C.W.P.No.9136 of 1994 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.9136 of 1994(O &M) Decided on : 06-03-2009 Naresh Kumar Ahlawat ....Petitioner VERSUS Union of India and others ....Respondents CORAM:-HON'BLE MR. JUSTICE AJAI LAMBA. Present:-Ms. Harpreet Kaur, Advocate for the petitioner. Ms. Anjali Kukkar, Advocate for the respondents. AJAI LAMBA, J(Oral) This civil writ petition has been filed under Articles 226/227 of the Constitution of India praying for issuance of writ in the nature of certiorari for quashing order dated 07.06.1993 (Annexure P-12). The effect of impugned order is that disability pension has been denied to the petitioner for the reason that the disability was not attributable to Military Service. As per the admitted case, disability suffered by the petitioner was assessed at 30% on account of Fracture Lateral C.W.P.No.9136 of 1994 -2- Condyle (Rt) Tibia. Facts as admitted by learned counsel for the parties are that the petitioner joined the Indian Army on 23.09.1983. It seems that while in service, on duty at EME School Baroda, the petitioner fell down in the bathroom and sustained injury in the left leg on 8.5.1988. The petitioner was examined by a Medical Board and was awarded Lower Medical Category “CEE” (Permanent) on 28.09.1989. Release of the petitioner was recommended on account of Lower Medical Category “CEE” (Permanent) vide report dated 16.4.1990 as he was not found fit for Army duty. It seems that the petitioner was offered alternate appointment on account of his low Medical Category. The petitioner, it seems, refused alternate appointment and wanted to continue in active Military Service, which however, was not possible on account of the disability suffered by him, which was permanent in nature. Accordingly, on the request of the petitioner, he was discharged on 31.10.1990 (AN). The petitioner approached his Officer Commanding for grant of disability pension as evident from Annexure P-2 dated 10.9.1991. Vide Annexure P-3, dated 18.11.1991, the authorities were asked to process the case of the petitioner for disability pension expeditiously, as the petitioner was facing financial C.W.P.No.9136 of 1994 -3- distress on account of non-receipt of pensionary benefits. It seems that despite, recommendations by the authorities in EME, Secunderabad, no decision was taken by the respondents. Vide Annexure P-4, dated 30.3.1992, the petitioner was informed that his case is under consideration and would be settled shortly, and the petitioner would be further informed accordingly. Under Annexure P-5, dated 8.6.1992, again the petitioner requested the Officer Commanding, EME Records, Secunderabad to process the case at an early date as nothing has been heard from the authorities. Vide Annexure P-6, dated 27.6.1992, the Authorities in EME Records informed the petitioner i.e. the case of the petitioner of disability pension was still under consideration with CCDA (P). Annexure P-7, is a letter written on 12.11.1992 by Secretary, Zila Sainik Board, Rohtak to the authorities, pleading for disability pension on behalf of the petitioner and early finalisation of the case, as the petitioner was facing great financial difficulties. Vide Annexure P-8 dated 15.12.1992, EME Record Office, Secunderabad, the case for disability pension was returned for want of injury report/detailed statement duly signed by the petitioner and countersigned by officer Commanding of the Unit. The petitioner was further asked to recollect his Memory and C.W.P.No.9136 of 1994 -4- forward detailed statement in duplicate ellaborating circumstances under which the petitioner had sustained the injury, its date, time and place. The statement was to be corroborated by two eye- witnesses. Vide Annexure P9, dated 28.12.1992, the petitioner responded to P-8, while informing the authorities that eye-witnesss statement cannot be furnished as the incident was old and the petitioner could not recollect the names and details of the witnesses. The petitioner further informed the Authority that a Court of Inquiry had been conducted, while the petitioner was under treatment in Military Hospital, Baroda and therefore, relevant documents can be obtained from the official records themselves. Vide Annexure P-10, dated 5.2.1993, the pension claim of the petitioner was re-submitted with the documents detailed in para 2 thereof by EME Records. Vide Annexure P-11, dated 7.5.1993, the petitioner asked CCDA(P) authorities to process the case at the earliest as the petitioner was in a great need of money for his livelihood. Annexure P-12 is the impugned order dated 7.6.1993, whereunder it was decided that the petitioner was not entitled to disability pension because his invaliding disability i.e. "Fracture C.W.P.No.9136 of 1994 -5- Lateral Condy Rt.", is not attributable to Military Service. Learned counsel for the respondents states that because the petitioner has not been invalided out on medical grounds, the petitioner is not entitled to disability pension. Learned