EX SEPOY BALWANT SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was enrolled as a Sepoy in the Punjab Regiment of the Army on 14.12.1965. He suffered a fracture of the bones of the right hand in the year 1968 while performing this regimental duties and was admitted to the medical hospital, Jabalpur for treatment and was also placed in law material category for six months on that account. The petitioner, thereafter, went home on annual leave and while returning to his regiment by train on 26.8.1974, he was attacked by some miscreants who were also travelling in the train and after robbing him of his gold ring and purse, they threw him out of the train. The petitioner was, ultimately, brought to Rangia Railway Station by some villagers and after the administration of first aid was transferred to the Military Hospital, Gauhati in an ambulance and, thereafter, sent to the Military Hospital, Calcutta, for further treatment. The petitioner's unit was later relocated to Jalandhar and he was, accordingly, removed to the hospital at Ferozepur and was operated upon for his fresh injuries and on recuperation was sent back to his unit in low medical category CEE; (permanent) due to disability. The petitioner was also produced before the Release Medical Board, which recommended his discharge and assessed his disability at more than 20% and attributable to military service. As the petitioner had put in about 15 years of service by that time, he was granted the service element of the pension but his claim to disability element was rejected by the C.D.A. (P) Allahabad respondent No. 2 vide Annexure P-1 dated 24.2.1980 on the ground that the injuries suffered by him were not attributable to military service. The petitioner, thereafter filed an appeal against the order Annexure P-1 and this too was rejected by the Government of India vide order Annexure P-2 dated 5.10.1982. The petitioner then filed a Special Mercy Appeal on 24.4.1995 giving full details with regard to his case, but to no avail. The petitioner has, accordingly come to this Court impugning the orders Annexures P-1 and P-2.

(2.) A reply has been filed on behalf of the respondents and it has been pointed out that the petitioner's claim to disability pension had been rejected for the reason that he had received his injuries while travelling to his unit after availing of his annual leave and as such, it could not be said that the same was attributable or aggravated by military service. It has also been highlighted that the Release Medical Board had given a finding that the petitioner's extent of disability was more than 20% but had left the question of attributable/aggravation to be decided by the C.D.A. (P), Allahabad, which had rejected the claim. It had also been pleaded that the petitioner's Special Mercy Petition had been referred to the Secretary, Ministry of Defence, Government of India, and that matter was still under process.

(3.) Mr. A.K. Walia, the learned Counsel for the petitioner has raised one basic argument before me. He has pointed out that under Regulation 173 of the Pension Regulations For Army, 1961 (hereinafter called 'the Regulations'), an individual could be given the benefit of the disability element of pension if he had been invalided out of service on account of disability which was attributable to or aggravated by military service and assessed at 20% or more and that the question whether disability was attributable to or aggravated by military service was to be determined with reference to Appendix II to the Regulation. He has then pointed out that Note (2)(d) to Appendix II specifically provided that a person who was proceeding from his duty station to his leave or vice versa and travelling at public expense, would be deemed to be on duty for the purpose of eligibility to the payment of disability pension and as the petitioner was returning to his unit after availing of his leave when he had sustained injuries after having been thrown out of a running train, the petitioner was entitled to the disability element of his pension as well. Mr. Walia has, in this connection, placed reliance upon Joginder Singh (Lance Dafadar) v. Union of India and others, 1996 2 SLR 149, Chatroo Ram v. Secretary, Defence and others, 1991 1 SCT 316; and also a Division Bench judgment of this Court reported as Jarnail Singh v. Union of India and others, 1997 116 PunLR 580. In Joginder Singh's case , the Hon'ble Supreme Court held that the petitioner, a Lance Dafadar in the regular Army, had sustained injuries in an accident when he was proceeding on casual leave from his duty station to his home in District Faridkot as the journey was being performed on a concession voucher issued at public expense, he was entitled to the payment of disability pension. The Division Bench judgment also observed that all that was required in order to attract Regulation 173 was that the official was on public duty when he had sustained injuries which had led to the disability in question, that it was immaterial whether the injury was sustained while the person was on casual leave or annual leave. Keeping in view the aforesaid observations, it is evident that Note 2(d) to Appendix II would fully apply to the facts of the case in hand. The record of the Release Medical Board has been produced in Court in Mr. Anil Malhotra and it is apparent therefrom that the petitioner had suffered injury on 26.8.1974 after availing of his annual leave at public expense, as he was returning to his unit by train.