Patna High Court
Shanti Devi vs The Union Of India on 3 April, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7461 of 2021
======================================================
Shanti Devi, Wife of Late Bhubaneshwar Singh, resident of village-
Motichak, P.O.- Kharasin, Karpi, District- Arwal, Bihar, Pin-804419
... ... Petitioner/s
Versus
1. The Union of India through secretary, Ministry of Defence, New Delhi
2. The Army Chief, Central Secretariat, South Block, Integrated Headquarters
of MoD (Army) New Delhi-110011
3. The Principal Controller of Defense Accounts (Pension) Allahabad
4. The Officer in Charge, Record Office, EME Records, Sekandarabad, Pin
900453
5. The Senior Record Officer, OIC Records, EME Records, Sekandarabad
6. The Public Information Officer, RTI Cell, EME Records, Pin 900453, C/o
56 APO
7. The Punjab National Bank through its Chief Manager, CPPC, Punjab
National Bank, PCDA (P) Campus, Draupadi Ghat, Allahabad
8. The Branch Manager, Punjab National bank, Deokund, Aurangabad
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Amit Shrivastava, Sr. Advocate
Mr. Kunal Tiwary, Advocate
For the Respondent/s : Dr. Krishna Nandan Singh, Addl. S.G.
Mrs. Kanak Verma, CGC
For the PNB : Mr. Mritunjay Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 03-04-2024
Heard Mr. Amit Shrivastava, learned senior counsel
along with Mr. Kunal Tiwary, learned counsel for the petitioner,
Dr. K. N. Singh, learned Additional Solicitor General along with
Mrs. Kanak Verma, learned CGC for the Union of India and Mr.
Mritunjay Kumar, learned counsel for the Bank.
2. The question for consideration before this Court
is with regard to the entitlement of the petitioner for grant of
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Special Family Pension and Ex-gratia on account of death of the
petitioner's husband attributable to Military Service.
3. The petitioner, wife of late Bhubaneshwar Singh,
by invoking the extraordinary jurisdiction of this Court under
Article 226 of the Constitution of India seeking issuance of a
writ in the nature of mandamus commanding the respondent
authorities for grant of Special Family Pension and Ex-gratia in
favour of the petitioner along with arrears of Special Family
Pension with appropriate interest for the extra ordinary delay
and lapses on behalf of the authorities on account of the reason
that the death of the petitioner's husband was attributable to his
Military Service.
4. The facts, necessary for adjudication of the issue
are that the petitioner's husband was a Sepoy in the Indian Army
and while he was posted at Hissar on 05.07.1989 he went
missing from his duty and after investigation, when the
petitioner's husband could not be found he was declared
deserter w.e.f. 05.07.1989. Subsequently, in the court of enquiry,
after a considerable period of four years when the dead body of
the petitioner's husband or any information regarding his
presence or disappearance could not be found, he was declared
missing presumed dead in the year 1992.
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5. Learned senior counsel representing the
petitioner vigorously argued that as the petitioner was totally
dependent upon earning of her husband and was under bona fide
expectation that the respondent authorities will start the family
pension, for which the petitioner made several correspondences,
a letter was sent to Pension Clearance Department PCDA (P)
Allahabad from the EME Records (Secundrabad) for
finalization of family pension and Death-cum-Retiral Gratuity
claim specifically mentioning therein that the deceased died
while on service on 05.07.1989. However, the petitioner has
been informed that the family pension claim could not be settled
for want of certain documents, including the original copy of the
F.I.R. lodged in police station regarding missing of petitioner's
husband, investigation report of the police authority as well as
date of missing of the deceased. The aforenoted information has
also been given to EME Records, Secundrabad in response
thereto vide Annexure-3 to the writ application, the details of
the date of missing of the petitioner's husband along with the
photo state copy of SSP, Hissar and report of SHO, Sdar, Hissar
were sent to the PCDA (P) Allahabad with specific averments
that the Police Station, Sadar, Hissar has refused to entertain the
complaint of missing of the petitioner's husband, as the
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occurrence is of five years ago and was difficult to be
investigated. On receipt of the aforesaid response, the PCDA
(P), Allahabad again vide letter dated 28.11.1994 advised the
authority to forward the copy of the F.I.R. or if the same is
refused by the Police station (Sadar) Hissar, it may be reported
before the Kotwali or before the higher authorities for
investigation and report on the subject. It was specifically stated
that the lodging of the F.I.R. in case of missing is mandatory in
audit for adjudicating the claim for grant of family pension by
PCDA (P) Allahabad.
