Mohinder Kour vs Union of India

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 pensionery 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 pensionery benefits are not

Respondents have filed 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 petitioners son and another pillion rider were coming from R.S.

Pura. Both of them died in the said accident. Petitioners 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 Others' 1980 JKLR16. 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 an 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(i) 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 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 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 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

13327/93 decided on 16.11.98.The concerned employee had gone to cinema 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 defendants of the concerned employee were

entitled to pensionery benefits. In 'Shashi Kumar Mishra and 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 traveling, 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 on duty. Reliance in this case was also placed on the decision reported as

'Harbans Singh v. Union ofIndiaAEU971 Delhi 227 and a Division Bench judgment of Punjab and Haryana High court in 'chharru Ram and Secy.

Defence, 1991(1) SCT316.

In view of the above the petitioner is held entitled to family pension. Let this be released 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 respondent authorities by the petitioner.