Hony Capt. Vardip Singh And Anr. vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 26 Del

JUDGMENT

Vijender Jain, J.

1. Petitioners Nos. 2 and 3 who are the parents of the deceased Captain Manjinder Singh have filed this writ petition. Writ petition was filed as Captain Manjinder Singh Bhinder, his wife and son died in the devastating fire in Uphaar Cinema in New Delhi on 13-6-1997. It is the case of petitioners that late Captain Manjinder Singh Bhinder played a leading role by saving the life of 150 to 160 persons in that unfortunate tragedy. However, the respondents rejected the family pension as well as ordinary pension treating the death of Captain Manjinder Singh Bhinder neither attributable nor aggravated by the Military Service . Even the ordinary family pension claim of the parents was rejected on the ground that the Government of India has set up a mean limit of Rs. 2550/- per month with effect from 1st January, 1998 and thereby denied the ordinary family pension to the parents of Captain Manjinder Singh Bhinder.

2. Learned counsel appearing for the petitioners contended that instead of saving himself, his wife and four years old son deceased helped other persons who were in that theater by guiding them and saving them from the fire and ultimately his wife and son also died and he sacrificed his life and that of his family and this act was so reported in the newspapers, T.V. and Radio also. Mr. Sehgal contended that the headquarter Delhi Area conducted the report of Inquiry which held that the death of Captain Manjinder Singh Bhinder was attributable to military service. It was also contended that the GOC-in-C also agreed with the report of Inquiry that the death caused to the said Manjinder Singh was attributable to military service. Counter affidavit has been filed by the respondents. The respondents have taken the plea that although the death of late Captain was not attributable to the military service. However, in paragraphs 9, 10 and 11 and 19 of the counter affidavit the plea taken by the respondents is as under :-

''Paras 9, 10 and 11 : That the averments made in paras 9, 10 and 11 are admitted to the extent that Cap. Bhinder along with Cap Rajesh Pattur took steps to control and guide the mob which became restless due to the sudden fire which took place inside the Cinema hall and created cures all around. However, it is pertinent to mention that Capt Bhinder Singh was not on duty. He had only gone to see the movie in Uphar Cinema hall, he being an officer of the Army, he tried to save the life of the People and tried to control the mob.

............................................................................

Paras 19 (iii) to v) : Contents of paras 19 (iii) to (v) are denied. However, it is submitted that even if late Capt M.S. Binder had tried to rescue the civilians in the tragedy which took place in Uphar Cinema but it cannot be said that the Capt. Was on duty just because be took the command for rescue the civilians and lost his life in that tragedy.''

3. Another additional affidavit was filed by the respondents on 17.11.2003. Paragraph no.2 of the said affidavit is important and reproduced below :

''That the proceedings of the Court of Inquiry convened to enquire into the cause of death of Capt. Bhinder were sent to the Area Commander instead of Brigade Commander as Delhi does not have a Brigade Commander and GOC-in-C is an Officer Senior to the Brigade Commander. The GOC-in-C had agreed with the opinion of the Court of Inquiry and the pension claim was thereafter placed before the Pension Sanctioning Authority, along with all documents, including the proceedings of the Court of Inquiry.''

4. Still respondents did not grant special family pension holding that finding of Court of Inquiry was recommendatory in nature and as per Regulations 520 (j) the final authority was the Central Government.

5. On the other hand Mr. Sehgal learned counsel for the petitioners has cited several judgments that Court of Inquiry was the final authority.

6. From the scheme of the Regulations of the respondents itself Regulation 520 deals with the injury to a person subject to Army Act which reads as under;

'520 .

''(a) When an officer, JCO WO, OR or nurse, whether on or off duty is inquired (except by wounds received in action) a certificate on IAFY-2006 will be forwarded by the medical officer in charge of the case to the injured person's CO as soon as possible after the date on which the patient has been placed on the sick list, whether in quarters or in hospital. In the case of injuries which are immediately fatal, a report of the court of inquiry proceedings referred to in sub- para (c) (i) will take the place of IAFY-2006.

(b) If the medical officer certifies that the injury is of a trivial character, unlikely to cause permanent ill-effects, no court of inquiry need be held, unless considered necessary under sub-para (c) (ii) , (iii), (iv) or (v) . In any event, however, AFY-2006 will be completed and in all cases, except those of JCOs WOs and OR will be forwarded through the prescribed channels to Army Headquarters, Org. Date in the case of non-medical officers and Medical Date in other cases, a copy being retained at the command or other headquarters. In the case of a JCO , WO IAFY-2006 will be forwarded to the officer i/c records for custody with the original attestation, after the necessary entry, stating whether he was on duty and whether he was to blame, has been made by the CO in the Primary Medical examination report (AFMSF-2A).

(c) In the following cases a court of inquiry will be assembled to investigate the circumstances:-

(i) If the injury is fatal or certified by the medical officer to be of a serious nature, Where an inquest is held, a copy of the coroner's report of the proceedings will be attached to the court of inquiry proceedings.

(ii) If in the opinion of the CO, doubt exists as to the cause of the injury.

(iii) If in the opinion of the CO, doubt exists as to whether the injured person was on or off duty at the time he or she received the injury.

(iv) If for any reason, it is desirable thoroughly to investigate the cause of the injury.

(v) If the injury was caused through the fault of some other person.

In cases where the injured person is a JCO, WO or OR the court may consist of one officer as presiding officer, with two JCOs , WOs or senior NCOs as members.

