Amar Dutt, J.
1. Ex-Sepoy Lakhwinder Singh joined the Indian Army on 1.5.1996. At that time no disease or injury was found by the Medical Officer and he was placed in the medical category 'AYE'. For training, he was sent to Ramgarh Cantt and thereafter was allocated to 21 Sikh Regiment On 19.2.1997, his mother died and upon receipt of a telegram from his father in Ranchi, where his Unit was stationed, the petitioner was granted 10 days casual leave from 20th of February, 1997 onwards. When he was proceeding to village Malikur, Tehsil Pathankot, District Gurdaspur, in connection with the last rites of his mother, the Auto-rickshaw in which he was travelling turned turtle and the petitioner was involved in a serious accident. He was treated in the General Hospital, Gurdaspur; shifted to the Military Hospital, Pathankot and an lifted to Command Hospital, Chandi Mandir. The Court of Enquiry ordered into the incident reported that there was no negligence on the part of the petitioner at all. After being treated in the Command Hospital, Chandimandir from 7.3.1997 to 29.9.1998, the petitioner was downgraded to medical category 'EEE' permanent and his disability was assessed at 100 per cent. The injury was diagnosed as Compression Fracture DV Paraplegia and he was boarded out of military service. The papers for grant of disability pension forwarded to Chief Controller of Defence Accounts (Pensions), Allahabad (hereinafter referred to as 'the C.C.D.A.') were rejected on 24.8.1999 and this information was communicated by the Record Office of the petitioner's Unit through letter dated 28th of August, 1999. The petitioner preferred an appeal, which had not been decided till date, on which the writ was filed, when intervention of this Court was sought on the plea that the appeal do not offer any efficacious remedy and there was undue delay in the disposal thereof. The petitioner relied upon judicial precedents to the effect that since individual's proceeding on casual leave are to be treated on duty and injuries suffered by them while availing such leave should be treated as attributable to or aggravated by military service and, therefore, entitles the petitioner to the grant of disability pension.
2. In the written statement, preliminary objection was taken with regard to the petitioner having concealed material facts regarding the circumstances in which the incident took place. The averments regarding the medical categorisation of the petitioner were not disputed but if was submitted that the disability suffered by the petitioner, on account whereof he had been invalided out of military service is neither attributable to nor aggravated by military service and, therefore, the CCDA had rightly rejected the case of the petitioner for grant of disability pension. It was submitted that the appeal preferred by the petitioner on 13th of December, 1999 was forwarded to the Appellate Committee for First Appeal under intimation to the petitioner through Record Office and the appeal is still under consideration. It was also averred that the invalid gratuity admissible under Rules 197 and 198 of the Pension Regulations for the Army, 1961 Part-I has already been paid to the petitioner. The respondents denied that the appeal was not the efficacious remedy and also pointed out that apart from First Appellate Committee, there is further a second appeal provided under the Entitlement Rules and the petitioner should avail the same before approaching this Court. The respondent also submit that the invalided gratuity of Rs.13,878/-, which the petitioner would be entitled to receive on account of the fact that he was not entitled to disability pension as the injury sustained by him was not attributable to or aggravated by military service, has already been released. In addition to these pleas, the respondents also submitted that in the facts and circumstances of the case, the injuries suffered by the petitioner cannot by any stretch of imagination, be attributable to military service and therefore, the decision of the CCDA cannot be faulted with.
3. I have heard Sh. B.S. Sehgal, on behalf of the petitioner and Sh. Kamal Sehgal, Additional Central Government Standing Counsel, and with their assistance have gone through the records of the case.
4. On behalf of the petitioner, it has been submitted that the petitioner, who had admittedly been granted ten day's casual leave after the receipt of a telegram from his father informing him of the death of his mother was proceeding to village Malikpur, in connection with the last rites of his mother, when the auto-rickshaw in which he was travelling had turned turtle and the petitioner had suffered serious injuries and thus, is entitled to disability pension. In support of his contention reliance has been placed on the judgments of the Apex Court in Joginder Singh (Lance Dafadar) v. Union of India and Ors., 1 1996(2) S.L.R. 149 and Madan Singh Shekhwat v. Union of India and Ors., 1999(4) R.S.J.78 and a Division Bench-judgment of this Court in Ex.Naik Manjit Singh v. Govt. of India and Ors. (2000-1)124 P.L.R. 490. On the basis pf the aforesaid rulings, it is submitted that the petitioner had to be treated on duty during the period on which he was on actual leave and he was not connected with any unlawful activity nor was the accident a result of any act or omission on his part and, therefore, he was entitled to grant of disability pension claimed by him. In view of the circumstances in which the accident had taken place, the view taken by the authority that the disability suffered by the petitioner was not attributable to military service cannot be sustained and, therefore the relief sought for should be granted to the petitioner.