6. The petitioner being a widow and an illiterate
lady made to run from pillar to post taking the plea of
technicalities for redressing the claim of family pension
compelled her to approach all the concerned higher authorities
with a prayer to settle the family pension and finally the
petitioner having seen the insensitiveness of the respondent
Army authorities and shifting their responsibilities of lodging
the F.I.R. to the petitioner for the occurrence took place at
Hissar, approached this Court by filing C.W.J.C. No. 15598 of
2017 with a prayer to intervene in the matter and to direct the
respondent authorities to start family pension and the arrears
thereof. The petitioner also made a detailed representation
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before the Army Chief on 16.04.2018 describing the injustice
done to her. Ultimately some mercy has been shown to the
petitioner and it was directed to the officers of the EME Records
to take extreme compassionate view and to make every effort
under the sun to provide authorized pension to the petitioner. It
would be worth noting here that immediately after filing of the
writ petition, the respondent authorities lodged F.I.R. after a
lapse of 29 years. In that premise, the learned senior counsel
argued that the petitioner was deprived of her legitimate claim
of her family pension for inaction on the part of the respondent
authorities, as they refused to lodge F.I.R. for the missing of the
petitioner's husband and only on the intervention of this Court,
F.I.R. could be lodged in the year 2018.
7. The writ petition finally came to be disposed of
vide order dated 15.03.2019 (Annexure-12 to the writ petition)
with a direction to PCDA (P) Allahabad to consider the claim of
the petitioner and to make the payment of entire retiral benefits,
including the pension, family pension with admissible interest
within a period of three months.
8. Adverting to the aforesaid facts, learned senior
counsel would thus submits that the claim of the family pension
of the petitioner was repeatedly refused by the PCDA Allahabad
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and EME Record on technical grounds and despite the direction
of the Army Headquarter to consider the case of the petitioner
with extreme compassionate view vide order dated 19.05.2018,
produced as Annexure-11 to the writ petition, the petitioner has
not been allowed the Special Family Pension and the Ex-gratia,
though the death of the petitioner's husband occurred in a
mysterious circumstances, while in duty at Hissar.
9. Aggrieved, the petitioner once again represented
before the Commanding Officer-cum-Chief Authority, EME
Records, Secundrabad under Right to Information Act, 2005 as
to why the payment of Ex-gratia amount and the Special Family
Pension have not been accorded to her, the petitioner was
informed that as her husband was declared missing presumed
dead, thus, not eligible for Special Family Pension.
10. At this juncture, learned senior counsel has
taken this Court to the finding of the Court of inquiry
(Annexure-16 to the writ application) and submitted that even
the Court of inquiry had opined that the allegation of the
petitioner regarding some foul play against her husband has
never been disproved and, therefore, it was directed to be
investigated by a competent investigating agency through
proper investigation. However, the respondent authorities never
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ever handed over the matter to any investigating agency and in
fact did not lodge the F.I.R. in order to close down the matter by
declaring the petitioner's husband to be missing presumed dead
in the year 1992 by giving a complete go-bye to Section 108 of
the Indian Evidence Act. A man is alive or dead, is not proved
unless he has not been heard for seven years, though naturally
he would have heard of him if he had been alive, the burden of
proving that he is alive is shifted to the person who affirms it.
