Judgment · High Court · 2012

Learned counsel for the petitioner has submitted that even when an army personnel is on casual or annual leave, he shall be considered to be on duty except when by virtue of Rule 11 of Leave Rules, he could not be deemed to be on duty, if he had not actually performed duty in that year. Further, where the injury that results in disability due to an accident, which is not due to natural, pathalogical or psychological causes the activity of a military personnel that is not inconsistent with military service would still be taken as a disability attributable to military service and, therefore, the army personnel entitled to disability pension. In support of his submission he has placed reliance upon Union of India through Secretary, Ministry of Defence, New Delhi and others Vs. Khushbash Singh¸ 2010(2) SCT 805. The judgment in the case of Khushbash Singh (supra) was considered by the Tribunal while delivering the impugned judgment and held to be not applicable to the facts and circumstances as inconsistency or otherwise of an accident with military service could not be said to be any relevant consideration where such an individual indulges himself in any individual Civil Writ Petition No. 8758 of 2012 -8- business or vocation or calling while on leave of any kind. Such activities have no causal connection with the military service and, therefore, cannot be held to be attributable to military service. In the present case, the petitioner was admittedly on casual leave for 15 days from 2.3.2004 to 17.3.2004 and present at his house. While playing Holi, he slipped from the terrace of his own house and sustained injuries. Playing of Holi and, that too, while at his home and sustaining injuries by slipping from the terrace has no causal connection with military service. It may also not be out of place to mention here that the petitioner was on casual leave from 2.3.2004 to 17.3.2004. He had already reached his village and while celebrating the Holi on 7.3.2004, he fell from the terrace of his own house and sustained injuries. Therefore, it cannot be said that the petitioner was either proceeding to his leave station or returning to duty from his leave station when he suffered injuries, and, therefore, entitled to disability pension as the injury was attributable to military service. The claim of the petitioner that the Court of Inquiry also found the injury suffered by him attributable to military service is against the records as in the opinion of the Commanding Officer the injury sustained by the petitioner was not attributable to military service in peace. For facility of reference, the opinion of the Commanding Officer as expressed in order Civil Writ Petition No. 8758 of 2012 -9- dated 25.9.2004 and attached with the present writ petition as Annexure P-1 is as follows:- “OPINION OF THE COMMANDING OFFICER 509 ASC BN ON the COURT OF INQUIRY IN RESPECT OF NO.148003331 KL/NK/MT VED SINGH SUSTAINED SEVERE INJURY ON 07 MARCH 2004

#1. I have perused the C of I proceedings and opine that :- (a) No.14800333 KL/NK/MT Ved Singh of 509 ASC Bn while on CL fell down from the terrace of house and sustained Open Fracture Tibia Fibula Right” on 7 March,

#2004. (b) Injury sustained by No.148000333 KL/NK/MT Ved Singh is not attributable to military service in peace. Station:C/o 56 APO Dated : 25 Sep. 2006 (Sd/- Roopak Sharma) Col. CO” Similarly in the report prepared by the Brigade Commander on accidental and inflicted injuries received by the officers, copy of which has been attached as Annexure P-2, there is no reference that the injury sustained by the petitioner was attributable to military service. Rather against the column “(d) as to whether the individual was under the influence of intoxicating Civil Writ Petition No. 8758 of 2012 -10- drink or drug at the material time”, the Commanding Officer had mentioned “Yes”. In view of the above, the Court is of the considered opinion that the petitioner has been rightly denied the benefit of disability pension. There is no merit in the writ petition, which is, accordingly, dismissed. (SATISH KUMAR MITTAL) (T.P.S. MANN ) July 04, 2012 satish JUDGE JUDGE