C.W.P.No.1636 of 1997 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.1636 of 1997 Decided on : 06-03-2009 Khushwas Singh ....Petitioner VERSUS Union of India and others ....Respondents CORAM:-HON'BLE MR. JUSTICE AJAI LAMBA. Present:-Mr. Gurnam Singh, Advocate for the petitioner. Mr. Tribhuwan Dahiya, 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 12.12.1991 (Annexure P-5), order dated 24.3.1993 (Annexure P-7). Prayer is also for issuance of writ in the nature of mandamus, directing the respondents to grant disability pension. It has been brought out that the petitioner joined as Sepoy in the Army on 8.2.1974. The petitioner was promoted upto the rank of Naib Subedar. The petitioner was on casual leave w.e.f. C.W.P.No.1636 of 1997 -2- 11.1.1988 to 15.1.1988, which had been duly sanctioned by Competent Authority. During the said period on 14.1.1988, the petitioner while travelling on Scooter, met with an accident. The circumstances that led to accident were not within the control of the petitioner. On account of injuries suffered by the petitioner i.e. Compound Comminuted fracture Radius and Ulna (Right) and Fracture of Floor Acetabulum, Right. The petitioner suffered 60% disability. On account of nature of injury, the petitioner was discharged from the Army on 30.06.1991. The petitioner was, however, given 45000/- towards disability benefits. Service element of pension was also allowed to the petitioner. The petitioner claimed disability pension. Vide impugned order dated 12.12.1991 (Annexure P-5), CCDA(P), Allahabad rejected the claim for disability pension on the ground that disability was not attributable to Military Service. It seems that the petitioner preferred an appeal. The appeal has been dismissed vide the another impugned order dated 24.3.1993 (Annexure P-7). The reason assigned for rejecting the claim of the petitioner is that the petitioner was on casual leave at the point in time, when he suffered injury. It is admitted that the injury was suffered by the petitioner on account of a scooter/motor-vehicle accident. In the petition, it has been pleaded that the petitioner was still in service. Casual leave period is required to be considered as C.W.P.No.1636 of 1997 -3- on duty and therefore, the petitioner is required to be considered as on duty. The petitioner suffered injury for the reasons beyond his control. The petitioner had not indulged in any illegal activity or act. Learned counsel for respondents has argued that the petitioner was on leave and therefore, the injury received during leave period, cannot possibly be ascribed to Military Service. In such circumstances, the decision taken by the Authorities, is within the jurisdiction and legally tenable. I have heard learned counsel for the parties and have gone through the paper book. The issue that arises for consideration of this Court is whether the petitioner would be entitled to disability pension although he suffered the injury, while on casual leave. Reference may be made to the case decided by the Hon'ble Supreme court in Madan Singh Shekhawat v. Union of India, 1999(4)SCT-89 (SC). Paras 15 to 17 when extracted read 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 benefits 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. C.W.P.No.1636 of 1997 -4- 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.” 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 C.W.P.No.1636 of 1997 -5- 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 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.” C.W.P.No.1636 of 1997 -6- I am of the considered opinion that the claim of the petitioner for disability pension cannot be denied by the respondents, on the ground that the petitioner was on casual leave. The accident, as a result of which, the petitioner suffered the injury, were beyond his control. It is further evident that the petitioner was not involved in any illegal activity, while on leave. As per law laid down in the various judgments to which reference has been made hereinabove, a person on casual leave is deemed to be on duty and there must be apparent nexus between normal living of a person, subject to Military law while on leave and the injuries suffered by him. The judgments to which reference has been made above, favours the case of the petitioner. The petition is accordingly allowed. Impugned orders Annexure P-5, dated 12.12.1991 and Annexure P-7, dated 24.3.1993, are hereby quashed. Since the disability of the petitioner has already been assessed at 60%, it is directed that the arrears of disability pension would be released in favour of the petitioner within 60 days of receipt of certified copy of the order. 6th March, 2009. (Ajai Lamba) Monika Judge