Reliance has also been made on a decision of the Hon'ble
Supreme Court in the case of LIC of India v. Anuradha, (2004)
10 SCC 131.
11. Learned senior counsel further contended that
the rejection of the claim of the petitioner for Special Family
Pension in view of Para 213 of the Pension Regulations For the
Army, 1961 (Part-II) is wholly misconceived and not sustainable
in view of the admitted fact that the husband of the petitioner
went missing all of a sudden from his duty and in spite of
several orders and directions neither F.I.R. was lodged nor the
matter of missing was handed over to any investigating agency
in order to get the exact status of the missing or the death of the
petitioner's husband, though in the Court of Inquiry, the
contention of the petitioner regarding foul play with her
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husband has not been denied. In the aforesaid premise, if the
claim of the petitioner for Special Family pension is being
rejected in the light of Para.213 of Pension Regulations For the
Army, 1961, then the respondents must satisfy the Court that
death of the husband of the petitioner was not due to wound,
injury or disease attributable to military service, which fact
could have only been ascertained when the matter would have
been investigated by the competent agency, but due to the
lapses, evidently on the part of the authorities it could not be
done and now the authorities cannot be allowed to take benefit
of their own lapses. In this connection, reliance has been made
on a decision of the Hon'ble Supreme Court in the case of State
of Bihar & Ors. v. Kalyanpur Cement Ltd., (2010) 3 SCC 274.
12. It is also submitted that in the case of Charanjit
Kaur (Smt) v. Union of India, (1994) 2 SCC 1 the Hon'ble
Supreme Court directed the Indian Army to pay Special Family
Pension to the widow of a deceased, whose death was occurred
under mysterious circumstances while in service and also found
her entitled to a compensation of Rs.6,00,000/-, apart from other
allowances.
13. While concluding his submission, he also drew
the attention of this Court to an order passed by the Armed
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Forces Tribunal, Regional bench, Chennai (O.A. No. 47 of
2013) that in exactly identical facts where the husband of the
applicant was missing presumed to be dead, the Tribunal has
held that applicant is entitled for Special Family Pension from
the date of missing of her husband on presumption of his death.
14. Refuting the contention, as noted hereinabove,
Dr. K. N. Singh, learned senior counsel representing the Union
of India, primarily submitted that consequent to establishment
of Armed Forces Tribunal, in terms of Armed Forces Tribunal
Act, 2007 for redressing the grievance relating to service matter
of all the three Armed forces, the present matter is required to be
transferred to the concerned Armed Forces Tribunal to redress
the grievance in terms of Section 34 of the Armed Forces
Tribunal Act, 2007. Learned senior counsel further argued that
apart from the efficacious remedy, the writ petition is further
barred by the principles of Res judicata/Constructive Res-
judicata inasmuch as earlier, the petitioner had approached this
Court for grant of Family Pension, which has already been
accorded to her and thus the plea of Special Family Pension/Ex-
gratia, as was available to the petitioner in the previous
litigation, now cannot be raised in the present writ petition,
which is admittedly between the same party and once the matter
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has already been adjudicated, the same cannot be raised
subsequently.
15. Further in response to the submissions based
upon finding of the Court of Inquiry indicating about some foul
play against her husband is concerned, he submitted that the
recommendation of the opinion of the Court of Inquiry was
placed before the 57 Mechanized Brigadier where the same has
been denied and lastly the matter was placed before the Major
General, GOC, who vide his letter dated 15.02.1992
categorically stated that there is no evidence to show that
Bhubaneshwar Singh had been missing due to any foul play by
any one, but his missing/presumption of death could not be
ruled out and directed this case be further investigated by
appropriate civil investigating agencies with a view to establish
the final status of the individual.
16. Adverting to the aforesaid facts, learned senior
counsel reiterated his submission that no foul play was found in
the missing of the petitioner's husband.
17. Mr. Singh, learned senior counsel then took this
Court to para 213 of the Pension Regulations for the Army, 1961
(Part-I) and submitted that it deals with Special Family Pension
and in no uncertain terms stipulates that a special family pension
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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. Referring to the
aforesaid requirement for Special Family pension, he submits
that the husband of the petitioner was missing presumed dead
and is not fulfilling the above conditions for grant of Special
Family Pension, hence the petitioner is not entitled for the same.
