Punjab-Haryana High Court
Dhoop Singh, Ex-Naik vs Union Of India (Uoi) And Ors. on 22 January, 1999
Equivalent citations: (1999)121PLR704
Author: Harjit Singh Bedi
Bench: Harjit Singh Bedi
JUDGMENT Harjit Singh Bedi, J.
1. The petitioner was employed as a Sepoy in the year 1978 in the Regiment of Artillery and was allotted the trade of Wireless Operator. On the 2nd July, 1985, he was granted five days causal leave to visit his village Mandhan. He, accordingly, commenced his journey by train from their place of duty at Farbidkot on the 2nd" July, 1985 and got down at Railway Station, Rohtak the next day and from there proceeded to his village on his friend's Motor Cycle, and while on his way, suffered multiple injuries when the Motor Cycle met with an accident. The petitioner was, accordingly, hospitalised in various hospitals for almost two years and was, thereafter, discharged from the Army after being put in low medical category. His application for the grant of disability pension was declined and an appeal preferred before the Central Government was also rejected on 13th June, 1997 vide Annexure P-1 to the petition. The petitioner, has came to this Court impugning the aforesaid order.
2. On notice of motion, a reply has been filed on behalf of the respondents and it has been pleaded that the Release Medical Board which had examined the petitioner had assessed his disability at 40% for two years but as no finding had been recorded with regard to attributability and aggravation factor in the absence of an injury report as he had sustained injuries in a train accident on 3rd July, 1985 while on causal leave when he was not performing any military duty, he was not entitled to the payment of disability pension. Reliance for this assertion has been placed on Rule 173 of the Pension Regulations for the Army, 1961 (Part-I) which inter alia provides that the disability pension could be granted if the disability could be attributed to or aggravated by Military Service. The respondents have also annexed Annexure R-1 dated 29th May, 1995 with their reply in support of the reasons given for rejecting the petitioner's claim.
3. Mr. Anand, the learned Counsel for the petitioner has argued that the petitioner had left Faridkot on 2nd July, 1985 on causal leave for five days and it was while he was proceeding to his leave station from his duty station that the accident had happened in which the petitioner had suffered serious injuries. He has urged that it had to be held that the petitioner was on military duty when he suffered the injuries and as such, his case was fully covered by Regulation 173 ibid. He has also relied on Rule 12(d) of the Entitlement Rules for Causal Pensionary Awards, 1982 (hereinafter called 'the Rules of 1982') in which it had been provided that when a person was proceeding from his duty station to his leave station or returning there from and travelling at public expense, on a railway warrant or in some other way, the presumption was that he would be deemed to be on duty. Reliance has also been placed on the Supreme Court decision in Joginder Singh (Lance Dafadar) v. Union Of India and Ors., 1997(2) R.S.J. 413 and on a Division Bench judgment of this Court in Jarnail Singh v. Union of India, 1998(1) S.LR. 418.
4. After hearing the learned Counsel for the parties, I am of the opinion that this petition deserves to succeed.
5. It is the undisputed position that the petitioner had suffered injuries while on his way from his duty station to his leave station on causal leave. The question arises as to whether in such a situation, the petitioner was to be treated as being on duty when the accident took place. Rule 12(d) of the Rules of 1982 reads as under:-
"12. A person subject to the disciplinary code of the Armed Forces is on duty:
(d) When proceeding from his duty station to 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 vouchers on cash T.A. irrespective of whether railway warrant/cash T.A. is admitted for the whole journey or for a portion only, in government transport or when road mileage is paid/payable for the journey".
6. It will be seen from a reading of the afore-quoted rule that a Army personnel who is proceeding from his duty station to his leave station or returning there from and travelling at public expense whether for the whole or part of the journey, is deemed to be on duty at that time. It has not been denied in the written statement that the petitioner had, in fact, travelled from Faridkot to Rohtak by rail and it was while on his way from the railway station to his residence that he met with the accident. It is true, as has been contended by Mr. Malhotra, that there is no averment in the petition that the petitioner was travelling at public expenses but as the petitioner was on causal leave, a presumption can safely be drawn that in fact, the petitioner had travelled a part of the way at public expense or on a concessional voucher. The two judgments cited by Mr. Anand also support his case. In Joginder Singh's case (supra), the appellant who was a regular soldier was proceeding on causal leave from his duty station, Bahina to his home in district Faridkot and while boarding the train, he suffered serious injuries which resulted in his discharge from the Army. The Hon'ble Supreme Court while allowing an appeal against the judgment of this Court dismissing the writ petition filed by the claimant observed that as he was on causal leave and on his way to his home station from his duty station and was travelling at public expense, it had to be held that he was deemed to be on duty. In Jarnail Singh's Case (supra), a Division Bench of this Court after an in depth examination of the case law on the subject and the provisions in the Rules which govern the grant of disability pension observed as under:-
"Thus, to sustain a claim of disability pension the member of the Armed Force must be able to show a normal nexus between the act, omission or commission resulting in an injury to the person and the normal expected standard of duties and way of life expected from member of such disciplined force. It is so primarily for the reason that no unlawful activity or commission can validly support a lawful claim. Violation of expected standards cannot form a fair ground for raising a claim under these provisions. Every rule is expected to be understood so as to be implemented lawfully and to achieve its object, but equally true is that no lawful activity can be brought to the aid of an unlawful act and that too by stretching the rules of present kind because it may ultimately result in abuse of the benefit sought to be granted by such rule. It has to be understood that no strait-jacket formula could be provided for such cases and each case has to be judged on its own merits."
7. In the light of the foregoing discussion, it has to be held that there was a complete and close nexus between the journey made and the injury sustained by the petitioner. It has not been denied by the respondents that the Medical Board that had recommended his discharge from service on 28.9.1994 had found that the disability that he had sustained was to the extent of 40% for two years. It is apparent that the period of two years for which the disability had initially been assessed, has since expired. This petition is, accordingly, allowed and a direction is issued that the petitioner will be reexamined by Medical Board at the Military Hospital, Meerut, to determine the extent of his disability within a period of six weeks from the date, that a certified copy of this judgment is made available to the respondents and in case it is found that the petitioner's disability is 20% or more, disability pension will be released to him within a period of three months, thereafter. There will be no order as to costs. Dasti order.