Radhika Devi vs UOI and Others

Gita Mittal, J.—By the present writ petition, the order dated 23rd September, 2011 passed by the Armed Forces Tribunal, rejecting the petitioner''s prayer for grant of liberalized family pension and ex gratia payment on account of the death of her husband Naib Subedar Umed Singh, has been assailed. The facts giving rise to the instant writ petition are within a narrow compass. Naib Subedar Umed Singh was enrolled in the Army on the 13th March, 1976 undisputedly having been found physically and medically fit. No entry of existence of any disease at the time of his enrolment, was recorded on the A.F.M.S.F. 2 which is recorded for the purpose by the respondents. It is also an admitted fact that on 19th December, 2001, Naib Subedar Umed Singh was posted on the international border in the Operation ''Parakram'' which was an Operation specifically so notified by the Central Government. It has been pointed out that this operation was undertaken after the attack on the Parliament House in Delhi in the year 2001. While taking part in fire fighting drill activities in the unit between 1550 hrs. to 1600 hrs., Naib Subedar Umed Singh suddenly collapsed while he was running. Emergency resuscitative measures were unsuccessful and he was declared dead at 1545 hrs. on 21st May, 2002. So far as the cause of death is concerned, it has been recorded as "Sudden Death. Acute MI".

Mr. Kalkal, learned counsel for the petitioner has drawn our attention to the certification of the circumstances in which Naib Subedar Umed Singh died. Our attention has been drawn to the certification on the 20th October, 2004 by the Officer Commanding of 167 Military Hospital who has certified as follows:-

The individual was serving under war like conditions in a sensitive area due to face with the enemy. The same has agg./contributed to the demise.

We are informed that demise relates to aggravation and refers to the eye to eye contact with the enemy. The report of the autopsy performed at Nb Sub. Umed Singh is also to the same effect.

The petitioner has placed before this court the certification on the attributability of the death to the military service by the commanding officer of the 6th Kumaon Regiment where the petitioner was serving. The relevant extracts thereof read as follows:-

Did the duties involve severe/exceptional stress and strain (give details):

Yes.

(a) Since when-Since 18 Dec 01, the post was under observation of the enemy post and due to operation Parakaram, hostilities seemed imminent.

(b) (In special day/occasions)

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Was he living in unit time: Yes, he was living in a Bunker at forward post on the IB.

XXX

Do you consider the death to attributable to or aggravated by service?

(give reasons):-

Yes, due to Op Parakaram he was under severe stress and strain as Post Cdr located eye ball to eye ball with the enemy in the sensitive Lassian Enclave of Punjab on the IB since 18 Dec. 01.

It, therefore, cannot be disputed that the circumstances in which Naib Subedar Umed Singh was serving, were extreme tense circumstances living in a bunker which would have contributed to creation of the conditions leading to his demise on the 21st May, 2002.

Despite the above certification by the Commanding Officer of Naib Subedar Umed Singh''s unit, the record officer published a part II order dated 30th May, 2002 describing his death as "physical casualty". Equally casually, the record officer mentioned the cause of death as possibly due to a cardiac arrest. While so recording, the record officer clearly ignored the categorical findings of the autopsy by the medical expert performed on the petitioner as well as the details of the circumstances in which Nb Sub. Umed Singh was performing his duties especially the war like situation and the fact that he was in eye to eye contact with the enemy.

The petitioner is the widow of Nb Sub. Umed Singh and has been struggling to get justice. It is contended by the petitioner that in view of the policy letter dated 31st January, 2001 issued by the Ministry of Defence, Government of India, she was entitled to grant of liberalised family pension. A claim for ex gratia payment in terms of the letter dated 22nd September, 1998 of the Government of India, Ministry of Personnel, Public Grievances and Pensions she would be entitled to payment of lump sum amount as ex gratia as well. However, the petitioner''s claim for grant of ex gratia amount was not favourably considered by the respondents.

The petitioner was thus compelled to file a petition being OA No. 167/2011 before the Armed Forces Tribunal. The tribunal, however, did not take a favourable view and rejected her claim by the impugned order dated 23rd September, 2011. A challenge to this order as welt as the rejection by the respondents is assailed by the petitioner before us inter alia on the ground that the Tribunal has fallen into error in not noting the relevant paragraph of the entitlement rules. It is further contended that the petitioner''s claim has been wrongly rejected treating the death of Nb Sub Umed Singh as a physical casualty which was totally contrary to the actual facts.

We have heard learned counsel for the parties and have perused the available records. In order to adjudicate upon the claim of the petitioner, we may notice the applicable rule position. So far as the grant of liberalised family pension is concerned, the Government of India, Ministry of Defence has issued a policy statement dated 31st January, 2001. This policy statement sets down the "pensionary benefits on death/disability in attributable/aggravated cases in Part II of this policy. The relevant portion thereof reads as follows:-

4.1 For determining the pensionary benefits for death or disability under different circumstances due to attributable/aggravated causes, the cases will be broadly categorised as follows:-

xxx

Category E

Death or disability arising as a result of:-

xxx

(f) war like situation xxx

Xxx

(i) Operations specially notified by the Govt. from time to time.

