SBCWP NO.4929/04. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.4929/2004. Sish Ram Vs. Union of India & Ors. Date of Order :- 22/8/2008. HON’BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Harish Maan for the petitioner. Miss Priyanka Pareek for the respondents. **** BY THE COURT:- Reportable Petitioner-Sish Ram, who was discharged from services of army on medical ground, has filed this writ petition with the prayer that action of the respondents in not granting him disability pension w.e.f. 15/10/1985 be declared illegal and arbitrary and respondents may be directed to grant the same w.e.f. 15/10/1985 with arrears @ 24% p.a. 2) Shri Harish Maan, learned counsel for the petitioner has argued that petitioner was enrolled in army on 5/3/1976 in the Medical Category 'A'. He served in operational areas of the army from February 1977 to July 1977 and further from December 1981 to December 1983. The petitioner was granted casual leave w.e.f. SBCWP NO.4929/04. 2 4/4/1984 and while on such leave, he accidentally fell down from the roof of his house on 4/4/1984 and sustained severe injuries. The court enquiry that was held to go into the circumstances under which he sustained injuries having examined all the witnesses opined that petitioner sustained injuries of “fractures compression LV4, LV5 Comp and fracture Calcaeum (RT)” on 24/4/1984 at about 0400 hours while he fell down from the roof of his house. It held that individual is not to be blamed for such injury and the injury sustained is attributable to military service. Learned counsel further submitted that Commandant of the Unit, with which petitioner was attached concurred with the opinion of the court of enquiry who also opined that the injuries sustained by the petitioner were attributable to military service. After his hospitalization, petitioner was placed in Medical Category 'C' w.e.f. 31/8/1984 and in category 'C' permanent w.e.f. 27/3/1985. He was not provided sheltered appointment and he was discharged from service on 15/10/1985 in lower Medical Category 'C' Permanent with exemplary character after 9 years and 223 days service to be counted as 10 years. The petitioner was only 27 years when he was discharged. Even the medical board considered the disability of the petitioner as 50% attributable to military service assumed the disability as 50%. It was argued that although as per Rule 4 of the Entitlement Rules, the petitioner would be treated invalidated out from service and as per Rule 5 of the Entitlement Rules, the deterioration in his health which has taken place is SBCWP NO.4929/04. 3 attributable to military service and, therefore, he cannot be called upon to prove the conditions of entitlement and as per Rule 9, he will be entitled to receive benefit of doubt because as per Rule 13, the injuries sustained by him shall be deemed to have been resulted from military service. As per Rule 19 of the Entitlement Rules, aggravation by service is to be accepted and under Regulation 173 of the Pension Regulations for Army, he is fully entitled for grant of disability pension. Respondents, arbitrarily by their order dated 4/4/1986 rejected the claim of the petitioner for grant of disability pension holding that his disability is not attributable to military service. The appeal filed by the petitioner against the rejection order dated 4/4/1986, was also mechanically rejected by the Government of India vide its order dated 20/7/2004. None of these orders have dealt with either the law or facts in their true perspective. Learned counsel relied on the judgments of Supreme Court in Joginder Singh Vs. U.O.I. & Ors. : 1996(2) S.L.R. 149 and this Court in Maru Ram (since deceased) Vs. U.O.I. & Ors. : 2004 W.L.C. (Raj.) U.C. 615. Learned counsel also relied on judgment of Allahabad High Court in Shanker Lal Vs. Secretary, Govt. of India, Ministry of Defence (Pen-A), New Delhi : MilLJ 2007 All 138 and Gurmit Singh Butter (Ex.Sepoy) No.2479763 Vs. Union of India and others : S.L.R. 2000(5) 596. 3) Per contra, Ms.Priyanka Pareek, learned counsel appearing for the respondents-Union of India SBCWP NO.4929/04. 4 opposed the writ petition and argued that Supreme Court judgment on which reliance has been placed by the petitioner arose out of the case in which concerned employee was on casual leave. In the present case, though the petitioner was initially granted 12 days casual leave w.e.f. 4/4/1984 to last till 15/4/1984 but he sent a request for extension of 10 days' leave which was sanctioned and the leave was extended by the commanding officer. Since as per rules, 12 days' casual leave originally granted was over on 15/4/1984 but same was extended upto 26/4/1984 was treated annual leave. It was within this period that the petitioner sustained injury on 24/4/1984. The injury was caused due to his felling down from the roof of his house and was not in any manner connected with the military service and could not be therefore held attributable to military service. It was contended that petitioner was discharged from service under Item No.13(3) III (v) sub-Rule 2A of the Army Rules, 1954 by the Release Medical Board held at Meerut on 26/8/1985 in medical category CEE (Permanent). The disability pension claim of the petitioner was rejected by the P.C.D.A. (P) Allahabad vide letter dated 4/4/1986 on the ground that disability was not attributable to military service. It was argued that petitioner has to prove that the injury leading to disability was caused because of conditions of military service. If a disease is accepted as having arisen in service, it must also be established that the conditions were due to circumstances of duty in the military service. None of these ingredients are present in the present case and therefore petitioner cannot be SBCWP NO.4929/04. 5 granted the disability pension. Learned counsel for the respondents in support of her argument, relied on the judgment of Division Bench of Patna High Court in Union of India and others Vs. Smt.Meera Devi : MilLJ 2002 Patna 185. 4) I have given my anxious consideration to the rival submissions advanced on behalf of the parties at the bar, perused the material forming part of the record and also studied the cited judgments. 