IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.9566 of 2008 Date of Decision: April 22, 2009 Kuldeep Singh .....PETITIONER(S) VERSUS Union of India & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Navdeep Singh, Advocate, for the petitioner. Dr. Amarpreet Sandhu, Central Government Standing Counsel, for the respondents. . . . AJAI LAMBA, J (Oral) Ex-Naik Kuldeep Singh has approached this Court in its civil writ jurisdiction praying for issuance of a writ in the nature of mandamus directing the respondent-Union of India to release the disability element of pension to the petitioner. It has been pleaded on behalf of the petitioner that the petitioner was enrolled in Punjab Regiment, Indian Army on 27.1.1988. During the course of service, the petitioner remained posted essentially in the field areas such as Drass, Baramulla, Sunderbani in Jammu & Kashmir, Miran Sahib and operational war deployment during CWP No.9566 of 2008 [2] Operation Parakaram. While on operational duty near the Line of Control in Sunderbani area of Jammu & Kashmir on 10.3.2001, the petitioner suffered an accidental fire from his own weapon. The bullet went through his body from right side of his chest. The petitioner was declared a case of “Gun shot wound (Right) side of chest”. The medical category of the petitioner was down graded. It has been asserted on behalf of the petitioner that the petitioner was deployed for an exceptionally long period of time due to shortage of man-power. The petitioner was under extreme stress and strain, and therefore, probably suffered a bout of unconsciousness. Clearly, however, it has also been stated that there might be some degree of negligence on the part of the petitioner in the incident, however, it has been contended that the same would be on account of the extreme stressful conditions. Be that as it may, on account of low medical category, the petitioner opted for voluntary discharge in the year 2004. The petitioner was discharged on 31.1.2005 in permanent low medical category while assessing the degree of his disability at 20%. In view of the fact that the petitioner had suffered accidental gun shot wound from his own weapon, the case of the petitioner was not processed for disability pension. Learned counsel for the petitioner has CWP No.9566 of 2008 [3] essentially raised three arguments. Learned counsel contends that Rule 13 of Entitlement Rules Promulgated by Ministry of Defence (1982 – Amended Till Date) [for short, `the Rules’] provides that even if injury is sustained while on duty on account of negligence, question of reducing the disability pension will be considered by the respondents. Learned counsel for the petitioner contends that the claim for disability pension of the petitioner cannot be denied wholly. The respondents are bound to consider the claim of the petitioner for disability pension. Only the reduction in disability pension can be considered. Second contention of learned counsel for the petitioner is that Court of Enquiry report favours the petitioner as is evident from Annexure P-7 placed on record with the replication. It has been concluded by the Court of Enquiry that gun shot wound received by the petitioner on 10.3.2001 is attributable to military service in field area. The injury, however, is accidental and not a battle injury. Developing his argument, learned counsel states that even a person on casual leave who meets with a road side accident while travelling to his home town or from the home town to the place of posting, is entitled to disability pension. Surely a person such as the petitioner who was on duty on the Line of Control and sustained injury in an accident would be entitled to disability pension. CWP No.9566 of 2008 [4] On the third count, learned counsel has contended that the petitioner had already been punished by way of giving him “reprimand”. Reduced disability pension also would be subjecting the petitioner to double jeopardy. Learned counsel for the respondents contends that once the Court of Enquiry has concluded that the petitioner had been negligent, he is not entitled to any disability pension. Provisions of Rule 13 of the Rules are not mandatory in their scope. Learned counsel further states that opinion given by the Court of Enquiry does not entitle the petitioner to disability pension. I have considered the issue and have gone through the paperbook. There is denial of disability pension because the case of the petitioner was not even processed for grant of disability pension. The extracts from the relevant documents need to be referred to for adjudicating. The opinion (Annexure P-7) drawn by Court of Enquiry in relation to the incident of 10.3.2001 reads as under:- “The court is of the opinion that:- (a) Gun shot wound chest (R) side with (R) lung injury and haemothorax (R) sustained by No.2480765M NK Kuldeep Singh on 10 March 2001 at about 0925 hrs is attributable to military service