While considering the case of the petitioner, the Armed Forces Tribunal has erroneously noted sub-clause ''(f)'' as "an act of violence/attack by extremist, anti-social elements while on operational duty". This is certainly contrary to the category which has been enumerated by the respondents in the policy letter dated 31st January, 2001. It is important to note that sub-para ''(f)'' refers to a "war like situation". It is apparent that the respondents have themselves noted and carefully drawn a distinction between an actual war and situations which may be akin to an actual war. This appears to be a recognition of the reality of today''s situation where the defence forces and personnel are called upon to meet exigencies in several situations, other than an actual war in which an active engagement or hostile operation with other countries is involved.

So far as the Category E(i) is concerned, the same relates to death of a personnel as a result of involvement in an operation which has been especially notified by the Government from time to time.

So far as the instant case is concerned, Nb. Sub. Umed Singh was posted and actually engaged in Operation "Parakram" which was an operation especially notified by the Government. Nb. Sub. Umed Singh was living in a bunker in close proximity to a hostile enemy. The Commanding Officer aptly describes it as an eye contact with the enemy. War preparedness and living in expectation of hostilities must be taking their toll on the soldiers. It cannot be disputed that he was performing assigned duties in a war like situation. In any case, we have the benefit of certification by his commanding officer which has been reproduced heretofore which actually sets out the extreme hostility and tension in the situation in which the deceased jawan was placed. Therefore, the denial of the liberalised family pension in terms of the policy letter dated 31st January, 2001 to the petitioner, was certainly contrary to its specific mandate, unfair and unjust.

In support of her claim, learned counsel for the petitioner has placed reliance on certain judicial precedents including the following:-

(i) WP (C) No. 3505/2011 dated 2nd March, 2012 entitled Smt. Manju Tewari Vs. Union of India & Ors.

(ii) WP (C) No. 4488/2012 dated 21st February, 2013 entitled Major Arvind Kumar Suhag Vs. Union of India & Ors.

(iii) WP (C) No. 348/2012 dated 29th May, 2013 entitled J.P. Bhardwaj Vs. UOI & Ors.

(iv) 2004 (3) SCT 388 (P&H) D.B. Smt. Kanta Yadav Vs. UOI & Ors.

In the factual narration set out hereinabove, the case of the petitioner is clearly covered under the applicable scheme for grant of liberalised family pension. It is, therefore, unnecessary for us to advert to these judicial pronouncements in any great detail. We may note that the principles laid down therein squarely apply to the facts placed before us.

We may now examine the second prayer made by the petitioner which was entitlement to the grant of ex gratia amount in terms of the Government of India letter dated 22nd September, 1998. The petitioner has drawn our attention to the enunciation therein to the effect that "families of Defence Service personnel who die in harness in the performance of their bona fide official duties, shall be paid ex gratia lump sum compensation". The Government has set out the following three categories which would entitle the surviving members of the family of the deceased personnel/dependents would be entitled to ex-gratia payments of an amount of Rs. 5,00,000/-.

Learned counsel for the petitioner has also drawn our attention to the further liberalisation of the policy dated 22nd September, 1998 by the Government of India on the 26th December, 2011 whereby a consolidated table for the payment of ex gratia lump sum compensation to the family of the defence services personnel who died in harness, has been notified and whereby families of all personnel whose death occurred during enemy action in international war or war like engagements which are specifically notified, have been included. The petitioner is entitled to award of ex gratia payment. The relevant extract of this policy dated 22nd September, 1998 reads as follows:-

(a) Death occurring due to accidents in the course of performance of duties Rs. 5.00 lakhs

(b) Death occurring in the course of performance of duties attributable to acts of violence by terrorists, anti-social elements, etc. Rs. 5.00 lakhs

(c) Death occurring during (i) enemy action in international war or border skirmishes; and (ii) action against militants, terrorists, extremists, etc. Rs. 7.50 lakhs

Mr. Ankur Chhibber has placed before us a copy of the Annexure, Letter No. 20(1)/98/D(PAY/SERVICES) dated 22nd September, 1998, the relevant extracts whereof read as follows:-

Letter No. 20(1)/98/D(PAY/SERVICES) dated 22nd September, 1998 Conditions governing the payment of ex-gratia lumpsum compensation and guidelines to be observed.

The main condition to be satisfied for the payment of the ex-gratia lumpsum compensation in the specific circumstances is that the death of the employee concerned should have occurred in the actual performance of bonafide official duties. In other words, a causal connection should be established between the occurrence of death and government service. 2 to 5 xxx

Ex-gratia compensation under clause (b) of para 1 will be admissible to Service personnel killed while employed in aid of the civil administration in quelling agitation''s, protest demonstrations, riots, etc. regardless of whether such agitations, demonstrations, etc. are resorted to by members of the public, political parties, etc.,/or by other public servants, including police personnel. In addition, in the context of a perceptible increase in violence-related incidents over the years, Service personnel on duty could become unwitting victims of bomb blasts in public places or vehicles, indiscriminate shooting incidents in public, etc. often resorted to by terrorists, anti-social elements, etc. The compensation under clause (b) will also, therefore, be admissible in cases of death in such incidents, provided the Service personnel concerned were actually on duty at the relevant time.

