HARESH KUMAR EX HAVILDAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was enrolled in the Army as a Havildar on 20th December, 1990 after having been found medically fit. During the course of his training he was sanctioned ten days casual leave from 9.10.1991 to 20.10.1991. During this period, the petitioner met with a road accident while riding a scooter and broke his femur. He was thereafter treated as an indoor patient in the Army Hospitals at Pathankot and Udhampur for about eight months and after recovery was sent for further training to the Army College at Panchmari. The petitioner, however, developed serious medical problems after the completion of his training and he was given treatment at various Army Hospitals. He was also brought before a Medical Board which assessed his disability at 90 per cent, i.e. 50% psychological and 40% surgical, the psychological disability being Schizophrenia, whereas the physical disability being communicated fracture of the shaft of the femur. The petitioner was accordingly invalided out of service vide Annexure P-3 dated 27th March, 1993. The petitioner, thereafter moved a representation for the grant of pensionary benefits and, in particular, laid a claim to the grant of disability pension. The claim was however rejected by respondent No. 3 (C.D.A. Pension Allahabad) on 17th October, 1995 on the ground that his disability was not attributable to Army Service. The petitioner then filed an appeal against the rejection order and when no action was taken by the appellate authority i.e. Government of India, he filed C.W.P. No. 15693 of 1997 in this Court. The Division Bench vide its order dated 20th October, 1997 directed that the petitioner's appeal be disposed of within a time bound frame. The appellate authority thereafter vide its order dated 23th November, 1997, Annexure P-7 to the petition, rejected the petitioner's claim on the ground that he had suffered the fracture when he was at home on casual leave and as the Schizophrenia was a constitutional disorder it, too, could not be said to have been caused or aggravated by Military Service. Annexure P-7 has been impugned in the present proceedings.

(2.) A written statement has been put in by the respondents and it has been pointed out that the petitioner had been invalided out of service as he was found physically and mentally unfit due to a fracture of the femur and also suffering from Schizophrenia. It has been highlighted that the petitioner had suffered the fracture in a scooter accident when he was on casual leave in his village and as Schizophrenia was a constitutional disorder it too could not be said to have been aggravated by Military Service.

(3.) Mr. Rajesh Girdhar, the learned Counsel for the petitioner, has argued that as the petitioner had suffered a fracture of his femur while he was on casual leave, even though it was a private visit to his home town, the petitioner was en- titled to treat the period of casual leave as being on duty and was, therefore, en- titled to claim disability pension. He has in this connection placed reliance on a judgment of the Supreme Court in Joginder Singh v. Union of India and Ors., 1997(2) R.S.J. 413 and a Division Bench judgment of this Court in Shri Krishan Dahiya v. Union of India and Anr., 1996(4) R.S.J. 503.