18. He next submitted that the petitioner is also not
entitled for grant of Ex-gratia lump sum compensation, as the
same is only applicable to the family of the Armed Forces
Personnel, who died due to accident in course of performance of
duties attributable to acts or violence by terrorists, anti-social
element etc. death occurring during enemy action in
international war or border skirmishes; action against militants
terrorists, extremists etc., death occurring while on duty in the
specified high altitude inaccessible border posts etc. on account
of natural disasters extreme weather conditions and death
occurring during enemy action in war and during evacuation of
Indian Nationals from a war prone zone in foreign country. For
the aforenoted contention, he referred Ministry of Defence letter
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no. 20(1)/98/D (Pay/Service) dated 22.09.1998, as amended
vide letter no. 20(5)/2009/D (Pay/Service) dated 04.06.2010
and letter no. 20(2)/2016/D (Pay/Service) dated 02.11.2016.
19. Referring to the facts of the present case,
learned senior counsel next submitted that the reliance of the
petitioner in the case of Smt. Charanjit Kaur (Supra) is not
applicable, as in the said case the husband of Charanjeet Kaur
(Smt) was found burnt in the field area and since the death of
her husband took place in a mysterious circumstances, the
Hon'ble Supreme Court had passed the judgment stating that the
responsibility of his death is prima facie traceable to the act of
criminal omissions and commissions on the part of the
authorities concerned. However, in the instant case, there is no
such mysterious action or no act of criminal omissions and
commissions on the part of the respondent authorities, since the
husband of the petitioner was serving in a peaceful area and was
absent from the place of his duty, his case cannot be said to be
identical to the case of Smt. Charanjit Kaur (Supra). All the
more, the husband of the petitioner was declared missing
presumed dead, his death cannot be compared to be identical to
the said case, hence she was rightly granted ordinary family
pension, which has already been paid to her in compliance of
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the order of the Hon'ble Court, as referred hereinabove.
20. Learned Senior Counsel further buttressed his
submission based upon the decision in the case of Renu Devi
Vs. Union of India & Ors., (2020) 14 SCC 600, to counter the
contention of the petitioner.
21. This Court has carefully heard the rival
contention of the learned senior counsel appearing on behalf of
the parties and also anxiously perused the materials available on
record.
22. So far the issue of alternative, efficacious
remedy is concerned, time without number the Apex Court as
well as this Court has held that alternative remedy cannot be
operated as an absolute bar to entertain a writ petition so as to
amount to denudation the power of the High Court under Article
226/227 of the Constitution of India, which power can always
be exercised in the facts and circumstances of the case,
notwithstanding that some alternative remedy is available to the
person aggrieved, which he/she has not exhausted.
23. It is also trite that once the pleading are
complete in respect of the merit of the case and the issue of
maintainability has not been decided at the preliminary stage, it
would be proper to adjudicate the matter, in stead of relegating it
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to an alternative remedy, if the facts warrants. Such issue has
been discussed by the Apex Court in the case of Smt. Kanak &
Anr. Vs. U.P. Avas Evam Vikas Parishad & Ors., (2003) 7 SCC
693.
24. Now coming to the issue of the writ petition
being barred by Res-judicata/Constructive Res-judicata, it is
well settled that for invoking the plea of Res-judicata on the
general principles of law all that is necessary is to establish that
the same matter between the same party had been previously
decided by the court of competent jurisdiction, whereas the
Constructive Res-judicata applies that the matter might and
ought to have been raised in a suit, but has not been raised
cannot be taken up in a subsequent suit, if it fulfills conditions
prescribed under Section 11 of the Act.
