Karnataka High Court
Smt. Vasumathy Reddy vs Union Of India (Uoi) And Ors. on 28 August, 1996
Equivalent citations: ILR1997KAR302
Author: H.L Dattu
Bench: H.L. Dattu
ORDER H.L Dattu, J.
1. Pension and gratuity are no longer a bounty, they have become, in view of the decisions of the Supreme Court valuable rights and property. This valuable right cannot be just deprived to a claimant by the authorities by most innocuous orders by merely repeating the language employed in the provisions of Rules and Regulations. The Apex Court in the case of POONAMAL AND ORS.
v. UNION OF INIDA pointed out as follows:
"Where the Government servant rendered service to compensate which a family pension scheme is devised, the widow and the dependent minors would equally entitled to the family pension as a matter of right. In fact, we look upon pension not merely as a statutory right but as a fulfillment of a constitutional promise in as much as it partakes the character of public assistances in case of unemployment, old age, disablement or similar other cases of undeserved want. Relevant rules merely makes effective the constitutional mandate."
In DEOKINANDAN PRASAD v. STATE OF BIHAR , the Apex Court was pleased to observe as under:
"The payment of pension does not depend upon the discretion of the Government, but is governed by the relevant rules and anyone entitled to the pension under the Rules can claim it as a matter of right."
2. In the present case, we are not concerned with ordinary family pension but with Special Family Pension. This special pension is granted to family of servicemen, who die on account of the causes which are attributable to or aggravated by Military service. Since the claim was rejected by the authorities, petitioner, Smt. Vasumathy Reddy, widow of late Lt. Colonel G.S. Pitta, by this petition under Article 226 and 227 of the Constitution of India, seeks a writ of mandamus or any other suitable writ, direction or order against the respondents for grant of Special Family Pension in accordance with the revised rules of pension.
3. Facts giving rise to this petition are these : Petitioner's husband the late Lt. Col. G.S. Pitta was serving as a Commissioned Officer in the rank of Lieutenant Colonel in the Regular Army and at the time of his death, he was serving as Movement Control Officer, Coimbatore, on the staff of Embarkation Head Quarters, Madras, since July, 1987. Petitioner's husband died while he was under
medical treatment in the Medical College Hospital, Coimbatore on 1st January, 1988 at the age of 45 only, in harness.
4. In order to avoid family hardships, the Controller of Defence Accounts (CDA)(Pensions) Allahabad, had sanctioned ordinary family pension, pending receipt of the Govt. decision regarding attributability or otherwise of the cause of death of petitioner's husband due to military service. This was pursuant to the claim made by the petitioner for grant of Special Family Pension in accordance with the provisions contained in the revised Pension Rules. This was by a communication by 3rd respondent to the petitioner dated 14.7.1988.
5. On the claim for grant of Special Family Pension, the 1st respondent vide his letter No. F.3 dated 28th October, 1988 rejected the same solely on the ground that the cause of death of petitioner's husband was due to "upper G.I. Bleeding with Hepatic Coma" which is neither attributable to nor aggravated by military service. The letter of the 1st respondent dated 28th October, 1988 addressed to petitioner reads as under:
"Sub: Claim to Special Family Pensionary award in respect of late Lt.Col. G.S. Pitta (IC 21710-L).
Sir, I am directed to say that it has been deduced that the cause of death viz., "Upper GI Bleeding with Hepatic Coma" of the above Officer should be regarded as neither attributable to nor aggravated by his military service."
6. Aggrieved by the above decision, petitioner had preferred an appeal to the Govt. of India, Ministry of Defence, Sena Bhavan, New Delhi but with no result. Hence, this petition.
