M.R Agnihotri, J.:— After going through the petition and the written statement filed by the respondents and having heard the learned counsel for the parties, we find that the plea taken by the respondents in non-suiting the petitioner in the matter of giant of disability pension, is wholly untenable in law.
2. The petitioner was in the employment of the respondents right till 13th August, 1979, having been enrolled on 13th December, 1971. With the permission of the officer Commanding he proceeded to his place of residence at Nagrota to see his ailing mother. Since the leave was to expire on 13th August, 1979, he left his home town on 11th August, 1979, and met with an accident during the journey on 12th August, 1979.
3. His right arm got dismembered in the accident which took place while the petitioner was undertaking journey to return to his place of posting. He was taken to the Military Hospital at Udhampur on 12th August, 1979, and was discharged from there on 30th August, 1979, for being sent to the Artificial Limb Centre where he remained till March, 1980, and was sent to Jabalpur for being subjected to Medical Board. He was ultimately discharged from service on 30th June, 1980.
4. The claim of the petitioner for the grant of disability pension was rejected by the authorities on 4th March, 1980, and appeal against the same was also rejected on 21st May, 1982, followed by similar rejection of his appeal by the Government of India, Ministry of Defence, on 18th February, 1984, on the ground that the disability caused to the petitioner was not due to Military service.
5. It is admitted in paras 16 and 17 of the written statement filed by the respondents that the percentage of disability of the petitioner had been assessed at 90 per cent, and the petitioner was not found entitled to the disability pension as the injury was not considered as attributable to Military service. According to Regulation 173 of the Pension Regulations for the Army, 1961, unless it is otherwise provided, disability pension will be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by Military service and is assessed at 20 per cent or over. In the present case, it is evident from the record that the petitioner was returning to his duty after availing the leave granted to him by the competent authority and was obviously undertaking his journey at public expense and his disability was more than 90 per cent. Such a contingency is expressly covered under Rule 6 of Appendix II framed under Rule 48 of the Pension Regulations for the Army. According to clause (c) of Rule 6, “a person is also deemed to be ‘on duty’ during the period of participation in recreation, organised or permitted by service authorities and of travelling in a body or singly under organised arrangements. A person is also considered to be ‘on duty’ when proceeding to his leave station or returning to duty from his leave station at public expense”. For authority, reference may be made to Major Harbans Singh… v. Union Of India…, AIR 1971 Delhi 227.
6. Consequently, we hold that the petitioner is entitled to the disability pension under the Pension Regulations for the Army, as his disability was 90 per cent attributable to the Military service. The necessary relief shall be granted to the petitioner within three months.
7. Petition allowed.