Cases of death resulting from acts of violence or assault by terrorists, anti-social elements, etc. against a Service personnel with the intention of deterring or preventing him from performing his duties; or because of any act done or attempted to be done by such Service personnel in the lawful discharge of his duties; or because of his official position will also be covered under clause (b).

Ex-gratia compensation under clause (c) of para 1 will generally by restricted only to those cases where the death of the Service personnel is directly caused by actual field operations. In addition, families of Service personnel killed after being kidnapped by militants, terrorists, extremists, etc. because of their official position or with a view to spreading terror will also be entitled to the compensation under this clause.

Learned counsel for the petitioner submits that we are required to read in the stipulation of the policy dated 26th December, 2011 into the policy dated 22nd September, 1998 and that the petitioner would be entitled to the increased ex gratia amount of Rs. 7,50,000/- as Naib Subedar Umed Singh''s death occurred in a war like situation and would be covered under sub-clause ''C'' as provided in the policy dated 22nd September, 1998.

On the other hand, Mr. Ankur Chhibber, learned counsel for the respondents has drawn our attention to the pronouncement of this court dated 22nd March, 2012 in RP No. 715 of 2011 in WP (C) No. 3505 of 2011, Manju Tiwari v. Union of India. The court has analysed Clause ''A'' of the afore-noticed policy. It was further noted that entitlement to ex gratia was dependent on firstly, death of the personnel being accidental or secondly, it occurred while on duty. The respondents had taken up the defence similar to defence taken before us.

Mr. Kalkal, learned counsel for the petitioner has pointed out that in Manju Tiwari''s case (supra), her husband had died because of a heart attack suffered during operations in the Kargil war. So far as the interpretation of the expressions ''accident'' in the policy is concerned, this court observed as follows:-

The policy being a beneficial policy, we see no reason why a liberal interpretation be not accorded and such meaning which recognizes the expanded concept of an accident be not accepted. A jawan on duty when there is high tension at the Line of Control, suffering a cardiac arrest and as a result thereof dying, can certainly be said to have died an accidental death, the accident being a happening which was not expected or foreseen.

We have the advantage of the certification by the Commanding Officer of Naib Subedar Umed Singh in the instant case which would guide consideration. Applying the principle laid down in Manju Tiwari, Umedh Singh''s death on account of an MI (Myochardial Infarction) could not have been anticipated and can be said to be an accidental death. He was in sound health and declared medically fit by the respondents.

Mr. Ankur Chhibber, learned counsel for the respondents has submitted that NS Umed Singh was leading a fire fighting exercise when he suffered the heart attack. The autopsy report reflects that he was only 45 years of age at that time. There was no evidence that he had any kind of medical history of any cardiac problem. The policy dated 22nd September, 1998 placed before us contains illustrations which have been enumerated by the respondents themselves. To elaborate as to when death could be held attributable to accident while on duty, at serial no. 12, the respondents have also categorised the death of fire fighting staff engaged in fire fighting operation under clause ''A''. Nb Sub. Umed Singh was not a fire fighting staff. But given the fact that he was actually assigned the duty of leading an exercise of fire fighting at the relevant time. Such exercise is an integral part of fire fighting. As such the benefit of the beneficial scheme dated 22nd September, 1998 would very well be extended to include the duties being discharged by him. In any case, Nb Sub. Umed Singh was performing bona fide official duties when he suffered a heart attack which has been opined to be attributable to the rigors of the duties which were assigned to him.

Mr. Kalkal, learned counsel for the petitioner has also placed reliance on the pronouncement of the Supreme Court reported at 2004 (3) SCT 388 (P&H) Smt. Kanta Yadav Vs. UOI & Ors. in support of the claim for grant of ex gratia payment. However, given the difference in the operation in which Nb Sub. Umed Singh was engaged and the deceased personnel who were before the court in Kanta Yadav case (supra), we are of the view that the claim of the petitioner would be covered under category ''A'' of the policy dated 22nd September, 1998 and the petitioner would be entitled to ex gratia payment of Rs. 5,00,000/-. In view of the above, the order dated 23rd September, 2011 of the Armed Forces Tribunal is not sustainable being contrary to the notified policy and the judicial precedents notified by us heretofore.

It is, accordingly, directed as follows:-

(i) The order dated 23rd September, 2011 passed by the Armed Forces Tribunal is hereby set aside and quashed;

(ii) It is held that the petitioner is entitled to liberalised pension and ex gratia amount of Rs. 5,00,000/-;

(iii) The respondents are directed to pass appropriate orders to this effect within a period of six weeks from today;

(iv) The orders shall be communicated to the petitioner and she shall be paid the amount within a further period of six weeks thereafter;

(v) The petitioner shall be entitled to interest at the rate of 9% per annum on the amounts found due and payable to her w.e.f. the date of death of Naib Subedar Umed Singh;

(vi) The petitioner shall be entitled to costs of the present petition which are assessed at Rs. 25,000/-which shall be paid within a period of four weeks.

(vii) This writ petition is allowed in the above terms.