IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 6066 of 2007 DATE OF DECISION : MARCH 5, 2009 YADVINDER SINGH VIRK ....... PETITIONER(S) VERSUS UNION OF INDIA & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr.Rajeev Anand, Advocate, for the petitioner(s). Mr. Naveen Chopra, Advocate, for respondents. AJAI LAMBA, J. This petition under Articles 226/227 of the Constitution of India prays for issuance of a writ in the nature of certiorari for quashing communication dated 14.12.2005 (Annexure P-4) and letter dated 31.3.2005 (Annexure P-2). The effect of Annexures P-4 and P-2 is that the claim for disability pension of the petitioner has been rejected on the ground that the injuries/disease contacted by the petitioner was neither attributable to nor aggravated by the Air Force service. The facts are that the petitioner was enrolled as Airman on Civil Writ Petition No. 6066 of 2007 2 4.4.1984. After serving the Indian Air Force for 20 years and 26 days on completion of the term of engagement, the petitioner was discharged on 30.4.2004. It seems that the petitioner took annual leave in the months of April/May, 1990, for the purpose of his own marriage. While the petitioner, who was on annual leave, was coming from his in-laws house with his wife on a Motor Cycle, they met with an accident in which the petitioner sustained multiple injuries including fracture of the bones of right leg. The petitioner was transferred to military hospital, Ambala from where he was shifted to Command Hospital, Chandimandir. As a consequence of the injuries sustained in the accident, medical category of the petitioner was downgraded to CEE (T) and, thereafter in 1992, after Resurvey Medical Board, the medical condition of the petitioner was further downgraded to medical category CEE (P). The petitioner was retained in service and served for the entire term of engagement. After release of the petitioner, the initial claim for disability pension was rejected vide order dated 31.3.2005 (Annexure P-2) on the basis of Medical Board's findings and injury report, for the reason that the disability was not attributable to Air Force service. The petitioner filed an appeal against the order wherein all the details were given including reference to the judgments rendered by the Supreme Court and this Court to the effect that even if a person is on annual leave, he is in service. If the disability is suffered by such a person, he is entitled to disability pension. The appeal has been dismissed vide order dated 14.12.2005 (Annexure P-4) on the ground that the Release Medical Board had given the opinion that the disabilities were not Civil Writ Petition No. 6066 of 2007 3 connected with service. The pension sanctioning authority i.e. Principal Controller of Defence Accounts (Pension), Allahabad had also rejected the disability pension claim as the injuries were neither attributable to nor aggravated by Air Force service. The Appellate Committee also affirmed the conclusions. It seems that the petitioner filed a final/second appeal, however, despite lapse of considerable period, no decision thereon has been taken. Learned counsel for the respondents has vehemently opposed the prayer of the petitioner for disability pension on the ground that the petitioner had been retained in service even after receiving injuries during annual leave. The petitioner had been discharged only on fulfilling the conditions of his engagement and, therefore, was allowed to continue for 14 years after he sustained the injuries. In this view of the matter, it has been argued that the judgments referred to by the learned counsel for the petitioner would have no application. No other argument has been raised. I have considered the issue involved in the context of the facts and circumstances of the case. The facts are not in dispute. The petitioner suffered disability while on annual leave and while he was in service. The extent of disability suffered by the petitioner is 30%, as per the admitted case of the respondents in para-3 of the written statement (on merits). The issue that has been raised before this Court for adjudication is as to whether a person who is on annual leave and suffers disability, however, is allowed to Civil Writ Petition No. 6066 of 2007 4 complete his term of engagement, would be entitled to disability pension or not ? The facts on record leave no measure of doubt that the injuries suffered by the petitioner were in an accident and for no offending or objectionable act on the part of the petitioner. The circumstances were beyond the control of the petitioner on account of which the petitioner suffered the injuries. The petitioner was treated in military hospital. The issue has been considered by this Court in Ex Naik Kishan Singh vs. Union of India & Others, 2008(3) SLR 327. The relevant portion of the judgment 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 Civil Writ Petition No. 6066 of 2007 5 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 Singh Shekhawat v. Union of India, 1999 (66) A.I.R. (SC) 3378 : [1999 (4) SLR 744 (SC)] where the Hon'ble Supreme Court held that any 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. 9. 