Sunil Kumar Sharma vs Union of India

Mr. Tashi Rabstan, J. - Through the medium of this writ petition, the petitioner is seeking writ of Certiorari to quash communication No.

B/40112/MA (P)/AG/PS-T, dated 28.07.2006 and communication No. 14937636/10/DP, dated 24.10.2006, with a further direction to the

respondents to grant him disability pension w.e.f. 29th May, 2006, the date when he was discharged from service under Army Rule 13(3)(iv)

along with interest on the grounds taken in it.

The facts as averred by the petitioner in the writ petition are that he came to be enrolled in Indian Army as a Soldier, general duty on

07.01.2005 after he was found medical fit. After his enrolment, he was posted in Basic Infantry Battalion of Mechanized Infantry Division of the

Indian Army. During the month of July, 2005, after completion of 28 weeks of training, petitioner was granted 28 days recruit leave from

02.07.2005 to 29.07.2005 to visit his home town situated at Jammu. It is contended that while the petitioner was returning to join his duty, he met

with an accident due to which both the legs of the petitioner were fractured. It is further contended that the petitioner after receiving first aid initial

treatment in Govt. Medical College Hospital, Jammu, ho rejoined his duty. Upon joining, he was subjected to a Release Medical Board at Military

Hospital, Ahmadabad and was diagnosed to be suffering from (i) Sub Trechanteric Fracture Femure Lt. OPTD, (ii) fracture Both Cubic Rami-

Left. On this account, his medical category was downgraded to Category A-V and his composite disability was assessed to be 40% by the said

Board. On that account, he was invalided out of service on 29.05.2006 after rendering only one and four months service with the respondents as is

apparent from the copies of discharge certificate. At the time of discharge from service in May, 2006, petitioner asked for disability pension in his

favour. Respondent No. 4 recommended for grant of disability pension but respondent no. 3 did not agreed to. However, petitioner pressed for

grant of disability pension. It is averred that disability pension claim of petitioner was forwarded to competent authority, but the same came to be

rejected on the ground that the disability suffered by the petitioner was not attributable to military service. Aggrieved by the same, the petitioner has

filed the instant writ petition.

Respondents have filed the objections resisting the claim of petitioner. The respondents though have admitted that the petitioner met with an

accident when he was on leave, but have denied that he is entitled to disability pension on the ground that said disability was neither attributable to

nor aggravated by military service on that account. Further, it is contended that the disability pension claim of petitioner was forwarded to

competent authority in consultation with the competent medical board authority, but the same came to be rejected on the ground that the disability

suffered by the petitioner was neither attributable to nor aggravated by military service.

I have heard learned counsel appearing for the respective parties and considered the rival contentions meticulously.

Admitted facts of the case are that the petitioner met with an accident while he was on leave. He suffered 40% disability and was placed in low

medical category. Thereafter he was placed before the Release Medical Board and was invalided out of service on the ground of low medical

category. It is also admitted that from 25th July, 2005 to 28th May, he was under treatment at 166 Military Hospital, Jammu. It is not denied by

other side that the day when disability/injury occurred to the petitioner he was absent from duty, rather it is admitted by the respondents that when

disability was incurred to the petitioner, he was on leave duly sanctioned/granted in his favour by the competent authority.

Regulation 173 of Pension Regulations for the Army, 1961 is reproduced hereunder :

Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual

who is invalided out of service on account of a disability which is attributable to or aggravated by military service is non-battle casualty and is

assessed at 20 per cent or over.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II.

A bare perusal of the afore-quoted Regulation makes it clear that disability pension in normal course is to be granted to an individual (i) who is

invalided out of service on account of a disability which is attributable to or aggravated by military service and (ii) who is assessed at 20% or over

disability unless otherwise it is specifically provided.

It is not in dispute that the Medical Board has assessed the disability of petitioner at 40%.

Now the short question arising for consideration is whether disability of petitioner is attributable to or aggravated by military service and whether

he is entitled to disability pension or not?