5. The above contentions were sought to be repelled by the respondents on the basisof the ratio of the judgment of Division Bench of this' Court in Jarnail Singh v. Union ofIndia and Ors. (1997-2)118 P.L.R. 580 for submitting that the rejection of the petitioner's claim was fully justified and the order does not call for any interference. It is also submitted that the writ petition is liable to be dismissed oh the ground of delay andlaches.
6. Taking the second argument first, the same has to be repelled on the mere fact that even according to the respondents, the appeal filed by the petitioner before the First Appellate Authority is still pending and, therefore, the petitioner cannot be held responsible for inordinate delay in moving this Court.
7. In the present case, it is not disputed before this Court that in the Court of Enquiry, which was held by the Army Authorities to determine the cause of the accident, the petitioner has been absolved of any responsibility for the same. Thus, we have case where a personnel belongings to the Armed Forces had proceeded on leave on account of the death of his mother and while travelling towards his destination, for reasons beyond his control, he was involved in an accident, Resulting in the injuries, which led to his invalidation out of military service. The judgment sought to be relied upon by the respondents in Jarnail Singh's case (supra) for repelling the claim of the petitioner after analysing the legal position observed as-under.
'On proper analysis of the above discussion the position that emerges is that anaccident or injury suffered by a member of the armed forces must have some casualconnection to the aggravation or attributability to military service and at least shouldarise from such activity of the member of the force as he is expected to maintain or doin his day to day life as a member of the force. The nexus between the two is notapparently one so as to cover every injury or accident. The hazards of Army servicecannot be stretched/to the extent of unlawful and entirely unconnected acts oromissions on the part of the member pf the force even when he is on leave. The fineline of distinction has to be drawn between the matters connected, aggravated orattributable to military, service and the matters entirely alien to such service. Whatfalls ex-facie in the domain of an entirely private act which may even extend to thesphere to undesirable and unlawful, activity of such member, cannot be treated aslegitimate basis for claiming the relief under these provisions. At best, the member ofthe force can claim disability pension if he sufferers disability from an injury while oncasual leave even if it arises from some negligence or misconduct on the part of themember of the force, so far it has some connection and nexus to the nature of theforce. At least remote attributability to service and expected standards of behaviourand living of the member of the force appears to be the condition precedent to claimunder Rule 173. The act of omission and commission on the part of the member of theforce must satisfy the test of prudence, reasonableness and expected standards ofbehaviour.
We may elucidate the above principle by giving a very simple example that if a person on casual leave and subject to this act goes to canteen to buy things or takes his children for treatment to hospital and on the way meets with an accident, may be arising out of his negligence or contributory negligence, suffers injuries causing permanent disability, in our view, would be entitled to claim the benefit under Rule 173. Similarly a person who joins army is not found to be suffering from any disease, but subsequently suffers from an disease which renders him liable for being invalidated out of army on such ill-health, such a disease would be attributable and/or aggravated by military service and would entitle him to take benefit of these regulations.'
8. When examined in the light of the above observations. In the facts and circumstances of the present case, it cannot be held that the accident took place on account of an unlawful and entirely unconnected act or omission on the part of the petitioner. Having dealt with the objections raised by the respondents, there appears to be no legal impediment, which would disentitle the petitioner to the relief sought for. The disability, even according to the Court of Enquiry, was the result of an accident, which was not due to any negligence on the part of Lakhwinder Singh-petitioner. His case would not only be squarely covered by the principles laid down by the respondents, but also by the ratio of aforecited judgments relied upon by the petitioner in Joginder Singh's case, Madan Singh Shekhawat 's case and Ex. Naik Manjit Singh 's case (supra).
9. For the reasons recorded above, the writ petition has to be allowed and the respondents directed to grant disability pension to the petitioner as per the rules, wouldnecessarily mean that the invalided gratuity of Rs.13,878/-, which has been released tothe petitioner under Rules 197 and 198 of the Pension Regulations for the Army, 1961,Part-I, will have to be refunded by him.