5) Supreme Court in Joginder Singh supra, was dealing with a case of an army personnel who was serving as Lance Dafadar. He sustained injuries in an accident while he was on casual leave. He was denied disability pension. It was held that he being in regular army, there was no reason why he should not be treated on duty when he was on casual leave. The Supreme Court held that no army regulation or rule has been brought to the notice of the Court to show that the appellant was not entitled to disability pension. It is rather not disputed that an army personnel on casual leave is treated to be on duty. But that was a case in which what was contended and what was found proved was that employee concerned was on casual leave when he sustained injury. In the present case, it is found that petitioner originally proceeded on casual leave from 4/4/1984 to 15/4/1984 and it was while he was on such leave that he sent a request for extension of 10 days' leave which was granted. Respondents have now asserted that his original leave as also the SBCWP NO.4929/04. 6 extended leave were both converted into part of annual leave w.e.f. 4/4/1984 to 26/4/1984. 6) Though no specific rule has been cited to substantiate this point. But in any case, even if what is contended is accepted that for the reason of request for extension, entire leave period of the petitioner was treated to be part of Annual Leave, then also, the question that arises for determination of the court is whether petitioner can be extended the benefit of disability pension? All such questions were raised in number of judgments which have been cited by the petitioner. Maru Ram (since deceased) supra, was a case where petitioner was availing two months leave from February 1972 to March 1972. It was stated therein that though while he was on leave but he sustained injuries on his right hand and the fingers of his right hand were cut-off, he was held entitled to disability pension. Allahabad High Court in Shanker Lal supra, considered a case where petitioner, Naik in the corps of Artillery sustained injuries in a road accident while on annual leave and was rendered unfit for further retention in the army. He was discharged from service and recommendation for disability pension was not accepted by the Chief Controller Defence Accounts (Pension). It was held that army personnel always remain subject to the disciplinary code of the armed forces unless and until his services are terminated or dispensed with in accordance with law. Hence disability pension cannot be rejected on hyper technical ground that the petitioner was on annual leave when he SBCWP NO.4929/04. 7 sustained injury. Hence, respondents were directed to grant disability pension to the petitioner forthwith. Punjab & Haryana High Court in Gurmit Singh Butter supra, was also dealing with a case where petitioner met with an accident while on annual leave. Disability pension was denied on the ground that such injury and the resultant disability, was not attributable to army service. It was held that annual leave is an incident of service and while on annual leave the relationship of employee and employer has never severed, petitioner is entitled to disability pension. Dharam Pal supra, was also a case on the same line. In that case too, petitioner sustained “perforating injury right eye with Traumatic Cataract” while on annual leave and on that ground, he was discharged from service. He was also denied disability pension being not attributable to military service as petitioner sustained those injuries while he was on annual leave. Judgment of Patna High Court in Union of India and others supra has been cited to argue that the law in the aforesaid judgment has not been correctly enunciated. But on facts, it is found that Patna High Court was dealing with a case where the husband of the widow who approached the court for grant of the benefit who was although on casual leave but sustained gun shot injuries during a private fight while on annual leave. It was owing to those injuries that he was invalidated out from military service. The injuries sustained by him were held to be neither attributable to nor aggravated by military service having been received during the period of remaining the army personnel on annual leave. Even then, the High SBCWP NO.4929/04. 8 Court requested the Union of India to sympathetically consider the case of the widow. 7) Discussion aforesaid would show that emerging facts which are undeniable are that it was a case where the petitioner was on annual leave. According to number of decided cases, if an army personnel proceeds for casual leave and during this period he meets with an accident, he is entitled to disability pension. In the present case, initial period of 10 days of casual leave was on request of extension, that period of casual leave was treated as part of annual leave for the entire duration. Regardless of the nature of the leave, however, it cannot be disputed that the relationship of employee and employer between the petitioner and respondents persisted in both the durations and petitioner was always subject to the rules of the respondents which govern the condition of his service on matters related to discipline and conduct. Respondents have not made out a case how could there be any difference in the relationship of employer and employee if the petitioner was on casual leave rather then being on annual leave or even on medical leave. These all are incidents of service and leave of all these kinds are admissible to the employees as per relevant rules. The distinction that the respondents are seeking to make, in my considered view, is without any difference because what is material is that petitioner was under an obligation to serve the respondents on duty and return back to duty. On facts, therefore, I do not find any distinction not only SBCWP NO.4929/04. 9 between two kinds of leaves but also this case is not found distinguishable from all the aforesaid cases in which the disability pension was granted to the concerned employees by different High Courts even when they sustained injuries while on annual leave. What is more, in the present case, the petitioner was originally on casual which when he requested for extension was treated as annual leave. There was then no option with the petitioner but to accept the decision of the respondents. Moreover, in the present case, courts of enquiry, Commandant and Release Medical Board have all consistently held that disability which the petitioner sustained as attributable to the military service and thus case of the petitioner was recommended for grant of disability pension with his disability assessed at 50%. There was thus no occasion for the respondents to refuse to grant of disability pension to the petitioner, which in my considered view, is wholly arbitrary and illegal. 8) In the result, the writ petition is allowed. The respondents are directed to grant disability pension to the petitioner from the date of his discharge from duty with interest @ 6% per annum. Compliance of the judgment be made within three months from the date copy of the same is produced before the respondents. SBCWP NO.4929/04. 10 (MOHAMMAD RAFIQ), J. anil