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2006 DIGILAW 1954 (DEL)

EX. LINK GUNPAL SINGH v. UNION OF INDIA

2006-10-19

G.S.SISTANI, SWATANTER KUMAR

body2006
JUDGMENT Swatanter Kumar, J.-The petitioner was enrolled in the Army on 11.6.1987 and was assigned to Rajputana Rifles. The petitioner was found to be in a medically fit condition on his initial induction into the Army as well as in the subsequent medical examinations. He performed his duties to the satisfaction of all concerned. He had put in nearly 10 years of service when he was granted casual leave rom \5th September to 22nd September, 1997 by his Commanding Officer and was authorised to proceed to his home village at Suratpura, located near Hissar. On 17.9.1997. the petitioner had gone to the market to buy items of his daily household needs and while he was returning, the jeep in which he was travelling as a passenger, met with an accident at about 1100 hours and the petitioner suffered severe head injuries and contusion of chest. As a result of his injury, he became unconscious and was admitted to Central Medical Centre, Hissar where after on 21.9.1997 he was transferred to 333 Field Ambulance located in Hissar Cantonment. After medical treatment he was granted 4 weeks sick leave. On 4.11.1997 he was placed in Low Medical Category (temporary) for one year by a validly constituted Medical Board and later on was placed in same category but permanently. On 7.12.2002 the petitioner was stated to be having a disability of 30%, which was attributable to the military service. The Medical Board proceedings are annexed to the petition as Annexure Pl. Thereafter, the case of the petitioner was referred to a Release Medical Board which assessed the disability of the petitioner as 20% for life. However, it was stated that the injury was not attributable to the military service, which opinion was contrary to the earlier Medical Board opinion and finally the petitioner was invalided from military service on 31.5.2003 after rendering nearly 17 years of service. No sheltered appointment was given to the petitioner and the petitioner in terms of the policy of the respondents was not permitted to complete his full term service. The disability claim in respect of the petitioner was forwarded to PCDA (P), Allahabad by the Record Office, however, it was rejected by the said authority on 13.10.2003 on the ground that his disability was not attributable to the military service. 2. The disability claim in respect of the petitioner was forwarded to PCDA (P), Allahabad by the Record Office, however, it was rejected by the said authority on 13.10.2003 on the ground that his disability was not attributable to the military service. 2. The order dated 27.10.2003 was challenged by the petitioner in W.P.(C) No. 5079/2004 which was disposed of by the Court vide its order dated 17.12.2004 directing the respondents to supply Re-Survey Medical Board proceedings to the petitioner and granted right to the petitioner to file an appeal. In furtherance to the said order of the Court, the petitioner filed an appeal on 5.4.2005 which was rejected vide order dated 13.10.2005, which reads as under: "1. In compliance with Honble High Court of Delhi at New Delhi order dated 17 December, 2004 in CWP No. 5079/2004 the appeal dated 5 April, 2005 submitted by your Advocate on your behalf of grant of disability pension has been carefully reconsidered by the Appellate Committee on First Appeals in the light of relevant rules and regulations on the subject and the observations of the Honble High Court in its order. 2. It is evident from the record that you were enrolled in the Army on 11 June, 1987 and were discharged from service on 31 May, 2003. The Release Medical Board held prior to your discharge considered your Invaliding Disability (10), "Closed Head Injury With Constusion Chest" as neither attributable to nor aggravated by military service as the injury was sustained by you while on leave at your leave station and there is no casual connection between the injury and military service in terms of the Entitlement Rules for Casualty Pensionary A wards to Armed Forces Personnel, 1982. As per Regulation 173 of Pension Regulations for the Army 1961, Part I, disability pension is granted to an individual on his discharge from service only when his disability is viewed as either attributable to or aggravated by military service by the Release Medical Board (RMB). In your case, the RMB itself had considered your 10 as neither attributable to nor aggravated by military service. 3. In view of the above, you are not entitled to grant of disability pension in terms of above regulations." 3. The above order is challenged in the present writ petition. In your case, the RMB itself had considered your 10 as neither attributable to nor aggravated by military service. 3. In view of the above, you are not entitled to grant of disability pension in terms of above regulations." 