Punjab-Haryana High Court
Sumitra Devi vs Union Of India & Another on 17 February, 2014
Author: Hemant Gupta
Bench: Hemant Gupta, Fateh Deep Singh
CWP No.3810 of 2013 - 1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARAYANA AT CHANDIGARH
CWP No.3810 of 2013
Date of Decision: 17.02.2014
Sumitra Devi ....Petitioner
Versus
Union of India & another ....Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Rajeev Anand, Advocate, for the petitioner.
Mrs. Kamla Malik, Advocate, for the respondents.
HEMANT GUPTA, J.
Challenge in the present writ petition is to an order passed by the Armed Forces Tribunal on 10.01.2013, whereby the claim of the petitioner in respect of Liberalized Family Pension and other benefits consequent to demise of her husband while performing Practice Training Camp deployed in 'Operation Vijay' was rejected.
Satpal (deceased) - husband of the petitioner was enrolled in the Corps of Signals, Indian Army on 21.05.1988. He served the Indian Army from one place to another and remained in Shape-I physical standards performing arduous nature of military duties. He was deployed in 'Operation Vijay' at Indo-Pakistan Border as a Signalman with 350 Infantry Brigade Signal Company under 15 Infantry Division Signal Regiment (IDSR) during Kumar Vimal Kargil conflict. While performing active duty in 'Operation Vijay' and 2014.03.03 13:10 I attest to the accuracy and integrity of this document Chandigarh CWP No.3810 of 2013 - 2- participating in actual practice camp, the husband of the petitioner died at early hours i.e. 0345 hours on 04.09.1999. The Commanding Officer vide letter dated 10.09.1999 informed the petitioner that her husband reported pain in his chest during the practice camp upon which he was taken to Military Hospital, where the Doctors declared him dead during the duty.
The petitioner was initially granted Ordinary Family Pension while declining the claim of Special Family Pension. The petitioner filed an appeal, which was accepted and Special Family Pension was granted w.e.f. 05.09.1999 by treating the death of her husband due to Military Service. Thereafter, the petitioner claimed Liberalized Family Pension and other benefits like ex gratia payments to the petitioner vide representation dated 22.01.2010 (Annexure P-3). However, the said representation was not processed, which led to invocation of jurisdiction of the Armed Forces Tribunal vide Original Application No.904 of 2010.
The claim of the petitioner was resisted on the ground that the husband of the petitioner has not died in a situation/condition as specified in Categories 'D' & 'E' contained in letter dated 31.01.2001 issued by Ministry of Defence, Government of India. Such claim of the petitioner was declined by the Armed Forces Tribunal vide order impugned in the writ petition. The Tribunal has held that though death of the petitioner's husband was rightly classified as attributable to Military Service entitling the petitioner to Special Family Pension, but could not be classified under Categories 'D' & 'E' of letter dated 31.01.2001, so as to entitle her to the benefits thereof. The Tribunal also held that if the notification alone was to be the criteria for classifying death under Category 'E', then all cases of death within these areas irrespective of the circumstances would be classified under Category 'E', which obviously is not the intent. Death due to any reason in these areas would not be classified Kumar Vimal 2014.03.03 13:10 I attest to the accuracy and integrity of this document Chandigarh CWP No.3810 of 2013 - 3- under Categories 'D' & 'E', but would be classified depending upon the circumstances of each case.
We have heard learned counsel for the parties and find that the order dated 10.01.2013 (Annexure P-14) passed by the Armed Forces Tribunal declining the Liberalized Family Pension and other benefits like ex gratia amount is not sustainable in law and that the petitioner is entitled to the benefits contemplated by the Ministry of Defence, Government of India in its letter dated 31.01.2001. The relevant extract from the said letter reads as under:
"Sub.: Implementation of the Government Decisions on the Recommendations of the fifty Central Pay Commission regarding disability pension / war injury pension / special family pension / liberalized family pension / dependent pension / liberalized dependent family pension for the armed forces officers and personnel below officer rank retiring, invaliding or dying in harness on or after 01.01.1996.
xx xx xx Part II - PENSIONARY BENEFITS ON DEATH / DISABILITY IN ATTRIBUTABLE / AGGRAVATED CASES.
xx xx
CATEGORY B
Death or disability due to causes which are accepted as attributable to or aggravated by military service as determined by the competent medical authorities. Diseases contracted because of continued exposure to a hostile work environment, subject to extreme weather conditions or occupational hazards resulting in death or disability would be examples.
xx xx
CATEGORY D
Death of disability due to acts of violence/attack by terrorists, anti social elements etc. whether on duty other than operational duty or even when not on duty. Bomb blasts in public places or transport, indiscriminate shooting incidents in public etc. would be covered under this category, besides death / disability occurring while employed in the aid of civil power in dealing with natural calamities.
CATEGORY E Death or disability arising as a result of:-
(a) enemy action in international war.
x x x
(f) War like situations including cases which are attributable
to/aggravated by:-
Kumar Vimal
2014.03.03 13:10
I attest to the accuracy and
integrity of this document
Chandigarh
CWP No.3810 of 2013 - 4-
(i) extremist acts, exploding mines etc. while on way to an operational area.