in field area. (b) The injury sustained by No. 2480765M NK Kuldeep Singh is accidental and is not a battle injury. (c) No. 2480765M NK Kuldeep Singh is guilty of CWP No.9566 of 2008 [5] negligence in handling of a loaded rifle onsas 5.56 MM thereby having discharged the weapon accidentally while at water-tank area. The discharge of the bullet caused injuries to his chest, lung and back. (d) Procedure/drills regarding inspecting the weapon and ammunition for safety at the time of handing/taking of weapon and ammunition needs to be strictly followed by sentries.” The exact reference to Rule 13(a) of the Rules needs to be made. Relevant portion reads as under:- “13. xx xx xx xx xx xx xx (a) Injuries substained when the man is “on duty” as defined, shall be deemed to have resulted from military service, but in cases of injuries due to serious negligence/ misconduct the question of reducing the disability pension will be considered.” Regulation 175 of Pension Regulations for Army (1961) in relation to “serious negligence or misconduct” reads as under:- “175. If the disability of an individual is wholly or partly due to his serious negligence or misconduct, the amount of disability pension otherwise admissible may be reduced at the discretion of the competent authority.” Reference may also be made to the opinion of the Medical Board that has been placed on record as Annexure P-4. Under Para 5(a), the opinion given by the Medical Board is to the effect that the disability was not attributable to the individual’s own negligence or misconduct. In Para 5(b), the opinion given by the Medical Board is to the effect that the injury was not attributable or aggravated by negligence or misconduct of the petitioner. Ordinarily the Medical Board is not in a position to give its opinion in regard to the CWP No.9566 of 2008 [6] negligence or misconduct of an individual while on duty as the Medical Board is only concerned with the medical condition of the individual. However, Annexure P-4 is required to be read in conjunction with the statement of the concerned doctor who had joined the proceedings during Court of Enquiry, a copy whereof has been placed on record during the course of hearing, on the asking of the Court. The copy is certified and therefore, is taken on record. Question 3 is relevant in context of the controversy which reads as under:- “Q 3. It has been revealed that NK Kuldeep Singh was not feeling well and reported to ADS (Advanced Dressing Station) on 8 March 2001. A 3. On 08 March, in the evening indl. reported a feeling of uneasiness and chest pain. The indl was sent to ADS along with the Coy boys. MO Capt Aditya Vikram took the BP and ECG of the indl. The indl was detained for the night for observation. His BP was low therefore he was given I/V drip. His ECG was normal. The indl was discharged fit on 09 March 2001 in the morning and was told in case he had any problem he can contact MO. I hereby produce the prescription given by the MO. (The Court peruses the prescription and endorses as exhibit I).” When the statement of the doctor as reproduced and noticed above, is read in conjunction with opinion given in Para 5(a) and (b) of Annexure P-4, it becomes evident that the doctor was in a position to see that the petitioner was taken ill on 8.3.2001 with low blood pressure and uneasiness. The petitioner was discharged from the hospital on 9.3.2001. The incident at issue occurred on 10.3.2001 in the morning. In this backdrop of facts, it can safely be concluded that the petitioner was under a CWP No.9566 of 2008 [7] great stress and strain of continuous duty/service. The case as set up on behalf of the petitioner that on account of prolonged duty, the petitioner was under stress and strain, is established. He had been given intravenous drip during the intervening night of 8/9.3.2001. Although negligence has been admitted by the petitioner and has been observed by the Court of Enquiry, however, in my considered opinion, the facts clearly warrant the case of the petitioner to be considered under Rule 13 of the Rules read in conjunction with Regulation 173 to which reference has been made hereinabove. The contention of learned counsel for the respondents to the effect that Rule 13 of the Rules is not mandatory, in the facts and circumstances of this case, is not acceptable. Rule 13 of the Rules inheres that when injuries are sustained while a man is on duty, injuries shall be deemed to have resulted from military service. In cases of injuries due to serious negligence or misconduct, question of reducing the disability pension will be considered. The language of the rule does not even suggest that disability pension would be denied, even in cases of serious negligence or misconduct. For the right reasons, learned counsel for the petitioner has referred to the instances of grant of disability pension if a person is travelling to his home town on casual leave and CWP No.9566 of 2008 [8] meets with a road side accident. It has been consistently held that such a person would be entitled to disability pension. A reference in this regard may be made to judgment of the Hon’ble Supreme Court of India in Madan Singh Shekhawat vs. Union of India, 1999 (4) SCT 89 (SC). Relevant Para 15 to 17 reads as under:- "15. Applying the above rule, we are of the opinion that the rule makers did not intend to deprive the army personnel of the benefit of the disability pension solely on the ground that the cost of journey was not borne by the public exchequer. If the journey was authorised, it can make no difference whether the fare for the same came from the public exchequer or the army personnel himself. 