Ex Sgt Onkar Misra v. Union of India & Ors.

1. This petition has been filed, challenging the Orders dated 25.05.2023 and 06.12.2023 passed by the learned Armed Forces Tribunal, Principal Bench, New Delhi (hereinafter referred to as the ‘learned Tribunal) in O.A. 1578/2020 and in RA 62/2023 in OA 1578/2020, dismissing the OA and the Review Application filed by the petitioner respectively.

2. The petitioner had filed the above OA before the learned Tribunal praying for setting aside of the Orders dated 12.11.2018 and 19.10.2020 of the respondents by which the claim of the petitioner for grant of disability element of pension had been rejected, and an appeal against the said rejection had also been dismissed by the respondents.

3. It was the case of the petitioner before the learned Tribunal that the petitioner, while being posted at Air Force Station, Pathankot, had sustained an injury due to a fall while he was straightening an iron pole in the garden of his quarter on 28.08.2016. The injury was later assessed as under: a. Partial ACL Tear (Lt) Knee @ 20% for life, and, b. Chondromalacia @ 15-19% for life

4. The Release Medical Board dated 22.03.2018 opined that the injury suffered by the petitioner was neither attributable nor aggravated by service.

5. The petitioner being aggrieved thereof, appealed against the same, however, the same was also dismissed.

6. The petitioner thereafter filed the above OA claiming that the above injury suffered by him was in discharge of service and therefore, attributable to service. The OA, as noted hereinabove, was dismissed by the learned Tribunal by its Impugned Order dated 25.05.2023, observing as under:

straightening the pole in his house which does not bear any causal connection between injury and performing military duty. The applicant was thus not performing any duty whatsoever assigned to him by the superior authorities which may be termed to be under the ambit of his military duties...........”

7. Aggrieved thereby, the petitioner filed a Review Application, being RA 62/2023, which was again dismissed by the learned Tribunal vide its Impugned Order dated 06.12.2023, observing as under:

observed hereinabove, the date of the incident in the instant case is 28.08.2016.”

8. The learned counsel for the petitioner submits that the learned Tribunal has failed to appreciate that it was a part of the duty of the officer to keep the surrounding upto 10 meters of his official residence clean. This is evident from the Show Cause Notice dated 28.08.2018 issued to the petitioner, which was placed by the petitioner before the learned Tribunal alongwith the Review Application. In the Show Cause Notice, it has been clearly stated that this part of the duty is imposed on a personnel of the Indian Air Force in terms of Chapter XI, Para 37(b)(ii) of IAP 2501. He submits that the learned Tribunal, however, has erred in not relying upon the said Show Cause Notice only on the ground that the Show Cause Notice was issued on 28.08.2018 while the injury suffered by the petitioner was in the year

2016. He submits that the Show Cause Notice was placed on record only to show that the cleaning of the compound next to the official accommodation was a part of the duty of a personnel of IAF and therefore, the injury suffered while performing this duty should be considered as attributable to service.

9. On the other hand, the learned counsel for the respondents submits that the injury suffered by the petitioner was while he was on leave and at his residence. He submits that the injury was suffered by the petitioner as he slipped while performing his own household work and therefore, cannot be said to be attributable to service.

10. We have considered the submissions made by the learned counsels for the parties.