Allahabad High Court
Smt. Malti Devi vs State Of U.P.Throu.Prin.Secy.Home ... on 18 April, 2017
Bench: Sudhir Agarwal, Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 3 A.F.R. Case :- SPECIAL APPEAL No. - 231 of 2014 Appellant :- Smt. Malti Devi Respondent :- State Of U.P.Through Principal Secretary Home Department U.P. Civil Secretariat Lucknow & Ors. Counsel for Appellant :- Phool Bux Singh Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This intra court Appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules 1952") has come up assailing the judgment dated 24.2.2014 passed by learned Single Judge dismissing appellant's writ petition No. 1156(S/S) of 2014.
2. The aforesaid writ petition was filed by appellant challenging order dated 20.12.2013 passed by Superintendent of Police, Kheri, rejecting claim of appellant for extra ordinary pension under provisions of U.P. Police (Staff) Extra Ordinary Pension Rules, 1961 (hereinafter referred to as " Rules 1961) as amended from time to time. She has sought a mandamus to the respondents to allow extra ordinary pension to appellant under the aforesaid rules.
3. The facts giving rise to present dispute are that Radhey Lal, husband of appellant, a Constable in U.P. Police Force, was posted at Kheri. He was assigned duty of submitting some record in Forensic Lab, Lucknow in connection with case crime No. 100 of 1995 and 101 of 1995 under Section 8/18 of NDPS Act on 12.12.1995. While on duty he suffered heart attack on 12.12.1995 and ultimately died on 15.2.1996.
4. Thereafter appellant submitted application dated 30.7.1996 for sanction of extra ordinary pension but it was declined on the ground that appellant's husband has died of his natural death and not while discharging official duties, therefore, extra ordinary pension is not payable under Rules, 1961. Subsequent representation made by appellant relying on judgment of this court in Smt. Malti Devi versus State of U.P. and others, Writ Petition No. 2625 (S/S) of 2013 decided on 5.9.2013 has also been rejected vide order dated 20.12.2013.
5. On behalf of respondents, objection has been filed to delay condonation application, supported with an affidavit which has been sworn by Mithlesh Dixit, Circle Officer Milanli, Kheri. Therein she has said in paragraph 5 of affidavit that appellant's husband suffered heart attack on 12.12.1995, admitted in hospital till 21.12.1995 and discharged but remained in O.P.D. treatment. He ultimately died on 15.2.1996 after a prolonged illness. The said death was not while performing official duty on the crucial day and therefore extra ordinary pension under Rules, 1961 is not payable.
6. A short question, up for consideration in the case in hand is, "whether at the time when petitioner's husband suffered heart attack and ultimately died, can he be held to be while performing official duty" or not.
7. Rule 3, as amended in 1975 of Rules, 1971 read as under:
** 3- ;g fu;ekoyh jkT;iky ds cuk, fu;e ls fu;af=r gksus okys LFkk;h ;k vLFkk;h #i ls lsok;ksftr lHkh iqfyl vf/kdkfj;ksa vkSj deZpkfj;ksa (jktif=r vkSj vjktif=r nksuksa) ij ykxw gksxh tks Mkdqvksa ;k l'kL= vijkf/k;ksa ;k fons'kh izfrjksf/k;ksa ls yM+us esa ;k fdlh vU; drZO;ksa dk ikyu djus ds nkSjku ekjs tk,a ;k ftudh e`R;q gks tk;sA* izfrcU/k ;g gS fd ,sls iqfyl deZpkjh ds ifjokj dks ftls bl fu;ekoyh ds v/khu vfHkfu.kZ; fn;k x;k gks] mRrj izns'k flfoy lfoZlst (,DLV~k vkfMZujh isa'ku) #Yl ds v/khu dksbZ vfHkfu.kZ; ugha fn;k tk;sxk vkSj u ;w0ih0 fycjykbTM isa'ku #Yl] 1961 vFkok ;w0ih0 fjVk;jesaV osuhfQV #Yl] 1961 ds v/khu dksbZ ikfjokfjd isa'ku@ vkuqrksf"kd vkSj u ;w0ih0 dUVªhC;wVjh isa'ku Q.M #Yl ds v/khu ljdkjh va'knku fn;k tk;sxkA**
8. Before such amendment, extra ordinary pension was admissible only if Police Officer, governed by Rules, 1961, has died in encounter with docoits, armed criminals and foreign insurgencies.
