JUDGMENT
Rakesh Tiwari, J.
1. Heard Sri K.S. Tiwari, counsel for the petitioner and Sri R.C. Shukla, counsel of Union of India.
2. Concise facts of the case are that after the petitioner was declared medically fit by the Military Doctors was enrolled (enrolment number 14358987) in the Army (Corps of Artillery) in the rank of Nayak on 27th August, 1981. While he was on annual leave on 17.9.1986, he sustained serious injuries in a road accident.
3. The petitioner was admitted in Military Hospital at Allahabad for treatment. After recovery from injuries, he was brought before the Medical Board and on 16.11.992, he was declared unfit for further retention in Army having been placed in the category C.E.E. (P.H.R.M) on account of disabilities – “multiple injuries with compound fracture with dislocation elbow (LT), fracture/shaft femure (L) 4 extensive soft tissue injury foot & ankle.”
4. Thereafter, the Commanding Officer sanctioned the name of the petitioner for service element and sent his name to Chief Controller, C.D.A (Pension), Allahabad-respondent No. 2 for grant of service element including disability pension.
5. Grievance of the petitioner is that though the Chief Controller, C.D.A (Pension), granted him service element but has rejected disability pension to him on the ground that disability resulting in his invalidment was not attributable to Military service as the injuries sustained by him had not existed before or during the course of military service.
6. Information regarding rejection of his disability pension was communicated to the petitioner vide letter dated 11.12.1993 by he Commanding Officer. The impugned order dated 11.12.1993 rejecting the claim of disability pension is as under:
1. After a careful consideration of your case, it is intimated by the CCDA(P) Allahabad, U.P. Vide their rejection memo No. G-3/53/668/8/93 dated 18.11.1993 that the disability which resulted in your invalidment:
(a) is not attributable to military service.
(b) does not fulfil the following conditions, namely, that it existed before or arose during military service.
(c) is accepted as attributable to service but assessed
2. No disability pension is, therefore, admissible to you under the existing rules.
(3) However, you have been granted disability element service pension Rs…(rupees)…only w.e.f…to life. Pension payment order will be sent to you in the course/has been sent to you on….
(4) A sum of Rs. 9694 Rupees Nine Thousand Six Hundred and Ninty Four only on account of DC/BGX will be paid to you through Money Orders on your above address.
(5) A sum of Rs…on account of invalidity gratuity has been sanctioned to you and the same will be transmitted to you by money order in due course.
(6) If you are not satisfied with the decision of the CDA(P), Allahabad you may appeal against the rejection of your disability pension claim to Government of India, Ministry of Defence (Pen-A) New Delhi through this office not later than six months w.e.f. 18.11.93.
Note : If the individual died before receiving DCRG, the amount will not be paid to his next of kin and the matter will be refered to G-4 Section GCDA (P) Allahabad for further action.
Sd/- illegible
(Record Officer for Commanding Officer.
7. Aggrieved by the aforesaid order, the petitioner preferred statutory appeal on 31.12.1993, which was rejected by the respondent No. 1 – the Secretary, Government of India. Ministry of Defence (Pen-A), New Delhi vide order dated 28.4.1995.
8. After rejection of his statutory appeal, the petitioner again met the respondent No. 1 requesting him to grant him for grant of disability pension but his efforts did not materialize. Aggrieved, the petitioner has invoked writ jurisdiction by means of the instant writ petition praying for the following reliefs:
i) issue a writ order or direction in the nature of certiorari quashing the order dated 28.4.1995 filed as Annexure No. 3 to this writ petition and the rejection memo No. G-3/53/668/8/93 dated 18.1 1.1993 passed by respondent No. 2 filed as Annexure No. 1;
ii) issue a writ order or direction in the nature of mandamus commanding the respondents to grant the disability pension to the petitioner;
iii) issue any other writ order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case.
iv) Award the cost of the petition to the petitioner.
9. Contention of counsel for the petitioner is that the petitioner was on annual leave when he met with the fateful accident. According to him, annual leave is a part and parcel of service benefits and, therefore, the petitioner ought to have been treated injured during the course of his service period.
