Punjab-Haryana High Court
Piari vs State Of Punjab & Ors on 30 October, 2015
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
VINOD KUMAR
2015.11.03 15:35
I attest to the accuracy and
authenticity of this document
Chandigarh
CWP No.1533 of 2014 [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.1533 of 2014
Date of decision:30 .10.2015
Smt. Piari ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. S.L.Chander Shekhar, Advocate,
for the petitioner.
Mr. V. Ramswaroop, Addl. A.G., Punjab.
*****
Rakesh Kumar Jain, J.
Satwant Rai S/o Bhagwan Dass was killed by the terrorists on 16.02.1992 during the disturbances in the State of Punjab. FIR No.18 dated 16.02.1992, under Sections 302, 307 IPC, 25/54/59 of the Arms Act and 3, 4 & 5 of the TADA Act was registered at Police Station Nakodar, District Jalandhar. The petitioner was granted `50,000/- on 24.02.1992 as legal heir of deceased Satwant Rai, out of which `20,000/- was paid by way of cheque and the NSCs of the remaining amount of `30,000/- were issued to the petitioner against receipt. The husband of the petitioner made a representation that except `50,000/-, neither subsistence allowance nor any job has been offered. It was found by the respondents that apart from payment of `50,000/- towards ex-gratia payment, a sum of `50,000/-, as enhanced grant, was paid in the form of Indira Vikas Patras in the year 1996. The deceased Satwant Rai was also survived by his two brothers, VINOD KUMAR 2015.11.03 15:35 I attest to the accuracy and authenticity of this document Chandigarh CWP No.1533 of 2014 [2] ***** namely, Paramjit Singh and Kamaljit Singh. Paramjit Singh applied for a job which was declined as per the government instructions vide order dated 08.12.2011 and the subsequent application filed by Kamaljit Singh for grant of job was also rejected on 22.08.2014. It is also an admitted fact that the petitioner submitted an application on 21.03.2014 to the Sub Divisional Magistrate, Phillaur for pension. The matter was referred to the Deputy Commissioner, Jalandhar on 27.03.2014 for appropriate orders and the Deputy Commissioner, vide his letter dated 03.04.2014, sent the case for taking action for grant of financial assistance as per the eligibility conditions laid down in the Government notification No.8/259/90-RR- II/10778 dated 10.05.1990. The case of the petitioner for grant of subsistence allowance was considered and she has been granted subsistence allowance vide order dated 07.04.2014. The petitioner was asked to submit her bank account number and after the bank account number was disclosed by the petitioner, the subsistence allowance in the shape of pension amounting to `5,000/- was released w.e.f. 12.03.2014 regularly.
During the course of hearing, the Court had passed the order dated 31.03.2015, which is reproduced as under:-
"Counsel for the respondents prays for an adjournment to seek instructions with regard to the grant of arrears of the pension which the petitioner would be entitled to at least from the date of initial application which she had made to the respondents for the release of the benefit.
Adjourned to 07.09.2015 for further consideration. Affidavit be filed within a period of eight weeks with an advance copy to the counsel for the petitioner."
In compliance of the aforesaid order, it is alleged that husband VINOD KUMAR 2015.11.03 15:35 I attest to the accuracy and authenticity of this document Chandigarh CWP No.1533 of 2014 [3] ***** of the petitioner had submitted an application for grant of benefit of pension which was received in the office of the SDM, Phillaur, vide Diary No.3845 dated 08.11.2011. The respondents had assessed the arrears from 08.11.2011 to the tune of `1,38,045/- and the said amount has been transferred by the District Treasury Officer, Phillaur, as arrears of pension, in the account of the petitioner bearing No.33784800613 of the State Bank of India, Phillaur on 18.05.2015.
Although there is no such prayer in the writ petition that the subsistence allowance should have been paid from the date of death of Satwant Rai but during the course of hearing, counsel for the petitioner has argued in that direction and has relied upon a Division Bench judgment of this Court rendered in the case of Saroj Kundra vs. State of Punjab and others, 1996(2) S.C.T. 260.
