Punjab-Haryana High Court
Ex Naik Krishan Kumar vs Union Of India And Others --Respondents on 26 October, 2009
Author: Permod Kohli
Bench: Permod Kohli
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CWP. No. 16368 of 2009
Date of Decision: 27.10.2009.
Ex Naik Krishan Kumar --Petitioner
Versus
Union of India and others --Respondents
CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI.
Present:- Mr. Surinder Sheoran, Advocate for the petitioner.
***
PERMOD KOHLI.J (ORAL) Notice of motion.
Ms. Geeta Singhwal, Central Govt. standing counsel, who is present in the Court accepts notice on behalf of the Assistant Solicitor General for respondents.
It is not disputed that the issue involved in the present writ petition is squarely covered by the judgement of this Court passed in CWP No. 67 of 2007 on 12.2.2008, wherein following observations have been made:-
" We have heard Mr.Sandeep Bansal, Advocate, appearing for the petitioner and Mr. I.S. Saggu, Advocate, appearing for therespondents and have gone through the records of the case. The respondents have denied the benefit of 50% disability pension and Disability Benefit Cover under the Army Group Insurance Fund to the petitioner only on the ground that he was discharged from service on completion of terms of engagement and was not invalidated out from service. Thus, the only question involved in this petition is - whether the petitioner is entitled to benefits which are admissible to army personnel who are invalidated out of service or not. CWP. No. 16368 of 2009 -2-
For answering this question, a resume of facts is necessary. The petitioner joined the Indian Army on October 16, 1984. On March 25, 1988, while he was performing his duties in the insurgency prone area in Jammu & Kashmir, he sustained injuries in a blast suspected to be the handiwork of anti-national elements/terrorists. He was operated upon for his injury on left ankle and a rod was inserted. He was placed in the category of BEE Permanent. As he was unable to perform his duties efficiently after his surgery, he gave his unwillingness for two years' extension in service. Thereafter, the Release Medical Board recommended the petitioner to be discharged from service. Thus, he was discharged from the Army on October 31, 2004 after he had rendered more than twenty years service. At this stage, reference to Regulation 179 of the Army Pension Regulations, 1961 (hereinafter referred to as `the Pension Regulations') is necessary and the same reads as under:-
"179. An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalidated out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 per cent or more, and service element if the degree of disability is less than 20 per cent. The service pension/service gratuity, if already sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be.CWP. No. 16368 of 2009 -3-
2. The disability element referred to in clause (1) above shall be assessed on the accepted degree of disablement at the time of retirement/discharge on the basis of the rank held on the date on which the wound/injury was sustained or in the case of disease on the date of first removal from duty on account of that disease. Note: In the case of an individual discharged on fulfilling the terms of his retirement, his unwillingness to continue in service beyond the period of his engagement should not effect his title to the disability element under the provision of the above regulation.
A perusal of the above provisions of Regulation 179 of Pension Regulations leaves no room for doubt that the petitioner was invalidated out of service. The petitioner sustained injury/disability during service, which was attributable to and aggravated by military service and recorded by Service Medical Authorities. The note below Regulation 179 further makes it clear in the case of an individual discharged on fulfilling the terms of his retirement, his unwillingness to continue in service beyond the period of his engagement, as was given by the petitioner in the present case, should not effect his title to the disability element under Regulation 179 of the Pension Regulations. In this view of the matter, we have no hesitation in holding that the petitioner will be deemed to have been invalidated out of service and is entitled to disability pension as is admissible to defence personnel who are invalidated out of service.
The letter dated February 03, 200 (Annexure P-1), relied upon by the petitioner, so far as relevant, reads as under:-
" Subject: Special benefits in cases of death and disability in service - payment of disability pension/family pension recommendation of CWP. No. 16368 of 2009 -4- the Central Pay Commission. The undersigned is directed to say that the Fifth Central Pay Commission inter alia, recommended that for determining the compensation payable for death or disability under different circumstances, the cases could be broadly categorized in five distinct categories as under:-
Category `A' xx xx xx.
Category `B' xx xx xx.
Category `C' xx xx xx.
Category `D' xx xx xx.
Category `E' Death or disability arising as a result of (a) attack by or during action against extremists, anti-social element etc. and (b) enemy action in international war or border skirmishes and warlike situations, including cases which are attributable to (i) extremists acts, exploding mines etc. while on way to an operational area (ii) kidnapping by extremists; and (iii) battle inoculation as part of training exercises with live ammunition.
2. The Fifth Central Pay Commission recommended various relief packages for the above categories, in modification of the existing provisions on the subject.
V. Disability pension - For cases covered under Category `E'.
(1) xx xx xx.
(2) xx xx xx.
(3) xx xx xx.
(4) xx xx xx.
(5) The Fifth Central Pay Commission also suggested certain procedural changes. These have also been considered by the Government.
The President is now pleased to decide as under:- CWP. No. 16368 of 2009 -5-
Percentage of Disability Percentage to Disability. be reckoned assessed for computation of disability pension.
Less than 50 50 Between 50 and 75 75 Between 76 and 100 100"
In view of the letter (Annexure P-1), quoted above,the petitioner having been unable to continue in military service because of the injury suffered by him due to IED blast generated by the suspected anti- national elements/terrorists while performing duties at insurgency prone area in Jammu & Kashmir, he would be deemed to have been invalidated out of service and is entitled to be given 50 % disability pension. As we have held that the petitioner would be deemed to have been invalidated out of service, the objection of the respondents that rounding off the disability pension under the provisions of Para 7.2 of Government of India, Ministry of Defence, New Delhi letter No.1 (2)/97/D (Pen-C) dated January 31, 2001 is applicable to the individuals who were invalidated out of service on medical grounds, no more holds the field. Para 7.2 of the letter dated January 31, 2001, prescribes that where an Army Forces Personnel is invalidated out of service due to acts of violence/attack by terrorists, anti- social elements etc. and if the percentage of disability as assessed by Invalidating Medical Board is less than 50 %, the percentage to be reckoned for computing of disability element would be 50 per cent.
For the aforesaid reasons, this petition is allowed and the petitioner is held entitled to 50% disability pension and to Disability Benefit Cover under the Army Group Insurance Fund for his disability. The disability pension at the rate of 50% with all consequential benefits will be CWP. No. 16368 of 2009 -6- paid to him from the date of his retirement. The respondents shall pay all the arrears to the petitioner within two months from the date of receipt of a copy of this order, failing which the petitioner will be entitled to interest at the rate of nine per cent annum."
This petition is accordingly disposed of in terms of the aforesaid judgement. The petitioner shall also be entitled to the similar relief, granted in the aforesaid petition. However, it is directed that the claim of the arrears shall be restricted to three years preceding the filing of the writ petition.
(PERMOD KOHLI) JUDGE 27.10.2009 lucky