10. He urged that there is no rule or regulation disentitling the petitioner to receive disability pension due to injuries sustained during service period while he was on annual leave; that the petitioner is not able to do any work and is passing his days in chill penury as disability pension has not been granted to him illegally and arbitrarily.
11. Sri R.C. Shukla, counsel for the Union of India relying upon Annexure C.A. 1 to the counter affidavit, submitted that the petitioner is not entitled to disability pension in terms of Regulation 173 of the Pension Regulations for the Army Part I, 1961 and that the petitioner has been sanctioned pension for his qualifying service in Army for a period of 11 years, 8 months and 4 days in accordance with law. He submits that as per Regulation 173 of the Pension Regulations the disability pension is granted to an individual provided he sustained injuries during his military service either attributable to or aggravated by the military service and the degree of disability is assessed at 20 per cent or more by the competent pension sanctioning authorities. He states that in the instant case, the petitioner had sufferred injuries causing disability when he was on annual leave which is not attributable to or aggravated by the military service as the petitioner was not on any military duty, hence he is not eligible for disability pension.
12. He further contends that grant of disability pension is governed by rules laid down in Entitlement Rules issued vide Appendix to Ministry of Defence letter No. 1(i)/81/Pen-C dated 22.11.1983 and as per rules 12 and 13 of the aforesaid rules, the petitioner is not eligible for disability pension as he did not sustain the injury during the course of performance of military duty. Rules 12 and 13 are as under:
12. A person subject to the disciplinary code of the armed forces is on ‘Duly’:
(a) when performing an official task or a task, failure to do which would constituted an offence, triable under the disciplinary code applicable to him.
(b) When moving. from one place of duty to another place of duty irrespective of the mode of movement.
(c) During the period of participation in recreation and other unit activities organized or permitted by service Authorities and during the period of travelling in body or singly by a prescribed or organized route,
Note-1
(a) Personnel of the Armed Forces participating in
i) local/national/international sports tournaments as member of service teams, or
ii) mountaineering expeditions/gliding organized by service authorities, with the approval of service Hqrs.
b) Personnel of the Armed Forces participating m the above-named sports tournaments or in privately organized mountaineering expeditions or indulging in gliding as a hobby in their individual capacity, will not be deemed to be ‘on duty’ for purposes of these rules, even though prior permission of the competent service authorities may have been obtained by them.
c) Injuries sustained by personnel of the Armed Forces in important games and sports outside parade hours which are organized by or with the approval of the local service authority, and death or disability arising from such injuries will continue to be regarded as having occurred while ‘on duty’ for purposes of these rules.
Note 2,
The personnel of the Armed Forces deputed for training at courses conducted by the Himalayan Mountaineering Institute, Darjeeling shall be treated on par with personnel attending other authorized professional courses or exercises for the Defence services for the purpose of the grant of disability/family pensions on account of disability/death sustained during the courses
d) When proceeding from his duty station to his leave station or returning to duty from his leave station, provided entitled to, travel at public expense, i.e., on railway warrant, on concessional voucher on cash TA (irrespective of whether railway warrant/cash TA is admitted for the whole journey or for a portion only) in Government transport or when road mileage is paid/ payable for the journey.
e) When journeying by a reasonable route from one’s quarter to an back from the appointed place of duty under organized arrangements or by private conveyance when a person is entitled to use of service transport but that transport is not available.
f) An accident which occurs when a man is not strictly ‘on duty’ as defined may also be attributable to service, provided that is involved risk when was definitely enhanced in kind of things by the nature conditions obligations or incidents of his service and that the same was not a risk common to human existence in modern conditions in India. Thus for instance, where a person is killed or injured by another party by reason of belonging to the Armed Forces he shall be deemed ‘on duty’ at the relevant time. This benefit will be given more liberally to the claimant in cases occurring on active service as defined in the Army/Navy/Air Force Act. Injuries
13. In respect of accidents or injuries, the following rules shall be observed:
(a) Injuries sustained when the man is ‘on duty’ as defined, shall be deemed to have resulted from military service, but in cases of injuries due to services negligence/misconduct the question of reducing the disability pension will be considered.
