Supreme Court - Daily Orders
Gyan Kaur vs Union Of India . on 1 September, 2016
Author: Chief Justice
Bench: Chief Justice, A.M. Khanwilkar, D.Y. Chandrachud
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No(s).8312 of 2010
GYAN KAUR Appellant(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
O R D E R
This appeal arises out of an Order dated 22 nd February, 2010 passed by the Armed Forces Tribunal, Regional Bench at Chandimandir whereby T.A. NO.121 of 2009 (Original C.W.P. No.8168 of 2006 transferred from the High Court of Punjab and Haryana) has been allowed in part with a direction to the respondents to notionally fix the family pension admissible to the appellant w.e.f. 2nd September, 1978. The Tribunal has however declined the award of arrears of pension for the period between 2 nd September, 1978 and 26th April, 2003 the date with effect from which the appellant has been receiving the pension admissible to her.
The appellant before us is the wife of Havaldar Jagtar Singh Nagra who was, it appears, enrolled in the Signature Not Verified Digitally signed by MAHABIR SINGH Indian Army as a sepoy in the year 1960 and was in the Date: 2016.11.15 16:31:28 IST Reason: month of September 1971 posted somewhere in the Northern sector. It is not in dispute that Hav. Jagtar Singh 2 Nagra went missing on 2nd September, 1971 while serving at the place of his posting. The Army authorities appear to have taken note of his disappearance and declared him as a “deserter” by an Order dated 5th October, 1971, retrospectively from 2nd September, 1971. He was eventually dismissed from service on 31st October, 1988.
The appellant who was aggrieved by the disappearance of her husband while in service as also the denial of benefits due to her by the Army Authorities, appears to have submitted repeated representations to the Army Authorities. While the issue was being examined by the Army Authorities, the Government of India, Ministry of Defence, promulgated a policy in terms of a circular dated 23rd March, 1992 according to which the next of kin of serving armed forces personnel who disappeared were held entitled to certain benefits including family pension and gratuity etc. It was in pursuance of the said Policy that the Army Head Quarters also examined the case of the deceased-Hav. Jagtar Singh Nagra also and changed his status from “deserter” to “missing” so that the appellant who happens to be the next of the kin of the soldier becomes entitled to receive the family pension. A reading of Order dated 5th August, 2005 issued 3 by the Record Officer shows that pursuant to the direction of the Army Head Quarters, D.O. Part-II issued qua Hav. Jagtar Singh Nagra was cancelled and a fresh D.O. Part-II declaring him to be “missing” published and entered in the records. The said order was then followed by another order dated 11th August, 2005 whereby the President of India was pleased to grant ordinary family pension to appellant herein as widow of Hav. Jagtar Singh Nagra missing (presumed to be dead on 2nd September, 1971).
In the ordinary course, the appellant would expect that the family pension would start accruing to her pursuant to the said sanction order with effect from the date mentioned in the said order but on account of Government of India, Ministry of Defence, Order dated 23rd March, 1992, referred to above, such pension would become payable only after expiry of a period of one year with effect from the date a first information report is lodged with the police by the family. However, taking a lenient view, the petitioner had been granted family pension from the date of filing the F.I.R. i.e. on 26 th April, 2003 regarding the missing person in the Police Station Balachaur, Distt. Nawanshehr, Punjab. An enquiry 4 conducted pursuant to the said report appears to have culminated in the Sr. Superintendent Police issuing a letter dated 24th June, 2004 that Hav. Jagtar Singh Nagra continues to be missing since 1971 and that his whereabouts had not been known till the date of the said communication. The appellant was obviously dissatisfied with the release of the pension in her favour, only with effect from the date of lodging of the FIR, and filed Civil Writ Petition No.8168 of 2006 before the High Court of Punjab and Haryana which was transferred to the Armed Forces Tribunal, Regional Bench at Chandimandir and registered as T.A. NO.121 of 2009. The Tribunal has, as noticed earlier, allowed the said petition but only in part and to the extent that the family pension payable to the appellant be notionally determined w.e.f. 2nd September, 1978 i.e. the date on which a presumption about the missing person having died arose on completion of seven years from the date of his first disappearance. Having said that the Tribunal has declined to grant any relief to the appellant for payment of pension for the period preceding 26th April, 2003. The present appeal, as noticed earlier, calls in question the correctness of that judgment and order of the Tribunal.