(ii) battle inoculation training exercises or demonstration with live ammunition.
(iii) kidnapping by extremists while on operational duty.
x x x
(i) Operations specially notified by the Govt. from time to time.
x x x"
It is not disputed that 'Operation Vijay' relating to Kargil conflict is an operation notified by Government of India falling in Clause (i) of Category 'E' of the letter dated 31.01.2001. It is also not disputed that the husband of the petitioner has been given Special Family Pension on the finding that the death is attributable or aggravated by Military Service. However, whether the petitioner would be entitled to Liberalized Family Pension, as detailed in Para 6 and other benefits as are contemplated by the said letter, is the question requiring adjudication?
Learned counsel for the respondents has argued that the death or disability irrespective of the circumstances falling in Clause (i) of Category 'E' are not covered for Liberalized Family Pension. It is the death or disability arising in the battle field, as enumerated in Clauses (a) to (h) of Category E alone would entitle the family to Liberalized Family Pension.
We do not find any merit in the argument raised by the learned counsel for the respondents. Each of the Clauses in Category 'E' is independent clause. If the family of the deceased Army Personnel is able to satisfy that either the death or the disability falls within any of the conditions specified in Category 'E', the family would be entitled to Liberalized Family Pension. The reasoning given by the Armed Forces Tribunal that all deaths in the operations notified by the Government of India from time to time are not intended to be covered for the benefit of Liberalized Family Pension is not Kumar Vimal 2014.03.03 13:10 I attest to the accuracy and integrity of this document Chandigarh CWP No.3810 of 2013 - 5- based upon any rationale. The nature and extent of the benefits intended to be conferred by the Government of India requires liberal interpretation. The operations notified by Government of India from time to time, which fall within Clause (i) of Category 'E' do not contemplate that death or disability has to be result of any of the conditions falling in Clauses (a) to (h). Therefore, in the case of death or disability in an Operation notified by the Government of India from time to time, the family would be entitled to Liberalized Family Pension. The intention of the letter dated 31.01.2001 is to help the families of the soldiers, who participated in the Operations so notified. The death or disability while participating in such Operations would be covered by the Clauses (a) to (h), but the deaths or disabilities in any other condition would be covered by Clause (i).
A Division Bench of Delhi High Court considered the letter dated 31.01.2001 in a case reported as Mrs. Manju Tiwari Vs. Union of India & others (2005) DLT 451, wherein the death of an Army Personnel was on account of acute ante rosepetal and interior wall myocardial infarction. The Court has held that the death of the petitioner's husband was on account of participation in an operation in a war like situation, thus, covered under Category 'E'.
Another Division Bench of Delhi High Court in W.P.(C) 4488 of 2012 titled "Major Arvind Kumar Suhag Vs. Union of India & others" decided on 21.02.2013, wherein the death of Army Personnel was in an accident on account of head injuries. It was held that the injuries were classifiable as falling under Category 'E'(i) i.e. Operations specially notified by the Government of India from time to time. The Court held to the following effect:
"12. What persuaded the Tribunal to hold otherwise is that the petitioner's injuries were not incurred during actual operations. In doing so, the Tribunal Kumar Vimal restricted the eventualities in category-E(j) to actual operations, i.e. injuries 2014.03.03 13:10 I attest to the accuracy and integrity of this document Chandigarh CWP No.3810 of 2013 - 6- incurred during military combat or such like situations or as a result of explosion of mines etc. This would appear from its observation that only if someone is victim to extremism or any other contingency as a result of injury, would it be attributable to operation. With great respect, such a narrow interpretation of what is otherwise a widely phrased condition, is unwarranted. This would necessarily imply that those who are on the way - like the petitioner, in an operation-notified area and are intrinsically connected with the success of such operations cannot ever receive war-injury pension even though their aid and assistance is essential and perhaps crucial for its success. The classification of the residual head, i.e. "operations specially notified by the government from time to time" has to be read along with the broad objective of the policy, i.e. - those who imperil themselves - either directly or indirectly - and are in the line of fire during the operations, would be covered if the injuries occur in that area or in the notified area of operation. This is also apparent from the situations covered in Clause(g) and
(h) which nowhere deal with battle or war. In fact, clause (h) even covers injuries and death which occurs while personnel are "employed" in the aid of civil power in quelling agitation, riots or revolt by demonstrators" This means that if someone is travelling in the thick of such unrest and the accident results in death or injury, his next of kin would be entitled to war-
pension whereas those who actually suffer similar injuries in an area where operations are notified, would not be entitled to such war injury pension." In view of the above, we find that the order passed by the Armed Forces Tribunal declining the claim of the petitioner for Liberalized Family Pension and other benefits cannot be sustained. Consequently, while allowing the writ petition, we direct the respondents to pay the Liberalized Family Pension and other benefits to the petitioner as contemplated by Government of India in its circular dated 31.1.2001 within a period of three months from the receipt of certified copy of this order.
(HEMANT GUPTA)
JUDGE
17.02.2014 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2014.03.03 13:10
I attest to the accuracy and
integrity of this document
Chandigarh