IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.8384 of 2007 Date of Decision: March 04, 2009 Surender Singh .....PETITIONER(S) VERSUS Union of India & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Surinder Sheoran, Advocate, for the petitioner. Ms. Ranjana Shahi, 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 prays for issuance of a writ in the nature of certiorari for quashing Letter dated 2.7.2004 (Annexure P-1) and Order dated 23.11.2006 (Annexure P-3). Under Order, Annexure P-1, the petitioner has been conveyed the decision of Chief Controller of Defence Accounts (Pensions), Allahabad [for short, `CCDA(P)] that claim of the petitioner for disability pension had been denied for reason that “the disease under which you were invalided out from the service is not attributable to military CWP No.8384 of 2007 [2] service”. The petitioner was given the liberty to appeal against the decision within six months. It seems that the petitioner carried an appeal. Grounds of Appeal have been placed on record as Annexure P-2. The petitioner has pleaded that he joined military service on 20.9.1999 and served for 3 years, 4 months and 20 days. While in service, the petitioner suffered a compound fracture Mid Shaft Both Bone (RT) Forearm with Median Nerve Palsy (R). The petitioner was down graded by Medical Board to a lower category and was discharged from service. It has further been pleaded in the Grounds of Appeal that the petitioner had served in the Indian Army in Siachin Glacier, Leh and Ladakh. Essentially, the ground pleaded is that the petitioner suffered the injury while he was well in service and therefore, claim for disability pension could not have been rejected. Under the other impugned order, Annexure P-3, appeal filed by the petitioner has been rejected on the ground that the injury had been sustained on 11.10.2001 while the petitioner was on annual leave. Under the circumstances, it could not be attributed to military service as he was not on duty at the time of sustaining injury, therefore, as per Regulation 173 of the Pension Regulations for Army, Part-I, 1961, the petitioner was not entitled to disability pension. The petitioner was given an opportunity to prefer second appeal to Defence CWP No.8384 of 2007 [3] Minister’s Appellate Committee on pension. Learned counsel for the petitioner states that the circumstances on account of which the petitioner suffered disability, were beyond his control. The petitioner had not indulged in any illegal activity or act. The petitioner was still in service. Even though the petitioner was on annual leave, he would be entitled to disability pension in view of the law laid down by Division Bench of this Court in Pooja & Another vs. Union of India & Others, 2009(1) SCT 491; Ex Naik Kishan Singh vs. Union of India & Others, 2008(2) SCT 378 and Gurjit Singh vs. Union of India, 2008(2) SCT 333. Likewise, a Division Bench of Delhi High Court has also taken similar view in Ex. Sepoy Hayat Mohammed vs. Union of India & Others, 2008(1) SCT 425. Learned counsel for the petitioner has also contended that Hon’ble Supreme Court of India has considered the case of a person who was on casual leave when he suffered disability. The said person was allowed disability pension as is made out from Madan Singh Shekhawat vs. Union of India, 1999(4) SCT 89. Learned counsel for the respondents has vehemently contended that admittedly the petitioner was on annual leave. The disability suffered by the petitioner cannot be ascribed to or connected with his work. In such circumstances, the Regulations do not allow grant of disability pension to the petitioner. Learned counsel, however, has not CWP No.8384 of 2007 [4] been able to distinguish the judgments cited by the learned counsel for the petitioner. I have considered the issue. The main issue that arises for consideration is, whether the petitioner would be entitled to disability pension although he suffered injury while on annual leave. The judgments rendered by Division Bench of this Court in Ex Naik Kishan Singh’s case (supra); Gurjit Singh’s case (supra); and by the Hon’ble Supreme Court of India in Madan Singh Shekhawat’s case (supra) have been taken notice of by Division Bench of this Court in the case of Pooja & Another vs. Union of India & Others, 2009(1) SCT 491, wherein the following has been held:- “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.) 3738 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 CWP No.8384 of 2007 [5] 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.” The Division Bench of Delhi High Court in the case of Ex Sepoy Hayat Mohammed (supra), after considering catena of judgments on the issue, has held in the following terms:- 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 CWP No.8384 of 2007 [6] 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.” Considering the facts and circumstances of the case, in particular, the fact that the petitioner was admittedly not involved in any illegal activity and had met with an accident, for reasons beyond his control, he would be entitled to disability pension as per law laid down in the various judgments to which reference has been made hereinabove. In view of the above, the petition is allowed. The petitioner would be examined by a Medical Board within four months of receipt of certified copy of the order whereupon he would be allowed disability pension. (AJAI LAMBA) March 04, 2009 JUDGE avin