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