Punjab-Haryana High Court
Akhtari Khatun vs The Union Of India And Others on 21 April, 2014
Bench: Sanjay Kishan Kaul, Arun Palli
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Letters Patent Appeal No.1296 of 2009 (O&M)
DATE OF DECISION: 21.04.2014
Akhtari Khatun
.....Appellant
versus
The Union of India and others
.....Respondents
CORAM:- HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN PALLI
Present: Mr.Dinesh Ghai, Advocate for the appellant
Mr. Naresh Kumar Joshi, Senior Counsel
Special Engagement for Union of India
..
SANJAY KISHAN KAUL, CHIEF JUSTICE: (Oral) Appellant, the widow of deceased soldier NK Mohd. Sabir Hussain, has been wrongfully denied the Special Family Pension on the specious plea that death of her husband was neither attributable to nor aggravated by military service. The case shocks our judicial conscience for the reasons we are setting out hereinafter.
Naik Mohd. Sabir Hussain died in an accident with a civilian Maruti Car on 28.6.2002 at 9.15 hrs. while he was going to Sector 'E', Chandimandir. The appellant being his widow was granted benefits, but Special Family Pension was denied in terms of the letter of CCDA(P), Allahabad dated 5.9.2003 on the ground that the death of her husband was neither attributable to nor aggravated by military service which was communicated to the appellant vide letter dated 8.10.2003. The Chand Parkash 2014.04.23 16:05 I attest to the accuracy and integrity of this document LPA-1296-2009 -2- appellant, aggrieved by this order, preferred an appeal, which was also dismissed vide order dated 24.5.2004 of the appellate authority. There is also a second order in appeal dated 9.5.2006 over which there is some lack of clarity but the fact remains that the concerned pension department refused to grant the Special Family Pension. It appears that there was an earlier writ petition filed bearing CWP No.1318 of 2006 whereafter the order dated 9.5.2006 was brought to the notice of the Court and that petition was withdrawn with liberty to assail even that order which had not been assailed earlier.
The appellant assailed all these orders in CWP No.14160 of 2007, which was dismissed on 16.3.2009 after having called for the stand of the respondents which was filed by way of a written statement under the signatures of Major B.S. Verma, Senior Record Officer, Record Office, BEG, Kirkee, Pune,.
The respondents took the stand that the late husband of the appellant had gone to market to purchase ration for himself and not for the Unit and that was the reason for rejection of the Special Family Pension. In this behalf, we have perused the aforesaid written statement filed on behalf of the respondents where a categorical stand has been taken by referring to the deposition of the first witness in the Court of Enquiry proceedings dated 5.7.2002. However, said enquiry proceedings were never produced for the perusal of the learned single Judge and relying on this stand, the learned single Judge dismissed the writ petition.
In the present appeal, directions were issued on 15.3.2012 for record of Court of Enquiry to be placed before the Court. These Court Chand Parkash 2014.04.23 16:05 I attest to the accuracy and integrity of this document LPA-1296-2009 -3- of Enquiry proceedings have accordingly been placed on record and we have perused same.
Learned counsel for the respondents fairly concedes that after recording of evidence, the opinion of the Court of Enquiry is that the deceased husband of the appellant was on bona fide military duty on 28.6.2002 when he met with an accident. The report was thereafter placed before the Brigadier Station Commander, who accepted the same and came to the conclusion on 16.9.2002 that the death of the deceased husband of the appellant was attributable to bona fide military duty. This, in our view, should have put an end to the controversy but a deceptive stand was filed on behalf of the respondents in terms of the written statement verified on 7.5.2008. The same stand was taken apparently even in the earlier writ petition by written statement verified on 17.9.2006. The findings of the Court of Enquiry and the decision taken thereon were naturally known to the respondents as they occurred much earlier. Selectively and with a mala fide intent to somehow deny benefits to the appellant, a reference was made only to the deposition of the first witness of the Court of Enquiry and not to the findings of the enquiry. Such deception actually amounts to perjury. The truth has only come about when the findings of the Court of Enquiry along with a report thereon were permitted to be placed on record along with the affidavit of Lt. Col. A.K. Bhosle in terms of affidavit dated 4.3.2013.
We may advert to the legal principles enunciated in this behalf. In Ex. Sepoy Hayat Mohammed vs. Union of India and others, 138(2007) DLT 539, a Division Bench of the Delhi High Court opined that a Sepoy was entitled to get disability pension irrespective of Chand Parkash 2014.04.23 16:05 I attest to the accuracy and integrity of this document LPA-1296-2009 -4- the fact that when he got injured he was on casual leave and injuries suffered by him would be attributable to military service. Even on leave, a Sepoy would continue to be subjected to military law. As far as the role of the PCDA is concerned, in Mr. Jitendra Kumar vs. Chief of Army Staff and others, MANU/DE/9564/2006, the Division Bench of the Delhi High Court opined that the PCDA was only a disbursing authority and had to issue the Pension Payment Order. It has no jurisdiction to sit over the recommendations of competent authority. As already noticed, the Court of Enquiry held in the present case had found that the deceased husband of the appellant was on bona fide duty when the accident occurred and the Brigade Station Commander had recommended that the death of the Sepoy was attributable to bona fide military duty.
In view of the aforesaid, the very premise of the defence against grant of Special Family Pension of the respondents disappears and is negated and, thus, the impugned order of the learned single Judge dated 16.3.2009 passed on a false stand of the respondents is set aside and the appellant is held entitled to the Special Family Pension. The consequential differential of monetary benefits towards arrears be remitted to the appellant within a period of one month from today along with interest as admissible to arrears of pension and future Special Family Pension be accordingly paid. The appellant is also held entitled to costs throughout quantified at `10,000/- and the appeal is accordingly allowed on having granted relief to the appellant.
We are not inclined to rest at this in view of the false and incorrect stand taken before the learned single Judge on part of the Chand Parkash 2014.04.23 16:05 I attest to the accuracy and integrity of this document LPA-1296-2009 -5- respondents in their written statement. The written statement has been filed by Major B.S. Verma, Senior Record Officer, Record Office, BEG, Kirkee, Pune. We have already observed that this amounts to perjury. Even half-truth meant to mislead amounts to falsehood. However, before proceeding further in the matter, we consider it appropriate to issue notice through Ministry of Defence to explain his stand by filing an affidavit within three weeks from today.
List for the aforesaid purpose on 19.05.2014.
Copy dasti to learned counsel for the respondents under signatures of the Bench Secretary.
( SANJAY KISHAN KAUL )
CHIEF JUSTICE
21.04.2014 ( ARUN PALLI)
parkash* JUDGE
Chand Parkash
2014.04.23 16:05
I attest to the accuracy and
integrity of this document