7. The case of the petitioner before this Court is that, her late husband was posted at Tinsukia, in Assam, prior to his posting in Coimbatore in the month of July, 1987. According to her, he served in Tinsukia for nearly 2 1/2 years as Movement Control Officer and was put up next to Railway Station, Tinsukia away from the nearest Army Formation Headquarters located at Dinjan by over 25 Kms. According to her, the water all over Assam is bad and unhygienic and there, her husband had contracted Amoebaeus, which affected his liver badly and had put him down on a number of occasions with abdominal ailments and jaundice like conditions with spells of hospitalization. It is her further case that after transfer from Assam to Coimbatore on 27th July, 1987, the duties at the new post involved very frequent touring of the towns and villages away from any hygienic sources of water and food and under severe physical and mental strains, since it was on of his duties to contact with service men's families living in remotely situated villages which involved touring for days together by continuously exposing himself to conditions involving unwholesome food and unhygienic water which did aggravate the liver problem which he had acquired during his earlier spell of duty serving in Assam. According to petitioner the cause of untimely death of her husband was mainly due to combination of the rigours of his duties while in service, particularly, during the last few years of service, the physical and mental constraints undergone by him during the last leg of his service, the whole some unhygienic dietary and water conditions to which the calls of duty had forced him during his terminal years and the gross mishandling of his case during his terminal illness marked by the onset of his sickness while at Wellingdon had aggravated his illness which he had acquired earlier while he was serving in Assam. In sum and substance, the case of the petitioner before this Court is that her husband died in harness on account of the causes which are attributable to or aggravated by military service. Petitioner, therefore, prays that the impugned orders may be quashed and a declaration be made to the effect that the death of the petitioner's husband was attributable to or aggravated by his military service and the respondents may be directed to grant Special Family Pension in accordance with provisions contained for the same in the revised Entitlement Rules, 1982.
8. Respondents seek to justify the impugned order and stoutly resist the reliefs sought for in the writ petition by asserting that the Special Family Pension is admissible only in those cases where the death of the Officer is determined by Govt. of India as attributable to or aggravated by military service. Since the petitioner's husband died due to 'upper G.I. Bleeding' due to rupture of oesophageal varices caused by portal hypertension, which has been held to be constitutional disability having no connection with military service by the Medical Advisor to Govt. of India, petitioner is not entitled to Special Family Pension. Respondents also asserts in their counter statement at paragraph - 9,10 and 11 as under:
"9. The respondents submit that this Hon'ble Court while exercising powers under Article 226 of the Constitution of India cannot go into the various averment made in para(9) of the writ petition. However, with a view to substantiate the stand taken by the respondent that the death of the petitioner's husband was neither attributable to nor aggravated by military service the respondents stated as follows:
(a) It may be true that unwholesome water can cause Amoebiasis and Virum hepatisis. However, there is no evidence to show that the petitioner's husband was ever hospitalised in the Service Hospital for these disabilities and hence the statement made by the petitioner that her husband contracted Amoebiasis during his posting in Assam is incorrect.
(b) The petitioner's husband was medical category Shape-1 at the time of his posting to Coimbatore on 27th July, 1987. Again there is no documentary evidence to show that he was suffering from Amoebasis or Virul Hepatisis. Therefore, undertaking tours was compatible with his medical category.
(c) The averments made in sub-paragraph(c) of paragraph-7 are incorrect as per official records. If the petitioner's husband was in frail health, he should have sought treatment from the service medical authorities. The petitioner's husband did not seek any such medical treatment. Hence, it will have to be presumed that he had no complaints and that he was in good health.
(d) Even as per a petitioner's own statement her husband was admitted in the AIR Force Hospital Coimbatore on the day of 29th Dec. 1987 and was soon transferred to the Coimbatore Medical Hospital the finding because of lack of adequate facilities at the Air Force Hospital hence there was no delay in providing medical treatment to the petitioner's husband.
10. The fatal disability was bleeding from Upper Gasto Intestinal tract due to rupture of Oesophageal varices caused by portal hypertension. Portal hypertension is a constitutional disability and is unconnected with stresses and strains of service conditions. In the fatal case documents it is recorded that the petitioner's husband was alcohalic and the post mortem examination also indicated presence of multiple nodules of various sizes on the liver and enlargement of liver. Most probably, portal hypertension was due to cirrhosis of liver which was caused by excessive consumption of alcohol.
11. The statement made in para (11) of the petition that the respondents did not say anything about the hypatic coma from which petitioner's husband suffered in Annexure-B is hot correct. The petitioner's husband had gone into coma due to shock resulted from excessive bleeding from the Gasto Intestinal Tract. Coma may also have been due to Liver failure because of cirrhosis of liver in the instant case was due to excessive consumption of alcohol and was not related to service conditions."
8. In sum and substance, the stand of the respondents seems to be that the cause of death of petitioner's husband was due to constitutional disease unconnected with the service and therefore, rejection of petitioner's claim for Special Family Pension is neither opposed to the facts nor arbitrary and capricious and in no way violates Article 14 of the Constitution of India.
