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2022 DIGILAW 1126 (MP)

Ashutosh Sharma v. Union of India

2022-09-13

G.S.AHLUWALIA

body2022
ORDER 1. This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:- “(i) That, the order impugned Annexure-P/1 dated 6.6.2022 passed by the Respondent No.4 may kindly order to be quashed with a further direct the respondent to allow the petitioner over his present place of posting i.e. BSF Takenpur, Gwalior. (ii) That, the respondent be further commanded to consider the recommendation made by the IG Medical, BSF, Takenpur with a further to consider the policy / office memorandum has issued by the Ministry of Home Affairs on 8.10.2018 and 13.10.2022. (iii) That, any other relief which is suitable in the facts and circumstances of the case in favour of the petitioner including the costs throughout may be granted.” 2. It is not out of place to mention here that the petitioner had also filed Writ Petition No.13968/2022 seeking a direction to constitute a medical board and consider his case as per Rule 25 of the Boarder Security Force Rules, 1969 (in short “Rules, 1969”) to extend the benefit of permanent disability to the petitioner. The said writ petition was dismissed by order dated 27/6/2022 with the following observations:- It is not the case of the petitioner that he had suffered injury in an accident during the course of employment. If a person has sustained injury in a private accident which has nothing to do with the discharge of his duty, then he is not entitled for special pension. The Supreme Court in the case of Secretary, Government of India and others v. Dharambir Singh decided on 20.9.2019 in Civil Appeal No.4981/2012 has held as under:- 36) We find that summing up of the following guiding factors by the Tribunal in Jagtar Singh v. Union of India & Ors and approved in Sukhwant Singh and in Vijay Kumar do not warrant any change or modification and the claim of disability pension is required to be dealt with accordingly:- “(a) The mere fact of a person being on 'duty' or otherwise, at the place of posting or on leave, is not the sole criteria for deciding attributability of disability/death. There has to be a relevant and reasonable causal connection, howsoever remote, between the incident resulting in such disability/death and military service for it to be attributable. This conditionality applies even when a person is posted and present in his unit. There has to be a relevant and reasonable causal connection, howsoever remote, between the incident resulting in such disability/death and military service for it to be attributable. This conditionality applies even when a person is posted and present in his unit. It should similarly apply when he is on leave; notwithstanding both being considered as 'duty'. (b) If the injury suffered by the member of the Armed Force is the result of an act alien to the sphere of military service or in no way be connected to his being on duty as understood in the sense contemplated by Rule 12 of the Entitlement Rules 1982, it would not be legislative intention or nor to our mind would be permissible approach to generalise the statement that every injury suffered during such period of leave would necessarily be attributable. (c) The act, omission or commission which results in injury to the member of the force and consequent disability or fatality must relate to military service in some manner or the other, in other words, the act must flow as a matter of necessity from military service. (d) A person doing some act at home, which even remotely does not fall within the scope of his duties and functions as a Member of Force, nor is remotely connected with the functions of military service, cannot be termed as injury or disability attributable to military service. An accident or injury suffered by a member of the Armed Force must have some casual connection with military service and at least should arise from such activity of the member of the force as he is expected to maintain or do in his day-to-day life as a member of the force. (e) The hazards of Army service cannot be stretched to the extent of unlawful and entirely un-connected acts or omissions on the part of the member of the force even when he is on leave. A fine line of distinction has to be drawn between the matters connected, aggravated or attributable to military service, and the matter entirely alien to such service. What falls ex-facie in the domain of an entirely private act cannot be treated as legitimate basis for claiming the relief under these provisions. A fine line of distinction has to be drawn between the matters connected, aggravated or attributable to military service, and the matter entirely alien to such service. What falls ex-facie in the domain of an entirely private act cannot be treated as legitimate basis for claiming the relief under these provisions. At best, the member of the force can claim disability pension if he suffers disability from an injury while on casual leave even if it arises from some negligence or misconduct on the part of the member of the force, so far it has some connection and nexus to the nature of the force. At least remote attributability to service would be the condition precedent to claim under Rules 173. The act of omission and commission on the part of the member of the force must satisfy the test of prudence, reasonableness and expected standards of behaviour. (f) The disability should not be the result of an accident which could be attributed to risk common to human existence in modern conditions in India, unless such risk is enhanced in kind or degree by nature, conditions, obligations or incidents of military service.” Under these circumstances, this Court is of the considered opinion that since the petitioner is asking for retirement on the ground of unfitness, the said representation should be considered and decided by the competent authorities in accordance with law. So far as the question of grant of special pension is concerned, the same shall also be decided in accordance with law as laid down by the Supreme Court in the case of Dharambir Singh (supra). Let the