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We have heard Mr. Pawan K. Bahl, learned counsel for the appellant and Mr. R. Balasubramanian, learned counsel for the respondents-U.O.I. The material facts are not in dispute. That the appellant's husband disappeared while serving in a field area w.e.f. 2nd September, 1971 is common ground. It is also not in dispute that the declaration of the missing person as a “deserter” was cancelled and his status changed to “missing” in the relevant record. That the Policy promulgated in March 1992 permitted payment of family pension and other benefits specified therein with effect from the year 1992, is also not in dispute. That the President of India has in pursuance of the said Policy sanctioned family pension to the appellant w.e.f. 2nd September, 1971 is also a matter of record. That pension has actually been released to the appellant but only w.e.f. 26 th April, 2003 on account of the requirement stipulated by the Policy that pension shall be payable from the date a first information report relating to the missing personnel is lodged, is also evident from the record. The short question that in the above circumstances falls for our determination is whether the Tribunal and so also the army authorities were justified in limiting the 6 relief granted to the appellant in terms of the award of Family Pension to the period post 26th April, 2003. It was argued by Mr. Bahl that since the husband of the appellant had disappeared initially on 2nd September, 1971 and by 2nd September, 1978 he is presumed to be dead, the Tribunal was correct in holding that the entitlement of the family left behind by the deceased would ordinarily arise from the said date. Unfortunately, however, there was no such relief admissible for such missing persons or their families till the Policy was promulgated in the year 1992 entitling the next to kin of missing persons to receive the family pension from the date of registration of an FIR. That Policy came into effect for the first time in the year 1992. The only difficulty under the said policy, however, is that while it recognises the entitlement of the next of kin of missing persons for the grant of family pension and other benefits, it makes the entitlement of such pension dependent upon the registration of an FIR. That is precisely how instead of March 1992, the date when the Policy was first promulgated, the authorities have sanctioned pension w.e.f. 26th April, 2003, in the case at hand, having regard to the fact that the FIR lodged by the appellant 7 was registered on 26th April, 2003. We have not been able to appreciate the rationale underlying the Policy making entitlement of family pension of the missing person dependent upon the lodging of an FIR. In a given fact situation, as in the present case, such requirement of lodging of an FIR may be wholly artificial, to say the least. In the case at hand, the missing person was serving in a high altitude field area in the northern sector. The Army authorities initially declared him as “deserter” but eventually changed the status to “missing”. This alteration in the status would obviously relate back to the date when the person was first found missing. In the ordinary course one could expect the Commanding Officer of the Unit to lodge an FIR regarding the disappearance of the person serving under him. But to shift the burden to lodge an FIR regarding the missing person upon the next of his kin in a police station which is thousands of kilometers away from where he goes missing, does not appeal to common sense nor is there any causal connection between the two to justify the insistence of the Army Authorities upon the lodging of the FIR as a condition precedent for the grant of family pension/benefits to the next of his, left behind by him. 8
We are, therefore, inclined to hold that in the peculiar facts and circumstances of the present case, insistence on the lodging of the FIR by the Army may be wholly unnecessary and irrelevant. In the case at hand, an FIR was lodged in the Police Station Balachaur, 23 years after the person went missing from a high altitude posting in a forward area which report was no real consequence. The report of the Sr. Superintendent of Police actually does not add any qualitative input to the facts that were already known to the Army. It simply reports that the person continues to remain missing. In the totality of the circumstances, we are of the view that while fixing the family pension notionally w.e.f. 2nd September, 1978 may be otherwise correct, the payment of the amount under the Policy need not have been made dependent upon the date when the FIR was lodged. Instead the pension amount should having been made payable by reference to the date when the Policy for payment of such pensions and benefits was promulgated. In other words, while the family pension and other benefits could be notionally determined by reference to 2nd September, 1978, the date when a presumption that the missing person had died arose but the payment of such pension could and 9 ought to be from 23rd March, 1992 when the Policy came into force.
We accordingly allow this appeal but only in part and to the extent that while the Army Authorities would determine on a notional basis the family pension payable to the appellant as on 2nd September, 1978, the appellant shall be entitled to receive family pension so determined w.e.f. 1st April, 1992 onwards till 26th April, 2003 the date from which she has admittedly started receiving the pension and other benefits. The arrears payable for the said period shall be calculated by the respondents-U.O.I. and released in favour of the appellant within a period of four months failing which the amount so payable shall start earning interest at the rate of 6% per annum from the date the period of four months expired.
The appeal is accordingly allowed and disposed of. No costs.
.......................CJI.
(T.S. THAKUR) .........................J. (A.M. KHANWILKAR) .........................J. (DR. D.Y. CHANDRACHUD) NEW DELHI DATED 1st September, 2016 10 ITEM NO.110 COURT NO.1 SECTION XVII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s).8312 of 2010 GYAN KAUR Appellant(s) VERSUS UNION OF INDIA & ORS. Respondent(s) Date : 01/09/2016 This appeal was called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE DR. JUSTICE D.Y. CHANDRACHUD For Appellant(s) Mr. Pawan K. Bahl,Adv.
Mr. Vinesh K. Sharma,Adv.
Mr. Rakesh K. Sharma,Adv.
For Respondent(s) Mr. R. Balasubramanian,Adv.
Mr. Surender Kumar Gupta,Adv. Ms. Honey Kumari,Adv.
Mr. Sharad Sharma,Adv.
Mr. Mukesh Kumar Maroria,Adv.
UPON hearing the counsel the Court made the following O R D E R In terms of the signed order, this appeal is allowed:
“We accordingly allow this appeal but only in part and to the extent that while the Army Authorities would determine on a notional basis the family pension payable to the appellant as on 2 nd September, 1978, the appellant shall be entitled to receive family pension so determined w.e.f. 1st April, 1992 onwards till 26th April, 2003 the date from which she has admittedly started receiving the pension and other benefits. The arrears of the said period shall be calculated by the respondents-U.O.I. and released in favour of the appellant within a period of four months failing which the amount so payable shall start earning interest at the rate of 6% per annum from the date the period of four months expired.
The appeal is accordingly allowed and disposed of. No costs.” (MAHABIR SINGH) (VEENA KHERA) COURT MASTER COURT MASTER (Signed order is placed on the file)