(d) The court of inquiry will not give an opinion, but the injured person's CO will record his opinion on the evidence, stating whether the injured person was on duty and whether he or she was to blame. When no evidence as to the circumstances attending the injury beyond that of the injured person is forthcoming it should be stated in the proceedings. The proceedings will then be sent to the brigade commander or the officer who has been authorised under Section 8 of the Army Act to exercise the legal and disciplinary powers of a brigade commander who will record thereon his decision whether disability or death was attributable to military service and whether it occurred on field service. After confirmation the medical officer will in all cases except those of JCOs WOs and OR record his opinion in the proceedings as to the effect of the injury on the injured person's service. The proceedings will then be forwarded by the CO through the prescribed channel to Army Headquarters. Org. Dte in the case of on-medical officers and Medical Date in other cases, a copy being retained at command or other headquarters. In the case of a JCO WO or OR a record will be made in the primary medical examination report (AFMSF-2A ) by the CO that a court of inquiry has been held, and also as to whether the man was on duty and whether he was to blame. The primary medical examination report will then be passed to the medical officer who will record his opinion as to the effect of the injury on the man's service. The proceedings of the court of inquiry will then be forwarded to the officer i/c records for enclosure with the injured person's original attestation (see sub-para (b) above), in which case the proceedings, together with a copy of the medical opinion as to the effect of the injury on the man's service will be forwarded without delay to Army Headquarters.

.............................................................................

(g) The injury report will be submitted to the brigade commander or the officer who has been authorised under Section 8 of the Army Act to exercise the legal and disciplinary powers of a brigade commander only if the injury is severe or moderately severe or if a court of inquiry to enquire into the causes of injury has been held. The brigade commander or the officer who has been authorised under Section 8 of the Army Act to exercise the legal and disciplinary powers of a brigade commander will record on the form his decision whether or not the injury was attributable to military service, and whether it occurred on field service. In all other cases the CO will record his opinion''.

From the aforesaid, it is clear that pursuant to sub-clause (g) of Regulation 520, the inquiry report will be submitted by the Brigade Commander who is authorised under Section 8 of the Army Act and record his decision whether or not the injury was a attributable to military service. In the instant case, it is admitted case of the parties that GOC-in-C had agreed with the opinion of the Court of Enquiry that the death of Captain Majinder Singh was attributable to military service. The argument of the learned counsel for the respondents that in view of sub-para (j) of Regulation 520 said opinion is recommendatory in nature, has to be examined. Regulation 520 (i) is reproduced below :

''(j) IAFY-2006 or the proceedings of the court so endorsed, as the case may be will accompany the pension claim when submitted to the pension sanctioning authority, who will either accept the decision of the brigade commander, or if in doubt will submit the pension claim for the orders of the Central Government. The medical board or the medical officer who furnishes a death certificate will not express any opinion in such cases in regard to attributability to service, except on purely medical grounds which should be clearly specified.''

Let us examine the purport and effect of relevant regulations under Regulation 520 from sub paras (a) to (g) which relates as to how injury caused to a persons whether he is on duty or off duty or the injury received in action. How that injury has to be determined, attributable to army service or otherwise, that is the whole purpose of the court of inquiry. Court of Inquiry has been provided to investigate the situation in terms of sub para (c) of Regulation 520. Sub Para (d) makes it manifestly clear that the court of inquiry will not give its opinion but the injured person's CO will record his opinion on the evidence stating whether the injured person was on duty and whether he or she was to be blamed. The proceedings then will be sent to the brigade commander or the officer who has been authorised under Section 8 of the Army Act to exercise the legal and disciplinary powers of a brigade commander who will record thereon his decision whether disability or death was attributable to military service or whether it occurred on field service. The opinion rendered pursuant to sub-para (g) of paragraph 520 is an opinion rendered by a person who is authorised under Section 8 of the Army Act. Therefore, the report of the triaged commander assumes significance. The same has been submitted in terms of parameters laid down in paragraph 520 of the Regulations and, therefore, it cannot be said that the said report is recommendatory in nature. The harmonious construction of paragraph 520 sub-para (j) is that when the said recommendation has been received by the Brigade Commander or any other authority empowered under Section 8 of the Army Act, the pension sanctioning authority had to accept such report. If there is any doubt in the mind of the pensioning authority, the pensioning authority sends the case for orders to the Government of India. From sub-para (g) it is manifestly clear that in a case where parameters of Regulation 520 has not been observed by the Court of inquiry or the brigade commander, the Central Government may, by recording sufficient reasons, call for more information or pass appropriate orders but the Central Government cannot simply disagree with the findings of fact recorded by Court of Inquiry and opinion rendered by Brigade Commander in terms of sub-para (g) of Regulation 520 and take a different view that the death caused was not attributable to military service. If that is allowed to be done, then it will amount to nullifying the provisions of sub-paras (a) to (g) of paragraph 520 and opinion regarding attributability of injury will depend on the ipse dixit of the others taking different view with regard to attributability of injury. That cannot be the intention of the rule making authority. Therefore, we do not find any force in the arguments of the learned counsel for the respondents that the recommendation of GOC-in-C in terms of Regulation 520 of the respondents was only recommendatory in nature. No cogent material has been placed before us by the respondents to show as to what was the material before the Central Government to differ with the view expressed by the GOC-in-C giving the cause of the death attributable to the military service. We, therefore, quash the orders dated 2nd November, 1998, 12th July, 1999 and the order dated 15th September, 1999. We direct the respondents to grant special family pension to the petitioners 1 and 2 with all arrears with effect from 14-6-1997 with interest at the rate of 9% per annum. The Rule is made absolute.

Petition stands disposed of.