In the Landmark Judgment Hon'ble AFT Lucknow Bench in EX NK Pandu Kumar Reddy's case held "Keeping in view the controversy involved, the question which need to be answered is of three folds :-
(a) Whether, when Armed Forces personnel proceed on annual leave or leave of any kind, he is to be treated on duly?
(b) Whether the injury or death caused, if any, to the armed forces personnel 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?
(c) What is the effect and purpose of Court of Inquiry convened after such an injury suffered by armed forces person?
18. In number of cases, the Hon’ble Apex Court and Armed Forces Tribunals have held that when armed forces personnel are availing casual leave or annual leave, she or he is to be treated on duty.
19. As far as causal connection between disability and military duty is concerned, it has been held that for granting disability pension, there must be some causal connection with military duty. In the instant case, a court of inquiry was held and on perusal of court of inquiry it transpires that when incident took place, applicant was returning from Secunderabad after purchasing his train ticket for return journey from Secunderabad to Ambala. Distance from Secunderabad to Ambala is very long and it is not possible to travel on long train journeys without reserved ticket for which the applicant was granted free railway warrant. Hence, in view of this it can be said that there is causal connection between the incident and military duty.
20. As regards question (c), if a causal connection has been found established between the disabilities and military service, the injury shall be treated as attributable to military service and applicant would be entitled to the disability pension. In the instant case, since the applicant sustained injury while returning home after getting reservation ticket to perform journey for joining duty, this act has causal connection with military duty. Hon’ble Apex Court as well as the various Benches of the Armed Forces Tribunal have held that if injury suffered by the individual has causal connection between military duty, resulting in disability, the injury would be considered attributable to or aggravated by military service and individual shall be entitled for disability pension.
21. The law on the point of rounding off of disability pension is no more RES INTEGRA in view of Hon’ble Supreme Court judgment in the case of Union of India and Ors vs Ram Avtar & ors (Civil appeal No 418 of 2012 decided on 10th December 2014). In this Judgment the Hon’ble Apex Court nodded in disapproval of the policy of the Government of India in granting the benefit of rounding off of disability pension only to those personnel who have been invalided out of service and denying the same to the personnel who have retired on attaining the age of superannuation or on completion of their tenure of engagement. The relevant portion of the decision is excerpted below:-
“4. By the present set of appeals, the appellant (s) raise the question, whether or not, an individual, who has retired on attaining the age of superannuation or on completion of his tenure of engagement, if found to be suffering from some disability which is attributable to or aggravated by the military service, is entitled to be granted the benefit of rounding off of disability pension. The appellant(s) herein would contend that, on the basis of Circular No 1(2)/97/D (Pen-C) issued by the Ministry of Defence, Government of India, dated 31.01.2001, the aforesaid benefit is made available only to an Armed Forces Personnel who is invalidated out of service, and not to any other category of Armed Forces Personnel mentioned hereinabove.
5. We have heard Learned Counsel for the parties to the lis.
6. We do not see any error in the impugned judgment (s) and order(s) and therefore, all the appeals which pertain to the concept of rounding off of the disability pension are dismissed, with no order as to costs.
7. The dismissal of these matters will be taken note of by the High Courts as well as by the Tribunals in granting appropriate relief to the pensioners before them, if any, who are getting or are entitled to the disability pension.
8. This Court grants six weeks‟ time from today to the appellant(s) to comply with the orders and directions passed by us.”
22. We have considered the applicant’s case in view of above guiding factors and we find that, applicant was on bona fide military duty when he sustained injury resulting in disability of a permanent nature to the extent of 70%, on account of injuries “Compound Fracture Tibia Fibula (RT) OPTE (ICD CODE-S82.2 and “Foot DEOP (RT) (ICD CODE M21.3)”. The activity in which he sustained injury being connected with his military duty, he is entitled to the disability pension. The mere fact of a person being on 'duty' or otherwise, at the place of posting or on leave, is not the sole criteria for deciding attributability of disability/death. This conditionality applies even when a person is posted and present in his unit. It should similarly apply when he is on leave; notwithstanding both being considered as 'duty'. Perusal of Court of Inquiry reveals that applicant was a disciplined soldier. Unfortunately, he met with accident while returning from Secunderabad after purchasing return journey ticket. Service record of the applicant reveals that he is the resident of Village, Post Office, Police Station and Tehsil - Kothakota, District Wana Parthy, State- Telangana and his District Soldier Board is Mahabub Nagar. After the accident he was admitted in Mahabub Nagar hospital. The circumstances of the incident have causal connection with military service and his disability is considered attributable to military duty and his injuries are considered as connected with military duty. We therefore find that reasons given by the respondents that the disability is not attributable to military service are no reasons in the eye of law.
23. In view of the above, Original Application No. 443 of 2019 deserves to be allowed, hence allowed. The impugned orders dated 04.07.2019 and 14.01.2019 rejecting claim for grant of disability element are set aside. The disability of the applicant is treated to be aggravated by military service. The applicant is already in receipt of service element hence respondents are directed to grant disability element of the pension @ 70%, which shall stand rounded off to 75% from the date of discharge. The entire exercise shall be completed by the respondents within four months from the date of production of certified copy of this order, failing which the respondents shall be liable to pay interest at the rate of 9% to the applicant on the amount accrued till the date of actual payment.