9. In 1975, scope of Rule 3 was enlarged and now rule also apply to a police officer, if he die or killed, performing some other duties.
10. A learned Single Judge (Hon'ble Dilip Gupta, J.) in the judgment dated 11.8.2010 in Writ Petition No.47802 of 2010 (Smt. Munni Devi Vs. State of U.P. & Ors.) has taken a view that "Rules should be liberally interpreted in such manner that it gives benefit to Police Officers/employees who killed or die, while performing official duties and it should not be restricted to extra risk." His Lordship has also referred to communication dated 23.01.1980, issued by Secretary, Government of U.P. to Accountant General expressing opinion of State Government in the matter relating to payment of extra ordinary pension to one Vijay Bahadur Singh and it says:
"The constable in this case will be said to have died in the course of performance of his duty within the meaning of rule 3 and as such he is entitled to benefit therein. The operation of the rule is not confined to case where a member of police force is killed. It also extends to a case where such a person dies in the course of performance of duty even without an encounter with decoits or armed criminals etc."
(emphasis added)
11. Similar view has been taken by this Court also in Civil Misc. Writ Petition No.55471 of 2009 (Smt. Suneeta Sharma Vs. State of U.P. & Ors.) decided on 19.4.2011, wherein while returning from duty, a police Official fell from train and died. This Court held that death occurred while discharging "any other duties" and extra ordinary pension under Rule 1961 would be admissible in such a case. Court, in para 5 of the judgment, further said:
"...It also says that it is not confined only when a police official in the aforesaid circumstances is killed but it also applicable if he die while discharging his duties. The provision is a welfare legislation made for the benefit of police officials who sustain fatal injuries or otherwise lost their life while discharging official duties. There is no reason for restricting the aforesaid provision which has been made much wider by 1975 amendment."
(emphasis added)
12. Therein, this Court also deprecated approach of Finance Controller in finding ways to deny extra ordinary pension to the survivors of deceased Police Officers by giving a restricted interpretation to Rules 1961 taking an approach of exclusion instead of liberal and beneficial interpretation. In para 7, Court expressed its view as under:
"7. It is really unfortunate that widow of a member of a disciplined service has to engage in a long drawn litigation for the last almost five years for her sustenance, i.e., for claiming extra ordinary pension under statutory rules which is admissible to her but on account of misconceived notions and traditional mindset of respondents for denying everything to a petty employee or his family that this benefit has not reacher her so far. The denial is without any substantial reason. Instead of helping the petitioner, a widow of a police official who sustained fatal injuries while on duty, respondents have tried to find out ways and means to deny benefit of a welfare legislation, compelling her to live life in penury and starvation. This attitude of respondents deserves to be condemned with strongest words. The laxity and an attitude of defiance on the part of respondents is also writ large from the fact that in the impugned order dated 02.07.2006 (Annexure-6 to the writ petition) the Finance Controller has denied benefit observing that petitioner's husband has died in suspicious circumstances and this has been reiterated by Superintendent of Police, Firozabad in its letter dated 11.08.2006 without showing as to what alleged suspicious circumstances were/are. When the petitioner challenges this attitude, in the counter affidavit filed in this writ petition no such defence has been taken and there is not even a whisper that the death took place in suspicious circumstance and on the contrary it is admitted that husband of petitioner died while discharging his duties. In para 9 it has only reiterated the language of impugned letter but nothing has been said about the alleged circumstances which according to respondents were suspicious. This also fortify the recklessness and harassing attitude on the part of respondents to make the bereaved family members of deceased employee to suffer or to surrender for their contentious desires or demand. Learned Standing Counsel despite his best efforts could not give even a single reason to justify denial of extra ordinary pension under 1961 Rules as amended in 1975. In my view the conduct and manner in which the respondents have acted makes them liable to pay not only interest on the dues payable to petitioner but also exemplary costs."
