JUDGMENT
Swatanter Kumar, J.
1. The petitioner Maya Devi is the wife of late Naik Lal Singh, who was enrolled in the Army on 8th October, 1965. He was subjected to prescribed medical and physical test before his enrollment in the Army by the Competent Medical Authority. He was granted service No. 6361304. He was granted casual leave with effect from 10.08.1981 to 11.08.1981 with permission to prefix 09.08.1981 being Sunday. The husband of the petitioner proceeded for journey on 9th August, 1981 with permission to leave the station. The bus in which the husband of the petitioner was traveling met with an accident. Unfortunately, husband of the petitioner died in that accident. The respondents granted ordinary family pension to the petitioner. According to the petitioner, she was entitled for special family pension. On 21st October, 1982, the claim of the petitioner for grant of special family pension was rejected by PCDA(P) Allahabad by saying that the cause of death of the husband of the petitioner was not attributable to military service. Against this order, the petitioner preferred an appeal on 8th November, 2004 by giving complete facts. However, this appeal was also rejected by the Records Office on 9th December, 2004, Annexure P-1 to the writ petition. The petitioner still preferred another appeal to the Ministry of defense wherein she referred the judgment of this Court in the case of Banso Devi v. UOI LPA No. 226/2001 decided on 24.9.2001 2002 (1) F.L.J. 582 wherein the Delhi High Court vide its order dated 24th September, 2001 had granted special family pension to the wife of the deceased in similar circumstances. However, this request of the petitioner was not acceded to, which resulted in filing of the present writ petition.
2. The contention on behalf of the petitioner is that in terms of Rule 12(d) of the Entitlement Rules for Casualty Pensionary Awards, 1982, a person, who is on casual leave, is to be treated on duty and the death of the husband of the petitioner while on casual leave would tantamount to death while on duty, thus, attributable to military service. Reliance is also placed on Regulation 213 of the Pension Regulations for the Army 1961 (Part-I), which reads as under:
213. A special family pension may be granted to the family of an individual if his death was due to or hastened by:
(a) a wound, injury of disease which was attributable to military service.
OR
(b) the aggravation by military service of a wound, injury or disease which existed before or arose during military service.
3. In order to deal with this question, it is necessary to refer to certain rules, which have a bearing on the matter in controversy. Rule 12(d) of Entitlement Rules for Casualty Pensionary Awards, 1982, which is in Appendix II Regulations 48, 173 & 185 of Pension Regulations for the Army, 1961, reads as under:
12. A person subject to the disciplinary code of the Armed Forces is on “duty”:
(a) xx xx xx xx xx
(b) xx xx xx xx xx
(c) xx xx xx xx xx
(d) When proceedings from his leave station or returning to duty from his leave station, provided entitled to travel at public’ expenses i.e. on railway warrants, 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.
4. Rule 10 of the Leave Rules for Army deals with the matter of casual leave and spells out that a person, who is on casual leave, would be on duty. The said rule reads as under:
10. Casual leave counts as duty except as provided for in Rule 11(a).
It cannot be utilised to supplement any other form of leave or absence, except as provided for in Clause (A) of Rule 72 for personnel participating in sporting events and tournaments.
Casual leave due in a year can only be taken within that year,. If, however, an individual is granted casual leave at the end of the year extending to the next year, the period falling in the latter year will be debited against the casual leave entitlement of that year.
5. The cumulative effect of the above rules is that a person, who is on casual leave, will be deemed to be on duty and injuries suffered by a person while on duty would be deemed to have resulted in from army service. Under Rule 12(d) it is stipulated that when a person is proceeding from leave station or returning to duty from his leave station, provided entire travel will be on public expense, the injuries suffered during such travel would be as if the same having been suffered by a person while on duty. Once a member of the army, subject to the aforesaid rules, suffers an injury then such injury would be deemed to have been attributable to and/or aggravated by military service.
6. The Supreme Court in the case of Joginder Singh (Lance Dafadar) v. Union of India and Ors. (1995) 30 Administrative Tribunals Cases 637 in somewhat similar circumstances though in the case of disability suffered and not death but relating to a question whether a person, who is on casual leave would be treated to be on duty and would be entitled to disability pension held as under:
4. Although the appellant was given Army Pension but he was denied disability pension under the Pension Regulations. The disability pension was denied to the appellant on the ground that the injury was not attributable to military service. The appellant challenged the denial of disability pension by way of a writ petition before the Punjab and Haryana High Court. The High Court dismissed the petition in liming on the ground of delay.
5. The question for our consideration is whether the appellant is entitled to the disability pension. We agree with the contention of Mr. B. Kanta Rao, learned Counsel for the appellant that the appellant being in regular Army there is no reason why he should not be treated as on duty when he was on casual leave. No Army Regulation or Rule has been brought to our notice to show that the appellant is not entitled to disability pension. It is rather not disputed that an army personnel on casual leave is treated to be on duty. We see no justification whatsoever in denying the disability pension to the appellant.
6. We, therefore, set aside the order of the High Court dated 15-12-1992. The disability of the appellant has already been adjudged by the respondents as 60%. We direct the respondents to grant disability pension to the appellant from the date when he was discharged from Army treating him to have incurred 60% disability. The respondents shall finalise the disability pension case of the appellant within three months from the receipt of this order. The appellant shall be further paid all the arrears of the pension within a further period of three months thereafter. In case the arrears of disability pension are not paid to the appellant within the period of six months from the receipt of this order, then the appellant shall be entitled to 12% interest from the date on the amount due.
