Gurdass Singh vs Union of India and Others

The petitioner is claiming disability pension. His claim stands rejected vide letter dated 18-02-1998.The writ petition is pending in this court

since 22-02-1999. Number of opportunities were granted to file the objections. This was not done. On 05-09-2000 the petition was admitted.

Counter has not been filed. It is in these circumstances, this petition is being taken up for final disposal.

On 15-12-1996, the petitioner alongwith his wife Smt.Chhoti Devi had gone to attend a religious ceremony. The scooter on which they were

travelling was hit by a Tipper No.JK01B-4325. The petitioner suffered multiple injuries. A departmental inquiry was held. The petitioner was

exonerated. It was concluded that the accident occurred on account of the negligence of a civil Tipper having registration NO.JK01B-4325. On

account of the injury so sustained the petitioner was discharged from service. He has been denied disability pension. This was on the ground that

the injury was neither attributable nor aggravated by military service. It is this aspect of the matter which is required to be taken note of. The

Judicial precedents are directly in favour of the petitioner. The Supreme Court of India in the case reported as Madan Singh Shekhawat Vs. Union

of India and Others, allowed the disability pension when the concerned employee was not on duty. He was on casual leave. It was observed that

the provisions in this regard are to be given liberal interpretation and the concerned employee though on casual leave was allowed disability

pension.

In N/K Sandhu Singh Vs Union of India 1995 (3) SCT 242 SC, the writ petitioner was a heavy weight boxer. He had represented services in

different levels in the sports events. During the course of strenuous training he complained pain in his chest. This according to the petitioner was on

account of blows which he had received during his sports carreer in army as boxer. There was no suggestion in the written statement filed by the

respondents that the disability was caused by any factor other than injury during practice session. In these circumstances thepetitioner was held

entitled to disability pension.

An army officer while undergoing training was granted 15 days casual leave to proceed to his home town at public expense. While travelling in

train he sustained crush injury in the train accident. He was found to be not fit for service and was invalidated out of service. The Madhya Pradesh

High Court came to the conclusion that such an officer would be deemed to have been injured while on duty. See Shashi Kumar Mishra vs. Union

of India 1996 (3) SCT 141 SC. Reliance was placed on the decision reported as Harbans Singh Vs. Union of India, and a Division Bench

judgment of Punjab & Haryana High Court in Chatru Ram Vs. Secretary Defence 1991(1) SCT 316 SC.

The question as to whether an army personnel on casual leave remains on duty is no longer re-integra. This aspect of the matter was considered

by a Division Bench of this Court in the case of Pritam Singh Vs. State and others 1980 JKLR 16. The Division Bench speaking through Dr. A. S.

Anand, J. now the Chief Justice of India, expressed an opinion that even an employee on casual leave would be treated as on active duty. In the

above case, this issue was decided on a different context. The question was whether a court martial can be held when an army personnel commits

an act when he is on casual leave. Taking note of the provisions of Section 3(1) read with Section 70 and also the leave rules and more particularly

R.9 and 10(a), the Division Bench was of the opinion that an employee would be on duty even if he happens to be on casual leave. The relevant

observations made in paragraph 17 are being noticed. These read as under : -

Merely because, the petitioner was on casual leave, it cannot be said that he was not on active service. It is the factum of service in the State of

Jammu and Kashmir, which under Notification 17-E gives, the status to the petitioner of being on active service, irrespective of the fact whether or

not he is actually performing his duties at the relevant time. The legislature used the expression ‘while on active service', in section 70 of the Act

and not 'while on actual duty' and we found no reason to equate the two expressions. When a person covered by Section 70 of the Act, is 'on

actual duty', he must be on 'active service', but it is not essential that when 'on active service' he must always be on 'actual duty'. He would be

deemed to be 'on active service' even when he is either 'off duty' or availing 'casual leave'...

This aspect of the matter was again considered in writ petition No. SWP 1327/93 decided on 16-11-1998. The concerned employee had gone

to cinema hall for seeing movie. When he was returning back, he met with an accident. He died. Taking into consideration the relevant rules, a

conclusion was arrived at that the dependants of the concerned employee were entitled to the pensionary benfits.

In S.Charngit Kour Vs. Union of India, Service Ruling Volume 13 Page 100, the officer had died under mysterious circumstances. The result of

enquiry was kept secret. The dead body of the deceased was found with 98% burns. The stand of the state was that he had gone to attend some

private business This aspect of the matter did not find favour with the Supreme Court of India and the petitioner was held entitled to pension.

In view of the aforementioned judicial precedents and more so the recent decision given by the Supreme Court of India in Madan singh

Sakhawat's case (Supra), the plea taken by the respondents that the petitioner is not entitled to disability pension cannot be sustained.

In view of the above this writ petition is allowed. The petitioner is held entitled to disability pension. The respondents would determine the exact

percentage of disability. Let this exercise be done by the respondents within two months from the date,copy of the order passed by this court is

made available by the petitioner to the respondents. The petitioner is also held entitled to interest. The rate of interest would be 12% per annum. If

for any reason, it is not possible to settle the claim of the petitioner within the stipulated period, then the respondents would be at liberty to seek

extension of time but in that eventuiality the respondents would have to explain each and every day's delay and the rate of interest would be 15%

per annum.

Disposed of.