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2007 DIGILAW 95 (UTT)

1479271 Ex. Spr. Heera Ballabh v. Union of India

2007-03-08

J.C.S.RAWAT, RAJEEV GUPTA

body2007
Judgment Rajeev Gupta, C.J. Appellant Heera Ballabh has filed this Special Appeal against the impugned judgment dated 27-03-2006 passed in Writ Petition No. 2184 of 2001 (S/S), whereby the writ petition was dismissed on merits. 2. Appellant Heera Ballabh had filed the writ petition for the following reliefs : "(i) issue a writ, order or direction in the nature of mandamus commanding the respondents to pay to the petitioner disability pension commensurate to his 60% disability as is paid to other disabled person. (ii) issue any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case. (iii) to award the cost of the petition in favour of the petitioner." 3. The matter relates to grant of disability pension under the Entitlement Rules For Casualty Pensionary Awards, 1982 (hereinafter referred to as "the Rules"). 4. The petitioner claimed disability pension under the above Rules on the plea that during his service tenure in Indian Army, he suffered disability to the extent of 60% on account of the injuries sustained by him on 28-02-1991 at his own residence in his village when he was repairing his T.V. 5. The respondents filed their counter affidavit and denied the petitioner's averments in the writ petition. The respondents further pleaded that as the petitioner sustained the said injuries during the period of his annual leave and not while on duty, he was not entitled to any disability pension under the Rules. 6. The learned Single Judge, on a thorough consideration of the rival submissions of the learned counsel for the parties, held that the petitioner was not entitled to disability pension under the Rules. The learned Single Judge, therefore, dismissed the petitioner's writ petition vide impugned judgment dated 27-03-2006. 7. Mr. Rakesh Thapliyal, the learned counsel for the appellant, placing reliance on the dictum of the Apex Court in the case of Madan Singh Shekhawat Vs. Union of India & others reported in (2000) 1 UPLBEC 347, vehemently argued that as the petitioner sustained injuries, leading to disability, during the period of his sanctioned annual leave, it would be deemed that the petitioner sustained those injuries, leading to disability, while on duty. The learned counsel further submitted that the petitioner, as such, is entitled to disability pension under the Rules. 8. Mr. The learned counsel further submitted that the petitioner, as such, is entitled to disability pension under the Rules. 8. Mr. Arvind Vashishth, the learned Assistant Solicitor General for the respondents, on the other hand, supported the impugned judgment and submitted that as the petitioner sustained injuries leading to the alleged disability, at his own residence in his village on account of his own act, it cannot be said that he sustained those injuries, resulting in disability, while on duty. 9. The petitioner, on his own saying, sustained the injuries at his own residence in his village. In his application for grant of disability pension the incident has been narrated in the following manner: 10. Thus, from the petitioner's above-quoted own averment, it is apparent that the petitioner sustained the injuries, leading to the alleged disability, when he was at his own house in his village during a month's long annual leave. 11. The grant of disability pension to a military personnel is governed by Entitlement Rules For Casualty Pensionary Awards, 1982. Section III of these Rules deals with disability pensionary awards to officers, whereas Section IV deals with the cases relating to individuals other than officers. Rule 173 under Section IV; which lays down primary conditions for the grant of disability pension, reads as follows: "173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 per cent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix 11." 12. In Appendix II, the term "duty" has been elaborated in the following manner: "DUTY" A person subject to the disciplinary code of the Armed Forces is on "duty" :(a) When performing an official task or a task, failure to do which would constitute an offence triable under the disciplinary code applicable to him. (b) When moving from one place of duty to another place of duty irrespective of the mode of movement. (c) During the period of participation in recreation and other unit activities organised or permitted by Service Authorities and during the period of travelling in a body or singly by a prescribed or organised route. (b) When moving from one place of duty to another place of duty irrespective of the mode of movement. (c) During the period of participation in recreation and other unit activities organised or permitted by Service Authorities and during the period of travelling in a body or singly by a prescribed or organised route. NOTE: 1 (a) Personnel of the Armed Forces participating