Delhi High Court
Anita Devi vs Union Of India (Uoi) And Ors. on 24 July, 2006
Equivalent citations: 131(2006)DLT381
Author: Reva Khetrapal
Bench: Mukundakam Sharma, Reva Khetrapal
JUDGMENT Reva Khetrapal, J.
1. By this writ petition, the petitioner prays for grant of special family pension to her in addition to ordinary family pension from the date of death of her husband, that is, with effect from 20.02.1999 after treating the death of her husband as attributable to or aggravated by military service.
2. The background facts in a nutshell are that Late Swr. Dharam Pal (hereinafter referred to as 'the deceased') was enrolled in the army on 20th July, 1989 after medical examination by the Competent Recruiting Medical Authority and was found free from any kind of disease at the time of enrolment. While serving with 43 Armed Regiment, the deceased was admitted in the Base Hospital, Delhi Cantonment, due to Acquired Immune Deficiency Syndrome (AIDS) and died on 20th February, 1999 at the said hospital. The petitioner being the legally wedded wife of the deceased and entitled to all pensionary and death benefits of her late husband applied for the grant of special family pension and the claim of the petitioner along with all relevant documents was forwarded to the PCDA (P) Allahabad duly completed on 2nd November, 1999. The said special family pension claim was, however, returned by the PCDA (P) Allahabad vide their letter dated 4th January, 2000 for want of AFMSF-93 (Part-I & Part-II) and other medical documents. The claim was re-submitted to the PCDA (P) Allahabad along with requisite documents vide Armoured Corps Record letter dated 3rd February, 2000, and on 3rd April, 1999, the petitioner was sanctioned PEA of family pension at Rs. 1,500/- per month till finalisation of family pension. However, the PCDA (P) Allahabad, after consideration of the claim of the petitioner, sanctioned ordinary family pension to her vide their letter dated 4th April, 2000, rejecting her claim for special family pension on the ground that she was not entitled to receive special family pension as the disease of her husband was neither attributable to nor aggravated by military service. A direction was also issued by the PCDA (P) Allahabad to stop PEA with effect from 1st January, 2000 and also to recover the amount of PEA already paid to the petitioner, that is, Rs. 22,929/- before payment of family pension vide PCDA (P) Allahabad PPO No. F/NA/2433/2000 dated 10th April, 2000. The petitioner preferred an appeal dated 21st February, 2000, which, after consideration by the First Appellate Authority, was rejected vide Army Headquarters letter dated 24th January, 2003 stating that 'the death of the deceased was not in any way related to duties of military service and was not attributable to military service.' A second appeal preferred by the petitioner on 21st July, 2003 met with a similar fate and was rejected by the Government of India, Ministry of defense vide letter dated 23rd February, 2005.
3. The short issue involved in the present writ petition, therefore, is whether the family of a soldier who at the time of enrolment was found physically fit and acquired AIDS during his military service is entitled to the benefit of Special Family Pension. Counsel for the petitioner to buttress the petitioner's claim has relied upon the provisions of Rule 213 of the Pension Regulations Part I of 1961 which read as follows:
213. A special family pension may be granted to the family of an individual if his death was due to or hastened by:
(a) a wound injury or disease which was attributable to military service.
Or
(b) the aggravation by military service of a wound injury or disease which existed before or arose during military service.
4. On the strength of Sub-rule (b) of the aforementioned Rule 213, counsel for the petitioner submitted that since this was a disease which arose during military service, as while being enrolled the petitioner was found fully fit, the petitioner was entitled to avail of the benefit of Rule 5 of the Entitlement Rules, 1982 which reads as under:
5. It is presumed that a person is physically fit at the time of enrolment unless any disability is noted. If the individual is subsequently discharged from service on medical ground, the presumption is that any deterioration in health has taken place due to military service.
5. Counsel for the respondents, on the other hand, contended that the petitioner is not entitled to the receipt of Special Family Pension since the deceased had died due to his own negligence and as a result of contact with a common sex worker (CSW). He further submitted that as per Army Headquarters, Director General Medical Service letter No. 76102/IMB/Pol/DGMS-5A dated 9th June, 2000 and AFMSF-93 (Part-II), the death was regarded as neither attributable to nor aggravated by military service. Therefore, the petitioner is not entitled for Special Family Pension as intimated to her vide order dated 24th June, 2003.
6. A scrutiny of the Pension Regulations for the Army, 1961 shows that awards for Special Family Pension are one of the three different types of family pensionary awards (the other two being Ordinary Family Pension and Liberalised Family Pension) admissible to armed forces officers and personnel below officer rank who die on account of causes which are accepted as attributable to or aggravated by service, and is irrespective of the length of service on the date of death. The touchstone for grant of Special Family Pension, therefore, is whether the officer/soldier died on account of causes which are attributable to or aggravated by service. Needless to say, this benefit is given more liberally in cases where the death occurs on active service. The question whether or not the petitioner is entitled to Special Family Pension under Rule 213, however, cannot be resolved by the court and is a matter for the determination of the respondents. In the present case, the deceased died on 20th February, 1999, i.e., within 10 years of his enrolment in the army due to 'Acquired Immune Deficiency Syndrome', but the question whether the said disease was attributable to or aggravated by military service is for the respondents to determine and the respondents alone are competent to determine the same.
