IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.304 of 2010 (O&M) Date of decision: 27.4.2010 Union of India. -----Appellant Vs. Sukhbir Singh & others. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH Present:- Mr. J.S. Jaggi, Advocate for the appellant. --- ORDER: 1. This appeal has been preferred against judgment of learned Single Judge, directing grant of disability pension to the respondent as per provisions of the Pension Regulation, 1961, applicable to the respondent/writ petitioner. 2. The respondent was enrolled in Army and was discharged after 14 years of service on account of medical disability suffered by him while in service. However, disability pension was denied to him, against which he filed a writ petition. The writ petition was contested with the plea that disability having been suffered when he was on annual leave, could not be held to be attributable or aggravated by Military service. LPA No.304 of 2010 3. Learned Single Judge upheld the claim of the respondent following earlier DB judgment of this Court in Ex.Naik Kishan Singh v. Union of India & others 2008(3) SLR 327, taking a view that if disability is suffered in an accident, which is beyond the control of the concerned person, he will be entitled to disability pension even if he was on leave. 4. Learned counsel for the appellants submits that the respondent was not entitled to disability pension if disability was suffered when he was on leave. Reliance has been placed on judgments of the Hon’ble Supreme Court in Secretary, Ministry of Defence and others v. Ajit Singh (2009) 7 SCC 328. 5. We are unable to accept the submission. The matter was considered by a Full Bench of this Court in Union of India v. Khushbash Singh etc. L.P.A. No.978 of 2009, decided on 31.3.2010, wherein the judgment of the Hon’ble Supreme Court in Secretary, Ministry of Defence and others v. Ajit Singh was considered and distinguished and it was held:- “12.........In Secretary, Ministry of Defence and others Vs. Ajit Singh (2009) 7 SCC 328, the respondent-defence personnel suffered 20% disability due to an electric shock received by him while he was on casual leave and working in his house near a tube-well. Besides, the respondent had also not completed 10 years of service. The Hon'ble Supreme Court held that he was not entitled to disability pension, while setting aside the judgment of the High Court. It could be 2 LPA No.304 of 2010 noticed in this case that he was on casual leave and therefore, he was entitled to be treated as on duty. He had an accident of an electric shock but that accident was when he was attending to an act inconsistent with an act of a person in Military Service. Although the facts given in the case are not full, we venture to believe that the shock in a bore-well was not for a domestic activity. It was an agricultural operation, which was inconsistent with Military Service. We believe that such a distinction exists, for the Hon'ble Supreme Court itself has in yet another case in Lance Dafadar, Joginder Singh Vs. Union of India and others 1995 (Sup) (3) SC 232 held in a case, where the petitioner, while serving in Army as Lance Dafadar sustained severe injuries in an accident during the time when he was on casual leave. The accident took place while boarding a train when he fell down from the train and suffered severe injuries. His right leg came under the wheels of the moving train and thus, he was crushed below the knee. In this case, the Army Personnel had at least the advantage of showing that he was going on casual leave and therefore, was on duty......” xx xx xx xx “18......An Army Personnel, while on casual leave or annual leave, shall be considered to be on duty except when by virtue of Rule 11 of the Leave Rules, he could not be deemed to be on duty, if he had not actually performed duty in that year. If he was on duty and he suffers the disability due to 3 LPA No.304 of 2010 natural causes, the issue whether it was attributable to or aggravated by Military Service will be examined by taking the case of the Army Personnel as he was and examining whether it was the intervention of the army service that caused the disability. The decision of the Medical Board in examining the physiological injury or the psychological impacts of military service would obtain primacy and the Court shall normally be guided by such scientific medical opinion. However, in cases where the injury that results in disability is due to an accident, which is not due to natural, pathological, physiological or psychological causes of the personnel, the question that has to be asked is whether the activity or conduct that led to the accident was the result of an activity that is even remotely connected to Military Service. An activity of an independent business or avocation or calling that would be inconsistent to Military Service and an accident occurring during such activity cannot be attributable to Military Service. Any other accident, however, remotely connected and that is not inconsistent with Military Service such as when a person is returning from hospital or doing normal activities of a military personnel would still be taken as a disability attributable to Military Service.” 6. In view of above, we do not find any ground to interfere with the view taken by learned Single Judge. 4 LPA No.304 of 2010 7. The appeal is dismissed. ( ADARSH KUMAR GOEL ) JUDGE April 27, 2010 ( ALOK SINGH ) ashwani JUDGE 5