Mohinder Kour vs Union of India and Others

Heard learned counsel for the parties.

Taken up for final disposal.

Petitioner's son was serving in Jammu and Kashmir Light Infantry. He was on a casual leave. While he was availing this leave, he met with an

accident. The petitioner is claiming pensionary benefits being the mother of the deceased.

All the facts are admitted. The only dispute is whether an army personnel while on casual leave is entitled to the pensionary benefits or not.

Respondents have filled objections. It is admitted that eleven days casual leave was allowed to the son of the petitioner. It is also"" admitted that a

speeding matador coming from the opposite direction hit the scooter on which the petitioner's son and another pillion rider were coming from R. S.

Pura. Both of them died in the said accident. Petitioner's son was a bachelor. He had nominated his father Gurdayal Singh as the next of his kin.

The family pension case was rejected by the Controller of Defence Accounts (Pension) Allahbad. A conclusion has been arrived at that the death

occurred when Gurmeet Singh was not on army duty. As indicated, the above is the basic ground for rejection of the claim of the petitioner.

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

a Division Bench of this court in the case of 'Pritam Singh Vs. State and Ors', 1980 JKLR 16. The Division Bench speaking through Dr. AS

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 a casual leave. The relevant

observations made in paragraph 17 are being noticed. These read asunder :

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

Jammu and Kashmir, which under Notification 17E 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 service1 in Section 70 of the Act

and not 'while on actual duty1 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 service1, but it is not essential that when 'on active service1, 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 16.11.98. The concerned employee had gone to

cineme hall for seeing a 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 benefits. In 'Shashi Kumar Mishra vs.

Union of India' 1996(3) SCT 441, an army officer while undergoing recruitment training was granted fifteen days casual leave. He proceeded to

his home town. While travelling, he met with an accident. He was not found fit for service and was invalidated out of service. The Madhya Pradesh

High Court came to the conclusion that such an officer would be entitled to disability pension as he would be deemed to have been injured while o

duty. Reliance in this case was also placed o the decision reported as 'Harbans Singh vs. Union of India, AIR 1971 Delhi 227 and a Division

Bench judgement of Punjab and Haryana High Court in 'Chhatru Ram vs. Secy. Defence, 1991(1) SCT 316.

In view of the above, the petitioner is held entitled to family pension. Let this be release within a period of three months. This period shall begin

from the date, the copy of the order passed by this court today is made available to the respondentauthorities by the petitioner.

Disposed of accordingly.