Krishna Devi vs Union of India and others

Augustine George Masih, J.—Petitioner, who is widow of an ex-serviceman, has filed the present writ petition praying for issuance of a writ in the nature of certiorari for quashing the order dated 06.10.2009 (Annexure P-3) passed by the respondents whereby the claim of the petitioner for grant of ex-gratia lump-sum compensation in the light of Policy Instructions dated 22.09.1998 (Annexure P-5) stands rejected on the ground that her claim is not covered as the husband of the petitioner Late Hawaldar Suresh Pal died due to cardiac arrest. Prayer has also been made for issuance of a writ of mandamus directing the respondents to treat the husband of the petitioner as a Martyr entitling the petitioner for the grant of benefits as per the Policy Instructions dated 22.09.1998 (Annexure P-5) issued by the Government of India and Instructions dated 30.09.1999 issued by the Chief Secretary, Government of Haryana (Annexure P-6). As per the contention of the petitioner, her husband joined the Indian Army on 23.01.1985 as a Jawan and was promoted as a Hawaldar in SKT in 666 R&O SQN and was posted in Leh in an operation area. He was discharging his duties with sincerity and with utmost honesty as per the satisfaction of the respondents when on 01.10.2000 while he was on duty in high alert area in OP Rakshak Operation, he died during operation in the field area. The cause of death was mentioned as acute circulatory failure, brain (cerebral) anoxia, which was attributed to service granting the petitioner special family pension. The body of the husband of the petitioner was brought to his native village by the army officials and the local administration were present along with the respectable of the society where the body of the husband of the petitioner was put to fire with full honour as is usually given to martyrs which would indicate that the death of the husband of the petitioner was not natural but he had died while performing his duties in operation area in a highly adverse atmosphere. The claim of the petitioner for grant of ex-gratia lumpsum compensation, which was a special benefit in cases of death of the defence services personnel who died in harness, was rejected on the ground the claim of the petitioner was not covered by the Instructions dated 22.09.1998 as the cause of death of the husband of the petitioner was natural because of which, the death of the husband of the petitioner was classified as physical casualty and not a battle casualty disentitling her to the claim made by her.

Counsel for the petitioner has argued his case basing the same on the instructions dated 22.09.1998. He contends that the instructions provide for grant of ex-gratia lumpsum compensation to the families of the defence services personnel who die in harness in the performance of their bona-fide official duties and since the husband of the petitioner was performing his duties under trying circumstances and was exposed to the vagaries of nature. Merely because he was not killed in action would not disentitle the petitioner the grant of ex-gratia compensation. In support of this contention, reliance has been placed upon a Division Bench judgment of this Court in LPA No. 575 of 2011 titled as Kamlesh v. Union of India and others, decided on 07.07.2011. Counsel for the petitioner has further argued that as per the instructions dated 30.09.1999 issued by the Government of Haryana, petitioner is entitled to ex-gratia grant/compensation for an amount of Rs. 10 lacs from the Government of Haryana as the husband of the petitioner had died during operation duties on the border and had died in harness in performance of his bona-fide official duties. He has further placed reliance upon a judgment of this Court in the case of Santosh v. Union of India and others, 2010 (1) RSJ 644. He, accordingly, prays that the present writ petition be allowed by quashing the impugned order dated 06.10.2009 (Annexure P-3) with further prayer for issuance a direction to the respondents to release the ex-gratia payment, which she is entitled to in the light of the instructions dated 22.09.1998 (Annexure P-5) from the Union of India and instructions dated 30.09.1999 (Annexure P-6) from the Government of Haryana.

Two separate replies have been filed. One on behalf of respondents No. 1 to 4 and another on behalf of respondents No. 5 and 6. Respondents No. 1 to 4, which is the Union of India has taken a categoric stand that the claim of the petitioner is not covered under the instructions dated 22.09.1998 and, therefore, the same has rightly been rejected as according to the instructions, amount of ex-gratia is to be paid to the families of armed forces personnel who are killed in enemy action or accident death/injuries sustained due to natural calamities such as floods, avalanches, land slide, cyclones, fires and lightening or drowning in river while performing operational duties/movements in action against enemy forces and armed hostiles in operational area to include deployment on International Boarder or line of Control. The husband of the petitioner died due to a disease named Acute Circulatory Failure-428.3, Brain (Cerebral) Anoxia 435 and mere posting in an operational area is not a criteria for treating death as "battle casualty". Since the death is due to disease it has to be treated as "physical casualty" thus, disentitling the petitioner to the claim made by her in the present writ petition.

Respondents No. 5 and 6 i.e. State of Haryana has taken a stand that the benefit of the Instructions dated 30.09.1999 (Annexure P-6) can be claimed by the War Heroes only belonging to Haryana who die a heroic death in or during operations and to the disabled personnel belonging to Haryana (during the period 1.4.1999 to 14.6.2001) depending upon the percentage of permanent disability as assessed for life of the individual by the concerned medical authorities irrespective of the fact whether they are retained in service as welfare measure or boarded out. This ex-gratia grant is only to be granted to the casualities taking place in or during operations in order to recognize the acts of bravery and sacrifice of the War Heroes. On this basis, it has been contended that the claim, as made by the petitioner, is not covered by the instructions issued by the Government of Haryana in the light of the clarification issued by the State dated 07.11.2001 (Annexure R-2).

