Ex Sepoy Anil Singh Gaur vs Union Of India Secretary Of Defence & Ors

Leave to appeal is granted.

Delay condoned.

The appellant was enrolled as a Sepoy in the Indian Army on 25.08.1995. He was injured while unloading a Light Machine Gun (LMG) on 20.05.1998. The findings of the Court of Inquiry show that the appellant was sitting before the LMG after attaching the barrel of 7.62 mm to the LMG. At that time, Sepoy Sunil Singh Mehra joined the butt group to the piston group and pushed them hard, on which one round got loaded, and the weapon was discharged. The Appellant-Anil Singh Gaur was hit with one round of 7.62 mm LMG which went through his thigh, scraped the right side of his chest and hit him on the right hand.

The appellant was invalided out of service on 15.07.2003. He was granted disability pension which included disability element as well. The appellant sought for payment of special pension by considering his injuries as battle casualty, and grant ex - gratia to which he would be entitled to.

The Armed Forces Tribunal, Regional Bench, Lucknow dismissed the application filed by the appellant holding that the appellant is not entitled for ex-gratia in terms of policy decision dated 11.09.1998, which deals with payment of ex-gratia only in cases of death. So far as the payment of special pension is concerned, the Tribunal relied upon Army Order 01 of 2003 to hold that the injury suffered by the appellant cannot be treated as a battle casualty for which reason he would not be entitled for special pension. Army Order 01 of 2003 defines battle casualty as follows:

"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 or wounds or injuries(other than self-inflicted) (c) Wounded or injured (other than self- inflicted) (d) Missing."

The circumstances for classification of battle casualty are listed in Appendix 'A' to Army Order 1 of 2003.

The appellant relies upon para 1 (j) of the Army Order 1 of 2003 which is as follows:

"(j) Army personnel killed/wounded unintentionally by own troops during course of duty in an operational area."

It is relevant to refer to the definition of physical casualty in Army Order No.1/2003.

"Para 3 :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."

The appendix pertaining to physical casualty refers to death caused due to natural causes/illness/accident/suicide/murder due to family disputes in the operational and non operational areas will be treated as Physical Casualties.

Mr.Atul Jha, learned counsel appearing for the appellant submits that the appellant is entitled for payment of special pension as he was wounded unintentionally by a member of the same troop. He submitted that the appellant is entitled for the benefit of para 1 (j) of the Army Order, 2003.

Learned Additional Solicitor General appearing for the respondent submits that the benefit of para 1 (j) can be given only to Armed Personnel who are killed or wounded unintentionally during the course of duty. In view of the definition of battle casualty in para 5 of the Army Order 01 of 2003 we agree with the learned Additional Solicitor General that the appellant is not entitled to be treated as battle casualty. He would have been eligible for special pension only if he was wounded during the course of duty which can be treated as battle casualty. No ex-gratia can be paid to the appellant as he is not covered by the letter dated 22.09.1998 of the Government according to which ex-gratia is payable only in cases of death.

For the aforementioned reason, we see no reason to interfere in the matter.

The appeal is, accordingly, dismissed. Pending application, if any stand disposed of.