9. Col.V.K.K. Nair (Retd.) the Learned Counsel for the petitioner contends that the petitioner was posted to serve in different field areas including at Tinsukia in Assam and because of stress and strain, the petitioner developed disease which was attributable to or aggravated by Military Service since it did not exist prior to the recruitment of the petitioner as Commissioned Officer in Indian Army. The Learned Counsel further contends that in view of Regulation 173 of Pension Regulation and Regulation 7(b) of Entitlement Rules 1982 which provides that "a disease which lead to an individual's discharge or death will ordinarily be deemed to have arisen in service, if no note of it was made at the time of individual's acceptance for service in the Armed Forces". Since such a note was not made regarding any disease at the time of petitioner's husband's enrolment in the Army, the presumption is that the disease is attributable to the Army Service. To reinforce this contention, the Learned Counsel relies upon the decision of this Court in the case of Sri M.K. JOSEPH v. UNION OF INDIA AND ORS. W.P.No.9539/1993 D.D. 19.3.1996 and also the following Judgments of Punjab and Haryana High Court:
1) Roshanlal v. Union of India and Ors. 1992(3) SLR 662
2) Bodanlal Yadav v. Union of India and Ors. 1992(3) SLR 758
3) Union of India v. Bodanlal Yadav 1994(1) SLR 390
4) Ex. Sepoy Chatter Singh v. Union of India and Anr. 1994(1) SLR 465
11. Smt. Nagini, Learned Counsel for respondents on the other hand submitted that according to the post-mortem report, the history of the patient and the opinion of the Medical Advisor to Govt. of India, the death of the petitioner's husband was due to Upper G.I. Bleeding due to rupture of Oesophageal varices caused by portal hypertension, which is held to be a constitutional disability, having no connection with Military Service; this Court exercising its jurisdiction under Article 226 of the Constitution cannot substitute the opinion of the Medical Advisor to the Govt. of India, Post mortem report and the opinion of the Doctors who are experts in that field. According to the learned counsel, the cause of death of the petitioner's husband is one of those diseases which has been categorised and classified as one of those diseases not normally affected by service under Clause E of Appendix II to Regulation 173 of the Pension Regulations for the Army, 1961 and in view of that according to the Learned Counsel, petitioner's claim was rightly denied by respondents and this Court should not exercise its discretion to grant relief in favour of the petitioner.
12. To appreciate the rival contentions raised by the Learned Counsels for the parties to the list, it will be appropriate to refer to relevant regulations viz., Regulation 173 of Pension Regulations and Rule 7(b) of Entitlement Rules and the Caption 'E' of Annexure to Regulation 173 of Pension Rules, which reads as under:
"Regulation 173: Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over.
The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II. Entitlement Rules: 2. Disablement ..4
7. In respect of diseases.
Annexure: Classification of diseases: A. x x x x x B. x x x x x C. x x x x x D. x x x x x E. Diseases not normally affected by service: Malignant diseases: Cancer and Carcinoma. Sarcoma (except in cases of sarcoma of bone with a history of injury, due to service, on the site of development of growth). Epithelioma.
Rodent ulcer.
Lymphosarcoma.
Lumphadenoma (Hodgkin's disease). Leukaemia.
Pernicious anaemia (Addison's anaemia). Osteitis deformana (paget's disease) Gout.
Acromegaly.
Cirrhosis of the liver - if alcoholic."
12. Having noticed the relevant provisions and the regulations entitling the payment of Special Family Pension, let me now advert to the facts of in the petitioner's case. The claim of the petitioner before the authorities for Special Family Pension was based on the assumption that her husband died while in Army, contracted of a disease which was attributable to or aggravated by military service. The basis being that just before he was transferred and posted as Movement Control Officer at Coimbatore, he had served at Tinsukia in Assam where in view of unhygienic food and water, he suffered from Amoebaeus which affected his liver badly and put him down on a number of occasions with abdominal ailments and jaundice like conditions with spells of hospitalisation and the said ailment aggravated after his transfer to Coimbatore since the nature of duties at Coimbatore involved frequent travelling away from hygienic sources of water and food, but the petitioner has not placed any material before this Court to demonstrate that the petitioner had suffered from liver disorder while he was in Assam and been frequently hospitalised and has also not placed any material to demonstrate the other military personnel like the petitioner's husband also suffered with the same or similar types of disease while working at Tinsukhia at Assam. In fact, in the counter statement filed, respondents would state that there is no evidence to show that petitioner's husband was ever hospitalised in the service hospital for the disabilities alleged in the petition and they also state that when petitioner's husband was transferred from Assam and posted at Coimbatore he was declared Medical Category Shape-1. Hence, in the absence of cogent material before this Court, it is difficult to accept the assertion of the petitioner that the death of her husband was attributable to or aggravated by military service.
