Himachal Pradesh High Court
Ms.Rajni Devi Sharma vs Union Of India & Others on 14 December, 2016
Author: Sandeep Sharma
Bench: Mansoor Ahmad Mir, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP No.187 of 2016
Judgment Reserved on: 30.11.2016
.
Date of decision: 14.12.2016
Ms.Rajni Devi Sharma ...Petitioner
Versus
Union of India & Others ...Respondents
Coram
of
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting ?1
rt Yes.
For the Petitioner: Mr.Onkar Jairath, Advocate.
For Respondents: Mr.Ashok Sharma, Assistant
Solicitor General of India with
Mr.Ajay Chauhan, Advocate.
Sandeep Sharma,J.
In the instant case, petitioner is a widow of deceased soldier Suman Kumar, who, at the time of his death, was serving as Assistant Sub Inspector in Central Reserve Police Force (for short 'CRPF') at Kishtwar in the State of Jammu & Kashmir. Late Shri Suman Kumar was initially recruited as Constable General Duty in CRPF in the year 1988 and was allotted the Constabulary No.880897767 and since then he remained posted at various stations. But, after his promotion to the post of ASI, he was posted in snowbound area of Tehsil 1 Whether the reporters of Local Papers may be allowed to see the judgement?
::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 2and District Kishtwar of Jammu & Kashmir. Unfortunately, on 9.1.2014, deceased husband of the petitioner was found lying in an unconscious state on his bed and accordingly he was rushed .
to nearby hospital in Kishtwar, where he was declared dead by the doctors. Postmortem report suggests that late Shri Suman Kumar died of severe Myocardial Infraction (for short 'M.I.') which led to cardiopulmonary arrest.
of
2. Perusal of Annexure P-2, communication sent by Commandant-76 Battalion, CRPF, to Inspector General, CRPF, Western Sector, Chandigarh, reads as under:
rt "Opinion as to cause of death: - After going autopsy of deceased, Dr.Opinion, patient has died from severe M.I., which leads to cardiopulmonary arrest and subsequent death."
3. Authority vide aforesaid communication also termed death of deceased ASI to be natural death and accordingly pension papers were processed for payment of admissible benefits, thereby allotting PPO No.239031411510 in favour of present petitioner being wife of deceased solider i.e. ASI Suman Kumar, granting her ordinary family pension in terms of Central Civil Services Rules, 1939.
4. By way of present petition, petitioner has claimed that she was entitled to be granted extra-ordinary family pension as defined in Central Civil Services (Extraordinary Pension) Rules, 1939 (for short 'CCS(EOP) Rules') because her husband died on account of illness while he was serving ::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 3 snowbound hostile area of Kishtwar. Petitioner further claimed that cause of death is/was directly attributable to the Government service, since her deceased husband was on active .
duty at that particular point of time and in all probabilities he suffered 'M.I.' on account of aggravated demands of duty and tough terrain.
5. Mr.Onkar Jairath, learned counsel appearing for of the petitioner, vehemently argued that action of the respondents in denying extraordinary pension in terms of Rule-
3 of CCS(EOP) Rules is in violation of Rules occupying the field rt because it is an admitted case of respondents that at the time of initial recruitment of late Shri Suman Kumar in the CRPF and thereafter at the time of his posting in Kishatwar area being ASI, he was medically fit and he was not suffering from any kind of disease much less 'M.I.', which ultimately led to his death. As per Mr.Jairath, mere factum of his being medically fit at the time of his posting at Kishtwar strengthen the claim of the petitioner that cause of death of the husband of the petitioner is directly attributable to the Government service, especially when deceased ASI Suman Kumar was on active duty at that particular point of time that too in the insurgency hit area Kishtwar in the State of Jammu & Kashmir.
6. In support of his arguments Mr.Jairath invited the attention of this Court to the judgment of Hon'ble Apex Court passed in Param Pal Singh vs. National Insurance Co.Ltd.
::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 4and another, 2013 ACJ 526. Mr.Jairath also invited the attention of this Court to the following judgments passed by Hon'ble Punjab and Haryana High Court in Kamlesh Devi vs. .
State of Punjab, 2002(1) SCT 929, Promila Devi vs. Union of India and Others, CWP No.1399 of 2011(O&M), Smt.Kunta Devi vs. Union of India & Others, CWP No.17135 of 2009, wherein death on account of 'M.I.' has been held to be directly of attributable to the service conditions.
