Jai Bhagwan vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 1379 Del

JUDGMENT

Mukundakam Sharma, J.

1. This petition was filed by the petitioner praying for quashing the order of discharge and show-cause notice which was issued to the petitioner on 31st August, 1996 and, thereafter, to reinstate the petitioner in service in regular appointment or sheltered appointment as the case may be with effect from 31st August, 1996 the date from which he was shown as discharged. However, in the writ petition an alternative prayer was also incorporated by the petitioner directing the respondents to pay to the petitioner disability pension giving him the disability element at 35% with effect from the date of his discharge i.e. 31st August, 1996.

2. The petitioner herein was enrolled in the Corps of Engineers on 26th February, 1993. The petitioner was granted casual leave by the respondents for a period of about five days. Pursuant to grant of the said leave the petitioner went on leave with effect from 16th August, 1994 which was effective up to 20th August, 1994.

3. It transpires from the records that while coming back to rejoin his duties after expiry of the casual leave period the petitioner met with an accident on 20th August, 1994. Due to the aforesaid accident the petitioner was treated in the hospital and later on he was placed in CEE (Permanent), Medical Category.

4. A notice was issued by the respondents on 3rd August, 1996 to the petitioner directing him to show cause as to why he should not be discharged from service. The said notice was sent under the signatures of Adjutant and not by the competent authority of one training battalion to which the petitioner claims to belong.

5. The respondents thereafter issued an order discharging the petitioner from service in exercise of powers under Army Rule 13(III)(V) with 35% disability. The claim of the petitioner for disability pension was, however, rejected against which he filed an appeal which also came to be dismissed by the respondents.

6. Thereafter, the petitioner filed a writ petition in this Court which was registered as CW No. 6890/2001. The said petition was listed for consideration before the Division Bench of this Court. Considering the facts and circumstances of the case and also the pleadings of the parties, it was held that the order of discharge which was passed against the petitioner cannot be struck down but it was held that the petitioner should be considered for sheltered employment by the respondents in terms of the provisions of Army Order 46/1980. The writ petition was disposed of in terms of the aforesaid order dated 21st August, 2002.

7. However, as the respondents neither informed nor decided about the reconsideration of his case for sheltered appointment the petitioner approached this Court by filing this writ petition on which we have heard the learned Counsel appearing for the parties.

8. The writ petition was listed today for consideration and at this stage the Counsel for the respondents has placed before us a copy of the order dated 25th September, 2004 whereby the prayer of the petitioner for giving sheltered appointed has been rejected. In view of the aforesaid position, we cannot reopen the matter on the plea of the petitioner for setting aside and quashing the order of discharge. It is not possible to direct for his reinstatement in service as an order was already passed by this Court that the said order of discharge cannot be struck down after an interval of six years. The prayer of the petitioner for sheltered appointment was rejected by the respondents and the said prayer was directed to be considered in the order passed by the Division Bench. Pursuant to the said order the plea for sheltered appointment was reconsidered and on such reconsideration it was held that he cannot be given such sheltered appointment for the reasons stated in the counter affidavit.

9. Counsel appearing for the petitioner has submitted before us that the alternative plea of the petitioner could be entertained in this writ petition i.e. for grant of disability pension to the petitioner as according to the petitioner the petitioner is entitled to the aforesaid benefit in view of the provisions of Rule 10 of the Leave Rules and Pension Regulation 173. Since the Counsel of the petitioner has submitted that the petitioner is giving up his claim for sheltered appointment and pressing the petition for claim for grant of disability pension, we have allowed the petitioner to press for the alternative prayer in the petition. The petition, therefore, is restricted to the aforesaid prayer for grant of disability pension, on which we have heard the learned Counsel for the parties.

10. The provision of Rule 10 of the Leave Rules read with Regulation 173 of the Pension Regulation provides that if an injury is sustained during the course of the employment and while on duty resulting in a disability in that event the petitioner would be held to be entitled to grant of such disability pension provided his disability is assessed at more than 20%. It is established from the records placed before us and it is also an admitted position that the disability of the petitioner has been assessed at 30% which is admitted position, due to which he was placed in CEE (Permanent) Medical Category. The same is borne out from the records of the respondents that have been placed before us. Therefore, the petitioner satisfies one of the requirements i.e. having disability of more than 20% for receiving the benefit of the disability pension.

11. The only other criteria and condition that the petitioner is to satisfy and prove that the aforesaid injury for which he was placed in CEE (Permanent) Medical Category was sustained by him during the course of his employment and service and while on duty. It is disclosed from the records that the petitioner was granted casual leave with effect from 16th August, 1994 to 20th August, 1994. It is also established from the records that the petitioner was coming back to his unit to rejoin his duties on 20th August, 1994 when he suffered the aforesaid injury, in this connection, we may appropriately refer to a decision of Supreme Court in Madan Singh Shekhawat v. UOI and Ors. and another decision of Supreme Court in Joginder Singh v. UOI. The decision of Madan Singh Shekhawat was the decision of Joginder Singh was reported in 1996 (2) SLR 149. The decision in Madan Singh Shekhawat's case was rendered by the Supreme Court almost under identical and similar facts. In the said case also the cause of the discharge on medical grounds arose from an accident in which the appellant was involved on 1st October, 1994 while alighting from the train at Didwara Railway Station. Consequent to the said accident, appellant's right hand was amputated just four inches below from the joint of collar bone and at the time of the accident, the appellant was traveling from Jodhpur to his home station on authorised casual leave granted to him. The accident had taken place in the said case also when the appellant was traveling from his unit to his home station on authorised casual leave granted to him.

12. The petitioner herein also met with an accident while he was coming from his home station to rejoin his duties on authorised casual leave granted to him. Therefore, facts of this case are similar to that of Madan Singh Shekhawat and applying the ratio laid down, we hold that the petitioner is entitled to the disability pension as provided in the Rules applicable to the respondents.

13. In the case of Joginder Singh (supra) also the Supreme Court has directed for payment of disability pension almost on similar facts. In the said case also the respondents had held that the appellant therein was not entitled to grant of disability pension as he was on casual leave. In the peculiar facts of the said case also the Supreme Court held that the Army Personnel who is on casual leave should be treated to be on duty in the facts and circumstances of the said case. Accordingly we are satisfied that the ratio of the aforesaid two decisions is squarely applicable to the facts of the present case.

14. The disability pension was assessed at 30% by the respondents. The petitioner's disability was found to be permanent in nature.

15. In terms of the circular issued by the respondents on 31st January, 2001 which is applicable from 1st January, 1996 the petitioner shall also be entitled to the benefit as stated therein. Accordingly, the petitioner shall be entitled to 50% disability element of pension for life with effect from 1st January, 1996.

16. This Court also in the case of Ex. Hav. Dharambir Singh v. UOI and Ors., Writ Petition No. 4067/2004 held in order dated 23rd November, 2004 that such benefit namely disability pension at 50% would be received by the petitioner therein from the date of discharge of the petitioner. Accordingly, we direct that the petitioner shall be paid disability pension with effect from 31st August, 1996 at 50%. The petitioner shall be paid all the arrears of disability pension at 50% and also from the future months for his life at the aforesaid rate. The arrears shall be paid within a period of two months from the date of receipt of a copy of this order. Writ petition is allowed to the aforesaid extent leaving the parties to bear their own cost.