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IN THE HIGH COURT OF DELHI AT NEW DELHI
WP (C) No. 19133 of 2004
09.04.2008
Pronounced on : April 09, 2008
Smt. Kiran Devi . . . Petitioner
through : Mr. Pratap Singh, Advocate
VERSUS
Union of India and Ors. . . . Respondents
through : Mr. A.K. Bhardwaj, Advocate with Major S.S. Pandey
CORAM :- THE HON?BLE MR. JUSTICE A.K. SIKRI THE HON?BLE MR. JUSTICE J.M. MALIK
1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J. (ORAL)
1. In terms of earlier orders passed, costs of Rs.5,000/- is handed over by learned counsel for the respondent to counsel for the petitioner today in the Court.
2. The husband of the petitioner (hereinafter referred to as ?the deceased?) was enrolled in Army (Artillery) on 28.8.1982. He was found dead on 18.5.1997 in the unit line. A court of inquiry was held to ascertain the cause of his death.
Exact details of the court of inquiry shall be referred to at the appropriate stage in the subsequent paras of this order. What we want to emphasise at this stage is that the death of the deceased was attributable to military service in terms of pension regulations for army. The petitioner, on the said basis, demanded special family pension, which claim of the petitioner was rejected by the respondents. In these circumstances, as a last resort, the petitioner knocked the doors of this Court by WP (C) No. 3845/2000. This writ petition was allowed by a learned Single Judge of this Court vide his judgment dated 15.1.2002. Direction was given to the respondents to start giving the petitioner special family pension. The said judgment has attained finality and it is not in dispute that the petitioner is getting special family pension. However, the petitioner has now come forward with the claim of liberalized family pension on the ground that the respondents have now introduced the scheme for liberalized family pension on the recommendations of the 5th Central Pay Commission, which came into effect from 1.1.1996.
3. A perusal of the judgment dated 15.1.2002 passed in WP (C) No. 3845/2000 would show that after the death of her husband, after 1.1.1996, the petitioner had preferred claim before the Controller of Defence Accounts (Pension), Allahabad for special family pension. When the said claim was rejected by the authorities, the petitioner made a prayer in the aforesaid writ petition for payment of special family pension which was predicated on the plea that the death was ?attributable to military service?. After this claim of the petitioner has been accepted and she is in receipt of special family pension, we agree with the contention of the respondents that the present petition is barred by the principles of constructive res judicata. The petitioner was aware of the circumstances under which the death occurred but on that basis she preferred the claim for special family pension alone. It is not in dispute that a widow like the petitioner would not have claimed both the benefits, viz. special family pension as well as liberalized family pension, and could lay her claim on one type of pension alone. The learned Single Judge in its judgment discussed the provisions of special family pension with reference to case law, and concluded that the petitioner would be entitled to special family pension. Relevant portion of the said judgment, in this behalf, is quoted below :- ?From the aforesaid paragraphs it will be clear that under Section 8 of the Army Act, the Brigade Commander was to record his decision whether or not the inquiry was attributable to military service and whether it occurred in civil service. Once the opinion by the Brigade Commander which was based on the inquiry conducted by the authorities was on the record, the same could have not been ignored or interfered by the Controller of Defence Accounts. That being the position harmonious reading of Regulations No. 223 read with Regulation No. 213 and Regulation 520 (d) and (g) makes it clear that opinion of the Brigade Commander that the deceased was in service at the time of death, the deceased was entitled for special family pension.
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One fail to understand that once the opinion of the Brigade Commander was on the file and the petitioner who was affected by the said opinion was not communicated the said opinion. Shifting stand of the respondent which is discernible from Annexures P2 and P5 is not understandable. On the basis of the Regulations of the respondent, governing the special pension, the petitioner was entitled to special family pension and gratuity. The medical officer attached with CDA (Pension) has not to give opinion as to the status of a person whether his death is attributable to military service or not. Same as per Regulation 520 is the obligation under Section 8 to an authority which in this case was enjoined on the Brigade Commander.?
4. Faced with the aforesaid situation, learned counsel for the petitioner contends that the petitioner was not aware of the circumstances in which her husband had died and it is only from the judgment rendered by this Court that the petitioner came to know of these facts and, therefore, it would be permissible to the petitioner to file a claim for liberalized family pension on the facts which have surfaced on record.
5. We do not agree with this submission of learned counsel for the petitioner. We may state again, at the cost of repetition, that a reading of the judgment would clearly disclose that the claim preferred by the petitioner was on the premise that the death of her husband was attributable to military service and she was in the know of circumstances in which the deceased had died. It may also be noted that the petitioner had contended in the said writ petition that her husband died under mysterious circumstances, which plea was specifically turned down by the learned Single Judge.
6. Notwithstanding the aforesaid, we have considered the case of the petitioner even on merits but do not find any substance in the claim of the petitioner for grant of liberalized family pension. The liberalized family pension is granted, inter alia, under the following circumstances :- ?Category D Death or disability due to acts of violence/attach by terrorist, antisocial elements, etc. whether on duty other than operational duty or even when not on duty. Bomb blasts in public places or transport, indiscriminate shooting incidents in public, etc. would be covered under this category, besides death, disability occurring while employed in the aid of civil power in dealing with natural calamities.
Category E Death or disability arising as a result of :
(a) Enemy action in international war. (b) Action during deployment with a peace keeping mission abroad. (c) Border skirmishes. (d) During laying or clearance of mines including enemy mines as also minesweeping operations. (e) On account of accidental explosions of mines while laying operationally oriented minefield or negotiating minefield laid by the enemy or own forces in operational areas near international borders of the line of control. (f) War like situations including cases which are attributable to/aggravated by :- (i) Extremist acts, exploding mines etc. while on way to an operational area. (ii) Battle inoculation training exercises or demonstration with live ammunition. (iii) Kidnapping by extremists while on operational duty. (g) An act of violence/attack by extremists, anti-social elements etc. while on operational duty. (iv) Action against extremists, antisocial elements, etc. Death/Disability while employed in the aid of civil power in quelling agitation, riots or revolt by demonstrators will be covered under this category.
(i) Operations specially notified by the Govt. from time to time.?
7. It is contended by learned counsel for the petitioner that the case of the petitioner would fall in Category D inasmuch as the deceased died in an attack by anti-social elements. In order to verify the claim of the petitioner in this
behalf, we have perused the Court of Inquiry held into the circumstances in which the husband of the petitioner died. We find therefrom that the petitioner was not in active duty at the time of his death. He was about 7 kms. away from the place of his posting. The cause of death, as per the findings of the Court of Inquiry, is attack by ?unknown persons?. In the circumstances in which the petitioner?s husband died, we cannot even presume that these unknown persons would be anti-social elements, inasmuch as, it has come on record that the deceased had consumed alcohol and was found under the influence of liquor. Many witnesses in the Court of Inquiry have testified to this effect. It has also come on record that after consuming liquor the husband of the petitioner left the house of Gunner/BNT Satish Kumar at 2215 hrs. on 17.3.1997, where he had consumed liquor, and went towards Race Course Road. He was found lying near the Race Course Road at about 2345 hrs on that date. When the death occurred and the deceased was found in inebriated condition, drawing a presumption therefrom that he had died in an attack from some anti-social elements would be far- fetched. The purpose with which the aforesaid Category-D is introduced is obvious, namely, death of a soldier at the hands of terrorists, anti-social elements, whether on duty or not, which means that in a war like situation, a solider dies. This does not seem to have happened in the present case.
8. We, therefore, reject the claim of the petitioner for liberalized family pension and dismiss this writ petition.
(A.K. SIKRI) JUDGE
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