Application No. O.A. No. 54 of 2016. Case: Sharma Sunil Datta Vs Union of India and Ors.. Armed Forces Tribunal
| Case Number | Application No. O.A. No. 54 of 2016 |
| Counsel | For Appellant: Party-in-Person and For Respondents: Anand Bhandari, Adv. |
| Judges | Devi Prasad Singh, J. (Member (J)) and Lt. Gen. Gautam Moorthy, Member (Ad.) |
| Issue | Armed Forces Tribunal Act 2007 - Sections 14, 31; Constitution Of India - Article 14 |
| Judgement Date | September 29, 2016 |
| Court | Armed Forces Tribunal |
Order:
(Regional Bench, Kolkata)
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The applicant in person and Mr. Anand Bhandari, ld. counsel for the respondents assisted by Maj Narender Singh OIC Legal Cell. This application has been filed under Section 14 of the Armed Forces Tribunal Act, 2007 seeking relief for converting Physical Casualty to Battle Casualty.
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The factual matrix seems to be admitted is that the applicant was enrolled in the Indian Air Force on 5.2.1982 as an Airman and got commissioned into 84 Armoured Regiment on 9.3.1990. He had served in various peace and modified field areas and participated in Operation Vijay. While he was serving in 84 Armoured Regiment, a terrorist attack took place on Indian Parliament on 13.12.2001 and in consequence thereof 84 Armoured Regiment got mobilized from Nabha, Patiala, Punjab to a war like situation on the Western Border of India-Pakistan due to declaration of "Operation Parakram" (in short OP Parakram). Part II order No. 47 dated 30.5.2002 was issued and the applicant was deployed in the Western Border. The applicant, while serving in the field area during OP Parakram, was detailed as Officer-in-Charge and was ordered for shifting and moving of first and second line ammunition of 84 Armoured Regiment from one operational location to another on 27.5.2002 [Annexure A-5(a)]. The applicant reached the location of ammunition storage area on 27.5.2002 and started inspecting and coordination the task of ammunition loading into vehicles and its movement to next operational location. It had rained heavily on the night of 28.5.2002. However, the applicant started the duties assigned to him in the early morning of 29.5.2002. While checking the ammunition loading and safe stacking of ammunition in a 7.5 Ton Stallion Ammunition vehicle, at the time of getting down from the vehicle the applicant's feet slipped and he fell down on his back on the hard ground which was slippery on account of heavy rains during the night. The applicant sustained back injury due to the fall from the ammunition vehicle and experienced excruciating pain and was unable to stand or sit. His immediate junior, Naib/Raisaldar Jagdish Singh took him to military hospital. Thereafter he was evacuated to 167 Military Hospital Bikaner on 29.5.2002. A report on injuries was annexed at Annexure A-3. The applicant was again evacuated to Command Hospital (Western Command) Chandimandir on 6.6.2002 for his further treatment, where he was treated from 06 to 13 June 2002 and was placed in medical classification P4 and declared temporarily unfit for military service upto 24.7.2002 and granted sick leave. Again the applicant was admitted in Command Hospital, Chandimandir on 24.7.2002 for further treatment and review. The applicant was transferred to Military Hospital Patiala on 31.7.2002 for conducting a Medical Condition Board, which placed him in medical classification P3 temporarily [Annexure A-4(a)]. The applicant reported back for duty on 1.8.2002. A Court of Inquiry was conducted on 23.7.2002 and the CoI opined that the applicant sustained injury Contusion Over Back (Moderate) while on bona fide military duty at field area owing to OP Parakram under circumstances beyond his control and is not to blame for the injury [Annexure A-5(b)]. Commandant 84 Armoured Regiment also opined that the injury was sustained while performing bona fide military duty and it was accidental, beyond anyone's control and nobody is to be blamed for the same [Annexure A-6]. The error of classifying the injury as a 'physical casualty' instead of 'battle causality' was known to the applicant in 2009 and he made a request to Adjutant General Branch for treating him as Battle Casualty and the same was returned on 27.2.2010 stating inter alia that while Army Rule 1/2003/MP having no provision to classify casualties in retrospect, the Rules in vogue was SAO 8/S/85 which did not cover applicant's case. The applicant once again made a statutory complaint on 23.7.2010 for re-examination, which was also rejected with the direction that status quo shall be maintained.
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The respondents advanced two fold arguments, first the applicant submitted statutory complaint after a long delay, which was rejected on 29.7.2015, but the applicant neither in the averments nor in the reliefs prayed for challenged the said order. Their second argument was that the circumstance of the injury sustained by the applicant is not covered under the provisions of Special Army Order 8/S/85 for classification of Battle Casualty and the present Army Order 1/2003/MP in vogue having no provisions to classify battle casualties in retrospect.
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We have heard the ld. Counsel for the respondents and applicant and perused records.
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We find that a Court of Inquiry (in short COI) was conducted to inquire into the circumstances of the injury sustained by the applicant.
For the sake of convenience opinion of the COI is reproduced hereunder:
IC 46600F Maj SD Sharma, 84 Armd Regi sustained injury 'CONTUSION OVER BACK (MODERATE) 'while on bona fide mil duty, while at field during OP PARAKRAM, Maj SD Sharma sustained the injury under circumstances beyond his control. Maj SD Sharma nor any other individual is to blame for the injury so sustained by the officer.
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A plain reading of the COI opinion shows that the injury sustained by the applicant while serving on military duty which was beyond his control and not to blame anyone for the casualty. The said report alongwith applicant's representation was forwarded for consideration after being recommended by the GOC-in-C, South Western Command.
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For convenience sake rejection of applicant's statutory complaint, which is at Annexure R2 to the counter-affidavit is reproduced below:
"1. I have perused the statutory complaint dated 15 Apr 2015 submitted by Lt. Col Sunil Datta Sharma of 141 MC/MF Det in the light of relevant documents on record, comments of Commanding Officer and recommendation of the Officiating General Officer Commanding, Bengal Area.
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The complainant has contended that injury sustained by him during shifting of ammunition on 29 May 2002 during OP PARAKRAM in field area has been wrongly classified as Physical Casualty.
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A perusal of record reveals that the complainant was injured on 29 May 2002 when he slipped from 7.5 Ton Stallion ammunition vehicle while inspecting the ammunition loading and sustained 'Contusion Over Back (Moderate)'. As per AO 1/2003, there are three separate stipulations which must be fulfilled to qualify a physical injury as "Battle Casualty". A conjoint reading of the conditions necessary to qualify an injury or casualty as battle casualty show that the circumstances in which the complainant sustained the injury does not fall within the laid down criteria Para 69 of Section 5 of AO 1/2003 and therefore, does not tantamount to a battle casualty.
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I, therefore, recommend that statutory complaint submitted by Lt. Col Sunil Datta Sharma dated 15 Apr 2015 be rejected as it lacks merit and substance."
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A plain reading of the aforesaid rejection order dated 29.7.2015 would reveal that according to the respondents the injury sustained by the applicant does not fall within the parameters of cause and circumstances of battle casualty as laid down in Para 69...
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