IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Civil Writ Petition No.3662 of 2007
Date of Decision: March 31, 2009
Surinder Singh
.....PETITIONER(S)
VERSUS
Union of India & Others
.....RESPONDENT(S)
. . .
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: - Mr. R.N. Ojha, Advocate, for the
petitioner.
Ms. Ranjana Shahi, Central
Government Standing Counsel, for the
respondents.
. . .
AJAI LAMBA, J (Oral)
This civil writ petition has been
filed under Article 226/227 of the Constitution of
India praying for quashing Order dated 20.7.2000
(Annexure P-2) and Order dated 19.7.2006 (Annexure
P-6). Vide the impugned order, the claim of the
petitioner for disability pension has been rejected.
Learned counsel for the petitioner has
brought out that the petitioner was enrolled in the
Indian Army on 30.4.1983. The petitioner applied for
annual leave which was duly sanctioned. While on
annual leave, on 1.2.1996, the petitioner met with a
CWP No.3662 of 2007 [2]
road side accident. The petitioner was given
treatment in Command Hospital, Chandimandir. When
the petitioner reported back to his Unit for duty,
he was referred to Medical Board to determine his
medical status. The Medical Board opined that he
suffers from 20% disability and with medical
category `CEE Permanent’ and further declared the
petitioner as unfit for military duty as well as for
defence security duty. Accordingly, the petitioner
was discharged from service on 1.1.2000 as is
evident from Annexure P-1. At that point in time,
the petitioner was serving as Naik.
The petitioner applied for disability
pension which request, however, was rejected vide
Order dated 20.7.2000 (Annexure P-2). All that has
been said is that disability is neither attributable
to nor aggravated by military service. The
petitioner preferred an appeal (Annexure P-3). No
decision on the appeal was taken and therefore,
legal notice was served as is evident from Annexure
P-4 dated 4.6.2005. No decision was taken and
therefore, the petitioner preferred Civil Writ
Petition No.16856 of 2005 in this Court. Division
Bench of this Court, vide Order dated 24.10.2005,
directed that the appeal be disposed of by passing a
speaking order within a period of four months from
the date a certified copy of the order is supplied.
In deference to the order passed by
this Court, the appeal filed by the petitioner has
CWP No.3662 of 2007 [3]
been dismissed vide Order dated 19.7.2006 (Annexure
P-6) i.e. the other impugned order. The relevant
portion of Annexure P-6 reads as under:-
“3. AND WHEREAS, after careful examination of the
record of the petitioner and averments and grounds in the
Writ Petition the following is brought out:-
a) The petitioner was discharged from service being
place under medical category lower that AYE with effect
from 31 Dec 1999 under item III(v) of table annexed to
Rule 13(3) of Army Rule 1954 read in conjunction with
Army Rule 1954 read in conjunction with Army Rule
13(2A) due to disease (ID) UNDISPLACED FRACTURE
LATERAL TIBIAL CONDYLE WITH CIP FRACTURE
LATER FEMORAL CONDYLE (RT) N-823 E-812. The
disability was viewed as neither attributable to nor
aggravated by military service and the degree of the
disablement was assessed at 30% for two years.”
Learned counsel for the petitioner
contends that the petitioner was subject to military
code even during annual leave which had been duly
sanctioned. The petitioner had not indulged in any
illegal activity. Road side accident was not within
the control of the petitioner, therefore, the
petitioner is entitled to disability pension.
Learned counsel for the respondents
contends that the petitioner was on annual leave at
that point in time. He suffered injury which became
the cause of his disablement and therefore, the
disability cannot be attributed to military service.
I have heard the learned counsel for
the parties and have gone through the pleadings.
The respondents, in the impugned
orders Annexure P-2 and P-6, other than pointing out
the nature of injury, have not said anything in
regard to the fact that injury was suffered during
CWP No.3662 of 2007 [4]
leave and therefore, disability pension cannot be
allowed. The stand taken in the written stat
ement, however, is that the petitioner was on annual
leave and therefore the injury had no connection
with military service. The petitioner suffered
‘Undisplaced Fracture Laterial Tibial Condyle with
CIP Fracture Later Femoral Condyle (RT) N-823 E-
812’.
The issue that is required to be
addressed in this petition is whether the petitioner
would be entitled to disability pension even though
he suffered injury while he was on annual leave. The
issue has been addressed by the Division Bench of
this Court in Gurjit Singh vs. Union of India & Others, 2008(2) RSJ
546. The relevant portion of the judgment in Gurjit
Singh’s case (supra) reads as under:-
“8. No doubt, when the petitioner met with an
accident, he was on annual leave, but the accident was
beyond control of the petitioner who was not
performing any act he ought not to have done. In view
of the settled law by the Apex Court, a person on
casual/annual leave is deemed to be on duty and there
must be apparent nexus between normal living of
person subject to military law while on leave and
injuries suffered by him. A person on annual leave is
subject to Army Act and can be recalled at any time as
leave is at discretion of authorities. This was so held by
a Division Bench of Delhi High Court in Ex-Sepoy
Hayat Mohammed’s case (supra). In that case, the
petitioner was on leave at his home town. While he was
in his house, a huge steel beam and a cemented stone
fell on the petitioner from the roof of the house, which
was being repaired. This resulted in total paralysis of
three fingers of his right hand and amputation of left
hand. The petitioner was treated and was placed in
permanent low medical category `EEE’. He was
discharged from military service and rejected disability
pension. His writ petition was allowed and the
respondents were directed to consider and grant
disability pension to the petitioner. With advantage, we
may also refer to the authority reported as Madan
CWP No.3662 of 2007 [5]Singh Shekhawat v. Union of India, A.I.R. 1999 (SC)
3378 where the Hon’ble Supreme Court held that an
army personnel is deemed to be on duty when he is on
any type of authorised leave during travelling to or
from home or while on casual leave. In this case as
stated above, the petitioner had remained in his Unit for
about one year after he was discharged from Military
Hospital. However, his injury aggravated and he was
discharged by the Release Medical Board. Regulation
179 of the Pension Regulations deals with the issue at
hand and it reads as under:-
“179. An individual retired/discharged on completion of
tenure or on completion of service limits or on completion of
terms of engagement or on attaining the age of 50 years
(irrespective of their period of engagement), if found
suffering from a disability attributable to or aggravated by
military service and recorded by Service Medical
Authorities, shall be deemed to have been invalidated out of
service and shall be granted disability pension from the date
of retirement, if the accepted degree of disability is 20 per
cent or more, and service element if the degree of disability
is less than 20 per cent. The service pension/service
gratuity, if already sanctioned and paid, shall be adjusted
against the disability pension/service element, as the case
may be.