On the other hand, counsel for the respondents has submitted that whatever has been due to the petitioner, has been paid as the application was filed by the petitioner on 21.03.2014 for the grant of subsistence allowance but still the case of the petitioner has been considered by the respondents with effect from the date when the application by her husband was filed on 08.11.2011 and the arrears of pension has already been paid besides the monthly pension which is being paid regularly. It is, thus, submitted that the petitioner is not entitled to claim subsistence allowance from the date of death of her son.
The question thus arises in this case for consideration as to whether the petitioner is entitled to subsistence allowance from the date of VINOD KUMAR 2015.11.03 15:35 I attest to the accuracy and authenticity of this document Chandigarh CWP No.1533 of 2014 [4] ***** death of Satwant Rai or from the date the application for subsistence allowance was initially made?
In order to search the answer to the aforesaid question, the documents on record have to be looked into.
The respondents have admitted in their reply that the subsistence allowance has been given on the basis of notification dated 10.05.1990. The said notification has brought the rules called as "Subsistence Allowance to Widows of Riots/Terrorists Violence (Amendment) Rules, 1990". It is provided therein that if any widow is already drawing Financial Assistance less than `1,500/- per month from any other source and is entitled for financial assistance under this scheme, then the amount already sanctioned to her may be deducted before making the payment. The eligibility for claiming subsistence allowance is provided in Rule 3, which is as under:-
"2. ELIGIBILITY Sub Rule (i) and (ii) of Rule 3 shall be substituted as under:-
i) Sikh migrant orphans who have no earning member to help them and have no means of livelihood;
ii) Sikh migrant destitute who have no earning member to help them and have no means of livelihood.
iii) Disabled Sikh migrants whose physical disability rendered them incapable of earning livelihood.
iv) Sikh migrants/widows who lost their breadwinners during the period from 31.01.1984 to 07.11.1984 (both days inclusive), in the riots following the assassination of the Prime Minister Mrs. Indira Gandhi.
v) widows who lost their breadwinner due to extremists/terrorists activities/action of security forces acting in aid of civil power.VINOD KUMAR 2015.11.03 15:35 I attest to the accuracy and authenticity of this document Chandigarh CWP No.1533 of 2014 [5]
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vi) Orphans, destitutes and 100% physically disabled persons, rendered as such, due to terrorists/extremists activities/action by Security forces serving in aid of Civil power.
vii) The dependent parent (s) of innocent civilians killed in terrorists violence/by security forces acting in aid of Civil Power.
viii) Dependent parent(s) of the innocent civilians killed if he was unmarried, provided the son was the sole breadwinner for his parent(s).
Provided that the subsistence allowance will stop as and when the beneficiary gets employed or an able bodied person becomes an earning member of the family."
The rates of subsistence allowance is also provided, which are as under:-
"Rate of Subsistence Allowance Subject to the provisions of Rules 7 and 10 of Subsistence Allowance payable to each application shall be @ `1,000/- per month except the independent parent(s) as mentioned in Sub-Rule
(vii) of Rule 3, where the subsistence allowance shall be `1,000/-
per month. The amount shall be permitted through Bank Draft to the claimants. Subsistence allowance under this scheme is payable for the life time, with effect from 01.06.1990."
The aforesaid Rules were amended vide notification dated 30.09.1992 and were called "Subsistence Allowance to Widows of Riots/Terrorist Violence (2nd Amendment) Rules, 1992, under which the rate of subsistence allowance was provided as under:-
"Rate of Subsistence Allowance The rate of subsistence allowance has been enhanced from `1,000/- per month to `1,500/- per month for the terrorist affected widows and for both the parents or mother alone or father alone, if alive, in case their only son or all sons (married or un-married) are killed by the terrorists. It has also been decided to pay the VINOD KUMAR 2015.11.03 15:35 I attest to the accuracy and authenticity of this document Chandigarh CWP No.1533 of 2014 [6] ***** subsistence allowance at the rate of `300/- per month to both the parents or mother alone or father alone, if their any son is alive."
The payment was made effective in the Rules of 1990 w.e.f. 01.06.1990, whereas it was made effective in the Rules of 1992 w.e.f. 01.04.1992. There was further amendment on 07.12.1998, which was called "Subsistence Allowance to Widows of Riots/Terrorists Violence (1st Amendment) Rules, 1998" in which the rate of subsistence allowance is provided as under:-
"Rate of Subsistence Allowance The Rate of subsistence allowance has been enhanced from `1,500/- per month to `2,500/- per month for the Sikh migrants widows of Innocent civilians killed in November, 1984 riots during the period from 31.10.1984 to 07.11.1984 as well as for those sikh migrants who have suffered 100 percent permanent disability in the said riots."