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.” Civil Writ Petition No. 6066 of 2007 6 10. A perusal of the above provisions of Regulation 179 of Pension Regulations leaves no room for doubt that the petitioner was invalidated 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 hold that the petitioner will be deemed to have been invalidated out of service and is entitled to disability pension as is admissible to defence personnel who are invalidated out of service.” In a later judgment in Pooja and another v. Union of India and others, 2009(1) SCT 491, while relying on the judgments in Ex. Naik Kishan Singh's case (supra), Madan Singh Shekhawat v. Union of India, AIR 1999 Supreme Court 3378 and Gurjit Singh v. Union of India, 2008 (4) SLR 106, a Division Bench of this Court has held (in paras 4 and 5) in the following terms:- “4. The question that arises before us is whether the petitioners' father could be said to be on duty when he was on leave and sustained the injury in question. The counsel for the petitioners placed reliance on a judgment delivered by the Division Bench of this court reported as Ex. Naik Kishan Singh Vs. Union of India and others, 2008 (3) S.L.R. 327 to contend that an Army personnel on casual/annual leave is deemed to be on duty as he is subject to the Army Act and can be recalled at any time as leave is a discretion of the authorities. 5. We find force in the contention of the counsel for the petitioners. It appears that the apex court also held in judgment reported as Madan Singh Shekhawat v. Union of India, AIR 1999 (S.C.) 3378 Civil Writ Petition No. 6066 of 2007 7 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. Admittedly, in the present case, the petitioners' father was on authorised leave and he sustained the injury while he was at home and white washing his house. The only ground for rejection of claim for disability pension by the Army authorities was that the injury was sustained by petitioners' father while he was on annual leave. However, in the judgment reported as Ex. Naik Kishan Singh's case (supra) the Division Bench of this court held that an Army personnel who meet with an accident while on annual leave, would be entitled to disability pension as he would be deemed to be on duty. The accident being beyond his control, it could not be said that it would disentitle him for grant of disability pension merely because he was on annual leave. It appears, similar view was taken by a Division Bench of this court in the judgment reported as Gurjit Singh Vs. Union of India and others, 2008 (4) S.L.R. 106 wherein it was held that an Army personnel, who suffered an injury during his leave period, the disability on account of the said injury would be deemed to be attributable to military service.” Reference may also be made to a Division Bench of Delhi High Court in Ex.Sepoy Hayat Mohammed v. Union of India and others, 2008(1) SCT 425, wherein reference has been made to catena of judgments and various aspects of the matter have been considered. Para-2 of the judgment reads as under:- “2. The case of the petitioner is that irrespective of the fact that petitioner was on leave, he would continue to be subjected to military law and the injury of Civil Writ Petition No. 6066 of 2007 8 the petitioner in view of Section 2(2) of the Army Act should not be viewed myopically as `not on military duty at that point of time' but viewed in a broader spectrum of `being in military service'. The petitioner has also relied upon para 7(b) of Appendix H in Pension Regulations for the Army, 1961 to say that the disability would be attributable to military service. Reliance was placed upon the judgment of the Supreme court in the case of Lance Dafedar Joginder Singh Vs. Union of India 1995 SCC (LandS) 1149 where it was held that a person on casual leave would be a person on duty. The respondents, during the course of hearing, had produced the records though no detailed counter affidavit has been filed. It is not disputed that petitioner had served the Army without any hazards or problems and fit in all respects with effect from 1988 till 27th May, 2000 when he was invalided out of military service.” In para-3 of the same judgment (Ex.Sepoy Hayat Mohammed's case (supra)), reference has been made in extenso from the judgment in Jitendra Kumar v. Chief of Army Staff (Writ Petition (C) No.19839 of 2005 decided on 19.10.2006). Relevant portion of para-3 reads as under:- “3. The question in relation to a person being on duty while on casual/annual/recruitment leave is no more res integra and has been squarely settled by the judgments of different High Courts including the judgment of the Supreme Court in the case of Lance Dafedar Joginder Singh (supra) as well as a detailed judgment of this Court in the case of Mr. Jitendra Kumar Vs. Chief of Army Staff and Others (WP(C) No.19839/2005 decided on 19th October, 2006) where the Court had discussed various judgments, regulations, Civil Writ Petition No. 6066 of 2007 9 pension rules and provisions of the Act at some length and while granting disability pension to persons, who were on recruit leave in one case and casual leave in another, had also discussed the applicability of attributability/aggravation of disease/injury during such period and had commented upon the distinction between `casual' and/or `causal' connection between the `injuries suffered' and `duty' and held as under :- xx xx xx xx xx xx xx xx xx xx 20. The duty itself is an expression of wide `connotation' and would be incapable of being defined strictly, particularly when a member of the armed force is on leave, duly sanctioned by the authorities. While a person is on leave whether casual, annual or sick, it is not expected of him to perform or discharge his regular military duties as if he was present in a unit. He is expected to live a normal life, which a member of the force is expected to live while on duty. The acts and deeds which are relatable and are part of the normal living of a member of the Force, during which he suffers an injury or death, would normally be attributable to the