13. In the present case appellant's husband suffered heart attack, admittedly, while on duty on 12.12.1995 having gone to Forensic Laboratory, Lucknow for submitting record in connection with case crime No. 100 of 1995 and 101 of 1995 under Section 8/18 of NDPS Act. On the same date he was admitted in Vivekanand Polly Clinic and Institute of Medical Science, Lucknow. He was administered treatment of rheumatic heart disease with M.S. (Mitral Stenosis) & M.R. ( Mitral Regurgitation). Though he was discharged on 21.12.1995 but continued under OPD treatment and for that reason he continued to stay at Lucknow itself. However, he could not recover and ultimately died on 15.2.1996. It is true that heart disease of husband of appellant did not result in imminent death. Heart attack occurred on 12.12.1995 but it is also evident from record that the said disease could not be cured in its entirety and husband of appellant remained in continuous treatment at Lucknow and ultimately died. He could not return to his place of posting at Kheri after completing official assignment for which he was sent for Kheri to Lucknow on 12.12.1995. Thus his duty period stood extended and could not end since he did not return alive.
14. Benefit of Rule-3 of Rules 1961 is applicable to such police officer also who die or killed while discharging official duty. Appellant's husband has not returned from Lucknow to Kheri at his place of posting and due to continuous treatment at Lucknow, he had to stay at Lucknow itself. Therefore, in our view official duty of appellant's husband has not come to an end at all. Whether appellant's husband can be said to have been continued in discharge of duties, in employment or during the course of employment, may be examined in the light of certain authorities, wherein similar provision contained under Workmen's Compensation Act, 2003 (hereinafter referred to as "Act, 2003") has been examined.
15. In Indian Rare Earths Ltd. Vs. A. Subaida Beevi and others, 1981 TAC 359, the Court considered the matter arising from Act, 1923. The workman was residing at about 7 or 8 kilometres away from his work place and for coming to the factory, he used to walk about 3 kilometres from his place of residence to take a bus, and leave him at about 2 kilometres away from the plant where again he used to go by using bicycle. On 1.4.1977, he started from his residence to his work place and when on the National Highway, on his way to work place, met an accident and sustained injuries, ultimately died on 2.4.1977. The question was whether this accident can be treated to be one which has arisen "out of and in the course of his employment". The Court said that residence of workman was not on any bus route wherefore he cannot travel major portion of his way to his work-place by bus. Thus, it is a case where exigencies of his employment and circumstances obliged him and the company allowed him to ride a bicycle to reach the work-place. Otherwise, it was an implied condition on his employment that he may travel to his work-pace from his residence and back home by a bicycle. The Court thus said that when car dashed him on public road, he was there by virtue of his status as a workman working under the industrial employer and therefore, it was in the course of his employment. The Court further said:
"It is by now well settled that the expression "in the course of employment" connotes not only actual work but also any other engagement natural and incidental thereto, including "the course of employment" reasonably extended both as regards work-hours and work-place applying the doctrine of national extension as regards time and place, as laid down by the several decisions."
16. Another decision is Director (T. & M.), D.N.K. Project Vs. Smt. D.Buchitalli, 1987 Lab.I.C. 1795. The deceased employee while coming out of factory premises, attending to his duty in morning hours, fell down at the main gate and on being removed was declared dead. The question was, whether it is arising out of and in course of employment or not. The Workman Commissioner took a decision against employer that death has taken place out of and in the course of employment. The Court agreeing with the above view, said as under:
"In the present case, no doubt, the evidence is that the deceased had a heart disease earlier, but on the fateful day, as the evidence disclose, the deceased worked for four hours inside the factory premises and while he was coming out of the factory, he profusely sweated and by the time he was taken to the hospital, he was found dead. The stress and strain of the four hours of work the deceased had must be taken to be an accelerating factor in giving the final blow on account of which the deceased died."
17. In Administrator, Municipal Council, Udaipur Vs. Uma Devi, 1984 (2) TAC 56, the workman died as a result of accident when he was going to join his duties in the mid-night. The Court held that since workman was going to join his duties at the octroi out post of Municipal Council, it has to be held that it is an accident in the course of employment i.e. during course of his employment.
