- (1.) We have heard Col. (Retd.) R.A. Pandey, learned counsel for the petitioner in Writ Petition No.69145 of 2011, Surendra Bahadur Singh v. Armed Forced Tribunal, Regional Bench, Lucknow & Ors.; Shri S.A. Siddiqui, learned counsel for the petitioners in Writ Petition No.75332 of 2011, Subhash Chandra Pathak v. Armed Forces Tribunal & Ors. and Writ Petition No.75334 of 2011, K.K. Dubey v. Armed Forces Tribunal & Ors. Shri R.B. Singhal, Asstt. Solicitor General of India assisted by Shri S.K. Rai, Shri Ashok Singh and Shri Santosh Kumar Misra appear for the respondents.
(2.) Shri Surendra Bahadur Singh, the petitioner in Writ Petition No.69145 of 2011 was enrolled in the Regiment of Artillery of the army on 4.3.2002. After his basic training at the Artillery Centre, Hyderabad, he was attested as a Gunner/ General Duties (Gnr/GD). The petitioner proceeded for casual leave from 8.11.2004 to 22.11.2004 to celebrate Deepawali at home. Unfortunately he suffered a cracker blast injury on 12.11.2004, which resulted into his prolonged hospitalisation; 100% loss of vision in both eyes and amputation of two fingers of left hand. On his return the petitioner was invalidated out of service w.e.f. 1.4.2007. A statutory petition under Section 26 of the Arms Act addressed to the Chief of Army Staff-cum-Appeal to the Appellate Committee on his first appeals submitted on 1.10.2007 was rejected vide ADG PS, Adjutant General's Branch letter dated 5.5.2008, on the ground that injury was not attributable to military service as the petitioner was not on duty at the time of sustaining the injury in terms of Rule 12 of the Entitlement Rules to Casualty Pensionary Awards to Armed Forces Personnel, 1982. The petitioner was not held entitled to disability pension as per Regulation 173 of Pension Regulations for Army Part-I, 1961. A second appeal dated 30.7.2008 to the Chairman, Defence Minister's Appellate Committee on Pension (DMACP) was filed and was pending, when the petitioner filed Writ Petition No.22751 of 2009 seeking reinstatement. The second appeal was rejected by the DMACP on 1.10.2009 during the pendency of the writ petition.
(3.) The writ petition was transferred under Section 34 of the Armed Forces Tribunal Act, 2007 (in short AFT Act, 2007) and was renumbered as Transfer Application No.1467 of 2010. The Armed Forces Tribunal (AFT) partly allowed the transfer application on 07.09.2011 with directions to pay disability pension to the applicant at the rate of 100%, for life w.e.f. 1.4.2007 and with interest of 6% and another consequential benefits. The AFT granted the relief on the ground that since the exception provision of Rule 11 (a) of the Leave Regulations are not attracted, he was on duty during the casual leave. The Indian Army being a multi-religious organisation and celebrates Deewali with lightening and fire works at its unit and sub-unit, there was a connection between the activity, which the petitioner indulged in during casual leave and military service. The Tribunal followed Union of India v. Khushbagh Singh, Ex-Nayab Subedar , in which it was held that an activity of an independent business or avocation or calling that would be inconsistent to Military Service and an accident occurring during such activity, cannot be attributable to military service. Any accident, however, remotely connected and not inconsistent with military service, such as when the person is returning from hospital, or doing normal duty of military personnel, would still be taken as a disability attributable to military service.;