Smt. Seyo Bai vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 2057 Del

JUDGMENT

Swatanter Kumar, J.

1. Smt. Seyo Bai wife of late Rajpat Yadav has approached this Court under Article 226 of the Constitution of India praying for quashing of order dated 30th August, 1988, Annexure P-3 to the writ petition, vide which she was denied grant of special family pension with effect from 4th July, 1987 i.e. the date of death of her son J. Singh along with arrears.

2. The necessary facts are that deceased J. Singh No. 691923 was enrolled in the Indian Air Force as an Airman on 27th December, 1983. His conditions of service were regulated by Air Force Act, 1950 and the rules framed there under.

3. He had come on his annual leave from his parent unit in April, 1987. While on annual leave, he fell ill and reported sick to his nearest military hospital i.e. Army Hospital, Delhi Cantt on 15th April, 1987. On 1st July, 1987, he was discharged from the Hospital and was ordered to proceed on 8 weeks sick leave with effect from 2nd July, 1987 to 26th August, 1987. Thereafter, he was to report at Army Hospital, Delhi Cantt. The deceased reached his home in Village Mandola, District Rewari by bus. He met his parents and had dinner along with them. He slept at 2200 hrs without any problem and complaint. On 3rd July, 1987, according to petitioner, the deceased got up from the bed at 0530 hrs. He felt uneasy and was brought to a Local Registered Medical Practitioner, who gave him first aid and advised him to be taken to Civil Hospital, Rewari. He was being taken to Civil Hospital, Rewari by his family members where hospital authorities had advised to take him to the Army Hospital, Delhi Cantt. When he was taken to Army Hospital, Delhi Cantt., he died near Bilaspur Bus Stand. The respondents were informed about the death of the deceased on 3rd July, 1987 itself through Commanding Officer No. 22 sqn. C/O 99 APO. The petitioner being mother of the deceased submitted pension papers for grant of special family pension. However, the Record Office vide letter dated 30th August, 1988 informed the petitioner that her case for grant of special family pension has been rejected. Against this order, the petitioner filed an appeal on 26th October, 1988. Vide letter dated 31st May, 1989, the Records Officer sought some information from the petitioner, which she furnished. However, no communication was received by the petitioner thereafter. Govt. of India Ministry of defense vide Notification dated 26th August, 1998 provides that family pension would be allowed to the parents of the deceased soldiers. The petitioner had filed civil writ petition No. 992/90 for grant of family pension, which was subsequently withdrawn.

4. It is the contention of the petitioner that her son had died while he was sick and on duty. Her son was sent on sick leave for a period of 8 weeks when he unfortunately died. According to the petitioner, a person who is on annual leave is deemed to be on duty. The provisions of Regulation 173 A of the Pension Regulations for the Army, 1961 clearly entitles such person, who has been placed in permanent low medical category and also the fact that in terms of Appendix II to Regulation 173, the case of the petitioner would be fully covered for payment/grant of special family pension.

5. Counsel for the petitioner has referred to various judgments of this Court as well as other High Courts and even Supreme Court to contend that a person on casual/annual leave would have to be treated as on duty and as the deceased was on sick leave for the disease, which he suffered during his employment in army, the petitioner is entitled to the special family pension.

6. He was in good state of health when he was recruited in army in the year 1983 and was suffering from no disease.

7. The facts are hardly controverter by the respondents in their counter affidavit. However, it is stated that petitioner is not entitled to the claimed relief as the deceased had died while on sick leave and his death was neither attributable to nor aggravated by Air Force Service. It is also averred that as per Govt. of India, Ministry of defense letter No. B/38207/AG/PS4(b)/931/B/D(Pens/Sers) dated 26th August, 1998, ordinary family pension has been made applicable to the parents with effect from 1st January, 1998 provided they are dependent upon the deceased. It is further averred by the respondents that the deceased had proceeded on 27 days Annual Leave with effect from 23rd March, 1987 to 18th April, 1987. He overstayed his leave from 19th April, 1987 to 1st July 1987 due to his own sickness. He was admitted in Army Hospital, Delhi Cantt. from where he was granted 8 weeks sick leave from 2nd July, 1987 to 26th August, 1987. During the sick leave period, the airman expired on 3rd July, 1987 due to heart problem. As per existing policy for grant of special family pension, the mother of the deceased is not entitled to any relief as death of the deceased is neither attributable to nor aggravated by Air Force Service.