18. Surajbai Vs. Cement Corporation of India Ltd. and another, 1991(1) T.A.C. 140, was also a case where workman was going to join duties and met a fatal accident. The accident took place between the sump-pit and the office of the employer i.e. within the premises of the undertaking of industrial unit. The road had been built by Cement Corporation of India Limited for use of its employees. Thus, as a matter of fact, the Court found that accident took place within the premises of undertaking but before the workman could reach his place of duty. Construing the provisions of Act, 1923, liberally, being a welfare legislation, the Court said:
"It was at one time thought that an accident arose out of and in the course of employment only if the workman was injured at the place of his employment. There is of course, no difficulty in accepting such an accident as an accident arising out of and in the course of employment. But this narrow interpretation has not been able to satisfy new challenges created by modern methods of working of industrial undertakings to determine the exact place of employment of a workman in the context t of modern industrial development, is in itself a difficult task. A pilot who is responsible for flying the air-craft is supposed to be working at the cock-pit of the plane and his place of work would be the place wherever the plane flies. A light house workman, particularly in cases where light-house is situated in the middle of sea on some tiny island, is required to be taken to that island by some method before he can actually start working. An underground mine worker reports at the opening of the mine and travels underground to reach his actual place of work. These are the instances of modern industries and such instances can be multiplied. The Mines Act, 1952, provides that a workman joins his duty before he has reached the place of his actual work. Industrial Jurisprudence treats the air-craft pilot and a light-house worker as on duty even before he has actually started working. The modern management methods do not even require a work-man to work. Some of them are kept waiting to be available whenever there is work. These developments had made it wholly unnecessary to consider a workman on duty only when he reaches his place of work or starts working. For purposes of workmen's compensation the law has adopted what is known as "the principle of notional extension of employer's premises". If the place of accident by application of this doctrine can be said to be the place of duty of the workman concerned, the workman is held entitled to compensation even if he had not reached his actual place of work."
(emphasis added)
19. Thereafter, relying on a decision of Apex Court in General Manager, B.E.S.T. Undertaking, Bombay Vs. Mrs. Agnes, AIR 1964 SC 193, Court held that accident in question was in the course of employment entitling the heirs of workman for compensation under the said Act.
20. The passage from decision in General Manager, B.E.S.T. Undertaking, Bombay Vs. Mrs. Agnes (supra) was relied on by Madhya Pradesh High Court in Surajbai Vs. Cement Corporation of India Ltd. (supra), and it reads as under:
"The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the Courts have agreed that the employment does not necessarily end when the 'down tool' signal is given or when the workman leaves the actual workshop where he is working. There is a notional extension at both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. As employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of access and egress to and from the place of employment. A contractual duty or obligation on the part of an employee to use only a particular means of transport extends the area of the field of employment to the course of the said transport. Though at the beginning the word 'duty' has strictly construed, the later decision have liberalized this concept. A theoretical option to take an alternative route may not detract from such a duty if the accepted one is of proved necessity or of practical compulsion. But none of the decisions cited at the Bar deals with a transport service operating over a large area like Bombay. They are, therefore, of little assistance, except in so far as they laid down the principles of general application. Indeed, some of the laws words expressly excluded from the scope of their discussion cases where the exigencies of work compel an employee to travel public streets and other public places. The problem that now arises before us is a novel one and is not covered by authority."
(emphasis added)
21. There is another decision in M. Mackenzie Vs. I.M. Issak, AIR 1970 SC 1906, where Court said:
"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 the one 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."
22. In General Manager, Western Railway Vs. Chandrabai alias Narainibai, 1991 (2) T.A.C. 62, Madhya Pradesh High Court again following decision in General Manager, B.E.S.T. Undertaking, Bombay Vs. Mrs. Agnes (supra) held that notional extension of employer's premises must be applied and therefore, if an employee has died while he was going to join his duty from his house due to an accident, it must be deemed that it was "in the course of his employment".
