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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.
xx xx xx
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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