GAJ RAJ Vs. UNION OF INDIA

JUDGEMENT

(1.) This short and concise legal point, which is involved in this writ petition is whether an active member of the Armed Forces while on casual leave can be considered on duty for the purpose of pensionary benefits and as such entitled to the disability pension.

(2.) The brief facts of the case are that Gaj Raj has filed writ petition under Article 226/227 of the Constitution of India, praying for the issuance of a writ of certiorari for the quashment of Annexure P-4 dated 21.12.1993 vide which the respondents rejected the disability pension claim of the petitioner. The petitioner has further prayed that a writ of mandamus be issued to the respondents to release his disability pension consisting of both elements, i.e. disability as well as service element with effect from 1.4.1993 onwards along with all the consequential reliefs with interest and exemplary damages.

(3.) The case set up by the petitioner is that while serving in his unit of Pathankot he met with an accident while on duty on 8.6.1989. After the accident he was admitted in the Military Hospital at Pathankot. He received severe injuries, such as compound communicated fracture Tibia and Fibula (Right) compound communicated fracture Radius and Ulna (Right) besides blunt injuries on his abdomen. He was transferred to the Army Hospital, Delhi and remained admitted in that Hospital from 8.6.89 to 15.12.89. Unfortunately, while he was on casual leave from 14.10.90 to 20.10.90, he again met with an accident on 18.10.90 resulting multiple injury with re-fracture Fibula (Right) and remained admitted in the hospital at Delhi from 19.10.90 to 29.10.90. Court of inquiry was held under the orders of the superior authorities in order to investigate the circumstances under which the accident took place which held and gave the finding that the petitioner was on duty. The opinion of the court of inquiry was confirmed by the Commanding Officer and it was declared that the injury sustained by the petitioner was attributable to the Military Service in peace area and that the petitioner was not to be blamed for the injuries sustained by him on 8:6.1989 and 18.10.1990 on the basis of findings, a disciplinary action was taken against the driver of the army vehicle, who was the author of the accident. The petitioner was kept under treatment from time to time and firstly he was down graded to medical category 'C & E' temporary and thereafter his medical category was declared as category 'C & E' permanent. The disability of the petitioner was declared 70 per cent due to compound fracture; The petitioner became invalidated out of Military Service on 31.3.1993. The petitioner rendered Army Service from 30.1.1984 to 31.3.1993 for a total period of 9 years and 60 days and he was assured that disability pension would be granted to be as the injuries sustained were while he was on bona fide military duty as held by the Court of inquiry. The petitioner was given the benefit and coverage under the Army Group Insurance Scheme in accordance with his entitlement but the disability pension was not released. The petitioner wrote several letters to the Authorities concerned. Ultimately, the claim of the petitioner was rejected by the Chief Controller of Defence Accounts Pension vide Memo No. G 3/53/565/7/93 dated 18.12.1993 (Annexure P4). The petitioner made representation to the authorities and clarified his position, but no action was taken.