The Tribunal defines injuries sustained ‘in action’ as a prerequisite for war injury pension. Physical presence in an operational area would not suffice as being ‘in action’, it has held.
THE Lucknow Bench of the Armed Forces Tribunal delivered an order on July 5, pronouncing that only injuries sustained in battle can be used for claiming war injury pension for Armed Forces personnel, and that injuries suffered due to mere accidents would not be accounted for while granting the pension.
A division bench of Justice Umesh Chandra Srivastava and Vice Admiral Abhay Raghunath Karve held this to dismiss an application by former havildar Ashok Kumar Singh who demanded war injury pension after being diagnosed with the disability of ‘Compound Fracture Middle Phalank (Rt) Little Finger’. The incident led to the severance of his little finger from his right hand.
Singh was inducted into the Indian Army in 1985 and served till 2004, when he was discharged from service following his disability, under Rule 13(3), Item III (v) of the Army Rules, 1954. Rule 13 of the Army Rules deals extensively with circumstances under which authorities are empowered to discharge officers.
The incident which led to this case was reported on April 27, 1993 in Siachen area, near the India-Pakistan border. Singh was posted in a counter insurgency, high altitude/field area. Singh and his colleagues were seriously injured while installing an electronic generator. At the time of his discharge, the Release Medical Board assessed his disability at 11-14 per cent for life, and he was granted disability element along with service element for life. But he applied for a grant of war injury pension too.
War injury pension consisting of service element and war injury element can only be claimed, as per the relevant guidelines issued by the Union Ministry of Defence, when “an Armed Forces personnel is invalided out of service on account of disabilities sustained under circumstances mentioned at Category E of para 4.1 of Government of India letter dated 31 January, 2001”.
Category E of the referred letter specifically deals with deaths or disabilities resulting from war-like situations, including border skirmishes or explosions of mines. It was argued by the respondents – the Union of India, the Officer Incharge Records Signals, and the Principal Controller of Defence Accounts (Pension) – that the applicant’s contention finds no place in Category E, but in Category B of the letter. Category B of the letter grants injury pension in case of death or disability arising out of acts attributable to the military services, such as continuous exposure to a hostile work environment and extreme weather conditions.
The Armed Forces Tribunal rejected the applicant’s claim by adjudicating that he must have suffered injuries in war or action to demand war injury pension. The threshold of Category E was not met by his disability. Though he was stationed near the Indo-Pakistan Border, his “mere presence in an operational area would not qualify as being in action”. The tribunal went on to define action according to the dictionary as including the expenditure of energy, deed, operation, gesture, and battle lawsuit.
It is pertinent to note that the tribunal observed another chink in the applicant’s case: to lay a claim for war injury pension, among other things, the incident should be reported to the Army Headquarters within 24 hours. However, the applicant failed to comply with this parameter as well.
The tribunal further cautioned against a restrictive interpretation of the Government of India letter dated January 31, 2001, and prescribed that it be read in conjunction with the purpose and context of the whole letter. Reference was made by the tribunal to the Supreme Court’s judgment in Gammon India Ltd versus Union of India (1974), in which a Constitution bench of the court had held that any statutory provision must not be read in isolation, but “be construed with reference to the context and other provisions of the Act to make a consistent and harmonious meaning of the statute relating to the subject matter”.
Therefore, the tribunal dismissed the application, noting that Singh could not sufficiently attribute his disability to action in war or battle.
The order of the tribunal will serve as a guiding light for forthcoming applications for pension, as it unreservedly held that disability from action is the sine qua non to lay a stake for war injury pension. Category E of the government letter contains a non-exhaustive list of situations for which war injury pension can be requested, but the tribunal has defined injuries ensuing from action or battles so as to constructively limit the ambiguity from this list. Disabled persons from an accident would be entitled to a pension, but not the war injury pension.
The only matter that requires consideration in the order is the tribunal highlighting the failure of the applicant to report the incident to the Army Headquarters within 24 hours to have a justified claim over war injury pension. Though it is largely a policy decision and even reporting would not have altered the outcome of this decision, such a requirement seems unreasonable on the face of it. It cannot be expected of a recently injured army personnel to intimate the Army Headquarters of the same strictly within 24 hours of the mishap.
Click here to view the full order of the Armed Forces Tribunal.