Smt.Manju Tiwari vs Uoi & Ors.
2011 Latest Caselaw 4116 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved On: 3rd August, 2011
                       Judgment Delivered On: 25th August, 2011

+                           W.P.(C) 3505/2011

        SMT.MANJU TIWARI                          ..... Petitioner
                 Through:        Mr.S.R.Kalkal, Advocate

                                 versus

        UOI & ORS.                               .....Respondents
                  Through:       Ms.Barkha Babbar and Mr.Asit
                                 Tiwari, Advocates with Major Rahul
                                 Soni

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SUNIL GAUR

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the
        Digest?

PRADEEP NANDRAJOG, J.

1. This is the second round of litigation fought by the petitioner against the Union of India. It is her first round of litigation against the State of Uttar Pradesh.

2. Claim of the petitioner before the Armed Forces Tribunal has resulted in defeat when, vide impugned order dated 18.2.2001, OA No.78/2010 filed by the petitioner was dismissed.

3. The facts on which the first round was litigated are the same as the instant round of litigation.

4. Enrolled in the Army, husband of the petitioner was deployed at the Indo-Pak Border in the State of Rajasthan during May 1999 when Kargil War was fought in the Northern Sector i.e. the line of control in the State of Jammu and Kashmir. Though war was being fought at the line of control in the State of Jammu and Kashmir, the Army units deployed at the Border in the State of Rajasthan were on high alert. While on duty at 3:25 hours on 11.8.1999 late husband of the petitioner suffered cardiac respiratory failure and unfortunately died.

5. Since he died in service and while on duty, family pension was released to the petitioner. She claimed liberalized family pension which was denied to her and thus she filed W.P.(C) No.5262/2003 praying that liberalized family pension should be released to her. Vide judgment and order dated 4.3.2005 the claim was allowed. The learned Division Bench of this Court noted Government of India, Ministry of Defence, instructions dated 31.1.2001 on the subject. Relevant extracts from Part-II of the instructions were highlighted in the decision as under:-

"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 categorized as follows:-

       Category-A
       XXX             XXX
       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
       XXX             XXX    XXX
       Category-D
       XXX             XXX    XXX
       Category-E

Death or disability arising as a result of:-

       XXX             XXX    XXX
       (f) operations    specifically       notified   by     the
       Government from time to time.

4.2 Cases covered under category "A" would be dealt with in accordance with the provisions contained in the Ministry of Defence Letter No.1(6)/98/D/Pens./Services) dated 3.2.1998 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 XXX XXX XXX

6. Liberalised family pension (LFP) 6.1 In case of death of an Armed Forces Personnel under the circumstances mentioned in categories D & 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 defined in para 3.1 above both of officers and PBOR Liberalised family pension at this rate shall be admissible to the window

in the case of officers and to the nominated heir in the case of PBOR until death of disqualification."

6. With reference to clause (f) of para 4.1 of the instructions, under Category E, the Division Bench opined in favour of the petitioner for the reason it was held, in para 7 of the opinion, that it was a war like situation and that the Indo- Pak Border at Rajasthan was declared an operational area.

7. It not being in dispute that at the time husband of the petitioner suffered the cardiac respiratory failure he was on active duty, it was directed that liberalized family pension be paid to the petitioner.

8. The mandamus issued by the Division Bench has been complied with.

9. The petitioner now wants the benefit of an ex gratia amount sanctioned as per a policy circular dated 22nd September 1998 and also wants some money to be paid to her by the State of Uttar Pradesh and in respect of petitioner‟s claim against the State of Uttar Pradesh, we find no averments as the basis of the claim nor do we find any policy decision of the State of Uttar Pradesh being relied upon, in the absence of proper pleadings and the relevant policy decision being cited, we decline relief claimed against State of Uttar Pradesh, but considering the claim against the Union of India, would highlight that the claim is predicated on a policy decision dated 22.9.1998 which reads as under:-

"No.20(1)/98/D(Pay Services), Bharat Sarkar/Government of India, Raksha Mantralaya/Ministry of Defence,

NEW DELHI - 110011, 22nd September, 1998.

To The Chief of the Army Staff, New Delhi. The Chief of the Naval Staff, New Delhi. The Chief of the Air staff, New Delhi.

Sub: Special Benefits in cases of Death and Disability in Service- Payment of Ex Gratia lump sum compensation to families of the Defence Service personnel who die in harness - Recommendations of the Fifth Central Pay Commission

Sir,

I am directed to refer to Government of India, Ministry of Personnel, Public Grievances & Pension, Department of Pension & Pensioners‟ Welfare O.M.No.45/55/97-P&PW(C) dated 11-9-98 and state that the President is pleased to decide that the families of Defence Service personnel who die in harness in the performance of their bona fide official duties shall be paid the following ex gratia lump sum compensation:-

(a) Death occurring due to `5.00 lakhs.

accidents in the course of performance of duties

(b) Death occurring in the course `5.00 lakhs.

of performance of duties attributable to acts of violence by terrorists, anti-social elements, etc.

(c) Death occurring during (i) `7.50 lakhs.

enemy action in international war or border skirmishes; and

(ii) action against militant, terrorists, extremists, etc.

