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PETITIONER: MADAN SINGH SHEKHAWAT

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       17/08/1999

BENCH: S.P.Bharucha, N.Santosh Hegde

JUDGMENT:

SANTOSH HEGDE, J.

     This  appeal arises from the Judgment of the Appellate Bench  of  the  High  Court  of  Rajasthan  at  Jodhpur   in D.B.Spl.Appeal No.100/98 dated 4th February, 1998 confirming the  judgment  of the learned Single Judge of the same  High Court  in  S.B.Civil  Writ  Petition  No.4004/91  dated  1st October,  1997.  The appellant had joined the Indian Army as a  Sawar (Horse Rider) in the 17th Horse Unit in  September, 1975.   He had completed 11 years and six months of  service when  he was discharged from the Military Service on medical grounds  on 25th of April, 1987.  The cause of his discharge on  medical  grounds  arose from an accident  in  which  the appellant was involved on 1.10.1994 while alighting from the train  at  Didwara  Railway  Station,  consequent  to  which accident  appellant’s  right  hand was amputated  just  four inches  below from the joint of collar pone.  At the time of the  accident, the appellant was travelling from Jodhpur  to his  home station on authorised casual leave granted to him. On  discharge from service, on the above stated ground,  the appellant  put forth a claim for special disability  pension payable under the relevant rules which though recommended by higher authorities was rejected by the Controller of Defence Accounts  (Pension),  Allahabad on 4.10.1988 solely  on  the ground  that  at the time of the accident the appellant  was not     on    Military       service.     The    appellant’s representation/appeal for grant of disability pension having been  rejected,  as stated above, he approached the  learned Single  Judge  of the High Court by way of a writ  petition. The  writ  petition came to be dismissed on the ground  that the  petitioner was not entitled for this disability pension on  the limited ground that at the time of the accident  the he  was  travelling  at  his own  expenses,  therefore,  the relevant  rule  did  not  permit  the  grant  of  disability pension.   The  appellant’s  appeal to  the  Division  Bench having  met with the same fate, he is now before us in  this appeal  by  special leave.  There is no dispute that at  the time  of  the accident, the appellant was travelling to  his home town which is termed as ‘leave station’ under the rules on  casual leave granted to him by the Competent  Authority. The  grant of disability pension is governed by the  various rules  found in Defence Services Regulation.  Rule 10 of the said rules reads thus :- "Casual leave counts as duty except as provided for in Rule 11(a)."

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     As  per this rule when an army personnel is on  casual leave, same is counted as duty unless he comes under any one of  the exceptions under Rule 11(a) of the rules.  It is not the  case of the respondents that the appellant comes  under any  such  exceptions.   Therefore, as per Rule  10(a),  the appellant  was on duty at the time of the accident.  Rule 48 of  the  said  regulation   contemplates  admissibility   of disability  pension.  It has enumerated various cases  under which  an  army  personnel  is  entitled  to  the  grant  of disability  pension.   Rule  48 reads  thus  :-  "Disability pension when admissible-

     An  officer  who is retired from military  service  on account  of  a  disability  which   is  attributable  to  or aggravated by such service and is assessed at 20 per cent or over  may,  on retirement, be awarded a  disability  pension consisting  of a service element and a disability element in accordance with the regulations in this section;"

     In  respect  of accidents the following rules will  be observed :- (a)........

     (b)........

     c  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." (emphasis supplied).

     This  rule  is a deeming provision which provides  for situations  under  which  a person on duty,  if  he  suffers disability,  is entitled to the grant of disability pension. The  last  part  of  this sub-rule provides  that  a  person incurring disability when proceeding to his leave station or returning  to duty from his leave station at public  expense is  also  entitled to the grant of disability pension.   The controversy  in  this case is whether the qualification  "at public  expense"  found in this rule is so mandatory  as  to deprive  an  army personnel who is travelling to  his  leave station  or vice versa "on duty", but at his own expense, of the benefit of disability pension if need arises.

     If  the  expression  "at  public  expense"  is  to  be construed  literally then under the Rules referred to above, an  army personnel incurring a disability during his  travel at  his  own expense will not be entitled to the benefit  of Rule  6c (supra).  The object of the rule, as we see, is  to provide  relief  to a victim of accident during the  travel. If  that  be so, the nature of expenditure incurred for  the purpose  of such travel is wholly alien to the object of the rule.  It is the duty of the Court to interpret a provision, especially  a beneficial provision, liberally so as to  give it  a wider meaning rather than a restrictive meaning  which would negate the very object of the Rule.

     In  Seaford Court Estates Ltd.  v.  Asher (1949 2  All ER 155), Lord Denning L.J.  (as he then was) held :- "When a defect  appears  a  judge cannot simply fold his  hands  and blame   the  draftsman.   He  must   set  to  work  on   the constructive  task of finding the intention of Parliament  .

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and  then he must supplement the written word so as to  give "force  and  life" to the intention of the  legislature.   A judge  should ask himself the question how, if the makers of the  Act had themselves come across this ruck in the texture of  it, they should have straightened it out ?  He must then do  as  they  would have done.  A judge must not  alter  the material  of  which the Act is woven, but he can and  should iron out the creases."

     This  rule of construction is quoted with approval  by this  Court  in M Pentiah v.  Muddala Veeramallappa (1961  2 SCR  295)  and also referred to by Beg, C.J.   in  Bangalore Water Supply & Sewerage Board v.  R Rajappa (1978 3 SCR 207) and  in Hameedia Hardware Stores, represented by its Partner S Peer Mohammed v.  B Mohan Lal Sowcar (1988 2 SCC 513).

     Applying  the  above rule, we are of the opinion  that the rule makers did not intend to deprive the army personnel of  the  benefit  of the disability pension  solely  on  the ground  that the cost of journey was not borne by the public exchequer.   If  the journey was authorised, it can make  no difference  whether  the  fare for the same  came  from  the public exchequer or the army personnel himself.

     We,  therefore, construe the words "at public expense" used  in the relevant part of the rule to mean travel  which is undertaken authorisedly.  Even an army personnel entitled to  casual leave may not be entitled to leave his station of posting  without permission.  Generally, when authorised  to avail  the leave for leaving the station of posting, an army personnel  uses  what is known as "travel warrant" which  is issued  at public expense, same will not be issued if person concerned is travelling unauthorisedly.  In this context, we are  of the opinion, the words, namely, "at public  expense" are  used  rather loosely for the purpose of  connoting  the necessity  of  proceeding  or returning  from  such  journey authorisedly.  Meaning thereby if such journey is undertaken even  on casual leave but without authorisation to leave the place  of posting, the person concerned will not be entitled to  the  benefit of the disability pension since his act  of undertaking the journey would be unauthorised.

     Since  on  facts there is no allegation in  this  case that  the appellant while travelling to his leave station on the fateful day was travelling unauthorisedly, we are of the opinion  that  he is entitled to the benefit  of  disability pension as provided under the Rules.

     For the reasons stated above, this appeal succeeds and is hereby allowed;  the impugned judgments are set aside and Writ  Petition  No.4004/91  also  stands  allowed  with  all consequential benefits.