entire exercise be completed within a period of three months from the date of receipt of certified copy of this order. With aforesaid observations, this petition is finally disposed of. 3. It is submitted by the counsel for the petitioner that by the impugned order, the petitioner has been transferred to BSF ACY TKP, whereas he is under medical disability to the extent of 52%, as he had met with an accident thereby suffering severe injuries on his right leg, which is evident from FIR. The petitioner has undergone medical treatment. He was also produced before the medical board on 23.6.2021 and 15.2.2022, where his temporary medical disability to the tune of 52% was assessed. The petitioner has undergone medical treatment. He was also produced before the medical board on 23.6.2021 and 15.2.2022, where his temporary medical disability to the tune of 52% was assessed. It is submitted that the Ministry of Home Affairs has issued office memorandum on 8.10.2018 for exemption for the routine exercise of transfer / rotational transfer. Another instruction in this regard was issued on 13.10.2020. In view of the aforesaid policy of transfer, the petitioner is entitled for exemption specially in the light of the fact that the matter is pending for consideration by the medical board with regard to disability of the petitioner as “permanent”. 4. Per contra, the petition is vehemently opposed by the counsel for the respondents. It is submitted that the petitioner did not sustain any injury arising out of and in the course of employment. It appears that on 14.9.2018 the petitioner met with an accident while he was going from Tekanpur to his house at Shivpuri. This fact is clear from the copy of the FIR filed by the petitioner. It is further submitted that it is well established principle of law that a person is not entitled for special pension in case if he had sustained any injury in a private accident / incident having no nexus with the discharge of his duty. It is further submitted that the petitioner has already been relieved from the present place of posting and he has not submitted his joining at the transferred place. 5. Heard learned counsel for the parties. 6. The petitioner had met with an accident in the month of September, 2018 while he was going from his place of employment to his house at Shivpuri. Thus, by no stretch of imagination it can be said that the accident took place out of or in the course of employment. Even otherwise, if any employee who did not sustain injury on account of his duty work, cannot claim special pension, as held by the Supreme Court in the case of Dharambir Singh (supra). 7. Furthermore, from the report of medical board, it is clear that the physical ailment of the petitioner is temporary in nature. Approximately 4 years have passed after his accident. Transfer is an exigency of service and no one can claim that he should be posted at a particular place. 7. Furthermore, from the report of medical board, it is clear that the physical ailment of the petitioner is temporary in nature. Approximately 4 years have passed after his accident. Transfer is an exigency of service and no one can claim that he should be posted at a particular place. Even as per office memorandum dated 7.9.2017, the types of disability have been defined, which read as under:- “(i) Types of Disability:- The Schedule of the Act contains the list of specified disabilities. However, broadly there will be following three categories of disabled personnel in CAPFs:- (a) Those who are disabled due to injuries sustained in war, action against enemy / terrorists/ antisocial elements / insurgents/ Naxalites/ while guarding borders maintaining law and order/internal security/ undergoing training or any other bonafide duty. (b) Those who are disabled due to sickness/accident. (c) Those who are disabled due to psychiatric diseases.” 8. From the plain reading of above-mentioned disability, it cannot be said that the words “sickness / accident” mentioned in disability (i) (b) has nothing to do with the duty assigned to the employee. The petitioner is seeking exemption from discharging his particular type of duty, therefore, he must sustain the disability during the discharge of his official duty and not in a private accident. 9. It is submitted by the counsel for the petitioner that the petitioner has also applied for his discharge under Rule 25 of Rules, 1969, but the said representation is not being considered by the respondents. 10. The counsel for the respondents has submitted that the petitioner has already been relieved and even prior to his relieving, he did not appear before the medical board for the purpose of his discharge under Rule 25 of the Rules, 1969. Since all the papers pertaining to service record of the petitioner have already been transmitted to his transferred place, therefore, in case if the petitioner joins at his transferred place and submits himself before the medical board for the purpose of his discharge under Rule 25 of Rules, 1969, then his request shall be considered, as directed by this Court by order dated 27.6.2022 in Writ Petition No.13968/2022. 11. 11. In reply, it is submitted by the counsel for the petitioner that since the petitioner is suffering from physical ailment, therefore, it is not possible for him to join at the transferred place and to appear before the medical board at his transferred place. 12. Considered the submissions made by the counsel for the parties. 13. It is not the case of the petitioner that the petitioner is confined to bed or he cannot move at all. The petitioner can very well submit his joining at the transferred place and can make a prayer for compliance of order dated 27.6.2022 passed in Writ Petition No.13968/2022. 14. Since transfer is an exigency of service and the petitioner has failed to prove that he had sustained the injury while he was on duty, this Court is of the considered opinion that the “type of disability” would not include a disability sustained by the employee in a private accident having no nexus at all with the discharge of his official duty. 15. Accordingly, the petition fails and is hereby dismissed.