Naresh Kumar vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1898 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner Naresh Kumar is the son of late Sub. Manohar Lal, who was enrolled in 216 defense Security Corps Platoon of BSF on 28th June, 1967. Late Sub. Manohar Lal had taken few days casual leave to settle his domestic problems. The leave was granted and the father of the petitioner proceeded on casual leave on 5th July, 1994. According to the petitioner, while he was traveling along with his wife on 5th July, 1994, they both were murdered by their uncle even before they could reach their home. In the year 1995, the respondents had granted ordinary family pension to the petitioner while, according to the petitioner, the family of the late Sub. Manohar Lal was entitled to get special family pension in terms of relevant rules and particularly Rule 12(d) of Revised Entitlement Rules read with relevant regulations of Pension Regulations for the Army, 1961. In furtherance to this, the petitioner had made a representation to the respondents for grant of special family pension. However, vide letter dated 18th November, 1995, the respondent No. 4 informed the petitioner that his claim for grant of special family pension has been rejected by CCDA(P) Allahabad by stating that the cause of death is neither attributable to nor aggravated by military service. The petitioner preferred an appeal against the said order to the Ministry of defense and vide order dated 30th July, 1998, the same was rejected. Against this order the petitioner preferred a second appeal to the Secretary, Ministry of defense, Govt. of India, which was also rejected vide order dated 8th January, 2002 and the decision taken by the First Appellate Committee was confirmed. The relevant part of the order dated 8th January, 2002 reads as under:

It is regretted that the committee has not found any ground to alter the decision of the First Appellate committee communicated to you vide this Ministry letter dt. 30.07.1998

2. Having failed to get any benefit despite his persuasive efforts, the petitioner has approached this Court under Article 226 of the Constitution of India for a direction to the respondents to grant special family pension to the petitioner as well as other family members of the deceased late Sub. Manohar Lal..

3. The respondents in their counter affidavit have taken the stand that the claim of the petitioner for grant of special family pension has rightly been rejected by CCDA(P) Allahabad and the petitioner cannot be granted any relief. In their submission, the writ petition is liable to be dismissed.

4. From the following paragraphs of the counter affidavit, it is clear that the facts are hardly in dispute and the stand taken by the respondents gives rise to a very short controversy:

2. The father of petitioner had got himself re-enrolled in defense Security Corps on 28 June, 1967 as `sepoy' and allowed to retain the same Army Number 11077650 as per orders on the subject. The father of petitioner was promoted to the rank of `Naik' with effect from 30 November, 1977 and `Havildar' with effect from 07 December, 1978. The father of petition was promoted to the rank of `Naib Subedar' with effect from 16 January 1980 and allotted Personal Number JC-101233. The father of petitioner was promoted to the rank of `Subedar' with effect from 8 January 1986. His former embodied service of 6 years and 222 days rendered with 140 Med Regiment (Territory Army) of the Regiment of Artillery was counted towards pension/gratuity with service in defense Security Corps. The father of petitioner was posted to 216 DSC Platoon attached to defense HQ Security Troops New Delhi with effect from 19 July 1992. The petitioner's father and mother i.e. JC-101233 Subedar Manohar Lal and his wife Smt. Sushila, expired on 5 July 1994 due to injuries sustained in a quarrel at village & Post : Nandrampur Bas, District Rewari (Haryana State), while on casual leave.

3. On receiving information that the petitioner has been grievously wounded due to injuries inflicted by sons of his elder brother Sh. Mata Deen, the father of the petitioner proceeded on casual leave with his wife and rushed home to investigate the matter. On reaching home and finding his son wounded as a result of injuries, the father of petitioner made arrangements to carry the petitioner to a doctor. While he was taking to a tempo driver outside his house the father of petitioner was attacked by his elder brother Sh. Mata Deen assisted by his grown up sons and other male and female relatives. The father of the petitioner and mother were beaten to death on the spot outside his house.

4. The family details of JC-101233 late Subedar Manohar Lal are as under:

  S.N.           Name            Relationship               Date of Birth

(a)           Sushila              Wife                     01.07.1944
          (died on 5.7.94)

(b)           Kamala              Daughter                  01.07.1965

(c)         Naresh Kumar            Son                     25.05.1975

(d)         Rajesh Kumari         Daughter                  25.10.1981

(e)         Suresh Kumar            Son                     31.08.1989
 

5. The petitioner has correctly been granted enhanced rate of ordinary Family Pension @Rs 900/- per month for the period from 6 July 1994 to 24 May 2000 i.e. the following date of death of his father till the petitioner attaining the age of 25 years, with dearness relief as admissible from time to time vide Pension Payment Order No. F/NA/4273/1995 within the rules on the subject. His basic Family Pension was stepped up to Rs. 2732/- per month with effect from 01 January, 1996 to 24 May 2000 as per Government decision on implementation of Vth Central Pay Commission Report.

