EX. SEPOY HAYAT MOHAMMED Vs. UNION OF INDIA

JUDGEMENT

(1.) ON 30th September, 1988, the petitioner was enrolled as Sepoy in the Indian Army and was posted in 13 Grenadiers. He was obviously subjected to strict medical and physical standards. He served the Indian Army to the satisfaction of all concerned. During his service, the petitioner claims to have taken part in Operation Meghdoot in Siachen Glacier, J and K, Operation Rakshak in Counter Insurgency Area in J and K and Operation Vijay in Indo -Pak War in Kargil. On 24th August, 1999, the petitioner proceeded on leave to go to 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 3 fingers in right hand and amputation of left hand. The petitioner was treated and was placed in permanent low medical category 'EEE'. He was subjected to Invaliding Medical Board. The Medical Board had recommended the disability of the petitioner as 60% for grant of disability pension and the petitioner was discharged from military service. The case of the petitioner was forwarded for grant of disability pension. However, on 9th May, 2001, the CCDA, Allahabad rejected the disability pension without assigning any reasons for disagreement and not following the report of the Medical Board. Against the order of rejection, the petitioner filed an appeal, which was also rejected vide order dated 6th January, 2004. Being aggrieved from the order of the authorities as well as appellate authority, the petitioner has filed the present writ petition challenging the said orders passed by the respondents and further praying for grant of disability pension.

(2.) THE case of the petitioner is that irrespective of the fact that petitioner was on leave, he would continue to be subjected to military law and the injury of the petitioner in view of Section 2(2) of the Army Act should not be viewed myopically as 'not on military duty at that point of time' but viewed in a broader spectrum of 'being in military service'. The petitioner has also relied upon para 7(b) of Appendix H in Pension Regulations for the Army, 1961 to say that the disability would be attributable to military service. Reliance was placed upon the judgment of the Supreme court in the case of Lance Dafedar Joginder Singh v. Union of India 1995 SCC 1149 where it was held that a person on casual leave would be a person on duty. The respondents, during the course of hearing, had produced the records though no detailed counter affidavit has been filed. It is not disputed that petitioner had served the Army without any hazards or problems and fit in all respects with effect from 1988 till 27th May, 2000 when he was invalided out of military service. The question in relation to a person being on duty while on casual/annual/recruitment leave is no more rest integra and has been squarely settled by the judgments of different High Courts including the judgment of the Supreme Court in the case of Lance Dafedar Joginder Singh (supra) as well as a detailed judgment of this Court in the case of Mr. Jitendra Kumar v. Chief of Army Staff and Ors. WPC No. 19839/2005 decided on 19th October, 2006 where the Court had discussed various judgments, regulations, pension rules and provisions of the Act at some length and while granting disability pension to persons, who were on recruit leave in one case and casual leave in another, had also discussed the applicability of attributability/aggravation of disease/injury during such period and had commented upon the distinction between 'casual' and/or 'causal' connection between the 'injuries suffered' and 'duty' and held as under: 9. In fact, in view of the stand taken by majority of the counsel appearing for the respondents as well as the clear stand taken by counsel appearing for the respondent in WP (C) No. 19839/2005, the question loses its pertinence but in view of the fact that it was raised by some counsel, it will be suffice to notice direct judgments on these issues as the question of kind of leave and its relation to attributability or aggravation on the basis of 'deemed to be on duty' is no more rest integra and has been answered by different Courts clearly. We may refer to the judgment of a Division Bench of Punjab and Haryana High Court in the case of Jarnail Singh v. Union of India 1998 (1) SLR 418 wherein after considering various relevant provisions and the judgments on the subject, the Court held as under: 5. Firstly we have to consider, whether the period of casual leave of a person subject to Army Act can be termed as period of duty or not? Secondly, whether every injury suffered by such person during the period of his casual leave arising from any kind of act, omission of commission, would necessarily be attributable to or aggravated by military service or not? 6. With regard to first question there could be hardly any controversy as the matter has been well settled by various pronouncements of the Hon'ble Supreme Court of India as well as of this Court. In the case of Smt. Charanjit Kuar v. Union of India and Ors. 1994 2 PLR 663 : 1994 (1) SLR 479, where the husband of the petitioner who was commissioned as Lieutenant in the Indian Army and was subsequently promoted as Major, had died in mysterious circumstances, the Court while awarding compensation and treating him on duty held as under: In the aforesaid facts, the conclusion is, thereforee, inescapable that the officer died while in service in mysterious circumstances and his death is attributable to and aggravated by the military service. The responsibility of his death is prima facie traceable to the action of criminal omissions and commissions on the part of the concerned authorities. The petitioner is, thereforee, entitled to suitable compensation as well as to the Special Family Pension and the Children Allowance according to the relevant rules.

(3.) 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.