IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.14761 of 1994 Date of Decision: February 25, 2009 Sukhbir Singh .....PETITIONER(S) VERSUS Union of India & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Arun Singla, Advocate, for the petitioner. Mr. C.M. Sharma, Central Government Standing Counsel, for the respondents. . . . AJAI LAMBA, J (Oral) This civil writ petition filed under Article 226/227 of the Constitution of India seeks directions to the respondents to grant disability pension to the petitioner. It has been brought out that the petitioner was enrolled in the Army on 22.9.1979 when he was 19 years of age. The petitioner served the Indian Army for approximately 14 years. An incident took place while the petitioner was on annual leave, in which he lost both the arms. The circumstances resulting in the incident or amputation of arms, were not within the CWP No.14761 of 1994 [2] control of the petitioner and the petitioner was not performing any act which he ought not to have done that is to say that the petitioner was not involved in any illegal activity. Considering the disability of the petitioner, the petitioner was discharged from service on 24.3.1993 on medical ground having been placed in EEE category under Rule 13 (III)(iii) of the Army Rules, 1954 (for short, ‘the Rules’). It seems that the petitioner, other than service element, also prayed for disability element of pension. The claim was rejected vide Communication dated 10.9.1993 (Annexure P-1) on the ground that the disability was neither attributable to nor aggravated by military service and hence disability pension is not admissible under the Rules. The petitioner was given the option to appeal against the decision, within six months. It seems that appeal was filed as is evident from Annexure P-2. In the reply, it has been brought out that the petitioner was on annual leave from 16.6.1990 to 18.8.1990. The incident that resulted in amputation of hands below elbow had no relation with the military service. The defence further taken is that disability pension of a personnel is governed by Regulation 173 of Pension Regulation, (Part-I) 1961 wherein it has been laid down that unless otherwise specifically provided, disability CWP No.14761 of 1994 [3] pension may be granted to a person who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20% or more. It has further been pointed out that the petitioner was granted invalided pension (service element) from 25.3.1993 for life. The appeal of the petitioner filed on 13.1.1994 was pending adjudication before the Government of India, Ministry of Defence, for consideration although the same was beyond period of limitation. I have heard the learned counsel and have considered the issue. Learned counsel for the petitioner has, for the right reasons, relied on judgment of Division Bench of 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 CWP No.14761 of 1994 [4] 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 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.” 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.” Learned counsel for the respondents has not been able to distinguish the judgment. I have considered the issue. I am of the opinion that case of the petitioner is covered by the judgment relied on by the learned counsel for the petitioner. The fight on account of which both CWP No.14761 of 1994 [5] the arms of the petitioner had to be amputated, was not within the control of the petitioner. There is no material to indicate that the petitioner was accused of committing any offence or was convicted for commission of any offence. The petitioner got involved in an incident which resulted in losing of both the arms, hence the petitioner was disabled. At that time, the petitioner was on annual leave. The issue that arises for consideration in this case is whether the petitioner is entitled to disability element of pension, even though he was on annual leave, when he got involved in an incident resulting in the disability. The issue has been considered by a Division Bench of this Court in Ex-Naik Kishan Singh’s case (supra) after taking note of Regulation 179 of the Pension Regulations and judgments of the Hon’ble Supreme Court of India. It has been held that if a person is invalided out of service on sustaining injury/ disability during his service engagements, although on annual leave, disability would be deemed to be attributable to Military Service. This case is accordingly covered by the Division Bench judgment. In view of the above, this petition is allowed. It is directed that a Medical Board would be constituted to assess the extent of disability of the petitioner. On doing so, the petitioner would be allowed disability pension as CWP No.14761 of 1994 [6] per the disability assessed by the Board. Medical Board be constituted within 60 days of supply of copy of this order. (AJAI LAMBA) February 25, 2009 JUDGE avin