25. Admittedly, in the earlier round of litigation, the
petitioner had filed the writ petition seeking intervention of the
Hon'ble Court under Article 226 of the Constitution of India for
grant of admissible family pension, which was being not
accorded to the petitioner on the plea of technicalities of non-
institution of the F.I.R. and thus the learned Court having found
a glaring case of laches on the part of authorities has been
pleased to direct for payment of retiral benefits including the
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pension/family pension in accordance with law. However, the
claim of the petitioner for Special pension/Ex-gratia lump sum
amount has not been considered, which in the opinion of this
Court gives a separate cause of action, all the more, when the
claim of the petitioner for grant of Special Family Pension/Ex-
gratia lump sum amount has been rejected during the pendency
of the present petition vide order dated 15.10.2019 and the same
has put to challenge by filing an interlocutory application,
bearing I.A. No. 1 of 2022. Thus, in such circumstances, this
Court does not find that the present writ petition is anyway
barred by principles of Res-judicata/ Constructive Res-judicata.
26. Now coming to the issue of entitlement of the
Special Family pension, the families of the defence personnel
are concerned, it would be apposite to quote the extract of para
213 of the Pension Regulations for the Army, 1961 (Part-I),
which reads 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
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existed before or arose during military
service."
27. It would be also desirable to extract the
provisions of AO No.1/2003/MP and GoI, MoD letter No.
12(16)/86/D (Pen/Sers) dated 03.06.1998. While the AO gives
the detailed procedures to be adopted in the case of missing
personnel by the Units, the letter dated 03.06.1998 deals
specifically with the release of DCRG, leave encashment and
Family Pension in respect of Armed Forces Personnel who are
missing and reads as under:-
"No. 12 (16)/86/D (Pen/Sers
Government of India/Bharat Sarkar
Ministry of Defence/Raksha Mantralaya
New Delhi, Dated 3rd June, 1998
To
The Chief of the Army Staff
The Chief of the Naval Staff
The Chief of the Air Staff
Subject RELEASE OF DCRG, LEAVE ENCASHMENT
AND FAMILY PENSION IN RESPECT OF
ARMED FORCES PERSONNEL WHO ARE
MISSING
Sir,
A number of cases have been referred to this
Ministry for grant of terminal and other pensionary
benefits to the families of service personnel who have
suddenly disappeared while operational and non-
operational service and whose whereabouts are not
known. At present all such cases are considered on
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merits. In the normal course unless a period of 7
years has elapsed from the date of disappearance of
the employee, he cannot be deemed to be dead and
therefore the retirement benefits cannot be paid to
the family. This principle is based on Section 108 of
the Indian Evidence Act which provides that when
the question is whether the man is alive or dead and
it is proved that he had not been heard of for 7 years
by those who would naturally have heard of him had
he been alive, the burden of proving that he is alive
is shifted to the person who affirms it. This has
resulted in great hardship and distress to the families
who have to wait for 7 years before any terminal
benefits could be paid to them.
2. The President is therefore pleased to decide that
when a member of the Indian Armed Forces is
declared missing while in service the family will be
paid the following benefits subject to adjustment of
outstanding dues in respect of the missing personnel,
if any:-
(a) Immediately after the date of declaration of
disappearance
The amount of salary due, leave encashment due
and DSOP/AFPP Fund amount subject to
nomination made by the missing personnel.
(b) After the lapse of one year from the date of
declaration of disappearance/presumption of
death
Family pension/DCRG etc. as admissible in
normal conditions.
3. The above benefits may be sanctioned after
observing following formalities:-
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(i) The family must lodge a report with the
concerned police station and obtain a report
that the employee has not been traced after all
efforts had been made by the police.
(ii) The claimant will be required to furnish
an indemnity bond with two solvent sureties to
the effect that all payments thus made will be
recovered from the amount due to the person
if he/she reappears and makes any claims.
4. The family can apply to the concerned authority
for grant of family pension and DCR Gratuity after
one year from the date of declaration of
disappearance of the service personnel in
accordance with the procedure for sanction of family
pension and DCR Gratuity. In case the disbursement
of DCR Gratuity is not effected within 3 months of
the date of application, the interest shall be paid at
the rates applicable and responsibility for the delay
fixed.
5. In the case of officers, the respective Branch/Dte
at Service HQrs and in the case of JCOs/OR and
equivalent in Navy and Air Force, their respective
Records Offices will process such cases with CDA
(P)/PAO/CDA(P)/CDA (Navy)/CDA (Air Force).
