Delhi High Court
Phoolwati Devi vs Uoi And Ors on 19 July, 2012
Author: Gita Mittal
8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C)No.3946/2010
% Date of decision: 19th July, 2012
PHOOLWATI DEVI ..... Petitioner
Through : Col. (Retd.) S.R. Kalkal, Adv.
versus
UOI AND ORS ..... Respondents
Through : Mr. Jagjit Singh, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The instant writ petition has been filed by the widow of
Late Head Constable Devender Kumar praying for grant of
extraordinary pension for the reason that her husband died in
extraordinary circumstances in circumstances directly
attributable to his service.
2. The brief facts giving rise to instant petition are in narrow
compass and are undisputed.
3. Late Head Constable Devender Kumar was enrolled in the
BSF on 10th July, 1974 after careful medical examination by the
recruiting medical authorities which found him free from any
kind of disease. He was promoted up to the rank of Head
Constable. It is an admitted position that even up to the time
of his death, he was in Shape-I (fit in all respects) so far as his
medical status and fitness is concerned.
4. Unfortunately on 16th June, 2000, a party of 122
Battalion, BSF consisting of one Sub-Inspector and 16 other
ranks including Head Constable Devender Kumar were
required to proceed from the Battalion Headquarter Tagorevilla
to Tactical Headquarter (THQ), Training Centre and School
(TC&S) to Hazaribagh. This party of jawans had got down from
Doon Express at Railway Station, Koderma and was proceeding
towards Tactical Headquarter, Hazaribagh by a government 5
ton vehicle. The Second-in-Command of this unit was also
proceeding from the Tactical Headquarters in a Gypsy along
with 5 ton vehicle in which the jawans were proceeding. When
the party was about 7 kms short of Hazaribagh, Head
Constable Devender Kumar who was occupying the co-driver
seat became unconscious and was not responding to any
command. The matter was informed to the Second-in-
Command in the Gypsy. There was no hospital in the near
vicinity and consequently he had to be evacuated to the Civil
Hospital at Hazaribagh Town. The respondents have stated
that no doctor was available in the Civil Hospital and
consequently he had to be shifted to the BSF Hospital at
Training Centre and School (TC&S), Hazaribagh. On
examination, the Medical Officer declared the patient as
having been brought dead. So far as cause of death is
concerned, it was a identified as 'Cardiac Arrest' owing to the
massive heart attack. The petitioner has claimed that the
death of her husband was attributable to the exigencies of
service and that she is entitled to grant of extraordinary family
pension as per the CCS (Extraordinary Pension) Rules, 1972.
5. It is admitted by the respondents that the next of kin of
Head Constable Devender Kumar were paid enhanced family
pension of Rs.2,152/- per month w.e.f. 18th June, 2000 for a
period up to 18th June, 2007 in compliance with Sub-Rule 3 of
Rule 54 of CCS (Pension Rules), 1972.
6. The respondents dispute the entitlement of the petitioner
to extraordinary pension on the ground that the rules in
question do not permit grant of extraordinary pension for the
reason that the deceased had expired due to cardiac arrest
even though he was on government duty. It is urged that the
extraordinary pension would be admissible only for such
deaths which occur due to disease contracted due to continued
exposure to hostile work environment or subject to extreme
weather conditions or occupational hazards and accidents
while travelling in government vehicles on government
bonafide duty. But in the present case, cause of death is
cardiac arrest due to massive heart attack. Hence the present
case is not covered under Extraordinary Family Pension Rules.
7. The defence set-up before us is unfortunately devoid of
merit. Late Head Constable Devender Kumar was in Shape-I
and was fit in all respects when he expired. He suffered heart
attack while on duty and unfortunately there was no hospital in
the vicinity. Even the hospital to which he was evacuated had
no doctor.
8. There is no absolute proposition of attributability to
service of a disease as being relateable only to the difficulty of
the terrain or the nature of the duty which is being performed.
The evaluation of attributability has to take place on a case to
case basis.
9. It is well settled that a person moving from one place to
another has been held to be as being on duty. This position is
not disputed in the instant case.
10. In support of the contention that the heart attack
suffered by Head Constable Devender Kumar was directly
attributable to the service, reliance has also been placed
before us on the pronouncement of this court reported at 2005
(3) SCT 458 Mrs. Manju Tewari vs. UOI & Ors. wherein the
court was concerned with grant of liberalized family pension in
respect of the death of an army jawan in similar
circumstances. Reliance has also been placed on the Division
Bench pronouncement reported at 2006 (92) DRJ 390 (DB)
Samaj Kaur vs. UOI & Ors. wherein this court was concerned
with grant of special family pension to the petitioner whose
husband had died while in service with the defence secretary
corps in the army within duty hours on account of his suffering
a heart attack. It may be noted that in this case, even the
medical experts had ruled in favour of the disease being
attributed to military service.
11. To further press the submission, our attention is drawn to
orders dated 22nd November, 2001 passed in favour of one
Smt. Kamla Devi, widow of late Head Constable GD Mukhtiar
Singh of the ITBP, which is also a para military force. It is
pointed out that GD Mukhtiar Singh had died on 15 th June,
1999 due to cardio-respiratory arrest. The Chief Medical
Officer has accepted the entitlement of the widow to
extraordinary pension under the provisions of the CCS(EOP)
Rules. The ITBP had consequently issued the orders dated 22 nd
November, 2001 in this behalf. It is contended that late Smt.
Dhanpati Devi was similarly placed.
12. For the reason noticed hereinabove, it is held that the
cause of the death of Head Constable Devender Kumar was in
circumstances which have direct relationship to his
employment and the duties which he was performing at the
time of his death. The petitioner, therefore, is entitled to grant
of extraordinary family pension w.e.f. 17th June, 2000.
Needless to say, the respondent would be entitled to adjust the
amount which was paid to the petitioner as enhanced family
pension.
13. In view of the above, we direct as follows:-
(i) The respondent shall calculate the amount payable to the
petitioner towards extraordinary family pension.
(ii) The respondent shall also calculate the amount which has
been paid as an enhanced component towards the family
pension. Such calculation shall be done within eight weeks and
shall be communicated to the petitioner immediately
thereupon.
(iii) The respondent shall be entitled to adjust the amount
which was paid towards the enhanced component of the family
pension out of the enhanced extraordinary pension which they
calculate as admissible to the petitioner. The balance amount
after adjustment of the enhanced family pension component
shall be paid to the petitioner within a period of twelve weeks
from today.
(iv) The petitioner shall be entitled to interest at the rate of
7.5% per annum w.e.f. 17th June, 2000 till the date of payment.
This writ petition is allowed in the above terms.
Dasti to both the parties.
GITA MITTAL, J
J.R. MIDHA, J
JULY 19, 2012
mk