counsel states that the petitioner was offered alternate employment. It has been admitted by the respondents that the petitioner was paid Rs.13715/- on account of invalid gratuity. No other argument has been addressed. I have considered the issue. Facts are not in dispute, in so much as, the petitioner was on duty on the date when he fell down in the bathroom and sustained injury, which became the cause of his disability. The reason for denying disability pension is that the injury was not attributable to Military Service nor had been aggravated by Military Service. Stand taken on behalf of the respondents is that the petitioner was offered alternate appointment and had not been invalided out, hence the petitioner is not entitled to disability pension. What is required to be considered by this Court as to whether the petitioner would be entitled to disability pension, although it is the admitted case that the petitioner was on duty at the time when he fell down in bathroom and suffered injury. The C.W.P.No.9136 of 1994 -6- Hon'ble Supreme Court of India and this Court have considered the cases of persons, who suffer injury while on casual leave or on annual leave and become disabled. It has been held that such persons would be entitled disability pension. Reference may be made to the case decided by the Hon'ble Supreme Court in the case of Madan Singh Shekhawat v. Union of India, 1999(4)SCT-89 (SC), wherein although the petitioner was on casual leave and had suffered injury, causing disability, it has been held that the said person would be entitled to disability pension. Paras 15 to 17 in Madan Singh Shekhawat v. Union of India (supra) are extracted 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 C.W.P.No.9136 of 1994 -7- 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 case of a person, who suffers injury causing disability, while on annual leave has been considered by a Division Bench of this Court in the case Ex. Naik Kishan Singh v. Union of India, 2008 (3), SLR 327. Reference may be made to paras 8 to 10 as follows:- “8. No doubt, when the petitioner met with an accident, he was on annual leave, but the accident was beyond control of the petitioner who was not performing any act he ought not to have done. In view of the settled law by the Apex Court, a per- son on casual/annual leave is deemed to be on duty and there must be apparent nexus between normal living of person subject to military law while on leave and injuries suffered by him. A person on annual leave is subject to Army Act and can be recalled at any time as leave is at discretion of authorities. This was so held by a Division Bench of Delhi High Court in Ex-Sepoy Hayat Mohammed's case (supra). In that case, the peti- tioner was on leave at his home town. While he was in his house, a huge steel beam and a ce- mented stone fell on the petitioner from the roof of the house, which was being repaired. This resulted in total paralysis of three fingers of his right hand and amputation of left hand. The petitioner was treated and was placed in permanent low medical category `EEE'. He was discharged from military service and rejected disability pension. His writ petition was allowed and the respondents were di- rected to consider and grant disability pension to the petitioner. With advantage, we may also refer to the authority reported as Madan Singh Shekha- wat v. Union of India, 1999 (66) A.I.R. (SC) 3378 : [1999 (4) SLR 744 (SC)] where the Hon'ble C.W.P.No.9136 of 1994 -8- Supreme Court held that any army personnel is deemed to be on duty when he is on any type of authorised leave during travelling to or from home or while on casual leave. 9. Regulation 179 of the Pension Regula- tions deals with the issue at hand and it reads as under:- “179. An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engage- ment), if found suffering from a disability at- tributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalidated out of service and shall be granted disability pen- sion from the date of retirement, if the ac- cepted degree of disability is 20 per cent or more, and service element if the degree of disability is less than 20 per cent. The service pension/service gratuity, if already sanc- tioned and paid, shall be adjusted against the disability pension/service element, as the case may be. 2. The disability element referred to in clause (1) above shall be assessed on the accepted degree of disablement at the time of retire- ment/discharge on the basis of the rank held on the date on which the wound/injury was sustained or in the case of disease on the date of first removal from duty on account of that disease.” 