Delhi High Court

Shakuntla Devi vs Uoi And Ors on 20 July, 2012

Author: Gita Mittal

10
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +    W.P.(C)No.6073/2011

%                                     Date of decision: 20th July, 2012

        SHAKUNTLA DEVI                  ..... Petitioner
                     Through : Col. (Retd.) S.R. Kalkal, Adv.

                      versus

        UOI AND ORS                       ..... Respondents
                           Through : Mr. Ankur Chhibber, Adv.

        CORAM:
        HON'BLE MS. JUSTICE GITA MITTAL
        HON'BLE MR. JUSTICE J.R. MIDHA

                          JUDGMENT (ORAL)

1. By way of the present writ petition, the order dated 20 th

July, 2011 passed by the Armed Forces Tribunal in

O.A.No.203/2010 has been assailed before us. The petitioner

had prayed before the Armed Forces Tribunal for a direction to

the respondents to release special family petition in her favour

w.e.f. 11th March, 2008 which was the date of re-marriage of

the widow of her son late Gnr. Sombir. The petitioner had also

prayed for quashing of the order dated 3rd January, 2010 issued

by the respondents rejecting the same prayer.

2. Late Gnr. Sombir, son of the petitioner was enrolled in the

army as a soldier on 22nd March, 2011. It is claimed that the

petitioner was fully dependent on her son who was the sole

bread earner in the family. While on casual leave, on 16th

October, 2004, late Gnr. Sombir met with an accident and

expired in the Civil Hospital, Jind, Haryana on the same date.

3. It appears that on 15th May, 2004 late Gnr. Sombir was

married to one Smt. Vijeta Devi. Upon death of late Gnr.

Sombir, the respondents released the family pension in favour

of the widow of the jawan. On 11th March, 2008, Smt. Vijeta

Devi got remarried to one Sh. Ajeet Singh. Upon receipt of this

information, the respondents passed an order dated 11 th April,

2008 stopping the family pension, being paid to Smt. Vijeta

Devi w.e.f. 11th March, 2008.

4. The petitioner thereupon made a request to the

respondents for grant of special family pension which was

rejected by the respondents by a letter dated 3 rd January, 2010

on the ground that the death of late Gnr. Sombir, (son of the

petitioner) was not attributable to the military service.

Aggrieved thereby, the petitioner filed the aforenoticed

petition before the Armed Forces Tribunal which accepted the

stand of the respondents to the effect that the death of late

Gnr. Sombir was not attributable to the military service and

placing reliance on the several judicial pronouncements

including the pronouncement of the Supreme Court and the

Full Bench pronouncement of this court, on the issue, passed

the order dated 20th July, 2011 dismissing the prayer for grant

of special family pension. The Armed Forces Tribunal by the

same order, however, has directed that ordinary family

pension be released to the petitioner as mother of the

deceased soldier.

5. Learned counsel for the petitioner has vehemently

contended before us that by virtue of Regulation 520 under the

Defence Service Regulation; and the letter dated 7 th February,

2001 of Government of India, the Station Brigadier is required

to certify that the death of the service personnel was

attributable to military service. In the case of the petitioner,

upon such certification, by virtue of para 173 of the Pension

Regulations for Army, 1961 Part - I, upon remarriage of late

Gnr. Sombir's widow, the petitioner would be automatically

entitled to special family pension. Colonel (Retd.) S.R. Kalkal,

learned counsel for the petitioner has also drawn our attention

to the affidavit filed by Smt. Vijeta Devi to the effect that she is

not pressing any claim in respect to the pension which may be

admissible under the rules.

6. We find that before the Armed Forces Tribunal, the

respondents had contested the petitioner's claim inter-alia on

the ground that the soldier had expired on 16 th October, 2004

at his native place while on casual leave on account of a

motorcycle accident and his death has been assessed as not

attributable to the military service by the Competent pension

sanctioning authority.

7. The question, therefore, posed before us for

consideration is as to whether the death of late Gnr. Sombir

while on casual leave was attributable to his military service or

not. We find that the same question was placed for

consideration before the Full Bench of this court which has

authoritatively adjudicated upon the issue in the judgment

reported at 152 2008 DLT 148, Ex Nk Dilbag Singh vs.

Union of India & Ors. On this question, it has been ruled as

follows:-

"24. To sum up our analysis, the foremost feature, consistently highlighted by the Hon'ble Supreme Court, is that it requires to be established that the injury or fatality suffered by the concerned military personnel bears a causal connection with military service. Secondly, if this obligation exists so far as discharge from the Armed Forces on the opinion of a Medical Board the obligation and responsibility a fortiori exists so far as injuries and fatalities suffered during causal leave are concerned. Thirdly, as a natural corollary it is irrelevant whether the concerned personnel was on casual or annual leave at the time or at the place when and where the incident transpired. This is so because it is the causal connection which alone is relevant. Fourthly, since travel to and fro the place of posting may not appear to everyone as an incident of military service, a specific provision has been incorporated in the Pension Regulations to bring such travel within the entitlement for Disability

Pension if an injury is sustained in this duration. Fifthly, the Hon'ble Supreme Court has simply given effect to this Rule and has not laid down in any decision that each and every injury sustained while availing of casual leave would entitle the victim to claim Disability Pension. Sixthly, provisions treating casual leave as on duty would be irrelevant for deciding questions pertaining to pay or to the right of the Authorities to curtail or cancel the leave. Such like provisions have been adverted to by the Supreme Court only to buttress their conclusion that travel to and fro the place of posting is an incident of military service. Lastly, injury or death resulting from an activity not connected with military service would not justify and sustain a claim for Disability Pension. This is so regardless of whether the injury or death has occurred at the place of posting or during working hours. This is because attributability to military service is a factor which is required to be established."

8. The aforenoticed decision of the Full Bench would show

that the causal connection between the military service and a

reason for injury/death is essential and that in law every injury

sustained while availing casual leave would not justify or

entitle a claim for disability pension. It needs no elaboration

that disability pension or extraordinary pension to serving

personnel or the special family pension to their dependants is

admissible if an injury or death occurred while traveling to and

fro the place of posting which may have a causal relationship

with the military service and that specific provision has been

incorporated in the pension regulation to bring such travel

within the entitlement of disability pension if injury is sustained