8. As per medical record annexed to the counter affidavit, the petitioner was on leave and was admitted and treated at Army Hospital with effect from 15th April, 1987 to 1st July, 1987 as a case of unspecified psychosis with recommendation of 8 weeks sick leave and review thereafter. Unfortunately, as already notice, he expired on 3rd July, 1987.

9. This Court had discussed in great detail the obligation of the respondents to subject an individual member of the force to annually/periodical medical examination. It is not the case of the respondents that the deceased was suffering from any disease prior to joining the force and/or the onset of the disease for which he was treated could be related back to a period prior to his joining the force. If that is to be so, then it is for the Medical Specialist to state the reason for death of the deceased. Nothing has been indicated in the medical record to show that the disease was not attributable to military service. In terms of Annexure III to Appendix II to Regulation 173, the disease of psychosis and psycho-neurosis is affected by stress and strain of service. This has been discussed in detail in a recent judgment of this Court in the case of Ex.Cfn Sugna Ram Ranoliya v. Union of India and Ors. (WP(C) No. 3699/2004 decided on 27th July, 2006) and Sh. Navin Chandra v. Union of India and Ors. (W.P.(C) No. 5720/2006 decided on 27th July, 2006)

10. It is clear from the fact of the case that the deceased was not sick when he proceeded on leave and the moment he fell sick, he reported to the Army Hospital where he was treated and not diagnosed for any disease, which was not attributable to or aggravated by stress and strain of service. In terms of presumption indicated under these regulations and particularly under Clauses 5 and 6 of Appendix II, certain onus lies on the respondents to show that the disease was not attributable to military service. In the counter affidavit, nothing whatsoever has been stated. In these circumstances, it is difficult to hold that the death of the deceased was not attributable to or aggravated by service. The petitioner had approached the authorities, who had passed orders in a mechanical order without addressing themselves to the matter in issue.

11. The petitioner has rightly placed reliance on the judgment of the Supreme Court in the case of Smt. Charanjit Kaur v. Union of India and Ors. where the Court had not only granted special family pension but also awarded compensation. The Court held as under:

7. According to the authorities, the case for granting Special Family Pension to the petitioner was initiated on 14.7.1978 but due to incomplete documents, a final decision could be taken only in July 1985. The petitioner was informed of the decision of the Government rejecting her case for the grant of the Special Family Pension vide letter dated 15th July, 1985 with the intimation that she could appeal against the decision within a period of six months in case she was dissatisfied with the same. According to the authorities, the petitioner did not appeal and preferred to go to the Court.

8. The respondent-authorities have further stated that the reasons which led to the death of Mukhbain Singh could not be disclosed to her, the same being confidential in nature. It is not disputed that her success in the appeal was dependent upon the case she had died on account of or during military service. For this the enquiry report was very much necessary. Instead, in paragraph 8 of their affidavit-in-reply, they have stated that the special family pension and children allowance has not been denied to the petitioner. She did not appeal to the Government for a review of their decision in this regard. The case made out in the said paragraph is, therefore, that since she had not appealed to the Government for a review of their decision, it should be held that she had not been denied the pension and the allowance. It appears that the authorities do not recognise any limit to perversity in reasoning. However, immediately in paragraph 9 thereafter, they contradict themselves and state that It is humbly submitted that all families of Army Officers are not granted special family pension. Special family pension is granted only when death is considered attributable to or aggravated by military service as defined under Govt. of India letter No. 1[1]/81/Pen-C dated 22 March 1983. The statement in paragraph 8 of the affidavit can, therefore, only be termed as adding insult to the injury. It is then the case of the respondent-authorities that they had set up a Court of Inquiry on 14.7.1978. The recommendations of the GOC-in-C were recorded on 25.7.1978 with a suggestion that the case be handed over for investigation by CBI to probe the alleged suspected murder of the officer....

12. No court of inquiry was conducted in the present case by the respondents and they have rejected the claim of the petitioner on some conjecture and surmise, which are not supported by any record.

13. For the reasons aforestated, we set aside the impugned order dated 30th August, 1988 and direct the respondents to consider and grant to the petitioner special family pension, subject to satisfaction of the conditions. The petitioner has approached this Court after considerable lapse, thus, she would not be entitled to claim arrears in excess of 3 years immediately preceding filing of the present writ petition.

14. The petition is accordingly disposed of while leaving the parties to bear their own costs.