in (i) local/national/international sports tournaments as member of service teams, or ' (ii) mountaineering expeditions gliding organised by service authorities, with the approval of Service Hqrs., will be deemed to be "on duty" for purposes of these rules. (b) Personnel of the Armed Forces participating in the above named sports tournaments or in privately organised mountaineering expeditions or indulging in gliding as a hobby in their individual capacity, will not be deemed to be 'on duty' for purposes of these rules, even though prior permission of the competent service authorities may have been obtained by them. (c) Injuries sustained by the personnel of the Armed Forces in impromptu games and sports outside parade hours, which are organised by, or with the approval of, the local service authority, and death or disability arising from such injuries, will continue to be regarded as having occurred while 'on duty' for purposes of these rules. NOTE:2 The personnel of the Armed Forces deputed for training at coursed conducted by the Himalayan Mountaineering Institute, Darjeeling shall be treated on par with personnel attending other authorised professional courses or exercises for the Defence Services for the purpose of the grant of disability / family pension on account of disability / death sustained during the courses. (d) When proceeding from his leave station or returning to duty from his leave station, provided entitled to travel at public expenses i.e. on railway warrants, on concessional voucher, on cash TA (irrespective of whether railway warrant / cash TA is admitted for the whole journey or for a portion only), in government transport or when road mileage is paid / payable for the journey. (e) When journeying by a reasonable route from one's quarter to and back from the appointed place of duty, under organised arrangements or by a private conveyance when a person is entitled to use service transport but that transport is not available. (e) When journeying by a reasonable route from one's quarter to and back from the appointed place of duty, under organised arrangements or by a private conveyance when a person is entitled to use service transport but that transport is not available. (f) An accident which occurs when a man is not strictly 'on duty' as defined may also be attributable to service provided that it involved risk which was definitely enhanced in kind or degree by the nature, conditions, obligations or incidents of his service and that the same was not a risk common to human existence in modern conditions in India. Thus for instance, where a person is killed or injured by another party by reason of belonging to the Armed Forces, he shall be deemed 'on duty' at the relevant time. This benefit will be given more liberally to the claimant in cases occurring on active service as defined in the Army / Navy / Air Force Act." 13. By virtue of the above-quoted clause (d) of Appendix II, a person, ~ustaining injuries, leading to disability, though not actually while on duty, will be deemed to have sustained the disability while on duty, if the injuries were sustained by him when proceeding to his leave station or returning to duty from his leave station. 14. Mr. Rakesh Thapliyal, the learned counsel for the petitioner, in his anxiety to bring the petitioner's case under the above-qucited deeming provision of Clause (d), submitted that on the same analogy, the petitioner should be deemed to have sustained the injuries, leading to his disability, while on duty, as he sustained these injuries when he was on his sanctioned leave. 15. The petitioner, admittedly, did not sustain these injuries, leading to disability, either while proceeding to his leave station or returning to duty from his leave station. Therefore, he cannot be deemed to have sustained the injuries, leading to disability, while on duty. As such, the petitioner, in our opinion, is not entitled to disability pension under the Rules. 16. The appellant's reliance on the dictum of the Apex Court in the case of Madan Singh Shekhawat (supra) is misplaced, as in the said case, Madan Singh Shekhawat, the appellant before the Apex Court, sustained injuries while travelling to his leave station. 17. As such, the petitioner, in our opinion, is not entitled to disability pension under the Rules. 16. The appellant's reliance on the dictum of the Apex Court in the case of Madan Singh Shekhawat (supra) is misplaced, as in the said case, Madan Singh Shekhawat, the appellant before the Apex Court, sustained injuries while travelling to his leave station. 17. For the foregoing reasons, we do not find any infirmity in the impugned judgment, whereby the learned Single Judge has repelled the petitioner's claim for grant of disability pension and has dismissed the writ petition. We, therefore, do not find any scope for interference in this Special Appeal. 18. The Special Appeal, therefore, is liable to be dismissed and is hereby dismissed summarily.