The aforequoted Regulation further provides that whether the disability is attributable to or aggravated by military service is to be determined

under the rule, i.e. Entitlement Rules for Casualty Pensionary Awards, 1982 in Appendix-B of which Rule 5 reads as under :

The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following

presumptions.

Prior to and During Service

(a) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or

recorded at the time of entrance.

(b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due

to service.

A perusal of the above Rule provides that when no physical disability is noted or recorded at the time of entrance of an individual, he is

presumed to be physically and mentally fit. Admittedly, at the time of entry into service, the petitioner was medically fit. Respondents have failed to

show any evidence or produce any document whereby any such entry had been recorded at the time of petitioner's initial entry into service.

It would be relevant to reproduce Column No. 4 at Page-1 of Anncxure-R-1, i.e., Medical Board Proceedings; Column Nos. 2 and 5(a) of

the Statement of the Case 'Confidential' at Page-5 annexed by the respondents with their objections, hereunder:

Did you suffer from any disability mentioned in question 2 or anything like it before joining the Armed Forces? If so give details and date.: No.

Did the disability exist before entering service. : No

Was the disability attributable to the individual's own negligence or mis-conduct? If Yes, in what way ? No

It is beaten law laid down by the Apex Court as well as various High Courts of this Country that an army personnel is entitled to disability

pension if the disease/disability is occurred during his active service, therefore, the opinion of the Medical Board has great significance in this

regard. In the present case, the proceedings of the Medical Board, referred to here in above, clearly reveal that nothing was noted or recorded

that the petitioner was suffering from any physical disability at the time of his initial entry into the service.

The Supreme Court of India in the case reported as Madan Singh v. Union of India, 1999 (6) SCC 459 allowed the disability pension

when the concerned employee was not on duty. He was on recruit 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. The Apex Court while allowing the appeal held

as under:

Since on facts there is no allegation in this case that the appellant while travelling to his leave station on the fateful day was travelling

unauthorisedly, we are of the opinion that he is entitled to the benefit of disability pension as provided under the Rules.

A Division Bench of Rajasthan High Court in case titled Tara Chand Jat v. U.O.I. (Raj.), reported in 2002(8) SLR while referring the

judgment Madan Singh Shekhawat also held that:-

The case of Madan Singh Shekhawat v. Union of India and others, reported in JT 1999 (6) SC 116 : (1999 (4) SLR 744 (SC) was again

a case of disability pension and it was held in this case by the Apex Court that when Army personnel is on casual leave, the same is counted as

duty unless he comes under any one of the exceptions under Rule 11 (a) of the rules and it was not the case of the respondents therein that the

appellant comes under any such exceptions. Therefore, as per Rule 10 (a), the appellant was on duty at the time of accident A person incurring

disability when proceeding to his leave station or returning to duty from his leave station at public expenses is also entitled to grant of disability

pension.

A Division Bench of this Court in case, titled as, Pritam Singh v. State and Ors., reported in 1980 JKLR 16 : JKJ Soft JKJ/23232 has

held has under:

The expression ""while in service"", is in our opinion, of a wide amplitude and has been used in Section 70 (supra) to mean holding an

employment, as distinguished from ""actual performing the duties"". The restricted moaning sought to be placed by the learned Addl. Advocate

General on behalf of the State to the expression ""service"" amounts to equating, the expression ""service"" with the expression ""on duty"" and we find

no warrant for such an equation. Being ""on duty"" is a part of being ""in service"". 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 find 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"". Since, the words of the statute are clear, it is the ordinary rule of cons traction of statutes that plain grammatical meaning to

be given to it.

In view of the above discussion, the writ petition is allowed and the orders rejecting the disability pension claim of petitioner are quashed.

Respondents are directed to grant disability pension to the petitioner from the date he has been invalided out of service. Such exercise be

completed within a period of three months from the date a certified copy of this order is served upon them. In case it is not done within the

aforesaid period, the petitioner would be entitled to interest @ 6% per annum.

Disposed of along with connected CMA(s), if any.