23. The last decision is Senior Divisional Controller, North West Karnataka Road Transport Corporation Vs. Shoba & Ors., 2003(1) T.A.C. 561 of Karnataka High Court. There also the employee was on his way to report his duty when suddenly collapsed and taken to hospital where he died. Court held that since death has taken on the road and not within the place of employment, it cannot be held that it was during the course of employment.
24. All the decisions are in the context of Act, 1923. However, we find that there is a three Judges' judgment in Regional Director, E.S.I. Corporation and another Vs. Francis De Costa and another, 1996 (6) SCC 1. Therein matter has been dealt with in detail on a reference made by a two Judges Bench to larger Bench. Court relied on two decisions, one is the decision of Court of Appeal in England in Regina Vs. National Insurance Commissioner, Ex Parte, Michael, (1977) 2 All ER 420 and, another an earlier decision of itself in Saurashtra Salt Manufacturing Co. Vs. Bai Valu Raja, AIR 1958 SC 881. The following passage from observation of Lord Denning in Regina (supra) was quoted with approval:
"Take a case where a man is going to or from his place of work on his own bicycle, or in his own car. He might be said to be doing something "reasonably incidental" to his employment. But if he has an accident on the way, it is well settled that it does not "arise out of and in the course of his employment". Even if his employer provides the transport, so that he is going to work as a passenger in his employer's vehicle (which is surely "reasonably incidental" to his employment), nevertheless, if he is injured in an accident, it does not arise out of and in the course of his employment. It needed a special "deeming" provision in a statute to make it "deemed" to arise out of and in the course of his employment."
(emphasis added)
25. Similarly, following observation of Hon'ble S.Jafer Imam in Saurashtra Salt Manufacturing Co. (supra) was also quoted with approval:
"It is well settled that when a workman is on a public road or a public place or on a public transport he is there as any other member of the public and is not there in the course of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening to him. In the present case, even if it be assumed that the theory of notional extension extends upto point D, the theory cannot be extended beyond it. The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of his employment and any accident happening to him on the journey between these two points could not be said to have arisen out of and in the course of his employment."
26. Following the above, Court in Regional Director, E.S.I. Corporation (supra) held that following factors have to be proved:
i. There was an accident;
ii. The accident had a casual connection with the employment; and iii. The accident must have been suffered in course of employment.
27. Court distinguished the decision in General Manager, B.E.S.T. Undertaking, Bombay Vs. Mrs. Agnes (supra) by observing:
"It was held by Subba Rao and Mudholkar, JJ. (Raghubar Dayal, J. dissenting) that the bus driver was given facility by the management to travel in any bus belonging to the undertaking. It was given because efficiency of the service demanded it. Therefore, the right of the bus driver to travel in the bus was to discharge his duty punctually and efficiently. This was a condition of service and there was an obligation to travel in the said buses as a part of his duty. It was held that in the case of a factory, the premises of an employer was a limited one but in the case of a City Transport Service, the entire fleet of buses forming the service would be "premises". This decision in our view, does not come to the assistance of the employee's case. An employee of a Transport Undertaking was travelling in a vehicle provided by the employer. Having regard to the purpose for which he was travelling and also having regard to the obligation on the part of the employee to travel in the said buses as a part of his duty, the Court came to the conclusion that this journey was in the course of his employment because the entire fleet of buses formed the premises within which he worked."
28. Applying the exposition of law discussed above, to the facts of the case, where an employee, in the course of discharge of his official duties, has been sent from his place of posting to another station for the period such an employee continued at another station, in our view, it can not be said that he is not on official duty and the same has already come to an end.
29. In view of the above facts as also considering the fact that provisions of Rules, 1961 must be read in favour of dependants of the employees, to the permissible extent it can be so construed, we are of clear view that appellant is entitled for benefit of Rule 3 of Rules, 1961 since her husband has died while discharging official duties.
30. The writ petition is accordingly allowed. Impugned judgment dated 24.2.2014 under appeal is set aside. The impugned orders dated 20.12.2013 and 24.2.2014 are also hereby set aside. Respondents are directed to compute pensionary benefits payable to appellant under Rules, 1961 and pay the same without any further delay, within three months from the date a certified copy of this order is received by the respondents.
Order Date :- 18.4.2017 prabhat