And the payment was made effective from 01.08.1998. On 26.07.2001, a clarification was made regarding giving of subsistence allowance to the parents of the innocent persons killed at the hands of terrorist/security forces while taking action against the terrorists, with reference to the aforesaid Rules of 1990, 1992 and 1998. The said clarification reads as under:-
"With regard to the instructions on the subject cited above, it had been made clear that those parents whose one son have been killed at the hands of the terrorists and others are alive then they have to be given subsistence allowance. But it has been brought to the notice of Smt. Lakshmi Kanta Chawla, M.L.A. that office of Deputy Commissioner, Amritsar, has not been giving subsistence allowance to those parents, whose other sons are alive and one son have been killed at the hands of the terrorist. Above instructions had already been sent to all the Deputy Commissioners and Sub VINOD KUMAR 2015.11.03 15:35 I attest to the accuracy and authenticity of this document Chandigarh CWP No.1533 of 2014 [7] ***** Divisional Magistrates and Commissioners of Division for compliance. But it is again clarified that as per instructions issued by this department vide No.8/259/90-RR-2/10778 dated 10.5.1990 from dated 1.5.1990 @ Rs.100/- per month and as per instruction No.8/229/90-RR-2/296 dated 30.9.1992 from dated 1.4.1992 this rate has been increased to Rs.300/- and as per instruction No.6/59/98-RR-2/14902 dated 7.12.1998 this rate has been increased to Rs.750/-. Therefore, those persons who had not been given the subsistence allowance, then in those cases action again be taken as per these instructions and payment be made to the beneficiaries.
2. That the above instructions be complied with meticulously." There is no dispute that Satwant Rai, son of the petitioner, died in 1992 when the Rules of 1990 were in vogue but there is also no dispute that the application for subsistence allowance was made by the husband of the petitioner on 08.11.2011 to the SDM, Phillaur and by the petitioner on 21.03.2014. The respondents had initially paid the subsistence allowance w.e.f. 12.03.2014 but thereafter paid the arrears also from 08.11.2011, from the date when the application was filed by the husband of the petitioner.
The subsistence allowance is actually need-based which is clear from the word "subsistence" itself. The petitioner had initially asked for job for her son Paramjit Singh which was rejected on 01.12.2011 and then for Kamaljit Singh which was rejected on 22.08.2014. Application for subsistence allowance was filed by her husband initially on 08.11.2011 and subsequently by her on 21.03.2014. Not only the petitioner has been given the arrears from the date of initial application filed by her husband on 08.11.2011 to the tune of `1,38,045/- but also she is being paid the subsistence allowance of `5,000/- w.e.f. 12.03.2014, therefore, she is not VINOD KUMAR 2015.11.03 15:35 I attest to the accuracy and authenticity of this document Chandigarh CWP No.1533 of 2014 [8] ***** entitled to ask for subsistence allowance after almost 22 years of the death of Satwant Rai who was alleged to have been killed in the year 1992 and also cannot support her case with the decision rendered by this Court in Saroj Kundra's case (supra) because in that case Dr. Sushil Kundra, a practising Medical Officer at Khanna was killed in 1993 and immediately thereafter an application was filed by her wife for financial assistance and since the subsistence allowance was not granted, the writ petition was filed in the year 1995 in which the order was passed on 01.12.1995 to grant subsistence allowance from the date of death. There was hardly any delay on the part of the applicant therein for claiming the subsistence allowance.
Thus, in view of the aforesaid discussion, I am of the considered opinion that the petitioner cannot claim subsistence allowance from the date of death of her son who was alleged to have died on 16.02.1992 and the application for subsistence allowance, initially filed by the husband of the petitioner on 08.11.2011 and subsequently by the petitioner herself on 21.03.2014 has been rightly allowed.
Consequently, the present petition is hereby dismissed being denuded of any merit.
October 30, 2015 (Rakesh Kumar Jain) vinod* Judge