Delhi High Court
Ex.Hav.Bidhi Singh vs Union Of India & Ors. on 22 July, 2008
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No.12596/2004
% Date of decision: 22.07.2008
EX.HAV.BIDHI SINGH ...PETITIONER
Through: Mr.Rajesh Sehgal, Advocate
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr.S.B.Sharma and Mr.Manoj
Ohri, Advocates with Major
S.S.Pandey for the Respondents.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
SANJAY KISHAN KAUL, J. (Oral)
1. Rule DB.
2. At the request of learned counsel for the parties, the petition
is taken up for final disposal.
3. The petitioner was enrolled in Indian Army on 20.06.1975
and while posted at Head Quarter No.62, Infantry Brigade on
20/21.07.1995 fell down in the night from the first floor of the
barrack accidentally. The petitioner received multiple injuries
including head injuries and was admitted to the Airforce Hospital,
Kanpur. The petitioner was downgraded to medical category „CEE‟
permanent and was brought before the Medical Board and on its
recommendations the petitioner was discharged from service
during the period of his extended tenure of service. The
petitioner is aggrieved by the rejection of his claim for disability
element of pension on account of the fact that the disability
occurred when the petitioner was not on duty. The petitioner is in
receipt of service element of pension.
4. The only question for consideration is whether the accident
which occurred in the barracks when the petitioner was serving the
respondents can be said to have occurred in the course of duty.
5. In our considered view, the aforesaid issue is no more res
integra in view of the judgment of the Apex Court in Madan Singh
Shekhawat v.Union of India & Ors; 1999(4) Recent Services
Judgments 78. The sepoy in the said case was disabled in an
accident while alighting from the train while going to his hometown
on authorized casual leave. It was held that since there was no
allegation that the sepoy was travelling unauthorizedly, he would
be entitled to the benefits of the disability pension which includes
the disability and the service element of the pension. The Apex
Court emphasized that it is the duty of the Court to interpret a
provision, especially a beneficial provision, liberally so as to give a
wider meaning rather than a restrictive meaning which could
negate the very object of the Entitlement Rules for Casualty
Pensionary Awards, 1982 („Entitlement Rules‟ for short). In this
behalf, a reference was made to Rule 48 {Appendix II of the
Entitlement Rules) of the Pension Regulations for the Army, 1961
(„the Pension Regulations‟ for short) which dealt with the said
aspect. The said provision relates to the officers and the
corresponding provision relating to the PBORs is Regulation 173 of
the Pension Regulations, which reads as under:
"173. 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 in non-battle casualty and is assessed
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."
6. A reference was also made to Rule 10 of Leave Rules to
emphasize that casual leave counts as a duty.
7. The Supreme Court in Madan Singh Shekhawat‟s case
(supra) observed in para 14 as under:
"14. In Seaford Court Estates Ltd v. Asher (
1949 2 ALL ER 155), Lord Denning, L.J.(as he
then was) held:
"When a defect appears a judge
cannot simply fold his hands and
blame the draftsman. He must set to
work on the constructive task of
dinging the intention of Parliament ..
and then he must supplement the
written word so as to give "force and
life" to the intention of the
legislature... A judge should ask
himself the question how, if the
makers of the Act had themselves
come across this truck in the texture of
it, they should have straightened it
out? He must then do as they would
have done. A judge must not alter the
material of which the Act is woven, but
he can and should iron out the
creases."
8. We are thus of the considered view that where the provisions
have been beneficially construed in a case where a sepoy on leave
suffered injuries, it can hardly be said that a person who was in the
barracks and deployed on duty will not be entitled to disability
pension merely because the injuries suffered were on account of
an accident and not while engaged in any particular assigned
action.
9. We may notice that a similar view has been taken by the
Supreme Court in Civil Appeal No.4257/1993 Joginder Singh v.
Union of India & Ors, decided on 16.08.1993 where the injures
were sustained in an accident while the sepoy was on casual
leave.
10. A writ of mandamus is thus issued directing the respondents
to pay the disability element of pension to the petitioner. The
petitioner will be entitled to arrears of pension, on the rates
admissible as per law, for a period of three years prior to date of
filing the present petition i.e.29.07.2004 and the same be remitted
to the petitioner within a period of three months from today
11. The petition is allowed leaving the parties to bear their own
costs.
SANJAY KISHAN KAUL, J.
JULY 22, 2008 MOOL CHAND GARG, J.
dm