Counsel for the respondents have put forth their submissions on the respective lines of defence as has been raised by the respondents in their pleadings.

I have heard counsel for the parties and have gone through the records of the case.

Facts being not in dispute, this Court can straightaway proceed to decide the controversy involved in the present case. The question, which is required to be considered and decided is whether mere deployment in an operation area would entitle the families of the deceased armed forces personnel to the grant of ex-gratia amount under the Government of India Instructions dated 22.09.1998 (Annexure P-5) and the Government of Haryana Instructions dated 30.09.1999 (Annexure P-6)?

Instructions dated 22.09.1998 (Annexure P-5) deal with ''Special Benefits in cases of Death and Disability in Service Payment of Ex-gratia lump-sum compensating of families of the Defence Services Personnel who die in harness-Recommendations of the fifth Central Pay Commission''. These instructions entitle the families of Defence Services Personnel who die in harness in performance of their bona-fide official duties to payment of the following ex-gratia lump-sum compensation:-

This ex-gratia lump-sum compensation is to be paid irrespective of the other benefits which the family of the deceased army personnel would be entitled to. As per para-4 of these instructions, the conditions and guidelines to be observed governing the payment of ex-gratia lump-sum compensation are indicated in the annexure attached thereto. As per the annexure, the main condition to be satisfied for the payment of ex-gratia lump-sum compensation is that the death of the employee concerned should have occurred in the actual performance of bona-fide official duties i.e. a casual connection should be established between the occurrence of death and government service. Clause 8 deals with cases to be covered by clause (c) of para 1 of the main instruction. According to this exgratia compensation is generally to be restricted only to these cases where death of the service personnel is directly caused by actual field operations. Illustrative examples of cases covered under the instructions dated 22.09.1998 have been also attached with the letter. All these deal with situations where death is as a result of an accident while performing the duties which would reflect upon the active performance of duties such as travelling to site of actual action or field operations. None of these indicate that mere deployment in operation area would itself entitle the families of the deceased defence service personnel ex-gratia compensation under the instructions dated 22.09.1998, nor does it cover the situation where an army personnel is deputed in the operational area but dies because of some disease as is the case in hand where the husband of the petitioner died on 01.10.2000 due to acute circulatory failure, brain (cerebral) anoxia. Although the disease and death were regarded as attributable to military service while performing bona-fide military duties, for which petitioner has been granted special family pension but the claim of the petitioner is not covered by the instructions issued by the Government of India.

The Division Bench judgment in the case of Kamlesh (supra), on which reliance has been placed by the counsel for the petitioner, would not apply to the case in hand as in the said case, the husband of the petitioner suffered some chest pain and died due to acute myocardial infraction after counter terrorism operation had started and couple of minutes had already passed. Under those circumstances, this Court held that the death of the army personnel had occurred during actual performance of bona-fide official duties and its connection has been established from the time that elapsed between the occurrence of his death and performance of his duties.

In the present case, although husband of the petitioner was deputed in the operational area but there is nothing on record to suggest that the death had occurred during actual active performance of bona-fide official duties or that any action was in progress when the death occurred. The claim, thus, based upon the instructions dated 22.09.1998 (Annexure P-5) issued by the Government of India cannot be accepted and thus, stands rejected.

The claim made by the petitioner under the instructions dated 30.09.1999 (Annexure P-6) issued by the Government of Haryana cannot be accepted in the light of the subsequent clarification issued by the Government of Haryana dated 07.11.2001 (Annexure R-2), according to which, the benefit of the instructions dated 30.09.1999 for benefit of the ex-gratia grant to be released to the War Heroes only belonging to Haryana who die a heroic death in or during operations and to the disabled personnel belonging to Haryana (during the period 1.4.1999 to 14.6.2001) depending upon the percentage of permanent disability as assessed for life of the individual by the concerned medical authorities irrespective of the fact whether they are retained in service as welfare measure or boarded out. This ex-gratia grant is only to be granted to the casualities taking place in or during operations in order to recognize the acts of bravery and sacrifice of the War Heroes. It has further been clarified and mentioned that any casualty taking place in operational area but not in operations i.e. where actual battle has taken place/fighting etc. is not covered under the ex-gratia grant policy of the State Government. No other type of casualty except battle casualities and battle accidents is covered under the Policy dated 30.09.1999. The judgment relied upon by the counsel for the petitioner in the case of Santosh (supra) has not taken into consideration the clarification issued by the Government of Haryana dated 07.11.2001 (Annexure R-2) which, when read in consonance with the Policy Instructions dated 30.09.1999, would highlight the intention with which the said instructions were issued by the Government of Haryana. The subject of the instructions dated 30.09.1999 (Annexure P-6), which reads "Ex-gratia and children education grants to the families of Armed Forces Personnel killed/missing/prisoners of war/disabled in kargil and other sectors" also indicates the same as has been clarified by the Government of Haryana vide its instructions dated 07.11.2001 (Annexure R-2). In view of the above, finding no merit in the present writ petition, the same stands dismissed.