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2004 Supreme(Del) 1113
High Court Of Delhi
JAIBHAGWAN - Appellant
Versus
UOI - Respondent
Decided On : 11/30/2004
Entitlement to disability pension based on the assessment of disability and the circumstances of the injury.
Headnote:
disability pension - Military Service - Army Rule 13(III)(V), Army Order 46/1980, Rule 10 of the Leave Rules, Pension Regulation 173 - The court held that the petitioner is entitled to disability pension as his disability was assessed at 30% and the injury was sustained during the course of his employment and while on duty. The court referred to the decisions in Madan Singh Shekhawat v. UOI and Joginder Singh v. UOL to support its decision.
Fact of the Case:
The petitioner sought to quash the order of discharge and show-cause notice, and to be reinstated in service or receive disability pension. The petitioner met with an accident while returning from leave, was discharged, and subsequently filed a writ petition.
Finding of the Court:
The court allowed the petitioner's plea for disability pension, citing the assessment of disability at 30% and the sustained injury during duty. The court rejected the plea for reinstatement and sheltered appointment.
Issues: Quashing of discharge order, reinstatement in service, disability pension entitlement
Ratio Decidendi: The petitioner is entitled to disability pension as the injury was sustained during duty and the disability was assessed at 30%.
Final Decision: The writ petition was allowed, directing the respondents to pay disability pension at 50% from the date of discharge, along with arrears.
( 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
