated causes, Invalid pension/gratuity shall be paid in terms of Para 9 of Ministry of Defence letter No 1 (6)/98/D (Pen/Ser) dated 03 Feb 98 as amended/modified vide Ministry of Defence letter No. 1 (1)/99/D (Pen/Ser) dated 07.06.99. xxx xxx xxx

10. War Injury Pension on Invalidment :- 10.1 Where an Armed Forces Personnel is invalided out of service on account of disabilities sustained under circumstances mentioned in category „E‟ of Para 4.1 above, he/she shall be entitled to War Injury Pension consisting of Service element and War injury element.

1. Liberalised Disability Pension in respect of Armed Forces Personnel sustaining disability under the circumstances mentioned in Category ‘D’ of Para 4.1 above :- Armed Forces Personnel sustaining disability under the circumstances mentioned in category „D‟ of Para 4.1 above shall be entitled to same pensionary benefits as admissible to war injury cases on invalidment/retirement/discharge including lump sum compensation in lieu of disability as mentioned in Para s 10 and 11. However, on invalidment they shall be entitled to disability element instead of war injury element in addition to service element. The service element will be equal to retiring /service pension to which he/she would have been entitled on the basis of his/her pay on the date of invalidment but counting service upto that date on which he would have retired in that rank in the normal course including weightage as admissible. Provisions of Para 6 of Ministry of Defence letter Nop.1(6)/98/D(Pen/Services) dated 3.2.98 shall apply for calculating retiring/service pension. There shall be no condition of minimum qualifying service for earning this element. This disability element would be admissible as laid down in Para 7.1 (II)(a).. For lower percentage of disablement, this amount shall be proportionately reduced. However, in no case aggregate of service element and disability element shall be less than 80% of reckonable emolument last drawn. Note :– Armed Forces personnel sustaining disability under the circumstances mentioned in Category‟D‟ of Para 4.1 above shall not be treated as War Disabled. Hence they will not be entitled to any special concession/dispensation otherwise available to ward disabled. “

40. Learned counsel for the petitioner reiterated that since the

disability was caused to the petitioner in an operational area, his case is

covered under category „E (i)‟.

41. We have given our thoughtful consideration to this argument and

we feel that the same is not acceptable. In Category E (i) deaths or

disabilities arising due to “operations specially notified by the

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Government from time to time” are covered. As we can see the

Category E(i) speaks of “operations” and not “operational area”. It

means that if the death or disability occurs during “operations” which

implies action or fight then the same may be covered in category E (i).

But if the injury sustained in a operational area is not related to any

action or fight then the same is not covered under sub clause (i) of

category E. As we have noticed above, SAO 8/S/85 and Army Order

1/2003/MP have defined „Physical Casualties‟ and „Battle Casualties‟. If

any disability is caused even in an operational area, where there is no

fighting, the same is simply a “physical casualty” and not “battle

causality”.

42. A perusal of para 4 of SAO/1/85 of Appendix „A‟ to AO 1/2003/MP

as well as the contents of categories „D‟ and „E‟ of Government of India,

Ministry of Defence letter dated 31.01.2001 clearly shows that besides

the accidental injuries being sustained in an operational area, it is also

qualified by „in action‟. The dictionary defines „action‟ as : Expenditure

of energy, deed, operation, gesture, battle, lawsuit. „In action‟ would

mean while engaged in battle. Mere presence in an operational area

would not qualify as being „in action‟. We understand that the entire

state of Manipur and Nagaland and parts of adjoining states are notified

under Operation Hifazaat. Parts of Sikkam, Assam and J & K are

similarly notified as operational areas. A full reading of the Army Orders

and Government of India letter dated 31.01.2001 relating to battle

casualties and classification of casualties for pensionary purposes

shows that in all circumstances there is a direct and immediate

relationship with the enemy or actions related to the enemy. In other

words there should be a direct and causal connection between the

duties being performed and the cause of accident or death.

43. We may illustrate our view point by taking it a hypothetical case.

Suppose a Cook or a Barber is posted with the Army unit in an

operational area and while on duty suffers injury by fall, can his injury be

treated as a battle causality or an injury covered in category E (i) simply

because the same was sustained in an operational area ? To our mind

the answer is „no‟. Such type of injury will be covered under category

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„B‟ of the said letter dated 31.1.2001 being disability attributable to

military service. Similarly, if a soldier, on duty, suffers an injury while

doing routine training in the Unit posted in an operational area, his

disability cannot be covered in Category „E‟(i). His case will be covered

in Category „B‟ being a case of physical causality.

44. We can see that in clause (e) and (f) of category E words

„operational area‟ have been used and similarly in newly added clause

(i) under Category E words „operational area in active hostilities‟ have

been used but these terms have not been defined in Government of

India, Ministry of Defence letter dated 31.01.2001. They have been

defined in SAO/S/85 and Army Order 1/2003/MP. It is indicative that

the letter dated 31.01.2001 is not to be read in isolation but in

conjunction with these SAO/S/85 and Army Order 1/2003/MP to

understand the terms used in this letter dated 31.01.2001 as well as to

find out as to whether the casualty is physical casualty or battle

casualty.

45. Learned counsel for the petitioner has argued that the disability

sustained by the petitioner is due to natural calamities. We find that

there is no force in this argument. When the disability is caused due to

climatic conditions or due to floods, avalanches, landslides, cyclones,

firing, lightening etc. then the same may be said to have been caused

due to natural calamities. In the case at hand the petitioner sustained

injury due to fall at an ice patch which circumstance can in no way be

said to be a natural calamity.

46. We do not propose to say that to cover the cases of deaths or

disabilities in Category D or E, the deaths or disability should in all

cases take place during fighting or action. There are several situations

mentioned in Categories D & E where death or disability does not take

place in „action‟ yet they fall in category D or E. Cases of

electrocution/attack by wild animals, snake bite, land slide, cyclones are

the instances where death or disabilities are not during any fighting with

enemy but they fall in category D. Similarly, the deaths or disabilities

arising as a result of poisoning of water by any enemy while deployed in

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an operational area are in category E although the deaths or disabilities

have not taken place in „action‟. But when we talk about disabilities

which occur during „operations‟, it has to be established that the

disability was caused when there was a fight with the enemy or the

Force was „in action‟ in relation to the enemy. Thus in order to make out

a case of war injury pension the case has to be covered in any of the

circumstances as given in category D and E of the said letter dated

31.01.2001.

47. In the present case the injury has been sustained by the petitioner

when he slipped on an icy patch while opening the route by removing

snow. This injury is neither a battle casualty nor is covered under any of

the circumstances given in category D and E entitling war injury

pension. The injury sustained by the petitioner is a physical casualty for

which he has rightly been paid disability pension.

48. In view of the entire discussion, the present petition is liable to the

dismissed on the ground of limitation as well as on merits.

49. The petition is accordingly dismissed.

(Justice Rajesh Chandra)

(Air Marshal (Retd) SC Mukul)

02.05.2014

tyagi Whether the judgment for reference is to be put on internet? Yes/No