6. The provisions of this letter take effect from 29th
August, 1986.
7. This issues with the concurrence of the Finance
Division of this Ministry vide their U.O No. 802-Pen
of 1988.
Yours faithfully,
Sd/- xx xx
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(Y. K. TALWAR)
DESK OFFICER"
28. This Court first take up the matters for Special
Family Pension, which could not be granted unless the facts
demonstrate that the Armed personnel died on account of
wound, injury or disease which was attributable to military
service or the aggravation by military service of a wound, injury
or disease, which existed before or arose during military service.
29. Coming to the facts of the present case based
upon the Court of Inquiry, it appears that Cfn/Rec Mech.
Bhubaneshwar Singh of LRW HQ 57 Mech was asked to keep
guarding outside the resident of Major Anand at night as a
security measures, during the period of the leave of Major. The
petitioner's husband was selected for this task, as he was earlier
worked as a Sahayak to Major Anand. It has come during the
course of enquiry that the Sepoy Bhubaneshwar Singh was a
simple, quiet, willing worker and popular in his sub-unit and he
never complained of any problem. On 05.07.1989, at about 6.00
hours it was discovered that Sepoy Bhubaneshwar Singh was
absent from place of his duty. Accordingly, apprehension roll
was issued and his NOK (Next of Kin) was intimated on
22.07.1989by HQ 57 Mech Bde. All the belongings of Sepoy Bhubaneshwar Singh was found intact and he did not take Patna High Court CWJC No.7461 of 2021 dt.03-04-2024 20/29 anything with him as his locker and private property was duly locked in his private box. He did not leave behind him any note or letter stating the reasons for leaving the place. No loss of any property of Major Anand was found.
30. In the aforesaid premise, a Staff Court of Inquiry was conducted and certain anomalies were found in the statement of the personnel, who were acquainted with him and present there. Verification has also been done from the civil police, but his trace could not be found out and thus the allegation of the petitioner about some foul play against her husband find supported and, therefore, it was recommended that the case should be handed over to a competent investigating agency for investigation. The matter was placed before the higher authority and the plea of deserter has been disapproved and hence recommendation has been made by the Brigadier that the Sepoy Bhubaneshwar Singh be declared missing, presumed dead vide order dated 28.12.1991. Subsequent thereto, the matter was placed for the opinion of Major General (GOC), who also endorsed the recommendation by opining that his missing/ presumption of death cannot be ruled out. However, he further opined that there is no evidence to show that Sepoy had been missing from any foul play by anyone. But evidently, in the Patna High Court CWJC No.7461 of 2021 dt.03-04-2024 21/29 opinion of the Court the said finding was not based upon any cogent and convincing materials.
31. In the aforesaid discussions and the opinion of the Brigadier as well as Major General (GOC) it has been made clear that the Sepoy Bhubaneshwar Singh has been declared missing presumed dead. However, that order has not been put to challenge by the petitioner, except the contention that the respondent authorities in a hot haste manner by giving a go-bye to Section 108 of the Indian Evidence Act, 1872 has declared petitioner's husband missing presumed dead within four years from the date of his missing. The contention of the petitioner finds no force for the simple reason that Government of India in the Ministry of Defence has issued letter dated 23.03.1992 (Annexure- R/10 to the counter affidavit) addressed to all the Chief(s) of Army Staff, Naval Staff and Air Staff in respect of DCRG, leave encashment and family pension to the armed forces personnel, who are missing, with a prescription that in the normal course unless a period of seven years has elapsed on the date of disappearance of the personnel, he cannot be declared to be dead and thus resulted in great hardship and distress to the families, who have to wait for seven years before any terminal benefit could be paid to them.
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32. Considering such hardship and distress His Excellency, the President of India is pleased to resolve that when a member of the Indian Armed Forces is declared missing while in service, the family will be paid immediately after the date of declaration of disappearance. Clause 4 of the said letter speaks that the family can apply to the concerned authority for grant of family pension and DCR Gratuity after one year from the date of declaration of disappearance of the service personnel in accordance with the procedure for sanction of family pension and DCR Gratuity. Clause 6 of the said letter made the provisions of this letter effective with effect from 29.08.1986.