(b) In cases of self-inflicted injuries whilst on duty, attributability shall not be conceded unless it is established that service factors were responsible for such actions; in cases where attributability is conceded, the question of grant of disability pension at full or at reduced rate will be considered.
13. Sri Shukla also placed reliance on Sub-clause (c) of Note – 1 of aforesaid Rule 12 which provides that injuries sustained by personnel of the Armed Forces in games and sports outside parade hours, which are organised by or with the approval of the local service authority and death or disability arising from such injuries will continue to be regarded as having occurred while on duty and contended that the petitioner was not participating in any games or sports outside parade hours and he sustained injuries while on leave, therefore, he is not entitled to disability pension.
14. It may be that he is not on active duty of the military service during his annual leave i.e., he may not be posted in field or was taking part in war but but it cannot be say by any stretch of imagination that he was not subject to the disciplinary code of the Armed Forces while he was on annual leave.
15. The contentions of Sri R.C. Shukla, counsel for the Union of India are also untenable for the reason that during leave period, an Army personnel is always under and subject to the disciplinary code of the Armed Forces which is essence of these Rules. He remains in Military service as when a person is on leave, it cannot be said that relationship of ‘master and servant’ ceased to exist. Even Rule 12 of Entitlement Rules clearly states that a person subject to the disciplinary code of the Armed Forces is on duty. It is nowhere denied that the petitioner was not subject to the disciplinary code of the Armed Forces during the course of his annual leave. By any strech of imagination, it cannot be said that a Military personnel is not subject to the disciplinary Code of the Armed Forces. The crux of the matter is that an Army personnel is always subject to the disciplinary code of the Armed Forces unless and until his services are not terminated or dispensed with in accordance with law.
16. Since matter pertains to disability pension or payment of pension for disability attributable to Military service, analogy may be drawn from Workmen Compensation Act where question of injury Sustained during and in course of employment during service arise quite frequently.
17. Hon’ble the Apex Court and various High Courts have considered the question whether the employee has sustained injury during and in course of employment arising in difficult circumstances such as, where an employee met with an accident after working hours were over, while he was going for duty and even in cases where employee sufferred heart attack and died on reaching his residence after ‘duty’ hours.
18. In view of what has been discussed above, it is evident that the respondent Nos. 1 and 2 have committed manifest error apparent on the face of record in denying the disability pension to the petitioner. There is no provision which provides that if a person is on annual leave and suffers from any disability, he will not be entitled to disability pension. As already stated above, during annual leave, the petitioner suffered disability and he was subject to the disciplinary code of the Armed Forces.
19. Before parting with, I am constrained to observe that due to inhuman approach of the respondent-authorities, young generation of the country is reluctant to join Armed Forces. Armed Forces cannot run by old horses. Only sympathetic and humanitarian approach can attract the young generation to the Armed Forces. If such inhuman and hyper technical view is taken in determination of disability pension and other benefits to any personnel who bravely shouldered the responsibility to defend the country at critical moments and are always on vigil 7 days a week and 24 hours a day, it would not be very practical to say that a shoulder and an officer is in active service only during the duty hours not otherwise, as has been taken in the instant case, I am sorry to predict that future of Armed Forces is bleak. An Army-man serves the nation by the bottom of his heart and in case he receives some injuries resulting in permanent disablement, even during annual leave, his disability pension cannot be rejected on hyper technical ground that he was not subject to the disciplinary code of the Armed Forces during annual leave which in my opinion is incorrect….
20. For the reasons stated above, the writ petition succeeds and is allowed Impugned orders dated 18.11.1993 and dated 28.4.1995 (Annexures 1 and 3 to the writ petition) are quashed. The respondents are directed to forthwith grant disability pension to the petitioner. No order as to costs.