Smt. Nirmala Devi vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 2063 Del

JUDGMENT

Swatanter Kumar, J.

1. Petitioner, Nirmala Devi has approached this Court under Article 226 of the Constitution of India praying for a direction to the respondents to grant and pay her the special family pension with effect from 2.7.1998, when her husband died in a road accident.

2. Late Nb.-Subedar Sh. Bhagwan was enrolled in the Indian Army as a Sepoy on 13.11.1975 and was awarded service No. JC-260422Y. Because of his hard work and distinguished service he was promoted to the rank of Nb. Subedar. In the year 1998, he was posted to 226 Medical Regiment, and was attached with the Delhi Cantt. Transit Camp. It is the case of the petitioner that her husband was sanctioned one day casual leave on 2.7.1998. However, unfortunately on that day he met with a road accident and suffered a head injury which ultimately resulted in his death. On 4.9.1998, the respondents issued an identity-card No. HRA 19-007 to the petitioner with the following remarks in column 10 under the Heading : Documents Verified Card No. W/243, dated 04.09.98, where it was mentioned that Attributability to military service or otherwise : Not decided yet by Pension Sanctioning Authority. Thereafter, after a lapse of considerable time the respondents issued an order granting the ordinary family pension to the petitioner, who was the wife of the deceased, @ Rs. 2810/- per month with effect from 3.7.1998 to 2.7.2005 and from 3.7.2005 @ Rs. 1686/- per month till widowhood of the petitioner. The petitioner had been approaching the respondents for all this period to consider and finalise the case of the petitioner for grant of special family pension but this request was not acceded to and vide their order dated 24.1.2005 the respondents informed the petitioner that her appeal against the order of rejection of Special Family Pension w.r.t. Sh. Bhagwan who died on 2.7.1998 was being forwarded for necessary action. It is the case of the petitioner that her case for grant of Special Family Pension has not been finalized so far, giving rise to filing of the present writ petition.

3. According to the petitioner her husband died while 'on duty' being 'on casual leave' in accordance with the Leave Rules and death of the deceased was attributable to the military service and, hence, she was entitled to receive the Special Family Pension. In support of her contention she also placed reliance upon the judgments of the Supreme Court in the case of Joginder Singh (L/Dafadar) v. Union of India and Ors. 1996 (2) SLR 49 : 1995 (3) SCC 232. Reliance was also placed on the case of Banso Devi v. Union of India 2002 Vol. 1 FLJ 582.

4. According to the respondents the facts are not in dispute and it was being stated that the petitioner is not entitled to Special Family Pension in terms of Rules 12 and 13 of the Entitlement Rules, 1982. According to the respondents the petitioner ought to be performing some official task, failure of which will constitute an offence friable under Disciplinary Court. Since the petitioner died in a manner which was attributable to directions of the service, there was no occasion for the respondents to allow the Special Family Pension, however, the ordinary family pension has already been granted to the petitioner and she is being paid the same in accordance with the Rules.

5. During the course of hearing, the respondents had produced the Records. As per the proceedings of the Court of Inquiry conducted by the respondents on 19.8.1998, the Court expressed its opinion as under:

1. The Court having examined the witnesses, and scrutinised the relevant documents is of the opinion that:

(a) JC 260422Y Nb/Sub Shri Bhagwan of 226 Med Regt., att with Delhi Cantt Transit Camp, was on bonafide casual leave on 02 Jul 98.

(b) Nb/Sub Shri Bhagwan died in a road accident which took place at about 2200 hrs. on 02 Jul 98.

(c) The accident took place due to negligent and rash driving of Civ. Truck Regd. No. RG 32G-0310.

2. The Court recommends that death of Nb/Sub Shri Bhagwan be attributable to military service in peace.

6. It is obligatory upon the respondents to conduct a Court of Inquiry to find out the cause of the accident and if any fault was attributable to the member of the Force. Both these findings were recorded by the Court of Inquiry of which the respondents cannot take any advantage, and on the contrary they fully support the case of late Sh. Bhagwan, husband of the petitioner. In terms of Rules 10 of the Leave Rules governing the Army, the casual leave is to be taken as a period of duty for all purposes and intents. Admittedly, the applicant was going back to his Unit after attending a family function, when he met with the accident resulting from the rash and negligent driving of the Civil Truck No. RG 32G 0310. It was specifically recorded by the competent authority that the death of the deceased was attributable to military service in 'peace'. Once these findings were recorded, it is not understandable as to how the petitioner would not be entitled to the Special Family Pension. The leave rules read in conjunction with Appendix II, Regulation 173 clearly establishes that even the presumptions stated in Clauses 5 and 6 of the said Appendix would be construed in favor of the petitioner/her late husband. Once the death was attributable to the military service, the claim of the petitioner for grant of Special Family Pension ought to be allowed. The judgments of the Supreme Court in the cases of Joginder Singh (L/Daffadar) (supra), Madan Singh Shekhawat v. Union of India and Ors. , as well as a Division Bench judgment of this Court in the case of Jitender Kumar v. Chief of Army Staff and Ors. W.P.(C) NO. 19839/2005 decided on 19th October, 2006 clearly supports the case of the petitioner to the extent that the petitioner would be entitled to be considered for grant of Special Family Pension.

7. In view of the above discussions, the petition is allowed with directions to the respondents to consider the case of the petitioner for grant of Special Family Pension. However, she will not be entitled to any arrears in excess of three years from the date of filing of the present writ petition.

8. The parties are left to bear their own costs.