2. The graded structure of ex gratia lump sum compensation takes into account the hardships and risks involved in certain assignments, the intensity and magnitude of the tragedy and deprivation that families of government servants experience on the demise of the breadwinner in different circumstances, the expectations of the employer from the employees to function in extreme circumstances, etc. The compensation is intended to provide an additional insurance and security to employees who are required to function under trying circumstances and are exposed to different kinds of risks in the performance of their duties.

3. Powers were delegated in the Ministry of Finance O.M.No.19(18) -EV (A) /66 dated February 26 1966 to the appointing authorities to sanction awards under the relevant Extraordinary Pension Rules in those cases in which the proposed pension or gratuity is held to be clearly admissible under the rules. However, any awards proposed to be granted on ex gratia basis were to continue to be referred to the Ministry of Finance as usual. In partial modification of these orders, in so far as they relate to ex gratia awards, the admissibility of and entitlement to the ex gratia lump sum compensation in the circumstances specified in these orders may be decided in each individual case by the Ministry of Defence in consultation with Financial Adviser (Defence Services).

4. The conditions and guidelines to be observed governing the payment of ex gratia lump sum compensation in terms of these orders are indicated in the annexure.

5. The order shall apply to all cases of death in harness occurring on or after August 1, 1997. In so far as cases of death, which occurred prior to August 1, 1997, are concerned, these shall be regulated and finalized in terms of the orders and instructions in force prior to the issue of these orders.

6. These orders supersede earlier orders issued on the subject vide Ministry of Defence Letter No.B.39902/XXII/AG/PS-4(d)/2069/D (Pay/Services) dated October 8, 1996 and amendment issued vide letter of even number dated June 4, 1997.

7. These orders are issued with the concurrence of Defence (Finance) vide their U.O.No.1869/ Addl.FA(D)/98 dated 11-9-1998.

Yours faithfully,

Sd/-

(B.BRAHMA) Director (AG)"

10. The basis of the claim is para 1 of the circular which records the sanction of the President to grant ex gratia lump sum compensation to families of defence service personnel who die in harness in the performance of their bona fide duties; the ex gratia amount being as per clause (a), (b) and

(c) of the said policy circular. We highlight that petitioner stakes a claim under clause (c) of Para 1 of the policy where `7.5 lakhs lump sum ex gratia compensation is payable where death occurs during (i) enemy action in international war or border skirmishes; and (ii) action against militants, terrorists, extremists etc.

11. The argument is that in the earlier round of litigation this Court has already held that husband of the petitioner died while on duty in an operational area and the death was arising as a result of war like situation and since the issue was settled, ex gratia lump sum compensation under the policy dated 22.9.1998 must automatically follow.

12. We are afraid, the argument ignores the difference in the instructions dated 31.1.2001 considered by the Division Bench on the issue of grant of liberalized family pension and the policy guidelines dated 22.9.1998 pertaining to ex gratia amount to be paid by way of compensation.

13. Pertaining to liberalized family pension, under Category E, vide clause (f) of the instructions dated 31.1.2001 death arising as a result of war like situations would attract liberalized family pension to be paid. The expression „ war like situation‟ is highlighted by us. The expression used in the circular dated 22.9.1998 relating to grant of ex gratia lump sum compensation uses the expression „death occurring during enemy action in international war or border skirmishes ‟. In other words, ex gratia lump sum envisages death, not in a war like situation, but in actual war during enemy action or a border skirmish.

14. The Tribunal has rightly opined, indeed the fact which is not in dispute is that though Indo-Pak Border in the State of Rajasthan was declared an operational area, there was no enemy action by way of war or even a border skirmish in the said area when husband of the petitioner died.

15. The argument of learned counsel for the petitioner that being a beneficial policy, it must be read liberally, is noted and rejected by us for the reason the rule that beneficial legislation or policies should be read liberally means simply that where the language is capable of a liberal as well as a narrow interpretation, it is the former which has to be preferred over the latter and not vice versa. But where the

language is plain and admits of no two meanings, the Court cannot twist the language or stretch it.

16. The decision of a Division Bench of the Punjab and Haryana High Court reported as 2004 (3) SCT 388 Kanta Yadav Vs. UOI & Ors. relied upon by learned counsel for the petitioner which supports the argument of learned counsel for the petitioner is disagreed to by us for the reason, though the decision has noted the policy decision dated 22.9.1998 as also the instructions pertaining to liberalized family pension and has highlighted the ones pertaining to liberalized family pension, being the same clauses highlighted by the Division Bench of this Court in the first round of litigation fought by the petitioner, but has failed to contrast the language in the two as has been contrasted by us hereinabove.

17. The respondents had vehemently urged, a line of reasoning with which we concur, that ex gratia is to be paid for valour i.e. death at the battle field and not in an operational area in a war like situation. It is actual war or a skirmish with the enemy which is at the core of the circular dated 22.9.1998 and thus regretfully for the petitioner, in spite of our sympathies for her, we dismiss the writ petition but refrain from imposing any costs.

(PRADEEP NANDRAJOG) JUDGE

(SUNIL GAUR) JUDGE AUGUST 25, 2011/mm