Mrs. Manju Tiwari vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 428 Del

JUDGMENT

D.K. Jain, J.

1. By this writ petition, the widow of late Lance Naik Urba Dutt, who is stated to have died in Operation Vijay, during the Kargil War, seeks a writ of mandamus, commanding the respondents to release liberalised family pension to her with effect from 12 August 1999 along with interest on the arrears of pension.

2. The husband of the petitioner, who was enrolled as Combatant Soldier in the year 1983, was posted with Kumaon Regiment. During the Kargil War, in Operation Vijay, he was deployed on Pakistan border in Sriganganagar Sector of Rajasthan. During the said operation, on 11 August 1999 he died a sudden death. The death/medical certificate issued by the army authorities reads as follows:

'Medical Certificate in Case of Death All Ranks Certified that Name Urba Dutt No. 14701243A Rank L.Nk Unit 8 Kumaon Regiment Died/was killed was killed in action on 11.08.99 at 03.25.

MO I/c MI Room

176 Mil Hosp

Disease Opinion directly leading to death

SUDDEN DEATH CAUSE UNKNOWN

Antecedent Cause

CARDIAC RESPIRAtorY FAILURE

Station C/o 56 APO Major

Date 11.8.99 Mo I/c MI ROOM

3. According to the petitioner her claim for liberalised family pension is covered by the Instructions issued by the Government of India, Ministry of defense, on 31 January 2001. It is averred that her husband having died in harness after 1 January 1996, her case fell in category -E of the said Instructions and, therefore, she is entitled to liberalised family pension. It is pleaded that the respondents have wrongly treated her case as falling in Category-B of the said Instructions and granted her only special family pension. It is alleged that since there was no response from the respondents to various representations made by the petitioner for payment of liberalised family pension, she had no option but to take recourse to the present judicial action.

4. In the affidavit in opposition filed on behalf of the respondents it is stated that death of petitioner's husband was a physical casualty on account of acute ante rosepetal and interior wall myocardial infarction because of stress and strain of military service on bonafide military duty and, therefore, his case would fall under category-B of the aforementioned Instructions. It is, thus, pleaded that the petitioner is not entitled to liberalised family pension.

5. We have heard Col. S.R. Kalkal, learned counsel appearing for the petitioner and Mr. Pradeep Trehan, learned counsel for the respondents.

6. In order to appreciate the controversy involved, it would be apposite to extract the relevant portion of the aforementioned Instructions, dated 31 January 2001. These are as follows:

PART-II PENSIONARY BENEFITS ON DEATH/DISABILITY IN ATTRIBUTABLE/AGGRAVATED CASES:

4.1 For determining the pensionary benefits for death or disability under different circumstances due to attributable/aggravated causes, the cases will be broadly categorised as follows:

Category-A xxxxxxxxxxxxxxx

Category-B

Death or disability due to causes which are accepted as attributable to or aggravated by military service as determined by the competent medical authorities. Disease contracted because of continued exposure to a hostile work environment, subject to extreme weather conditions or occupational hazards resulting in death or disability would be examples.

Category-C xxxxxxxxxxxxx

Category-D xxxxxxxxxxx

Category-E

Death or disability arising as a result of :-

xxxxxxxxx

(f) war like situations, including cases which are attributable to/aggravated by:-

xxxxxxxxxxxxxx

(i) operations specially notified by the Government from time to time.

4.2 Cases covered under category-GA would be dealt with in accordance with the provisions contained in the Ministry of defense Letter No. 1(6)/98/D/Pens/Services) dated 3.2.98 and cases under category B to E will be dealt with under the provisions of this letter.

PART-III FAMILY PENSIONARY BENEFITS IN ATTRIBUTABLE/AGGRAVATED CASES xxxxxxxxxxxx

6. Liberalised family pension (LFP)

6.1 In case of death of an Armed Forces Personnel under the circumstances mentioned in category D and E of para 4.1 above, the eligible member of the family shall be entitled to liberalised family pension equal to reckonable emoluments last drawn as defied in para 3.1 above both for officers and PBOR. Liberalised family pension at this rate shall be admissible to the widow in the case of officers and to the nominated heir in the case of PBOR until death or disqualification.

7. As noted above, the case of the petitioner is that the death of her husband having occurred as a result of war like situation as also in an operation specially notified by the Government from time to time, her case for liberalised family pension clearly fell within the ambit of category-E (f and i) whereas the stand of the respondents is that it was a case of death, which is accepted as attributable to or aggravated by military service and, therefore, covered under Category-B of the said Instructions.

8. Having heard learned counsel for the parties and perused the material on record, we are of the view that there is merit in the stand of the petitioner. The parties are at ad idem that deceased's unit was deployed in Operation Vijay as published in Western Command Order and petitioner's husband was on the posted strength of the unit. Thus, it is not in dispute that the death of petitioner's husband was on account of his participation in an operation in a war like situation, as enumerated in clause () of Category-E of the Instructions. The said operation was also notified in terms of clause (i) in the said category. Thus, from a bare reading of the said instructions, which are binding on the respondents, we have no hesitation in coming to the concussion that the death of petitioner's husband was covered under Category-E of the Instructions and she is entitled to liberalised family pension.

9. For the foregoing reasons, the writ petition is allowed and a mandamus is issued to the respondents to grant liberalised family pension to the petitioner in terms of the Instructions issued on 31 January 2001. The arrears of the pension shall be paid as early as practicable and in any case not later than four weeks from the date of this order.

10. The petitioner shall also be entitled to costs, quantified at Rs.5,000/-.