CWP No.9821 of 2007 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. CWP No.9821 of 2007 Date of decision: January 12, 2009 Pooja and another ...Petitioners Versus Union of India and others ...Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. N.R. Dahiya, Advocate, for the petitioners. Mr. S.S. Chaudhary, Advocate, for the respondents. Rajan Gupta, J. The petitioners have sought a writ in the nature of certiorari for quashing the order dated 3rd December, 2002, vide which their claim for grant of disability pension in respect of their father was rejected by respondent No.2. The petitioners have also sought quashing of the orders passed in subsequent appeals, representations etc. They have also sought a writ of mandamus to direct the respondents to release disability pension which was due to their father with effect from the date of his discharge from Army service w.e.f. 28th February, 2002. The petitioners have averred in the writ petition that their father was recruited in the Army (Jat Regiment) on 24th August, 1993. Due to strenuous schedule of military life and continuous stress and strain, the father of the petitioners developed the problem of PIVD LV4- LV5 (OPTD) 722 (E). According to the petitioners, their father was invalidated out of the Army w.e.f. 28th February, 2002. His claim for CWP No.9821 of 2007 2 disability pension was rejected by respondent No.2 on the ground that disability, on account of which he was invalidated out of service, was neither attributable nor aggravated by military service the same being constitutional in nature. Petitioners' father preferred an appeal against this decision. However, the same was rejected by the first appellate committee on 13th September, 2005. A second appeal was also preferred which was rejected on 19th January, 2007 by the second appellate authority. Petitioners' father expired on 7th January, 2007. Aggrieved by the decision of the respondents in rejecting the claim for disability pension, the petitioners have approached this court by way of this writ petition. Reply has been filed on behalf of the respondents wherein it has been denied that father of the petitioners developed the problem of PIVD LV4-LV5 (OPTD) due to any stress or strain due to military schedule. It has been averred that in fact, the father of the petitioners was granted annual leave from 4th January, 2000 to 3rd March, 2000. At about 11.00 hours on 3rd March, 2000, while at home he was white washing his house. At that time he sustained a contusion lower back & left Iliac Bone. Due to this, he was admitted in Military Hospital, Alwar on 4th March, 2000 and thereafter transferred to Base Hospital, Delhi Cantt for opinion of Orthopedic Surgeon. He was admitted in the said hospital at Delhi Cantt on 7th March 2000 and discharged therefrom with sick leave for six weeks. However, on expiry of the leave, he was again admitted in the same hospital on 17th June, 2000 and then transferred to CWP No.9821 of 2007 3 Military Hospital, Alwar on 19th June, 2000 for holding Categorization Medical Board. He was admitted in Military Hospital, Alwar on 20th June, 2000 and discharged therefrom on 23rd June, 2000 in low medical category CEE (Temporary) on account of PIVD LV4-LV-5 (OPTD) for six months w.e.f. 21st January, 2000 by the Medical Board at Military Hospital, Alwar. On review, he was continued in low medical category SIHIA 3 (T-24) PIE 2 w.e.f. 21st December, 2000 for next six months. On further review, he was placed in permanent low category SIHLA 3 PIEI for two years by the Re-categorization Medical Board held at Military Hospital, Alwar. The respondents have thus submitted that the claim of the petitioners' father for grant of disability pension was rightly rejected by PCDA (P), Allahabad in consultation with Medical Adviser (Pension). The first appellate authority had also rejected the claim for grant of disability pension as the injury suffered by the petitioner's father was during his annual leave and his second appeal was also rejected on the same ground. According to the respondents, though disability of petitioners' father was assessed at 40% by the medical board but the same was considered neither attributable nor aggravated by military service by the Release Medical Board. Thus, in terms of Regulation 173 of the Pension Regulations for the Army Part-I, 1961, the petitioners' father was not entitled to disability pension. Moreover, as the injury was sustained by the petitioners' father while he was on leave, the material time for sustaining the injury could not be considered as duty in view of Rule 12 of the Entitlement Rules of Casualty CWP No.9821 of 2007 4 Pensionary Awards, 1982. We have heard learned counsel for the parties and given our careful thought to the matter in hand. The question that arises before us is whether the petitioners' father could be said to be on duty when he was on leave and sustained the injury in question. The counsel for the petitioners placed reliance on a judgment delivered by the Division Bench of this court reported as Ex. Naik Kishan Singh Vs. Union of India and others, 2008 (3) S.L.R. 327 to contend that an Army personnel on casual/annual leave is deemed to be on duty as he is subject to the Army Act and can be recalled at any time as leave is a discretion of the authorities. We find force in the contention of the counsel for the petitioners. It appears that the apex court also held in judgment reported as Madan Singh Shekhawat v. Union of India, AIR 1999 (S.C.) 3738 that an 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. Admittedly, in the present case, the petitioners' father was on authorised leave and he sustained the injury while he was at home and white washing his house. The only ground for rejection of claim for disability pension by the Army authorities was that the injury was sustained by petitioners' father while he was on annual leave. However, in the judgment reported as Ex. Naik Kishan Singh's case (supra) the Division Bench of this court held that an Army personnel who meet with an accident while on annual leave, would be entitled to disability CWP No.9821 of 2007 5 pension as he would be deemed to be on duty. The accident being beyond his control, it could not be said that it would disentitle him for grant of disability pension merely because he was on annual leave. It appears, similar view was taken by a Division Bench of this court in the judgment reported as Gurjit Singh Vs. Union of India and others, 2008 (4) S.L.R. 106 wherein it was held that an Army personnel, who suffered an injury during his leave period, the disability on account of the said injury would be deemed to be attributable to military service. In view of the clear enunciation of law on the subject, we are of the considered view that this writ petition deserves to be allowed. The petitioners are, therefore, entitled to grant of disability pension to the same extent as assessed by Medical Board of the Army Authorities. The arrears shall also be paid to the petitioners within a period of three months from the date of receipt of certified copy of this order failing which the petitioners will be entitled to interest @ 6% per annum. The writ petition is allowed in the aforesaid terms. (RAJAN GUPTA) JUDGE (ASHUTOSH MOHUNTA) JUDGE January 12, 2009 'rajpal'