LPA No. 829 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No. 829 of 2010(O&M) Date of decision 3 .8.2010 Union of India and others ... Appellants Versus M.Brigadiar M.S. Kalra (Retd.) ... Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE A.N. JINDAL Present: Ms. Renu Bala Sharma, Central Govt. Standing counsel for the appellant 1.To be referred to the Reporter or not ? 2.Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. This order shall dispose of LPA Nos. 778 and 829 of 2010. Both the appeals have been filed by the Union of India under Clause X of the Letters Patent challenging judgements dated 28.5.2009 and 13.8.2009 passed by two different Learned Single Judges of this Court. The later judgement infact has followed the view taken in the former judgement dated 28.5.2009. The learned Single Judge in his judgement dated 28.5.2009 has placed heavy reliance on an earlier Division Bench judgement of this Court rendered in CWP No. 67 of 2007 decided on 12.2.2008 (Paramjit Singh v. UOI). The Division Bench has held that Ex-Armymen could not have been denied the disability pension and the disability benefit covered under the Army Group Insurance Fund on the ground that he was discharged from service on completion of term of engagement and was not invalidated out from service although he had suffered battle injuries resulting in more than LPA No. 829 of 2010 2 20% of disability. The Division Bench has considered Regulation 179 of the Army Pension Regulations, 1961 alongwith the Note underneath the Regulation. The aforesaid Regulation reads thus: “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 engagement), if found suffering from a disability attributable 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 pension from the date of retirement, if the accepted 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 sanctioned 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 retirement/ 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. Note: In the case of an individual discharged on fulfilling the terms of his retirement, his unwillingness to continue in service beyond the period of his engagement should not effect his entitlement to the disability element under the provision of above regulation.” According to the Division Bench armymen who has been discharged from service on completion of his term of employment would be deemed to be invalidated out of service because the disability element is required to be LPA No. 829 of 2010 3 assessed in respect of the degree of disablement at the time of discharge on the post or the rank on the date when the injury was sustained or in case of disease on the date of first removal from duty on account of that disease. The Note further clarifies that mere discharge on fulfilling the date of retirement is not to effect his entitlement to the disability element of pension. The view of the Division Bench has been quoted by the learned Single Judge while interpreting the aforesaid Regulation reads thus: “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/ disability during service, which was attributable to and aggravated by military service and recorded by Service Medical Authorities. The note below Regulation 179 further makes it clear in the case of an individual discharged on fulfilling the terms of his retirement, his unwillingness to continue in service beyond the period of his engagement, as was given by the petitioner in the present case, should not effect his title to the disability element under Regulation 179 of the Pension Regulations. In this view of the matter, we have no hesitation in holding that the petitioner will be deemed to have been invalidated out of service and is entitled to disability pension as is admissible to defence personnel who are invalidated out of service.” On the basis of the aforesaid interpretation, the Division Bench in Paramjit Singh's case (supra) has allowed the claim made by that petitioner and held him entitled to 50% disability pension and disability benefit under the Army Group Insurance Fund for his disability. The learned Single Judge placing reliance on the aforesaid view of the Division Bench has allowed the writ petition because on facts he has LPA No. 829 of 2010 4 found that even the 5th Central Pay Commission did not differentiate between the person invalidated out or a person removed from service with disability. The petitioner was commissioned in the Regular Indian Army on 23.6.1968 in Medical Category Shape I. He was released on 30.9.2002 on completion of service limits/ superannuation with a disability known as 'Fracture Shaft of Radius and Ulna (Lt.) Upper Third (Operated) which was endorsed as attributable to military service by a duly constituted Release Medical Board. Even in the other LPA No. 778 of 2010 facts are similar. There the learned Single Judge has rightly taken support from the views expressed by another Single Judge in his judgement dated 28.5.2009. Having heard the learned counsel we are of the considered view that no interference in the opinion expressed by the learned Single Judge is warranted. The Army Regulation 179 alongwith Note as well as the 5th Central Pay Commission did not differentiate between army men who has been boarded out of service on the ground that he has been invalidated or he has been discharged with disability. The substantive element in both the eventualities is the disability suffered by the Army personnel during the army service and the same is imputable to Army service. The appeals do not merit admission and are thus liable to be dismissed. As a sequel to the above discussion both the appeals fail and the the same are dismissed. A copy of this order be placed on the file of connected appeal. (M.M.Kumar) Judge (A. N. Jindal ) 3.8.2010 Judge okg LPA No. 829 of 2010 5