7. In this context, reference may be made to Section 423 of the Regulations for the Medical Service of the Armed Forces under the heading 'Attributability to Service', which are extracted as under:
423. Attributability to Service-
(a) For the purpose of determining whether the cause of a disability or death is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions. It is, however, essential to establish whether the disability or death bore a casual connection with the service conditions. All evidence both direct and circumstantial, will be taken into account and benefit of reasonable doubt, if any, will be given to the individual. The evidence to be accepted as reasonable doubt, for the purpose of these instructions, should be of a degree of cogency, which though not reaching certainty, nevertheless carries a high degree of probability. In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his favor, which can be dismissed with the sentence 'of course it is possible but not in the least probable' the case is proved beyond reasonable doubt. If on the other hand, the evidence be so evenly balanced as to render impracticable a determinate conclusion one way or the other, then the case would be one in which the benefit of the doubt could be given more liberally to the individual, in cases occurring in field service/active service areas.
(b) The cause of a disability or death resulting from a would or injury, will be regarded as attributable to service, if the wound injury was sustained during the actual performance of 'duty' in armed forces. In case of injuries which were self inflicted or due to an individual(tm)s own serious negligence or misconduct, the board will also comment how far the disablement resulted from self-infliction, negligence or misconduct.
(c) The cause of a disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. Cases, in which it is established that service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which has led to an individual(tm)s discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individual(tm)s acceptance for service in the armed forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have risen during service.
(d) The question, whether a disability or death is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a Medical Board or by the Medical Officer who signs the death certificate. The Medical Board/Medical Officer will specify reasons for their/his opinion. The opinion of the Medical Board/Medical Officer in so far as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant circumstances can be attributed to service will, however, be decided by the Pension Sanctioning Authority.
(e) To assist the Medical Officer who signs the death certificate or the Medical Board in the case of an invalid, the C.O unit will furnish a report on:
(i) AFMS F-81 in all cases other than those due to injuries.
(ii) IAFY-2006 in all cases of injuries other than battle injuries.
(f) In cases where award of disability pension or reassessment of disabilities is concerned, a Medical Board is always necessary and the certificate of a Single Medical Officer will not be accepted except in case of stations where it is not possible or feasible to assemble a regular Medical Board for such purposes. The certificate of a Single Medical Officer in the latter case will be furnished on a Medical Board form and countersigned by the ADMS (Army)/DMS (Navy)/DMS (Air).
8. We have scrutinised the records with a view to ascertain whether the respondents have examined the claim of the petitioner in the light of the principles and norms prescribed by the rule making authorities. We find on the records a certificate of attributability issued by the Medical Officer, Base Hospital, Delhi Cantonment wherein it has been certified that the cause of death of the deceased is not attributable to or aggravated by military service for the following reason:
The infection (HIV) AIDS has been contacted as sexually transmitted disease.
The said certificate issued by the Medical Officer on 31st January, 2000 is counter signed by the ADMS who has recorded his agreement and thereafter, by the DDMS Command, who, in his turn, has concurred. Thus, as per AFMS Form-93 (Part-II), the death was held not to be attributable to military service as the infection (HIV) AIDS was medically opined to have been contacted by the deceased through sexual transmission. Accordingly, the PCDA (P) Allahabad held that the petitioner (widow) was not entitled for Special Family Pension.
9. Reference may also be made in this context to the Army Headquarters Director General Medical Services letter dated 9th June, 2000, which is relied upon by the respondents, wherein it is clearly stated that 'Confirmed HIV +ve case with Pulmonary Tuberculosis will be considered as AIDS case.' It is also laid down that Pulmonary Tuberculosis and HIV infection will not be assessed separately for attributability/aggravation. And that HIV infection is a 'STO' and hence, AIDS is self-inflicted, neither attributable nor aggravated.
10. It is also stated by the respondents that though at the time of the enrolment of the deceased, he had been medically examined to assess his physical and mental fitness, the said medical examination was carried out by a single Medical Officer and not by the specialist Medical Officer or by a constituted Medical Board of officers. In any event, in the instant case, the husband of the petitioner had died due to AIDS which had been acquired due to his own negligence as a result of contact with some sex worker. Accordingly, as per Army Headquarters, Directorate General Medical Service letter No. 76102/IMB/Pol/DGMS/-5A dated 9th June, 2000 and certificate of attributability (AFMSF-93, Part-II) issued by Base Hospital Delhi Cantonment, cause of death is not attributable to military service for the reason that the infection (HIV) AIDS has been contacted as sexually transmitted disease. Therefore, the petitioner is not entitled for Special Family Pension.