16. 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 authorised 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 authorisation 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 unauthorised. 17. Since on facts there is no allegation in this case that the appellant while travelling to his leave station on the fateful day was travelling unauthorisedly, we are of the opinion that he is entitled to the benefit of disability pension as provided under the Rules.” The contention that the petitioner sought voluntary discharge and therefore, is not entitled to disability pension is also not acceptable in view of Division Bench Judgment of the High Court of Delhi in Civil Writ Petition No.2967 of 1989 (Mahavir Singh Narwal vs. Union of India & Another), decided on CWP No.9566 of 2008 [9] 5.5.2004 which, as admitted by the learned counsel for the respondents, has been upheld by the Hon’ble Supreme Court of India. The relevant portion of Mahavir Singh Narwal’s case (supra) reads as under:- “The arguments advanced by the learned counsel for the respondents that these letters were not issued by the competent authority is not of any relevance for grant of disability pension. What is relevant is whether the mandate of Pension Regulation 173 read with Rules 1 and 2 of Appendix II has been taken into consideration or not. Merely because a person has attained discharge on compassionate ground although his disability has been acquired on account of stress and strain of military service will not be a ground to reject the claim of disability pension, it has been invalidated act in terms of Appendix II of Rule 173. We allow the writ petition and direct the respondent to grant disability pension to the petitioner on the basis of assessment of 30% disability as opined by the Release Medical Board in the year 1979 upto date. For future disability pension the respondent may conduct another medical board to assess the percentage of disability of the petitioner. Arrears of disability pension be paid to the petitioner within a period of 8 weeks. If the same are not paid within 8 weeks the petitioner shall be entitled to the interest at the rate of 9% on the amount of arrears. With these directions the writ petition is allowed.” Considering the facts and circumstances of the case that have come on record during Court of Enquiry proceedings and by way of opinion of the Medical Board, it was incumbent on the respondents to have considered the case of the petitioner under Rule 13 of the Rules read with Regulation 173 for disability pension, however, after considering the question of reducing the disability pension considering the negligence of the petitioner. I am not however convinced with the argument of the learned counsel for the petitioner that it would tantamount to double jeopardy if disability pension is also denied to the petitioner, as, petitioner has already been `reprimanded’. For CWP No.9566 of 2008 [10] an act or event, punishment is a different issue whereas claim for disability pension flows from different circumstances viz. receipt of physical disability while on duty, aggravated by service or attributable to service. The contention of the learned counsel for the respondents that opinion of the Court of Enquiry disentitles the petitioner to disability pension is not acceptable for the reason that from Para 5(a) of the opinion, it becomes evident that gun shot wound on the right side of chest and lung was received while the petitioner was on duty and has been held to be attributable to military service in field area. Under Para 5(b), it has been held to be accidental and not a battle injury. In view of the above, this petition is allowed. It is directed that the case of the petitioner would be considered by the respondents under Rule 13 of the Rules read with Regulation 173. The necessary decision would be taken by the respondents within four months of receipt of certified copy of this order, while considering the question of reduction in disability element of pension as provided under the provision mentioned above. The arrears would be paid to the petitioner within two months of the decision taken by the respondents. (AJAI LAMBA) April 22, 2009 JUDGE avin