Simarjit Kaur vs Secy Defence Service

Ritu Bahri, J.—Petitioner-Simarjit Kaur has approached this Court by way of instant writ petition filed under Article 226/227 of the Constitution of India, seeking a writ in the nature of certiorari for quashing order dated 20.05.2002 (P-8) passed by the respondents and further prayer is for issuance of direction to the respondents to release the benefits to the petitioner under the Scheme of Punjab War Heroes Family Relief Fund, set up by the Punjab Government vide notification dated 26.6.1999.

The petitioner is a widow of Rifleman Jasbir Singh No. 13756036 who joined the Indian Army on 24.02.1992. The petitioner was posted at J & K for operation Rakshak and on 13.10.2000, he was on perimeter patrolling duty when he suddenly fell down and sustained head injury near village Khandiphari and died enroute while evacuating to hospital. The Punjab Government has set up a fund as Punjab War Heroes Families Relief Fund with the object to give ex-gratia grant to the next kin of the defence personnel. The notification in this regard issued by the Government is Annexure P-4. This notification is applicable in the cases, which reads as under:-

(c) Specified area of operation any area specified/notified within the geographical limits of the country where hostilities have broken out/war has been declared or war like situation has arisen and where troops have been called for/engaged in operations. It also includes area affected by country insurgency and low intensity operations,

(d) Death:-Death occurring on or after 1st January 1999 in the specified area of operational responsibilities due to enemy action. It also includes death in harness in the performance of duties due to accident, act of violence by terrorist or anti social elements, border skirmishes action against militants etc.

Pursuant to the above notification (P-4), the petitioner approached the Deputy Director, Sainik Welfare, Amritsar to release all the benefits to the petitioner but no response was given and the matter was put off by the concerned authorities. Thereafter, the petitioner sent a legal notice through her counsel vide registered notice dated 30.12.2001 (P-6) in which the demand was made for Rs. 5 lacs as grant and Rs. 2 lacs as ex-gratia grant within two months from the date of receipt of notice. Neither the granted was disbursed to the petitioner, nor any reply was given to the legal notice sent by the petitioner. Thereafter, the petitioner approached this Court by filing CWP No. 2885 of 2001, which was disposed of by this Court on 14.02.2002 with the direction to the respondents to decide the claim of the petitioner for grant of benefits under the Rules (P-4) within a period of 8 weeks from the date of submission of certified copy of this order along with a copy of writ petition. If the competent authority comes to the conclusion that the petitioner is not entitled to financial benefits in terms of Annexure P-4 then a reasoned order shall be communicated to her at the end of 8 weeks period.

However, the respondent-authorities rejected the claim of the petitioner vide order dated 22.05.2002 on the ground that according to the rules, the benefits are to be allowed to the family members of those deceased soldiers whose death occurred on or after 1.1.1999 in the specified areas of operational responsibilities due to enemy action and the husband of the petitioner only met with an accident.

In the written statement filed by the respondents, the respondents have made reference to the modified policy of Punjab Government formulated vide order dated 04.09.2002 issued vide No. 2/21/99/7DW/WH Fund/3077 dated 09.09.2002 (R-1), which reads as under:-

The orders of the Punjab Governor of Punjab dated 04.09.1999 (Endst No. 2/21/99/7DW/WH Kargil/dated 11.10.1999 are modified to the extent that the ex-gratia grant to the families of Defence and Para-Military Forces personnel who die while on duty, attributable to the defence of India. This shall include deaths to cross-firing, accidental deaths for instance, accidental blowing up of the mines etc.) and in cases of some colleagues going berserk . Those shall be applicable w.e.f. 01.01.1999.

As per the above notification, the ex-gratia grant of Rs. 2 lacs has been given to the petitioner as well as father of deceased in equal shares. The ex gratia has been sanctioned by the Government and the same has been paid to them vide cheque No. 154236 dated 21.03.2003 and cheque No. 154237 dated 21.03.2003.

As far as claim of the petitioner with respect to notification dated 26.06.1999 (P-4), the clarification has been issued by the Government of Punjab on 27.09.2002 (R-3). The claim of the petitioner has been duly considered by the respondents by passing a well speaking order 27.09.2002 (R-3) that the petitioner is not entitled to her claim which is meant for Punjab War Heroes Family Relief Fund.

The question for consideration before this Court is that whether the petitioner is entitled to benefit of grant as per notification dated 26.06.1999 (P-4) when the Government modified policy of Punjab Government formulated vide order dated 04.09.2002 issued vide No. 2/21/99/7DW/WH Fund/3077 dated 09.09.2002 (R-1).

A division Bench of this Court in a case of Dr. Sharanjit Kaur Vs. State of Punjab, had an occasion to examine a case of a widow claiming benefits under the Punjab War Heroes Family Relief Fund Rules, 1999. Her husband died in an accident in the course of performance of bonafide military duty. This Court held that the death due to accident is clearly covered by the provisions of Rule (d). In paragraph 8, it has been observed as under:-

These rules have been promulgated to provide relief to the families of those who died in the performance of their duties. These embody provisions calculated to confer certain benefits on the family of persons who shed their blood for the nation and die while discharging their duties. These rules in our view have to be construed liberally. In any way, death due to accident is clear covered by the provisions of rule 2(d). We cannot read down the rule in the context in which it appears. The interpretation as sought to be placed on the provisions by the counsel for the State of Punjab, if accepted, would do violation to the plain language of the rule. Thus, the contention raised by the counsel cannot be accepted.

The writ petition was allowed and the respondents were directed to pay an amount of Rs. 5 lac to the petitioner or allot a residential plot in a colony set up by PUDA at the reserved price.

A division bench of this Court in a case of Kamlesh Devi vs. State of Punjab, 2002(1) SCT 929 has dealt with a case of a war hero who died of heart attack when he was doing duty of operation Vijay. This Court directed the respondents to consider the claim of the petitioner and grant the benefits due to under the Rules. In paragraph 6, it has been observed as under:-

In Bai Shakri vs. New Manekshowk Mills Co., Ltd., XXI FJR 19 Justice Shelat of the Gujarat High Court while dealing with a case u/s 3 of the Workmen''s Compensation Act, 1923 held that heart attack would be an accident within the meaning of Section 3 of that Act though in that case compensation was not paid to the defendants of the deceased as on the facts of that case the learned Judge held that the accident had not arisen out of and in the course of employment Again in Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port Trust, the High Court of Bombay held that a workman who died of heart attack while on duty must be held to have met with an accident within the meaning of Section 3 of the Workmen''s Compensation Act and his dependents were held entitled to compensation. In the instant case, the deceased also died of actual Myocardiac Infraction which means failure of the heart while he was performing duty in the specified area of operational responsibilities and defending the borders of the country Since his death was unexpected and without design it was undoubtedly an accident and since he died in harness his was a death which is squarely covered by the definition given in clause (d) of Rule 2 of the Rules. We have, therefore, no hesitation in holding that the petitioner is entitled to those benefits under the Rules and that the action of the State Government in not treating her eligible cannot be sustained.

In the present case, the ex-gratia grant of Rs. 2 lacs has been given to the petitioner as well as father of deceased in equal shares and the same has been paid to them vide cheque No. 154236 dated 21.03.2003 and cheque No. 154237 dated 21.03.2003.

Applying the ratio of the above judgments, the writ petition is allowed by giving a direction to the respondents to give the benefits to the petitioner as per notification dated 26.06.1999 (P-4) by adjusting the amount of Rs. 2 lacs already given to her. The amount shall be paid to her @ 9 percent w.e.f. the date of filing of the writ petition. Compliance report be sent to this Court, within a period of four months.