10. A perusal of the above provisions of Regulation 179 of Pension Regulations leaves no room for doubt that the petitioner was invalidated out of service. The petitioner sustained injury/dis- ability during his service engagement although be- ing on annual leave, and the disability would be deemed to be attributable to and aggravated by military service. In this view of the matter, we hold that the petitioner will be deemed to have been invalidated out of service and is entitled to disability pension as is admissible to defence per- sonnel who are invalidated out of service.” C.W.P.No.9136 of 1994 -9- Similar view has been expressed by a Division Bench of the Delhi High Court in the case of Ex. Sepoy Hayat Mohammed V. Union of India and others, 2008 (1) S.C.T. 425. The following portion needs to be extracted from the judgment for consideration:- "4. The accident/incident as a result of which the petitioner suffered the injuries was beyond his control and the petitioner was not doing/performing any act, which he ought not to have done as a part of his normal living while on leave. In view of the above, a person on casual/annual leave is deemed to be on duty and there must be apparent nexus between the normal living of a person, subject to military law while on leave and the injuries suffered by him. The facts of the present case are not in dispute. In the summary and opinion of the Medical Board recorded on 25th January, 2000 at Pune, it is stated that the Individual had sustained injury to both his hands on 24.8.99 due to falling of a stone while making building while on leave. He was initially treated at Civil Hospital and then was transferred to Army Hospital where amputation of left hand through wrist was done. In view of the amputation, he was recommended to be placed in category `EEE' and brought before the Invaliding Medical Board. In the proceedings of the Medical Board it was recorded as under :- “(d) In the case of a disability under `O' the Board should state what exactly in their opinion is the cause thereof. Injury occurred while on A/L vide incompate infy-2006?” 5. Of course, it was also stated by the Board that the injury is not connected with the service but the case of the petitioner is squarely covered by catena of judgments of this Court. It is a settled principle of law and is not even disputed before us that a person on annual leave is subject to Army Act and can be recalled at any time as the leave is at the discretion of the authorities concerned. It was mere an accident with which the petitioner met and to which the petitioner no way contributed. No negligence or unauthorised act was attributable to the petitioner. In fact, the respondents did not even conduct any Court of Inquiry as contemplated under the Rules. In these C.W.P.No.9136 of 1994 -10- circumstances, we are unable to contribute to the view taken by the authorities that the injury of the petitioner was not attributable to service. 6. Consequently, while setting aside the order dated 24th December, 2003, we allow the writ petition. The respondents are directed to consider and grant disability pension to the petitioner with 60% disability within a period of 6 months from the date of passing of this order. However, arrears would be restricted to a period not exceeding 3 years immediately preceding the presentation of the writ petition. The respondents will be at liberty to subject the petitioner to an Appellate Medical Board, if they so desire.” Considering the facts of the present case, in the context of the spirit of law as laid down in the judgments referred to above, I am of the considered view that the respondents cannot deprive the petitioner of disability pension. The petitioner while on duty had gone to the bathroom and fell down. It becomes evident that the incident was beyond the control of the petitioner. The petitioner was on duty. He was not performing any act which he ought not to have done as a part of his normal life. The reason assigned by the respondents for not allowing disability pension is wholly fanciful, injudicious and irrational, in so much as, the petitioner cannot be denied disability pension merely on the ground that he did not accept alternate appointment. Disability pension has nexus with the disability suffered by a person in service. The decision of the respondents is arbitrary as a valid right vested in the petitioner has been denied for reasons that C.W.P.No.9136 of 1994 -11- are frivolous. I am constrained to observe that the petitioner was discharged on 31.10.1990 immediately whereafter, he started pursuing his case for grant of disability pension. Reference to various annexures to which attention has been drawn in earlier part of the judgment indicates that the petitioner was facing great financial difficulties. Repeated memos were addressed to respondents directly, through the authorities and through Zila Sainik Board to pursue the case. Finally it was only on 7.6.1993 that the impugned order was passed. The delay caused by the respondents is deprecated. The petition is, accordingly, allowed. Since the disability of the petitioner has already been assessed at 30%, it is directed that the arrears of disability pension would be released in favour of the petitioner within 4 months of receipt of certified copy of the order. 6th March, 2009. (Ajai Lamba) Monika Judge