7. Mr.Jairath further contended that Smt.Kunta Devi's case rt supra stands duly complied with by the respondents, which fact is evident from copy of order dated 21.2.2012 passed by Hon'ble Punjab and Haryana High Court in COPC No.3073 of 2011 (O&M) in CWP No.17135 of 2009, placed on record, wherein Hon'ble Court has directed the Pay and Accounts Officer, Central Pension Accounting Office, Ministry of Finance, Government of India, to issue PPO in favour of the petitioner. The Contempt Petition was disposed of with the direction to grant extraordinary family pension from the due date, as early as possible, but not later than two months from the date of receipt of certified copy of the aforesaid order.
8. Mr.Ashok Sharma, learned Assistant Solicitor General of India, while appearing on behalf of respondents refuted the aforesaid claim having been put forth on behalf of the petitioner by stating that petitioner was not entitled for ::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 5 grant of extraordinary pension in terms of Rule 3-A(1)(a) of the CCS(EOP) Rules, because death of the husband of the petitioner had no connection with the Government service and in no term .
it was attributable to Government Service.
9. Mr.Sharma, while inviting the attention of this Court to the aforesaid Rules, vehemently argued that for entitlement to extraordinary pension in the light of aforesaid of Rules, death should be accepted as due to Government service, provided it is certified that it was attributable and aggravated by Government service. He further argued that to have benefit of rt aforesaid Rules for grant of extraordinary pension, there should be a casual connection between death and Government service.
He also invited the attention of this Court to the guidelines issued by the Authorities for determining the aforesaid factors while deciding issue with regard to grant of extraordinary pension. According to learned Assistant Solicitor General, as per CCS(EOP) Rules Schedule-II, cases have been categorized in five distinct categories for determining the compensation payable for death or disability under different circumstances and he further stated that at best case of the husband of the petitioner could be considered under category-'A', wherein it has been specifically held that death and disability due to natural causes is not attributable to Government service e.g. chronic ailments like heart and renal diseases, prolonged illness, accidents while not on duty etc. ::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 6
10. While concluding his arguments, Mr.Sharma forcefully contended that since husband of the petitioner died due to 'M.I.', there is neither any casual connection between the .
death and Government service nor same is attributable and aggravated by Government service and as such Authorities rightly granted ordinary family pension in favour of the present petitioner after the death of her husband, who was serving in of CRPF. Mr.Sharma further argued that judgment having been relied upon by learned counsel representing the petitioner has no application in the present facts and circumstances, however, rt he fairly admitted that judgment passed by Hon'ble Punjab and Haryana High Court in Kunta Devi's case supra was accepted by the Authorities and extraordinary pension was granted to the petitioner in that case.
11. We have heard learned counsel for the parties and gone through the record of the case.
12. It is not in dispute that husband of the petitioner was serving as ASI in snowbound area of Tehsil and District Kishtwar of Jammu & Kashmir at the time of his death i.e. on 9.1.2014. It is also not in dispute that at the time of death of aforesaid ASI late Shri Suman Kumar, he was in active service of CRPF. Similarly, there is no quarrel, if any, with regard to cause of his death, who, as per medical information, died of severe 'M.I.' which led to cardiopulmonary arrest.
::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 713. Though respondents have released ordinary pension to the petitioner, but her claim for grant of extraordinary pension has been rejected on the ground that .
death of her husband due to heart attack was natural and in no term could be said to be attributable and aggravated by his service. Since final order issued by Court of inquiry dated 18.2.2014 termed the death of the husband of the petitioner as of natural and not attributable to or aggravated by Government Service/Service Conditions, respondents rejected the claim of the petitioner for grant of extraordinary pension while applying rt the provisions contained under Rule 3-A of CCS(EOP) Rules which provides as under:-
"3-A(1)(a) Disablement shall be accepted as due to Government service, provided that it is certified that it is due to wound, injury or disease which:-
i) Is attributable to Government Service, or
ii) Exited before or arose during Government service and has been and remains aggravated thereby.
(b) Death shall be accepted as due to Government service provided it is certified that it was due to or hastened by:
i) a wound, injury or disease which was attributable to Government service, or
(ii) the aggravation by Government service of a wound, injury or disease which existed before or arose during Government service ::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 8 (2) There shall be a casual connection between
i) disablement and Government service; and .
ii) death and Government service, for attributability or aggravation to be conceded. Guidelines in this regard are given in the appendix which shall be treated as part and parcel of these Rules."