33. In the light of the clear stipulation contained in the letter, this Court does not find any error in the action of the respondent authorities in declaring the husband of the petitioner missing declared dead within four years of his disappearance.
34. Now coming to the submission of the petitioner that para. 213 of the Pension Regulations for the Army, 1961 (Part-I) that it cannot be interpreted to the disadvantage of the petitioner because despite of specific order to get the matter adequately investigated by an investigating agency, the same has not been done and in such a situation, missing of an Army personnel cannot be said to be inferior to that of a person, who Patna High Court CWJC No.7461 of 2021 dt.03-04-2024 23/29 has suffered an injury or wound attributable to military force.
35. This Court after carefully going through the relevant regulations as well as letters, which deal with large number of contingencies and circumstances under which different acts of pension is payable has come to the position that there is a specific policy decision issued by the Government of India with respect to missing persons, specially contained in letter dated 3.6.1988. Para. 2 (b) of the said letter clearly states that after the lapse of one year from the date of declaration of disappearance/presumption of death, family pension will be paid as admissible in normal conditions. True it is that despite the declaration of disappearance presumed dead even if it is deemed to be attributable to military service, this does not automatically entitle the petitioner to Special Family Pension under Para. 213 of the Pension Regulations for the Army, 1961. Specific policy for such category of personnel exist separately where a specific policy has been formulated by the Government to deal with a case in relation to presumed to be dead or missing person obviously this would take the precedence for the pension rule framed to cover a large number of contingencies.
36. The case of the petitioner declaring her husband missing presumed dead is some what different and distinct Patna High Court CWJC No.7461 of 2021 dt.03-04-2024 24/29 category from those whose death is factually confirmed, immaterial as to whatever the case of death may be. In order to avoid the financial hardship to the next of kin, the Government has issued a specific policy laying down the procedure and time frame to declare missing persons as "missing presumed dead"
and the payment of terminal benefits to the next of kin of such personnel.
37. It is trite that specific policy and instructions taking precedence over the general pension regulations/general instruction covering a large number of contingencies, thus this Court finds that the claim of the petitioner for special family pension is not tenable.
38. Now coming to the question of entitlement of ex-gratia on account of death of the petitioner's husband attributable to military service, it would be worth noting the relevant provisions dealing with the circumstances attracting payment of Ex-gratia lump sum compensation:
"Annexure-R-12 (Colly) No. 20 (1)/98/D (Pay/Services), Bharat Sarkar/Government of India, Raksha Mantralaya/Ministry of Defence, New Delhi-110011, 22nd September 1998 To The Chief of the Army Staff, New Delhi Patna High Court CWJC No.7461 of 2021 dt.03-04-2024 25/29 The Chief of the Naval Staff, New Delhi The Chief of the Air Staff, New Delhi Sub: Special Benefits in cases of Death and Disability in Service - Payment of Ex Gratia lump sum compensation to families of the Defence Service Personnel who die in harness
- Recommendations of the Fifth Central Pay Commission.
Sir.
I am directed to refer to Government of India, Ministry of Personnel, Public Grievances & Pension, Department of Pension & Pensioners' Welfare Ο.Μ.No.45/55/97-P&PW (C) dated 11-9-98 and state that the President is pleased to decide that the families of Defence Service Personnel who die in harness in the performance of their bonafide official duties shall be paid the following ex gratia lump sum compensation: -
(a) Death occurring due to accidents in the Rs.5.00 Lakhs course of performance of duties
(b) Death occurring in the course of Rs.7.5 performance of duties attributable to lakhs* acts of violence by terrorists, anti-social elements, etc.
(c) Death occurring during (i) enemy action Rs.10.00 in international war or border lakhs* skirmishers; and (ii) action against militants, terrorists, extremists, etc. *Amended vide GOI MOD letter No. 20 (1)/98/D (Pay/Services) dated 03-08-1999.
