-1- Civil Writ Petition No.5531 of 2007. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision: March 27 ,2008. Ex Naik Kishan Singh ... Petitioner VERSUS Union of India and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. A.S. Bhatti, Advocate, for the petitioner. Mr. Aman Chaudhary, Advocate, for the respondents. -.- MOHINDER PAL, J. The petitioner was enrolled in the Army (Sikh Regiment) on April 25, 1985. He was availing 60 days annual leave from September 01, 1993 to October 30, 1993. While on leave, he met with an accident while driving a scooter and suffered `fracture acetabulum rt (NM-829, E-812, V-67') on -2- Civil Writ Petition No.5531 of 2007. October 12, 1993. Firstly, he got treatment from Civil Hospital, Dasuya and thereafter got himself admitted in Military Hospital at Pathankot on October 15, 1993. He was downgraded to low medical category CEE with effect from January 18, 1994. The petitioner continued in service for more than eight years after having been downgraded to low medical category CEE. He was discharged from service with effect from April 30, 2002 and his disability was assessed at 30 % by the Medical Board. The disability pension claim of the petitioner was rejected on the reasoning that the disability was not attributable to military service. In this petition filed under Articles 226/227 of the Constitution of India, challenge is made to the action of the Army Authorities whereby case of the petitioner for disability pension has been rejected and it is prayed that a direction be issued to the respondents to release the same to the petitioner. In the written statement filed by the respondents, it has been pleaded that the petitioner was discharged from service on completion of his terms of engagement (17 years and 5 days) with effect from April 30, 2002. The injury sustained by the petitioner was assessed “not attributable to military service” vide IAFY-2006 (Inquiry Report) duly approved by Commander 50 (I) Para Brigade and Court of Inquiry Proceedings. It has been further pleaded that at the time of accident, the petitioner was on leave and accident took place at his native village which has no connection with the service -3- Civil Writ Petition No.5531 of 2007. and, therefore, as per Regulation 173 of the Army Pension Regulations, 1961 (Part-I) (hereinafter referred to as `the Pension Regulations') he was not found entitled to any disability pension. It has been further stated that as per policy in vogue, prior to discharge from service, the petitioner was brought before a duly constituted Release Medical Board wherein his disability was assessed at 30% for five years with the remarks that the disability is not attributable to military service. The petitioner's disability pension claim was rejected on the ground that the disability is neither attributable to nor aggravated by military service. Learned counsel for the petitioner has argued that a person on casual/annual leave is deemed to be on duty. A soldier on annual leave is subject to Army Act and can be recalled at any time as leave is at discretion of authorities. In support of his contention, he relied upon the authority reported as Ex-Sepoy Hayat Mohammed v. Union of India and others, 2008 (1) SCT 425. The respondents have denied the benefit of disability pension to the petitioner on the ground that the the disability is neither attributable to nor aggravated by military service and that the injury was suffered by him while on annual leave at his home town. In the written statements, the respondents have taken the plea that as per Regulation 173 of the Pension Regulations, disability pension can be granted to an individual who is invalidated out of service on account of disability which is -4- Civil Writ Petition No.5531 of 2007. attributable to or aggravated by military service and is assessed at 20 % or more. Thus, the only question involved in this petition is - whether the petitioner is entitled to benefits which are admissible to army personnel who are invalidated out of service or not. In this case, as stated above, the petitioner was granted annual leave for two months from September 01, 1993 to October 30, 1993. While on leave, he met with an accident and suffered `fracture acetabulum rt (NM-829, E-812, V-67) on October 12, 1993. for which he was treated first at Civil Hospital, Dasuya and thereafter at Military Hospital at Pathankot. He was downgraded to low medical category CEE with effect from January 18, 1994. He continued in service for more than eight years thereafter. Before his discharge, when he was presented before the Release Medical Board, his disability was asseessed at 30 %. He was discharged from the Army on April 30, 2002 as per Medical Board's opinion. The disability pension claim of the petitioner was rejected holding that the disability was neither attributable to nor aggravated by military service. 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 person on casual/annual leave is deemed to be on duty and there must be apparent nexus between normal living of person subject to -5- Civil Writ Petition No.5531 of 2007. 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 petitioner was on leave at his home town. While he was in his house, a huge steel beam and a cemented 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 directed to consider and grant disability pension to the petitioner. With advantage, we may also refer to the authority reported as Madan Singh Shekhawat v. Union of India, 1999 (4) S.C.T 89 : 1999 (66) A.I.R. (SC) 3378 where the Hon'ble Supreme Court held 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. Regulation 179 of the Pension Regulations 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 -6- Civil Writ Petition No.5531 of 2007. 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. 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 his service engagement although being 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 -7- Civil Writ Petition No.5531 of 2007. have been invalidated out of service and is entitled to disability pension as is admissible to defence personnel who are invalidated out of service. For the aforesaid reasons, this writ petition is allowed and the petitioner is held entitled to 30% disability pension. This pension, with all consequential benefits, will be paid to him from the date of his retirement. The arrears are, however, restricted to three years and two months preceding the filing of this writ petition. The respondents shall pay all the arrears to the petitioner within two months from the date of receipt of a copy of this order, failing which the petitioner will be entitled to interest at the rate of nine per cent annum. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE March 27, 2008. ak