Court No.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No.5188 of 2001 (Old No. 11333 of 1998) Jawahar Singh ………. Petitioner Versus Union of India through Chief of the Army Staff, Army Head Quarter, DHQPO New Delhi and others. ……… Respondents ……………….. Sri Lalit Belwal, learned counsel for the petitioner. Sri Vikas Pande, learned counsel for Union of India/respondents Date: Aug. 11,2008. Hon’ble P.C.Verma,J. This petition has been filed for writ of mandamus directing the respondents to pay him disability pension with effect from the date of invalidation i.e. 31st January, 1959. 2 The facts of the case, in brief, are that the petitioner was enrolled in the Army (Kumaon Regiment) on 05.03.1953. After completion of his training he was given posting in 4 Kumaon Regiment. Located at that time at Ambala Cantt. The petitioner was granted his annual leave with effect from 10.02.1957 to 22.05.1957 with the facility of free railway warrant for to and fro journey from Ambala Cantt to Tanakpur. After completion of annual leave while the petitioner was returning from home by bus to join his duty at Ambala the said bus met with an accident near 10 kilometres 2 away from Pithoragarh Bus Station in which the petitioner sustained injuries. He was brought to Military Hospital Bareilly for his medical treatment. After medical treatment the petitioner was discharged from the Military Hospital to join his duties in 4 Kumaon Regiment. He joined his duties. Thereafter he was discharged from the Army Service on medical ground being category “EEE”. The petitioner’ s case for granting disability pension was rejected by the respondent No.3/C.D.A. Controller of Defence Accounts (Pension) Allahabad stating that the petitioner’s invaliding disability is neither attributable to military service nor it existed before or arose during military service and has been or remains aggravated there. Against the said rejection of pension by the respondent No.3, the petitioner filed appeal to the respondent No.2/Government of India, Ministry of Defence (Pension) where the appeal of the petitioner has also been rejected by order dated 16.05.1960. The petitioner again filed another appeal before the respondent No.2 who again rejected the case of the petitioner on the ground that the accident of the petitioner was not attributed to military service. Thereafter the petitioner moved number of application to the respondents to consider his case for granting him disability pension but he was informed that his case has already been rejected by the Controller of Defence Accounts (Pension) Allahabad for grant of disability pension. Being aggrieved, the petitioner has come up with this petition. 3. In the counter affidavit on behalf of the respondents it has been admitted that the petitioner was 3 on authorized annual leave from 10th February, 1957 to 22nd May, 1957 including 12 days journey period for to and fro journey. It is alleged by the respondents that since he was granted 06 days journey period for return journey, he was to start his return journey either in the afternoon of 16th May, 1957 or in the forenoon of 17th May, 1957 but he started his return journey on 20 May, 1957, which constituted three days absence. The accident of the petitioner during the course of journey and his medical treatment in Military Hospital Bareilly are also admitted to the respondents. The disability pension to the petitioner has been rejected by the respondent No.3 that neither the disability was attributable to nor aggravated by military service as his disability No.2 (b) (i.e. Head injury) was assessed at less than 20% (i.e. 11 to 15%) while percentage of disability was assessed as 50% for invaliding disability No.2 (a) (Anxiety State Moderately Severe Recent-42). 4. I have heard the learned counsel for the parties at length. In Para 19 of the counter affidavit it has been stated on behalf of the respondents that disability of petitioner was assessed by Medical Board as 60%. The Board considered that the disability was as a result of the alleged injury. It is also clear from the record that the petitioner was discharged from Army service on 31 January, 1959 on medical grounds. While he was returning after availing authorized annual leave, he sustained injuries in bus accident. The learned counsel for the petitioner submitted that the journey undertaken by Armed Forces personnel to join duty after expiry of regular leave at government expenses constitutes 4 bonafide government duty. I find force to the contention of the learned counsel for the petitioner. The rejection by CDPA Allahabad that disability did not arise during military service is not at all founded on valid grounds for the reasons that the petitioner was travelling on Government expenses during his journey period granted to him. 5. Reliance has been placed on the judgment delivered by Hon’ble Supreme Court in Madan Singh Shekhawat versus Union of India and others, reported in 1999 (83) FLR 311. In the said case the appellant was Sawar (Horse Rider) in the Indian Army. He was discharged from the Military service on medical grounds. The appellant was involved in an accident and at the time of said accident, he was travelling on authorized casual leave granted to him. In Para-10 of the said judgment the Apex Court has held as under:- “10. The controversy in this case is whether the qualification “at public expense” found in this rule is so mandatory as to deprive an army personnel who is travelling to his leave station or vice versa “on duty”, but at his own expense, of the benefit of disability pension if need arises. If the expression “at public expense” is to be construed literally then under the Rules referred to above, an army personnel incurring a disability during his travel at his own expense will not be entitled to the benefit of Rule 6 (c) of Defence Services Rules. The object of the rule, as we wee, is to provide relief to a victim of accident during the travel. If that be so, the nature of expenditure incurred for the purpose 5 of such travel is wholly alien to the object of the rule.” 6. The Apex Court in Para 15 of the said judgment also held as under:- “15. We, therefore, construe the words “at public expense” used in the relevant part of the rule to mean travel which is undertaken authorisedly. Even an army personnel entitled to casual leave may not be entitled to leave his station of posting without permission. Generally, when authorized to avail the leave for leaving the station of posting, an army personnel uses what is known as “travel warrant” which is issued at public expense, same will not be issued if person concerned is travelling unauthorisedly. In this context, we are of the opinion, the words, namely, “at public expense” are used rather loosely for the purpose of connoting the necessity of proceeding or returning from such journey authorisedly. Meaning thereby if such journey is undertaken even on casual leave but without authorization to leave the place of posting, the person concerned will not be entitled to the benefit of the disability pension since his act of undertaking the journey would be un-authorised.” 7. In the present case it is an admitted fact that the petitioner was travelling authorisedly while travelling for his return journey to join his duty on the fateful day. 8. In view of above position of law laid down by the Apex Court in the case of Madan Singh Shekhawat 6 (supra), the petition deserves to be allowed and it is held that the petitioner is entitled to get disability pension. 9. The writ petition is allowed accordingly. No order as to costs. (P.C.Verma,J.) 11.08.2008 P.Singh