7. Counsel for the petitioner has also relied upon the judgment of Division Bench of this Court in the case of Banso Devi v. Union of India (LPA No. 226/2001 decided on 24.9.2001) 2002 (1) F.L.J. 582 wherein the Division Bench after taking into consideration various judgments of the Supreme Court held that where disabilities were sustained by the army personnel while they were on casual leave, they were to be considered `on duty’. In that case, the Court held that appellant would be entitled to special family pension in accordance with rules since the husband of the petitioner therein met with the accident which took place while attending to office in discharge of his duties.
8. Counsel for the petitioner has further relied upon the judgment of this Court in the case of Smt. Kamla Devi v. Union of India and Ors. CWP No. 2176/98 decided on 7.3.2002 in support of his contentions that special family pension has to be granted to the family of a deceased, who suffered injuries resulting in death while on duty and relied upon the following view of the Bench:
4. Learned Counsel for the petitioner relied upon the Division Bench Judgment of this Court whereby the expression `attributable to military service’ has been considered. The Division Bench Judgment was in LPA 276/2001 Smt Banso Devi v. Union of India and Ors. decided on 24.9.2001. The judgment considers the observations of the Supreme court in the case of Lance Dafadar Joginder Singh v. Union of India and Ors. 1995 Supp (3) SCC 232 and Madan Singh Shekhawat v. Union of India and Ors. . These judgments dealt with the issue of grant of disability pension. The Division Bench of the High Court in Banso Devi’s case (supra) after considering the ratio of the Supreme Court judgment observed that the appellant therein would be entitled to special family pension in accordance with the rules since the husband of the petitioner therein met with the accident which took place while attending to office in discharge of his duties.
5. The present case is one where the death has been caused during an operation. The condolence letter also mentions so. Further in the counter affidavit the stand taken is that another colleague shot dead the husband of the petitioner. In view of the fact the husband of the petitioner had gone on search operation and one of the colleagues had apparently shot him it cannot be said that the death of the husband of the petitioner was no attributable to military service.
9. The husband of the petitioner though actually was not performing any duty but on the strength of the provisions afore-referred, he would be on duty and this controversy is no more res integra and stands completely settled by the aforesaid judgments of the Supreme Court as well as this Court. In the judgment of the even date titled as Naresh Kumar v. Union of India and Ors. WP(C) No. 7118/2003, we have taken the same view where it was held as under:
12. In view of the consistent view of the Courts, which is based upon correct analysis of the relevant provisions of the law as afore-referred , we have no hesitation in taking a view that the order of rejection passed by the respondents denying the benefit of special family pension to the family members of the deceased is illegal and unsustainable. Which of the heirs and to what extent are they entitled to receive family pension is a matter of computation and we leave it to the respondents to act in accordance with law.
13. Ergo, this petition is allowed. The impugned orders dated 8th January, 2002, 30th July, 1998 and 18th November, 1995 are set aside. The respondents are directed to pay to the petitioner and other family members of the deceased the special family pension in accordance with rules. However, arrears would be confined to for a period of 3 years from the date of filing of the writ petition.
10. Reference can also be made to the judgment of Punjab & Haryana High Court in the case of Jarnail Singh v. Union of India and Ors. 1997 (2) PLR 580 wherein a person on casual leave was held to be on duty for all purposes and intents except as contemplated under Rule 11(A).
11. Under Rule 12(d) when a person is proceeding from his leave station or returning to duty from his leave station will be on duty if he was traveling on public expense. The expression `public expense’ has been explained by the Supreme Court in the case Madan Singh Shekhawat v. Union of India and Ors. to say that even traveling by private expense would be covered.
12. Under Rule 13, the injury suffered by a person while on duty shall be deemed to have resulted from military service. The scope of these regulations is very wide as framers of the Rules even under Rule 13(a) of the Entitlement Rules for Casualty Pensionary Awards, 1982 have said that even if injuries are sustained due to serious negligence/misconduct, the question of reducing of disability pension will be considered. This shows the intent that effort should be made to grant rather than to decline.
13. From the facts of the present case it is clear that husband of the petitioner had proceeded on casual leave and had left the unit with permission of the competent authority. While going to his leave station by a public transport, which met with an accident, he unfortunately died. The petitioner, thus, in view of the settled position of law and the relevant provisions under Pension Regulations for the Army 1961 (Part-I) read with Entitlement Rules 1982 would certainly be entitled to receive the special family pension. The cause of action in favor of the petitioner had arisen in the year 1981 and 1982 when the petitioner’s claim for grant of special family pension was denied by the respondents. Though she had been moving the respondents for grant of relief but certainly there is delay on the part of the petitioner in approaching this Court. The delay on the part of the petitioner can at best result in denying the arrears to the petitioner but the petition cannot be dismissed on that account.
14. In view of the aforestated reasons, we allow this petition and quash the impugned order dated 9.12.2004. We direct the respondents to consider the case of the petitioner for grant of special family pension and pay the same to her. However, the arrears will be restricted to 3 years prior to institution of the present writ petition.
15. The petition is accordingly disposed of, while leaving the parties to bear their own costs.