Patna High Court CWJC No.7461 of 2021 dt.03-04-2024 26/29
2. The graded structure of ex gratia lump sum compensation takes into account the hardships and risks involved in certain assignments, the intensity and magnitude of the tragedy and deprivation that families of government servants experience on the demise of the breadwinner in different circumstances, the expectations of the employer from the employees to function in extreme circumstances, etc. The compensation is intended to provide an additional insurance and security to employees who are required to function under trying circumstances and are exposed to different kinds of risks in the performance of their duties.
3. Powers were delegated in the Ministry of Finance O.M.No.19 (18)-EV (A)/66 dated February 26, 1966 to the appointing authorities to sanction awards under the relevant Extraordinary Pension Rules in those cases in which the proposed pension or gratuity is held to be clearly admissible under the rules. However, any awards proposed to be granted on ex- gratia basis were to continue to be referred to the Ministry of Finance as usual. In partial modification of these orders, in so far as they relate to ex gratia awards, the admissibility of and entitlement to the ex gratia lump sum compensation in the circumstances specified in these orders may be decided in each individual case by the *PCDA (P) Allahabad. (*Amended vide GOI MOD letter No. 20 (1)/98/D (Pay/Services) dated 12-04-1999).
4. The conditions and guidelines to be observed governing the payment of ex gratia lump sum compensation in terms of these orders are indicated in Patna High Court CWJC No.7461 of 2021 dt.03-04-2024 27/29 the annexure.
5. The orders shall apply to all cases of death in harness occurring in or after August 1, 1997. In so far as cases of death, which occurred prior to August 1, 1997, are concerned, these shall be regulated and finalized in terms of the orders and instructions in force prior to the issue of these orders.
6. These orders supersede earlier orders issued on the subject vide Ministry of Defence letter No B/39902/XXII/AG/PS-4 (d)/2069/D (Pay/services) dated October 8, 1996 and amendment issued vide letter of even number dated June 4, 1997.
7. These orders are issued with the concurrence of Defence (Finance) vide their U.O.No.1869/Addl.FA (D)/98 dated 11-9-1998.
Yours faithfully, Sd/-XXXXX (B.BRAHMA) Director (AG)"
39. Admittedly the husband of the petitioner found missing while he was on duty when his husband was selected to guard outside the residence of Major Anand, as a security measure during the period of his leave. The Court of Enquiry suggested his disappearance in a mysterious circumstances warranting an investigation by a specialized investigating agency, but unfortunately despite recommendation, the same has never been done. Such mis-happenings always in the opinion of this Court be presumed to be an accident in course of duty, Patna High Court CWJC No.7461 of 2021 dt.03-04-2024 28/29 unless the contrary is proved or even if subsequently the missing person be declared as missing presumed dead. Any instance of missing/disappearance from the duty of an Army personnel, if done in mysterious circumstances and after a proper Court of Enquiry desertion is not proved, in that circumstances, such instances may be said to be an accident in course of duties.
40. The fact of the case in hand does not leave any place of ambiguity or suspicion that late husband of the petitioner found missing from the place of duty and the statement of the witnesses and the circumstances emerge in course of Court of Enquiry, there is no doubt that the very disappearance of the petitioner's husband was under a mysterious circumstances. Irrespective of the fact that the case of the petitioner is governed by the policy formulated by the Government of India for general family pension, in the opinion of this Court the facts in totality warrants a positive consideration of the petitioner's case for ex-gratia in terms of the regulations/laws, which was applicable on the date on which he was declared missing presumed dead.
41. In view thereof, the present writ petition, so far the claim of the petitioner for Special Family Pension is concerned, the same stands negatived. However, so far the claim Patna High Court CWJC No.7461 of 2021 dt.03-04-2024 29/29 of the petitioner for ex-gratia is concerned, the same is directed to be considered by the respondent authorities, who is/are competent in this behalf, preferably within a period of three months from the date of receipt/production of a copy of this order.
42. Accordingly, the present writ petition is hereby partly allowed. There shall be no order as to cost.
(Harish Kumar, J) uday/-
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