8. Special Family Pension claim in favor of the petitioner was submitted to Competent Pension Sanctioning Authority i.e. Chief Controller of defense Accounts (Pensions), Allahabad vide defense Security Corps Records letter No. Pen/FP-2/JC-101233H/129/77(DS) dated 29 May 1995 for consideration, with a copy to the petitioner for his information. The special family pension claim was rejected by Competent Pension Sanctioning Authority i.e. Chief Controller of defense Accounts (Pension) Allahabad, vide their letter No. G4/6/95/3379/VI/78 dated 19 October, 1995 statining that the death of the petitioner's father was due to a wound/injury which is neither attributable to nor aggravated by Military service. Therefore, the petitioner and/or his sister/brother were/are not entitled to get Special Family Pension under the provisions of Rule 213 of Pension Regulations for the Army Part-I (1961). This fact was communicated to the petitioner vide defense Security Corps Records letter No. PEN/FP-5/JC-101233/142 dated 18 November, 1995 with an advice to appeal against the decision of CCDA (P) Allahabad, if he so desired. The appeal dated 29 December, 1995 against rejection of special family pension claim submitted by the petitioner was carefully examined by Government of India, Ministry of defense, New Delhi in the light of relevant documents and rules and rejected vide letter No. 8(18)/97/D(Pen A & AC) dated 30 July, 1998, addressed to the petitioner with copies to all concerned. The second appeal dated 05 October, 1998 against rejection of special family pension claim submitted by the petitioner was also carefully examined by Government of India, Ministry of defense, New Delhi and rejected vide letter No. 6(92)/2000/D (Pen. A & AC) dated 08 January, 2002, addressed to the petitioner with copies to all concerned.

5. It is also stated that the other death benefits such as Army Group Insurance Cover, Saving Benefits under AGI Scheme, AFPP Fund balance, Financial Assistance from DAPWO Fund and Death Gratuity have already been paid to the petitioner and his sister/brothers. It is contended on behalf of the respondents that petitioner's father was on casual leave when he was attacked by his elder brother. He sustained number of injuries upon his body, which subsequently resulted in his death.

6. In some of the cases, the respondents have taken a clear stand that it is not the kind of leave, which would be material for determining the real controversy in these cases but if the applicant satisfies the essentials of Entitlement Rules under Rule 12, he would be entitled to receive the disability pension. According to the respondents, the deceased was neither on duty nor his injury or death was attributable to or aggravated by the military service and as such, the petitioner was not entitled to receive any special family pension. The stand of the respondents is not supported by rules and judgments.

7. In order to deal with this question, it is necessary to refer to certain rules, which have a bearing on the matter in controversy. Rule 12 (d) of Entitlement Rules for Casualty Pensionary Awards, 1982, which is in Appendix II Regulations 48, 173 & 185 of Pension Regulations for the Army, 1961, reads as under:

12. A person subject to the disciplinary code of the Armed Forces is on "duty":

(a) xx xx xx xx

(b) xx xx xx xx

(c) xx xx xx xx

(d) When proceedings from his leave station or returning to duty from his leave station, provided entitled to travel at public' expenses i.e. on railway warrants, on concessional voucher on cash TA (irrespective of whether railway warrant/cash TA is admitted for the whole journey or for a portion only), in government transport or when road mileage is paid/payable for the journey.

8. Rule 10 of the Leave Rules for Army deals with the matter of casual leave and spells out that a person, who is on casual leave, would be on duty. The said rule reads as under:

10. Casual leave counts as duty except as provided for in Rule 11(a).

It cannot be utilised to supplement any other form of leave or absence, except as provided for in Clause (A) of Rule 72 for personnel participating in sporting events and tournaments.

Casual leave due in a year can only be taken within that year,. If, however, an individual is granted casual leave at the end of the year extending to the next year, the period falling in the latter year will be debited against the casual leave entitlement of that year.

9. The cumulative effect of the above rules is that a person, who is on casual leave, will be deemed to be on duty and injuries suffered by a person while on duty would be deemed to have resulted from army service. Under Rule 12(d) it is stipulated that when a person is proceeding from leave station or returning to duty from his leave station, provided entire travel will be on public expense, the injuries suffered during such travel would be as if the same having been suffered by a person while on duty. Once a member of the army, subject to the aforesaid rules, suffers an injury then such injury would be deemed to have been attributable to and aggravated by military service.