military service. Unless such an act or deed was entirely beyond the scope of normal behaviour of member of the Force and had no nexus or even a casual nexus between the act and military force, in such circumstances, the injury suffered may not be attributable to the service. For e.g., a person on casual leave may suffer an injury while going to or coming from his leave station to his unit, by public or private transport, while performing his normal functions while on leave like dropping his children Civil Writ Petition No. 6066 of 2007 10 to school, going to the market to buy items of day- to-day needs, going to booking office for booking his train ticket for his travel and while doing so being hit by a vehicle on the road, would be attributable to the military service. While on the other hand, if he is performing the acts or deeds which have no relation to his military service and attempts to do acts for his personal gain or benefit of others like participating in some business, doing agricultural activities, getting drunk, fighting and suffering injuries or suffering injuries from agricultural activities, wheat thresher and other agricultural appliances, the same may not be attributable to or aggravated by military service as has also been held by this Court in recent judgments of this Court of even date in the cases of Ex. AC Somveer Rana Vs. Union of India and Ors (WP(C) No. 2418/2004) and Ex. Hav(AEC) Bhup Singh Vs. Union of India and Ors (WP(C) No. 2325/2002). 21. “Causal” depicts a link which exists between the act and the consequence. It has also been explained as arising from cause. A cause from which such a connection arises should be relatable to military service. The kind of leave does not have much of significance as per the respondents but in any case a person on casual leave, annual leave or even a sick leave, has been held to be on duty and if the act was otherwise having at least a casual connection or nexus between the nature of the act and the expected behaviour of military services the petitioner would be entitled to the grant of disability pension. In addition to the above Civil Writ Petition No. 6066 of 2007 11 judgments reference can also be made to a Division Bench judgment of this Court in the case of G.D. Eshwar Chand vs. Union of India and Ors. 2004 (3) SLR 439, judgments of Punjab and Haryana High Court in the case of Gurmeet Singh vs. Union of India 2000 (5) SLR 596 and in the case of Ex. Naik Manjit Singh vs. Government of India 2000 (1) SLR 100. The provisions of the Army Act and the Rules framed thereunder do not define the word “duty”. This expression finds mention in Appendix II attached to Regulations 48, 173 and 185 of the Pension Regulations for the Army, 1961. In Clause 12 of the said appendix, this expression has been descriptively. It illustrates what could be a 'duty' for the purposes of determining attributability to military service or its aggravation. Such a clause which restrictively defines an expression would be incapable of being given a restricted meaning. Clause 'f' of Rule 12 even includes accidents which occurs when a man is not strictly 'on duty'. There are certainly acts and deeds which a member of the Force would be expected to perform while on actual duty in the Unit or while on leave. For example, going to the market to purchase his households, to go to drop his ward to school or going to some public office or booking office for booking a ticket or other such requirements. These are some of the acts, attributability to service whereof will not change by virtue of location or posting of the person subject to the Army Act. xx xx xx xx xx xx xx xx xx xx Civil Writ Petition No. 6066 of 2007 12 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 Civil Writ Petition No. 6066 of 2007 13 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.” The law, as laid down on the issue, makes it clear 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 authority. In case, a person during annual leave meets with an accident or suffers injury and suffers disability, for reasons beyond his control and not on account of any objectionable conduct of the person, he would be entitled to disability pension. This legal position is admitted by the learned counsel for the respondents. The contention of the learned counsel for the respondents that because the petitioner was allowed to complete his term of engagement after being disabled, therefore, he would not be entitled to disability pension, is not acceptable. The core of the issue is that when a person while on annual leave suffers disability, he would be entitled to disability pension. Whether the person was allowed to complete the term of engagement is dehors the issue of disability pension in so much as disability pension is related to disability. In the case of the petitioner, disability is permanent and had not decreased or cured at the time of completion of term of engagement. It has not been disputed on behalf of the respondents that the petitioner is disabled to the extent of 30% when examined at the time of discharge. In my considered opinion, the petitioner would be entitled to disability pension even though he had Civil Writ Petition No. 6066 of 2007 14 suffered the injury during annual leave whereafter he was allowed to serve the Indian Air Force for 14 years. In view of the above, the petition is allowed. Arrears of disability pension would be released in favour of the petitioner within 4 months of receipt of a certified copy of the order, considering the disability of the petitioner at 30%, as has been adjudged `by the Medical Board. March 5, 2009 ( AJAI LAMBA ) Kang JUDGE