13. Now, coming to the impugned order passed by 1st respondent and the Appellate Committee, the claim of the petitioner for grant of Special Family Pension was rejected on the ground that the cause of the death of petitioner's husband was due to 'Upper G.I. Bleeding with Hepatic Coma', since the said disease was constitutional disease unconnected with service.
14. There are a number of uncommon causes of Upper Gastro Intestinal bleeding. It may be due to chronic duodenal ulcer, chronic gastric ulcer, gastric erosions, varices, Oesophagitis, Duodenal erosions, cancer of stomach etc., However, the post mortem report of the doctors of Medical College Hospital, Coimbatore indicates that the Upper Gastro Intestinal bleeding is due to rupture of Oesophageal varices due to portal hypertension. In Stedman's Medical Dictionary the meaning of esophageal varices is indicated: It is as under:
"Esophageal varices: Longitudinal superficial venous varices at the lower end of the esophagus as a result of portal hypertension; they are liable to ulceration and massive bleeding."
15. The case of the respondents as indicated in their counter statement is that the fatal disability of the petitioner's husband was due to bleeding from Upper Gastro Intestinal tract which was due to rupture of esophageal varices caused by portal hypertension is a constitutional disability and is unconnected with a stresses and strains of service condition. According to them, the fatal case documents it is recorded that the petitioner's husband was alcoholic and the postmortem examination also indicated the presence of multiple nodules of various sizes in the liver and the enlargement of the liver and according to them, the portal hypertension was due to cimhosis of the liver which was caused by excessive consumption of alcohol. This assertion of the respondents is not countered by petitioner by either filing a reply statement or by producing other material to demonstrate that the death was not due to constitutional disability but due to disease attributable to or aggravated by Military Service. The petitioner also not placed any expert opinion contrary to the opinion of the Medical Advisor to the Government of India. The opinion of Medical Advisor is the opinion of the experts in the field, which has been arrived at after scrutinising the fatal case documents and the post mortem report which opinion cannot be substituted by this Court while exercising its jurisdiction under Article 226 of the Constitution without any contrary opinion produced by the aggrieved person. This Court cannot sit over the opinion of the expert body without proper material. Hence, in the absence of conclusive and convincing material, it is not proper for this Court to interfere with the impugned orders passed by respondents, in rejecting the claim of the petitioner for Special Family Pension.
16. Now, coming to the decisions on which Learned Counsel for petitioner placed reliance to drive home the point that in the absence of any note made at the time of entry into service or unless a note was recorded at a subsequent date that the disease in question was such as could not have been detected by medical examination before he had joined service. Presumption is that the cause of death is attributable to Army Service. In all those cases, the Courts were concerned with claim for disability pension and those cases do not assist the petitioner as they are distinguishable in view of the peculiar facts of the present case, namely, that the disease of the petitioner's husband started while he was posted at Coimbatore as Movement Control Officer and the death was probably due to cirrhosis of the liver which might have caused due to excessive consumption of alcohol. Presence of this disease could not have been noticed by the Medical Board at the time petitioner's husband entry into service nor could the Board make a note at a subsequent date since the disease in question was such as could not have been detected by medical examination before he had joined the service. Besides, the disease which caused death of petitioner's husband was no doubt was contracted after petitioner's husband's entry into the Army Service but the disease was not attributable to or aggravated by Military Service. The disease was the self-inflicted wound of petitioner's husband and the same cannot be attributed to unhygienic food and water during his tenure in Assam or in Coimbatore.
17. Lastly, a reading of Entitlement Rules and the Appendix II leave no manner of doubt that if the invalidation or death is on account of indulgence in drugs or drinks, the person concerned will not be entitled to pension under Regulation 173 of the Regulation. Caption 'E' to the Appendix to the Entitlement Rules clearly indicate that the cirrhosis of the liver if alcoholic is not normally affected by service. In view of this, it cannot be said that in the present case, the cause of death of petitioner is attributable to or aggravated by military service.
18. No doubt, pension is not a bounty but a valuable right but to claim and receive the same, the person concerned should fall within the parameters of the Regulations and Rules.
19. For the reasons stated, Writ Petition fails and accordingly, it is dismissed. Rule discharged. In the facts and circumstances of the case, parties are directed to bear their own costs.