R.S.A. No.1899 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1899 of 2007 (O&M) Date of decision:02.07.2009. Harbans Singh Chahal ...Appellant Versus Union of India and others ...Respondents CORAM: HON'BLE MR. JUSTICE AJAY TEWARI Present: Mr. T.P.Singh, Advocate, for the appellant. Mr. S.K.Sharma, Advocate, for the respondents. ***** AJAY TEWARI, J. This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the appellant claiming a declaration that he is entitled to disability pension. Admitted facts are that the appellant came home on leave and at night, while he was asleep, a thief entered his house and on being challenged, shot the appellant in the eye. The appellant was, thereafter, discharged on medical ground vide order dated 14.07.1972. Both the Courts below have held that even though the appellant was in service, yet injury which he suffered could not have even a remote nexus to his service. The appeal proposes the following questions of law: - i) Whether, the finding of the learned Courts below that though the period of the casual leave is to be treated as period of active service but the R.S.A. No.1899 of 2007 (O&M) -2- gun-shot injury received by the plaintiff/appellant for his no fault while he was on casual leave is not attributable to the Army service, is legally sustainable? ii) Whether the learned First Appellate Court for the first time could hold the suit of the plaintiff/appellant regarding disability pension barred by limitation when there is no such issue nor any such issue was claimed by the defendant/respondent during the trial and further no such evidence was led nor any such argument was raised? iii) Whether the right to pension, which is recurring in nature, can be defeated on the ground of limitation? In my opinion, the determination of question Nos.2 and 3 would be necessitated only if question No.1 is decided in favour of the appellant. Learned counsel has relied upon a judgment of the Hon'ble Supreme Court in Joginder Singh (Lance Dafadar) Vs. Union of India and others, reported as 1997(2) RSJ page 413, wherein the Hon'ble Supreme Court allowed disability pension to a person who had met with an accident while boarding a train on way to enjoy his leave. In my opinion, the case of the appellant cannot be considered at par with that of Joginder Singh's case (supra), where the person was proceeding by train on a concession voucher and suffered an accident while going to avail his leave. In the present R.S.A. No.1899 of 2007 (O&M) -3- case, as mentioned above, the appellant was shot by a thief while he was availing his leave. Learned counsel for the appellant has relied upon a particular sentence, which is as follows: - “It is rather not disputed that an Army personnel on casual leave is treated to be on duty.” Learned counsel for the appellant has argued that in view of this exposition of law, it has to be held that the appellant was on duty and, thus, he suffered the disability during the same. In my opinion, this sentence has to be read in the context and cannot be given the broad interpretation which is sought to be given by the learned counsel for the appellant. The position of the appellant of having been shot at by a thief can in no circumstance to be held attributable to Army service so as to grant the appellant the benefit of being on duty and, therefore, the question whether the appellant is to be considered on duty or not pales into insignificance. Consequently, deciding question No.1 against the appellant this appeal is dismissed. No costs. July 02, 2009 (AJAY TEWARI) vinod JUDGE