2. The disability element referred to in clause (1) above
shall be assessed on the accepted degree of disablement at
the time of retirement/discharge on the basis of the rank
held on the date on which the wound/injury was sustained
or in the case of disease on the date of first removal from
duty on account of that disease. A perusal of the above
provisions of Regulation 179 of Pension Regulations leaves
no room for doubt that the petitioner was invalided out of
service. The petitioner sustained injury/disability during his
service engagement although being on annual leave, and
the disability would be deemed to be attributable to and
aggravated by military service. In this view of the matter, we
have no hesitation in holding that the petitioner will be
deemed to have been invalided out of service and is entitled
to disability pension as is admissible to defence personnel
who are invalided out of service.”
For the aforesaid reasons, this writ petition is allowed
and the petitioner is held entitled to 20% disability
pension, consisting of both the elements i.e. service and
disability element. This pension, with all consequential
benefits, will be paid to him from the date of his
retirement. The respondents shall pay all the arrears to
the petitioner within two months from the date of
receipt of a copy of this order, failing which the
petitioner will be entitled to interest at the rate of nine
per cent annum.”
The issue has also been considered by
a Division Bench of Hon’ble Delhi High Court in Ex.
CWP No.3662 of 2007 [6]
Sepoy Hayat Mohammed vs. Union of Indian & Others, 2008(1) SCT 425.
The following is the relevant portion:-
4. The accident/incident as a result of which the
petitioner suffered the injuries was beyond his control
and the petitioner was not doing/performing any act,
which he ought not to have done as a part of his
normal living while on leave. In view of the above, a
person on casual/annual leave is deemed to be on duty
and there must be apparent nexus between the normal
living of a person, subject to military law while on
leave and the injuries suffered by him. The facts of the
present case are not in dispute. In the summary and
opinion of the Medical Board recorded on 25th
January, 2000 at Pune, it is stated that the Individual
had sustained injury to both his hands on 24.8.99 due
to falling of a stone while making building while on
leave. He was initially treated at Civil Hospital and
then was transferred to Army Hospital where
amputation of left hand through wrist was done. In
view of the amputation, he was recommended to be
placed in category `EEE’ and brought before the
Invaliding Medical Board. In the proceedings of the
Medical Board it was recorded as under :-
“(d) In the case of a disability under `O’ the Board
should state what exactly in their opinion is the cause
thereof. Injury occurred while on A/L vide incompate
infy-2006?”
5. Of course, it was also stated by the Board that the
injury is not connected with the service but the case of
the petitioner is squarely covered by catena of
judgments of this Court. It is a settled principle of law
and is not even disputed before us that a person on
annual leave is subject to Army Act and can be
recalled at any time as the leave is at the discretion of
the authorities concerned. It was mere an accident with
which the petitioner met and to which the petitioner no
way contributed. No negligence or unauthorised act
was attributable to the petitioner. In fact, the
respondents did not even conduct any Court of Inquiry
as contemplated under the Rules. In these
circumstances, we are unable to contribute to the view
taken by the authorities that the injury of the
petitioner was not attributable to service.
6. Consequently, while setting aside the order dated
24th December, 2003, we allow the writ petition. The
respondents are directed to consider and grant
disability pension to the petitioner with 60% disability
within a period of 6 months from the date of passing of
this order. However, arrears would be restricted to a
period not exceeding 3 years immediately preceding
the presentation of the writ petition. The respondents
will be at liberty to subject the petitioner to an
Appellate Medical Board, if they so desire.”
CWP No.3662 of 2007 [7]
When the law laid down by this Court
and the Hon’ble Delhi High Court is considered in
the context of the present case, it becomes evident
that the case of the petitioner is squarely covered
by the judgments, portions of which have been
extracted above.
The petitioner met with road side accident. The circumstances that led to the
accident, were beyond the control of the petitioner.
The petitioner was not performing any act he ought
not to have done as part of his normal living while
on leave. Even while on leave, he was subject to
military law.
Having regard to the above, this
petition is allowed.
The disability of the petitioner has
been assessed at 20%. The petitioner would be paid
disability pension accordingly. The needful be done
within four months of receipt of certified copy of
the order.
(AJAI LAMBA)
March 31, 2009 JUDGE
avin