14. The aforesaid Rules clearly suggest that for the of grant of extraordinary pension in favour of individual deceased soldier, death should be accepted as due to Government service rt with further certification that it was due to wound, injury or disease which was attributable to Government service. Rules further suggest that there should be casual connection between death and Government service, for attributability or aggravation to be conceded. It would also be profitable to reproduce here-
in-below Schedule-II of CCS(EOP) Rules, 1939, wherein factors have been defined for determination of compensation payable for death and disability under different circumstances:-
"Category 'A' Death or disability due to natural causes not attributable to Government service. Examples would be chronic ailments like heart and renal diseases, prolonged illness, accidents while not on duty etc. Category 'B' Death or disability due to causes which are accepted as attributable to or aggravated by Government service. Diseases contracted because of continued exposure to a hostile work environment, subjected to extreme weather conditions or occupational hazards resulting in ::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 9 death or disability would be examples.
Category 'C' Death or disability due to accident in the performance of duties. Some .
examples are accidents while traveling on duty in Government vehicles or public transport, a journey on duty is performed by service aircraft, mishaps at sea, electrocution while on duty, etc. Category 'D' Death or disability attributable to acts of violence by terrorists, anti social elements etc., whether in of their performance of duties or otherwise. Apart from cases of death or injury sustained by personnel of the Central Police organizations while employed in aid rt of the Civil administration in quelling agitation, riots or revolt by demonstrators, other public servants including Police personnel etc, bomb blasts in public places or transport, indiscriminate shooting incidents in public etc , would be covered under this category.
Category 'E' Death or disability arising as a result of (a) attack by or during action against extremists, anti- social element, etc, and (b) enemy action in international war or border skirmishes and warlike situations, including cases which are attributable to (i) extremists acts, exploding mines, etc., while on way to an operational area (ii) kidnapping by extremists; and (iii) battle inoculation as part of training exercises with live ammunition."
15. In Category-'A' of the aforesaid Schedule, diseases, like heart and renal diseases, prolonged illness, accidents while not on duty have been termed to be not attributable to Government service.
::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 1016. But, in Category-'B' of the aforesaid Schedule, death or disability due to continued exposure to a hostile work environment, subjected to extreme weather conditions or .
occupational hazards have been accepted as attributable to or aggravated by Government service.
17. Similarly, death or disability occurred on account of accident while traveling on duty in Government vehicles or of public transport, a journey on duty by service aircraft, mishaps at sea and electrocution have also been accepted as attributable to and aggravated by Government service.
rt
18. Reply filed on behalf of respondents as well as arguments having been made by learned Assistant Solicitor General of India clearly suggests that case of the present petitioner, who died from 'M.I.', was considered by the Authorities under Category 'A', wherein chronic ailments like heart and renal diseases, prolonged illness, accidents while not on duty have not been termed as attributable to or aggravated by Government service.
19. At this juncture, it would be relevant to refer to following paras of reply filed by the respondents:
"Para 6. ... ... ...In this instant case the husband of the petitioner died from severe MI (Myo cardial infraction) which leads to cardiopulmonary arrest and subsequent that, which was the type of a heart attack as petitioner mentioned in para no.4 of list of events and falls under category "A"
wherein it is clearly mentioned that "Death or disability due to natural causes not attributable to Government service.
::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 11Examples would be chronic ailments like heart and renal diseases, prolonged illness, accidents while not on duty etc. etc. .
It is pertinent to mention here that the work accident while on duty is defined the other mishaps apart from examples like heart and renal disease, thus petitioner is entitled the extra ordinary pension under category "A" only.
Para 7. That in reply to this para, it is submitted that the husband of the petitioner died due to M.I which leads to cardiopulmonary of arrest but the disease is neither attributable to the Govt.job nor aggravated during the same. It is submitted that late husband of the petitioner was medically SHAPE-I and he was advised to reduce weight, fat free diet and also regular rt exercise by the Medical officer of 76 Bn. CRPF. The petitioner wrongly interpreted the accident while on duty, whereas it is clearly mentioned in category "A" that the death, disability due to chronicle ailment like heart and renal disease comes under the category "A".
It is pertinent to mention here that the cold weather does not have direct connection with cardiopulmonary arrest. Apart from these the late husband of the petitioner was provided winder bears and other facilities to prevent the effect of the cold. Therefore, the averment of the petitioner is totally wrong and misconceived.
Para 8. That the contents of this para are wrong, hence denied. As submitted in para supra, the death of the husband of the petitioner was neither directly attributable to the Govt. service nor aggravated during the service. Since the medical category of the petitioner was of SHAPE-I, hence it cannot be said that the same is attributable to the Govt. service and cold weather does not have any direct connection with Cardiopulmonary arrest."
::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 1220. In nutshell, case of the respondents is that husband of the petitioner died due to natural cause i.e. 'M.I.' which is not attributable to Government Service and as such .
being covered under Category "A", petitioner is not entitled to grant of extraordinary pension in terms of aforesaid Rules.