3. The above order is challenged in the present writ petition. The petitioner has relied upon Rule 10 of the Leave Rules for Army, Regulation 173, Rules 4 and 13 of the Entitlement Rules for Casualty Pensionary Awards, 1982 and judgment of the Supreme Court in Joginder Singh (Lance Dafadar) v. Union of India and Ors., 1996 (2) SLR 149, to contend that a person on casual leave is considered to be on duty and hence the petitioner is entitled to the grant of disability pension. According to the respondents, and as is evident from the impugned order itself, the claim of the petitioner had been rejected on the ground that the injury was not attributable to the military service and as such the petitioner was not entitled to the disability pension and as the petitioner was not on duty, as such the benefit of disability pension had rightly been declined by the respondents. 4. This entire aspect has been discussed in great detail in the judgment of this Court in the case of Jitender Kumar v. Chief of Army Staff and Ors., W.P.(C) No. 19839/2005, pronounced today itself and the reasons recorded therein be read as a part of this judgment. In the said judgment, it has been held that a person on casual leave is on duty for all intents and purposes. In terms of Rule 10 of the Leave Rules as well as the judgments of the Supreme Court in the cases of Joginder Singh (supra), and Madan Singh Shekhawat v. Union of India and Others, VII (1999) SLT 37= AIR 1999 SC 3378 , it is evident that a person on casual leave would be entitled to the benefits of being on duly in accordance with the Army Rules. 5. Furthermore, in the present case, the petitioner was not doing any work/act which was unauthorised, impermissible or so unexpected of the behaviour, of a person/member of the Armed Forces. He was doing a normal act which had causal connection to the person belonging to a military service on casual leave. 5. Furthermore, in the present case, the petitioner was not doing any work/act which was unauthorised, impermissible or so unexpected of the behaviour, of a person/member of the Armed Forces. He was doing a normal act which had causal connection to the person belonging to a military service on casual leave. Another pertinent fact is that in Annexure PI, AFMSF -16, which itself was conducted on 7.12.2002,30% disability was shown and Columns 19 and 20 of the said report read as under: "19. Is the disability attributable to service? (YIN) Is so, please explain? Yes injury sustained in military service vide IAFY. 2006 dated 10 Feb., 98-98. 20. If not directly attributable to service, was it aggravated by service? (Y/N) No." 6. The subsequent Medical Board just noticed that the injury was not attributable to the military service, without assigning any reasons. It was expected of the authorities concerned to meet the opinion of the earlier Medical Board which was presided over by the Commanding Officer, who was the President of the Medical Board. The petitioner was apparently released from the Army on medical grounds because of his being placed in the Low Medical Category (Permanent). Even if the petitioner would not be entitled to grant of disability pension purely on the strength of Regulation 173, Regulation 173A would fully cover the case of the petitioner. The respondents had conducted a Court of Inquiry on 23.1.1998 and it was noticed that the injury was purely accidental for which no one is to be blamed, but the same was not attributable and/or aggravated by the military service. 7. Under Chapter 12, a Court of Inquiry is to be conducted by the respondents and under Clause 520(d), the Court of inquiry will not give any opinion based but the injured persons Commanding Officer will record his opinion on the evidence stating whether the injured person is on duty and whether he or she was to blame. Thus, the Court of inquiry recorded by the respondents is not even in consonance with the spirit of these provisions. 8. The facts on record, supported by the first Medical Board, the relevant provisions as well as the law laid down by the Courts show that a person on casual leave while performing normal functions, if suffers an injury the same would be attributable to the military service. 8. The facts on record, supported by the first Medical Board, the relevant provisions as well as the law laid down by the Courts show that a person on casual leave while performing normal functions, if suffers an injury the same would be attributable to the military service. In the facts of the present case, we have no doubt that the order passed by the respondents is unreasonable and is not in consonance with the settled position of law. Consequently, the writ petition is allowed, the impugned order dated 13.10.2005 is set aside. The petitioner would be entitled to grant of disability pension for the 20% disability. Accordingly, the petition is disposed of, while leaving the parties to bear their own costs. Writ Petition allowed.