Jagmal Singh vs Union Of India And Ors.
1995 Latest Caselaw 611 Del

JUDGMENT

Usha Mehra, J.

(1) Petitioner has challenged the action of the respondent thereby denying him his right to receive the disability pension. Facts leading to the filing of this petition are on 15th October,1987 the petitioner was on Casual Leave. He Along with Havaldar Balbir Singh went to meet his relation. While coming back from Bahadurgarh in order to rejoin the duty at their unit located at Delhi Cantt. they met with an accident at about 7.00 AM. A Dtc bus suddenly approached from behind. It hit the scooter of the petitioner from rear side. Consequently, the petitioner sustained sever injuries on his left leg. He was evacuated in a taxi to the Base Hospital of the Army, Delhi Cantt. Petitioner remained admitted in the hospital where he was operated. He was treated in the hospital and, therefore, put in low medical category. It is further the case of the petitioner that a Court of enquiry was held to investigate the circumstances under which he sustained the injuries. The Commanding Officer after investigating the matter opined that the injury sustained by the petitioner was attributable to military service. The Brigade Commander also recorded his opinion expressing the same view as opined by Commanding Officer i.e. the injury sustained by the petitioner was attributable to military service. In para 2 Order No.116 dated 4.7.88 published by the concerned unit, it was recorded that the petitioner sustained the said injury while on duty. On account of the said injury, he was put in low medical category which was reviewed from time to time by the concerned medical authorities and finally placed in low medical category w.e.f. 6.3.92. The Release Medical Board which was held on 4.9.92 declared the percentage of disability of the petitioner as 30% and recommended disability pension to the petitioner. On account of his being invalid the petitioner was discharged from the service in low medical category. It was recorded in the discharge certificate that the aforesaid injury was attributable to military service.

(2) Respondent disputed that the injury was attributable to military service. In fact the petitioner did not lodge the Fir regarding this incident, therefore, the injury sustained by him could not be attributed to military service.

(3) So far as the question that the petitioner was on Casual Leave, it is not disputed. Nor the accident is in dispute. Even the factum that the petitioner was admitted in the Army Hospital at Delhi Cantt. and remained under medical treatment has not been disputed. The only defense taken by the respondent is that since the Fir was not lodged, therefore, it was not sure whether petitioner met with accident on account of the fault of the Dtc bus or that of the petitioner himself.

(4) From the above facts it is clear that the petitioner met with an accident on 15th October,1987. He remained hospitalised and his medical category was also lowered. The competent authority after investigation found that disability or injury was attributable to military service. Rule 10 of the Leave Rules defines "duty" and that Casual Leave counts towards duty as per the said Rule. Moreover, the Unit of the respondent had in fact published on 4.7.88 that the petitioner sustained aforesaid injury while on duty. At no stage the respondent demanded the petitioner to produce the Fir nor asked him to lodge report with the police. It is not disputed that when the petitioner sustained injury he was unconscious and in the unconscious state he was taken to Hospital by Havaldar Balbir Singh. Therefore, simply on account of non lodging of Fir cannot be made a ground to doubt the injury sustained by the petitioner. His case through out had been that he was hit by a Dtc bus. In similar circumstances this Court in the case of Ex.Sep.Vijay Pal Singh V. Uoi & Ors., Cw No.4619/93 decided on 8.4.94, while relying on the decision of the Supreme Court in the case of Joginder Singh V. Union of India & Ors. Special Leave Petition No.3118/93 decided on 16th August,1993, held that injury to an army personnel even if sustained while he was on casual leave will still entitle him to disability pension as the army personnel on casual leave is treated to be on duty. The Division Bench Judgment of this court quoted above as well as of Supreme Court in the case of Joginder Singh (supra) squarely apply to the facts of this case.

(5) Having regard to the Supreme Court and the Division Bench of our own High Court, I am of the considered view that the petitioner is entitled to disability pension even though he sustained injury while on casual leave. Accordingly directions are given to the respondent to determine the disability pension of the petitioner within one month from today and arrears be paid Along with interest at the rate of 12% p.a. within two months from today. Future disability pension will be paid monthly by month by 7th of each English calendar month. With these observations the petition stands disposed of.