10. The Supreme Court in the case of Joginder Singh (Lance Dafadar) v. Union of India and Ors. (1995) 30 Administrative Tribunals Cases 637 in somewhat similar circumstances though in the case of disability suffered and not death but relating to a question whether a person, who is on casual leave, would be treated to be on duty and would be entitled to disability pension or not held as under:

4. Although the appellant was given Army Pension but he was denied disability pension under the Pension Regulations. The disability pension was denied to the appellant on the ground that the injury was not attributable to military service. The appellant challenged the denial of disability pension by way of a writ petition before the Punjab and Haryana High Court. The High Court dismissed the petition in liming on the ground of delay.

5. The question for our consideration is whether the appellant is entitled to the disability pension. We agree with the contention of Mr. B. Kanta Rao, learned Counsel for the appellant that the appellant being in regular Army there is no reason why he should not be treated as on duty when he was on casual leave. No Army Regulation or Rule has been brought to our notice to show that the appellant is not entitled to disability pension. It is rather not disputed that an army personnel on casual leave is treated to be on duty. We see no justification whatsoever in denying the disability pension to the appellant.

6. We, therefore, set aside the order of the High Court dated 15-12-1992. The disability of the appellant has already been adjudged by the respondents as 60%. We direct the respondents to grant disability pension to the appellant from the date when he was discharged from Army treating him to have incurred 60% disability. The respondents shall finalise the disability pension case of the appellant within three months from the receipt of this order. The appellant shall be further paid all the arrears of the pension within a further period of three months thereafter. In case the arrears of disability pension are not paid to the appellant within the period of six months from the receipt of this order, then the appellant shall be entitled to 12% interest from the date on the amount due.

11. Counsel for the petitioner has also relied upon the judgment of Division Bench of this Court in the case of Banso Devi v. Union of India (LPA No. 226/2001 decided on 24.9.2001) 2002 (1) F.L.J. 582 wherein the Division Bench after taking into consideration various judgments of the Supreme Court, held that where injuries were sustained by the army personnel while they were on casual leave, they were to be considered `on duty'. In that case, the Court held that appellant would be entitled to special family pension in accordance with rules since the husband of the petitioner therein met with the accident which took place while attending to office in discharge of his duties.

12. Counsel for the petitioner has further relied upon the judgment of this Court in the case of Smt. Kamla Devi v. Union of India and Ors. CWP No. 2176/98 decided on 7.3.2002 in support of his contentions that special family pension has to be granted to the family of the deceased, who suffered injuries resulting in death while on duty and relied upon the following view of the Bench:

4. Learned Counsel for the petitioner relied upon the Division Bench Judgment of this Court whereby the expression `attributable to military service' has been considered. The Division Bench Judgment was in LPA 276/2001 Smt. Banso Devi v. Union of India and Ors. decided on 24.9.2001. The judgment considers the observations of the Supreme court in the case of Lance Dafadar Joginder Singh v. Union of India and Ors. 1995 Supp (3) SCC 232 and Madan Singh Shekhawat v. Union of India and Ors. . These judgments dealt with the issue of grant of disability pension. The Division Bench of the High Court in Banso Devi's case (supra) after considering the ratio of the Supreme Court judgment observed that the appellant therein would be entitled to special family pension in accordance with the rules since the husband of the petitioner therein met with the accident which took place while attending to office in discharge of his duties.

5. The present case is one where the death has been caused during an operation. The condolence letter also mentions so. Further in the counter affidavit the stand taken is that another colleague shot dead the husband of the petitioner. In view of the fact the husband of the petitioner had gone on search operation and one of the colleagues had apparently shot him it cannot be said that the death of the husband of the petitioner was no attributable to military service.

13. In view of the consistent view of the Courts, which is based upon correct analysis of the relevant provisions of the law as afore-referred , we have no hesitation in taking a view that the order of rejection passed by the respondents denying the benefit of special family pension to the family members of the deceased is illegal and unsustainable. Which of the heirs and to what extent are they entitled to receive family pension is a matter of computation and we leave it to the respondents to act in accordance with law.

14. Ergo, this petition is allowed. The impugned orders dated 8th January, 2002, 30th July, 1998 and 18th November, 1995 are set aside. The respondents are directed to pay to the petitioner and other family members of the deceased the special family pension in accordance with rules. However, arrears would be confined to a period of 3 years immediately preceding to the date of filing of the writ petition.

15. In the facts and circumstances of the case, we leave the parties to bear their own costs.