11. It is indisputable that the question of grant of Special Family Pension has to be decided on the facts established in a given case. Since pension is not a bounty or gratuitous payment or a matter of grace depending upon the will and caprice of the employer but is valuable right and property in the hands of the beneficiary, the same can only be granted in consonance with and upon the beneficiary fulfillling the criteria laid down by the pension regulations for award of the same. As noticed above, Rule 213 which governs the grant of Special Family Pension mandates that the same may be granted to the family of an individual if his death was due to or hastened by a wound, injury or disease which was attributable to or aggravated by military service. In the instant case, the respondents, in our considered opinion, have established that the ailment from which the deceased died cannot be attributed to military service. It has been so opined by the Medical Officer in consonance with Sub-rule (e) of Section 423 of the Regulations for the Armed Forces, which requires the C.O Unit to furnish a report on AFMSF in all cases other than those due to injuries, to assist the Medical Officer who signs a death certificate. The Medical Officer has opined that the death was not attributable to military service as death was on account of infection (HIV) AIDS, which had been sexually transmitted to the deceased. In terms of Clause (d) of Section 423, the opinion of the Medical Board/Officer 'in so far as it relates to the actual cause of disability/death and the circumstances in which it originated will be regarded as final'. The question 'whether the cause and the attendant circumstances can be attributed to service' will, however, be decided by the Pension Sanctioning Authority as laid down in Clause (d) of Section 423 of the regulations. Further, though in cases of disability pension or re-assessment of disability, in terms of Clause (f) of Section 423, a Medical Board is necessary and the certificate of a single Medical Officer will not be accepted unless the said certificate is furnished on a Medical Board form and countersigned by the ADMS (Army)/DMS (Navy)/DMS (Air), this provision is not applicable in cases where the question to be determined is not one of disability but whether death is attributable to or aggravated by service or not. In all such cases, it is the Medical Officer who signs the death certificate who will give his opinion as to the actual cause of the death and the circumstances in which it took place and the said opinion will be regarded as final, with the caveat that the question whether the cause and the attendant circumstances can be attributed to service will be decided by the Pension Sanctioning Authority (clause (d) of Section 423). In the instant case, the Pension Sanctioning Authority, viz. The PCDA (P) Allahabad has, on the basis of the opinion of the Medical Officer, opined that the petitioner's claim for Special Family Pension is not maintainable on the ground that the death of her husband is neither attributable to nor aggravated by military service. It is well settled that the opinion of the Medical Board/Medical Officer must be given due weightage and ought not to be lightly brushed aside. In the course of arguments, no cogent reason could be urged by the petitioner to show that the death of the deceased occurred due to a disease attributable to military service. We, therefore, see no reason to interfere with the findings of the PCDA (P) Allahabad, rejecting the claim of the petitioner on the basis of the medical opinion on the record, which findings have been duly confirmed by the First Appellate Authority on 21st July, 2003 and again in second appeal on 23rd February, 2005.
12. Counsel for the petitioner relied upon a judgment of the Punjab and Haryana High Court in Mandeep Kaur v. UOI to urge that in a case where the deceased died due to the consumption of a poison (aluminium phosphide) and it was opined that the death of the deceased was a clear cut case of suicide, the Punjab and Haryana High Court had set aside the order of the CCDA rejecting the claim of the petitioner for grant of family pension on the ground that the poison was not administered by the military authorities to the jawans in their food. The said case, in our opinion, is clearly distinguishable in view of the fact that the case being a case of suicide, was inquired into by a court of inquiry which was constituted for the purpose. The said court of inquiry gave the finding that the death of the husband of the petitioner was attributable to military service and it was held by the High Court that this finding could not be disturbed by the CCDA, the court of inquiry having given the same on the basis of cogent and convincing documents placed on the record. The present case is not a case in which the petitioner committed suicide and, therefore, the ratio of the decision in Mandeep Kaur's case (supra) is clearly distinguishable.
13. Having noticed the judgment of the Punjab and Haryana High Court cited by counsel for the petitioner, we may also notice that the Supreme Court in the case of Smt. Charanjit Kaur v. UOI and Ors. which was a case where the charred body of a lieutenant of the Indian Army was found with 98% burns, held that the petitioner was entitled to the grant of Special Family Pension in view of the fact that no inquiry was made into the matter by the army authorities though the incident had occurred in the presence of responsible army officers, and the case having been handled with culpable negligence and cynical indifference, the prayer of the petitioner for Special Family Pension could not be cast aside. The present case is not a case of this nature, but is a case of the husband of the petitioner having acquired AIDS through sexual transmission. The same considerations cannot, therefore, be applied as in aforementioned cases decided by the Punjab and Haryana High Court and the Supreme Court.
12. In view of the aforesaid discussion, we see no reason to interfere with the findings of the Pension Sanctioning Authority, the First Appellate Authority and the Second Appellate Authority. The writ petition is accordingly dismissed.