LPA No. 829 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH.

LPA No. 829 of 2010(O&M)

Date of decision 3 .8.2010

Union of India and others

... Appellants

Versus

M.Brigadiar M.S. Kalra (Retd.)

... Respondent

CORAM:

HON'BLE MR. JUSTICE M.M. KUMAR

HON'BLE MR. JUSTICE A.N. JINDAL

Present:

Ms. Renu Bala Sharma, Central Govt. Standing

counsel for the appellant

1.To be referred to the Reporter or not ?

2.Whether the judgement should be reported in the Digest ?

M.M.KUMAR, J.

This order shall dispose of LPA Nos. 778 and 829 of 2010.

Both the appeals have been filed by the Union of India under Clause X of

the Letters Patent challenging judgements dated 28.5.2009 and 13.8.2009

passed by two different Learned Single Judges of this Court. The later

judgement infact has followed the view taken in the former judgement dated

28.5.2009. The learned Single Judge in his judgement dated 28.5.2009 has

placed heavy reliance on an earlier Division Bench judgement of this Court

rendered in CWP No. 67 of 2007 decided on 12.2.2008 (Paramjit Singh v.

UOI). The Division Bench has held that Ex-Armymen could not have been

denied the disability pension and the disability benefit covered under the

Army Group Insurance Fund on the ground that he was discharged from

service on completion of term of engagement and was not invalidated out

from service although he had suffered battle injuries resulting in more than

LPA No. 829 of 2010

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20% of disability. The Division Bench has considered Regulation 179 of the

Army Pension Regulations, 1961 alongwith the Note underneath the

Regulation. The aforesaid Regulation reads thus:

“179. An individual retired/ discharged on completion of tenure or

on completion of service limits or on completion of terms of

engagement or on attaining the age of 50 years (irrespective of their

period of engagement), if found suffering from a disability

attributable to or aggravated by military service and recorded by

Service Medical Authorities, shall be deemed to have been

invalidated out of service and shall be granted disability pension

from the date of retirement, if the accepted degree of disability is 20

per cent or more, and service element if the degree of disability is

less than 20 per cent. The service pension/ service gratuity, if

already sanctioned and paid, shall be adjusted against the disability

pension/ service element, as the case may be.

2.

The disability element referred to in clause (1) above shall be

assessed on the accepted degree of disablement at the time of

retirement/ discharge on the basis of the rank held on the date on

which the wound/ injury was sustained or in the case of disease on

the date of first removal from duty on account of that disease.

Note: In the case of an individual discharged on fulfilling the

terms of his retirement, his unwillingness to continue in

service beyond the period of his engagement should not effect

his entitlement to the disability element under the provision of

above regulation.”

According to the Division Bench armymen who has been discharged

from service on completion of his term of employment would be deemed to

be invalidated out of service because the disability element is required to be

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assessed in respect of the degree of disablement at the time of discharge on

the post or the rank on the date when the injury was sustained or in case of

disease on the date of first removal from duty on account of that disease.

The Note further clarifies that mere discharge on fulfilling the date of

retirement is not to effect his entitlement to the disability element of

pension. The view of the Division Bench has been quoted by the learned

Single Judge while interpreting the aforesaid Regulation reads thus:

“A perusal of the above provisions of Regulation 179 of Pension

Regulations leaves no room for doubt that the petitioner was

invalidated out of service.