21. True, it is that chronic ailments like heart and renal diseases, prolonged illness, accidents while not on duty have of been declared to be not attributable to or aggravated by Government service under Category "A", but, if Category "B" is perused carefully, it clearly suggests that if disease is rt contracted because of continued exposure to a hostile work environment, subjected to extreme weather condition or occupational hazards resulting in death or disability same are to be accepted as attributable to or aggravated by Government service.
22. In the instant case, this Court cannot loose sight of the fact that at that relevant time late husband of the petitioner being ASI was in active service of CRPF and there is no denial of the fact that he was serving insurgency hit area i.e. Kishtwar (J&K). Similarly, this Court is fully conscious of extreme weather condition of the area of Kishtwar, especially in the month of January, when that entire area is submerged with snow.
23. In the aforesaid background, this Court deems it fit to refer to the aforesaid paras of reply filed by the respondents, ::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 13 wherein it has been repeatedly stated that deceased ASI Suman Kumar was fully fit and his medical category was of SHAPE-I;
meaning thereby that deceased ASI Suman Kumar had no prior .
history of chronic heart disease.
24. Similarly, this Court finds no document having been placed on record by the respondents suggestive of the fact that at the time of unfortunate death of late ASI he was of suffering from same kind of chronic disease, as stands mentioned in aforesaid Category "A" in Schedule-II of Rule 3.
Though in para-7 respondents, while stating that late husband rt of petitioner was medically SHAPE-I, have stated that he was advised to reduce weight, fat free diet and also regular exercise by the Medical Officer of 76 Bn. CRPF. But, as has been observed above, there is no medical record placed on record by the respondents suggestive of the fact that the petitioner was not medically fit at the time of his death. Rather, respondents themselves have submitted that late husband of the petitioner was medically SHAPE-I and it cannot be said that death is attributable to Government service and cold, weather had no direct connection with cardiopulmonary arrest.
25. This Court, after taking note of the aforesaid specific averments contained in the reply filed by the respondents regarding medically fitness of late husband of the petitioner, has every reason to conclude that case of late husband of the petitioner could not be considered in the light ::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 14 of Category "A" as stands defined in Schedule-II. Rather, this Court is convinced and satisfied that late husband of the petitioner suffered from 'M.I.' which led to his death due to .
multiple factors i.e. hostile work environment at Kishtwar, due to insurgency coupled with extreme weather condition that too in the month of January and as such case of late husband of petitioner was required to be dealt with in terms of Category-"B"
of and not Category-"A". Since late husband of the petitioner has no past history of chronic ailment as defined in Category "A"
supra, the disease ('M.I.') contracted by him during service is rt required to be deemed to be because of continued exposure to a hostile work environment and due to extreme weather condition and as such same can be termed to be attributable to or aggravated by Government service. Action of respondents in denying extraordinary pension to the petitioner after death of his husband does not appear to be reasonable and in accordance with the Rules occupying the fields. This Court can also take note of the fact that had the husband of the petitioner suffering from chronic heart disease, he would have not been posted at a place like Kishtwar, which is admittedly insurgency hit area. Similarly, when petitioner, at the time of his posting at Kishtwar, was medically fit and was placed under Category of SHAPE-I, it can be safely concluded that he had no past history of heart disease and as such it can be safely inferred that ::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 15 husband of the petitioner suffered sudden heart problem which led to his death.
26. Hon'ble Apex Court in Param Pal Singh vs. .
National Insurance Co.Ltd. and another, 2013 ACJ 526, while dealing with the case under Workmen's Compensation Act, 1923, interpreted the words, "in the course of employment"
Hon'ble Apex Court held that "in the course of employment"
of mean "in the course of work which the workman is employed to do and which is incidental to it". It would be profitable to reproduce following paras of the judgment, wherein the Hon'ble rt Apex Court has held:-
"26. Again in yet another celebrated decision of this Court in Ibrahim Mahmmod Issak, 1961 ACJ 422 (SC), this Court has set down the principles applied in such cases as under in paragraph 5:
"5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it." The words "arising out of employment" are understood to mean that "during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered." In other words, there must be a casual relationship between the accident and the employment. The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within ::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 16 the zone of special danger the injury would be one which arises 'out of employment'. To put it differently, if the accident had occurred on account of a risk which is an incident of the employment, the claim for .
compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. In Lancashire and Yorkshire Railway Co. v. Highley, (1917) AC 352, Lord Summer laid down the following test for determining whether an accident "arose out of the employment." (Emphasis added) of
27. Applying the various principles laid down in the above decisions to the facts of this case, we can validly conclude that there was CAUSAL CONNECTION to the death of the deceased with that of his employment as a truck driver. We cannot lose sight of the fact rt that a 45 years old driver meets with his unexpected death, may be due to heart failure while driving the vehicle from Delhi to a distant place called Nimiaghat near Jharkhand which is about 1152 kms. away from Delhi, would have definitely undergone grave strain and stress due to such long distance driving. The deceased being a professional heavy vehicle driver when undertakes the job of such driving as his regular avocation it can be safely held that such constant driving of heavy vehicle, being dependant solely upon his physical and mental resources & endurance, there was every reason to assume that the vocation of driving was a material contributory factor if not the sole cause that accelerated his unexpected death to occur which in all fairness should be held to be an untoward mishap in his life span. Such an 'untoward mishap' can therefore be reasonably described as an 'accident' as having been caused solely attributable to the nature of employment indulged in with his employer which was in the course of such employer's trade or business.
28. Having regard to the evidence placed on record there was no scope to hold that the deceased was simply travelling in the vehicle and that there was no obligation for him to undertake the work of driving. On the other hand, the evidence as stood established ::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 17 proved the fact that the deceased was actually driving the truck and that in the course of such driving activity as he felt uncomfortable he safely parked the vehicle on the side of the road near a hotel soon .
whereafter he breathed his last. In such circumstances, we are convinced that the conclusion of the Commissioner of Workmen's Compensation that the death of the deceased was in an accident arising out of and in the course of his employment with the respondent No.2 was perfectly justified and the conclusion to the contrary reached by the learned Judge of the High Court in the order impugned in this appeal deserves to be set of aside. The appeal stands allowed. The order impugned is set aside. The order of the Commissioner for Workmen's Compensation shall stand restored and there shall be no order as to costs."
rt (pp.537-538)
27. Similarly, Hon'ble Punjab & Haryana High Court in Kamlesh Kumari vs. Union of India, (2002 ) 1 SCT 929, held as under:-
"The word "Accident" also occurs in Section 3 of the Workmen's Compensation Act, 1923 but here too it has not been defined and it has come to acquire a settled meaning and denotes some unexpected event happening without design even though there may be negligence on the part of the person meeting with an accident. It would, therefore, include not only such obvious occurrence as collisions, tripping over floor obstacles, fall of roof, but also less obvious ones causing injury as strain which causes rupture, exposure to a draught causing chill, exertion causing apoplexy and shock causing neurasthenia. It would also include a heart attack which is an unexpected event happening without design".
28. Hon'ble Division Bench of Punjab and Haryana High Court in the aforesaid judgment, while interpreting word ::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 18 "accident", has also held that any unexpected event happening without design even though there may be negligence on the part of the person meeting with an accident can be termed as .
"accident". Hon'ble Division Bench, in the aforesaid judgment, has further held even exposure to a draught causing chill, exertion causing apoplexy and shock causing neurasthenia and heart attack which is unexpected event happening without of design as an accident.
29. In the present case, as has been observed above, the petitioner at the time of his death was posted in the area, rt which is insurgency hit area and has extreme chillness during the month of January coupled with the fact that same is a hostile area and as such there are multiple reasons which compels this Court to conclude that 'M.I.' suffered by the petitioner was on account of continued exposure, hostile work, environment and extreme weather condition. This Court also perused the judgment passed by the Hon'ble Punjab and Haryana High Court in Promila Devi's case supra, which specifically dealt with issue of grant of extraordinary pension under Rule 3-A of the CCS(EOP) Rules, 1939, that too in case of employee of Central Reserve Police Force.
30. Aforesaid judgments further suggest that in those cases too persons had died due to 'M.I.' and it was held to be attributable to Government Service. Further perusal of order dated 21.2.2012, passed in COPC No.3073 of 2011(O&M), i.e. ::: Downloaded on - 15/04/2017 21:44:16 :::HCHP 19 Kunta Devi's case supra, clearly suggests that aforesaid judgments having been passed by the Hon'ble Punjab & Haryana High Court was accepted by the respondent i.e. .
C.R.P.F. and extraordinary pension was granted to the petitioner(s) therein. Hence, grievance of the petitioner in this writ petition, being fully covered by the aforesaid judgments, also deserves to be accepted.
of
31. Consequently in view of the aforesaid discussion this petition is allowed and the petitioner is held entitled to the benefits of the extraordinary family pension and other allied rt benefits, as provided by Rule 3-A of CCS(EOP) Rules. The needful be done as expeditiously, as possible, preferably within two months.
32. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.
(Mansoor Ahmad Mir)
Chief Justice
December 14, 2016 (Sandeep Sharma)
(aks) Judge
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