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DALJEET KAUR versus UNION OF INDIA & ORS.

High Court of Punjab and Haryana, Chandigarh

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DALJEET KAUR v. UNION OF INDIA & Ors. - CWP-16430-2002 [2000] RD-P&H 5 (2 June 2000)

C.W.P.No.16430 of 2002 [1]

Smt.Daljeet Kaur Vs. Union of India and others.

Present: Mr.Angad Singh,Advocate,

for the petitioner.

Mr.RS Rai, Senior Standing Counsel, with Mr.MS Guglani, Advocate, for the respondents.

S.S. NIJJAR, J. (Oral):

In view of the peculiar facts of this case, with the consent of the learned counsel for the parties, we dispose of the writ petition finally at this stage only. We have heard the learned counsel for the parties at length and perused the record of the case.

Love of a mother for her children has, since time immemorial, been placed at the highest pedestal.

When a mother loses a hale and hearty child in some unfortunate accident, she suffers a tragedy which is personal to her and is of such magnitude that it defies description in mere words. The love of the mother is very akin to the love of the earth for its inhabitants. It is perhaps this boundless love which prompts and compels the entire mankind to revere this planet as the "MOTHER-EARTH". It is well known that the mother-earth keeps replenishinig its natural resources to support the humanity, inspite of the mindless plunder committed upon C.W.P.No.16430 of 2002 [2]

it by us. We are of the opinion that keeping such like sentiments in view, the Union of India has been promulgating various schemes to give special benefits in cases of death and disability in service including the payment of ex-gratia lump sum compensation. The reasons have been set out in the instructions of the Government of India, Ministry of Defence, letter No. 20 (1)/98/D (Pay/Services) dated 22 Sep. 98 as amended vide Government of India letter No.20 (1)/98/D (Pay/Services) dated 3 Aug. 99. The instructions give objects and reasons for enacting special provisions in these words:- "The graded structure of ex-gratia lump sum compensation takes into account the hardship 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 bread winner in different circumstances, the

expectations of the employer from the employee 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".

C.W.P.No.16430 of 2002 [3]

Alas even these provisions will, at best, go only a little way towards assuaging the feeling of utter devastation of the mother who loses a son, whilst performing his patriotic duties for the protection of the Nation.

Can the benefits sought to be given to the unfortunate legal heir of a deceased military personnel whose case falls clearly within these instructions, be permitted to be negated by a bureaucratic army officer sitting in his Ivory Tower by sheer mis-interpretation of the instructions, is the significant question of law which arises in this petition. We are constrained to give a preface to this judgment with the aforesaid remarks, due to the peculiar facts and circumstances of this case, which we now notice.

The petitioner is the unfortunate mother of one Amandeep Singh ("Amadeep" for short) who was enrolled in the army. He was allotted Regimental Number 14426858 and was serving with 581 Light Regiment Artillery as a Gunner (Gnr.). In July, 2000, Amandeep was posted at Gund in J & K which is Counter-Insurgency Field and Operational Area (Operation Rakshak). On 05.08.2000, Amandeep was detailed to perform night security sentry duty from 9.00 P.M. to 11.00 P.M. at post No.3 which was facing Sindh River.

Naik Kulbir Singh was also on duty from 8.00 P.M. to 10.00 P.M. at the same post. At about 9.10 P.M. some C.W.P.No.16430 of 2002 [4]

unusual movement was suspected in the area by Naik Kulbir Singh and Amandeep. Naik Kulbir Singh ordered Amandeep to check out the area to clear the suspicion. Gnr. Amandeep cocked his riffle and moved out to check the area.

Sometime later, due to darkness Naik Kulbir Singh lost sight of Amandeep. He, however, heard a noise of someone falling down, followed by sound of a single shot having been fired. Amandeep was later on found lying with his face downwards with his rifle below him and Pagri fallen off to one side. The rifle was found with its safety catch on "R" and a cartridge in the chamber of the rifle since it was a self-loading rifle. There were 18 live cartridges in the magazine fitted on Amandeep's rifle.

One fired case was found from the same spot where Amandeep was found lying injured. The area where Amandeep was found, had round slippery boulders. There were marks of Amandeep having slipped over them. He got fatally injured in the head due to the accidental discharge of his rifle when he slipped over the boulders in the darkness.

Amandeep was rushed to the Unit MI Room and then taken to RMO 19 RR located at Kangan where he was pronounced as "brought dead". First Information Report was registered with Police Station, Gund (J & K). A Court of inquest was conducted by the S.H.O., Police Station, Gund. In the inquest report it is held that the death of Amandeep has occurred due to single gun shot wound in the head. The accidental discharge of rifle of Gnr. Amandeep occurred when he was on night sentry duty in field and operational C.W.P.No.16430 of 2002 [5]

area at Gund (J & K). The case was further investigated by a Court of Inquiry. The findings returned by the Court of Inquiry on the cause of death is "death of Gnr.Amandeep is a case of Battle Accident in the field in Counter Insurgency area (Operation Rakshak). The opinion of the Court of Inquiry was approved by Brig.Harendra Mohan, Commander 3 Sector RR, the Competent Military Authority with the opinion that "the death of No.14426858 Gnr.

Amandeep Singh of Adv. Party 581 Light Regiment is attributable to military service being a case of Battle Accident in the field in Counter Insurgency Operational Area". Inspite of the fact that death of Amandeep Singh has been considered as attributable to Military Service, the P.C.D.A. (Pensions), Allahabad, has only sanctioned special family pension to the petitioner being the mother of the deceased. The petitioner has been granted the following benefits:-

(a) Special Family Pension vide Principal Rs.2550/- per Controller of Defence Accounts month plus (Pensions) Allahabad Pension Payment Dearness Order No.F/2636/2001 dated 10.10.2001 Allowance w.e.f.06

Aug.2002 till

life time.

(b) Death-cum-Retmrement Gratuity Rs.27,495/- C.W.P.No.16430 of 2002 [6]

(c) Army Group Insurance Fund Rs.3,75,000/- (d) Army Group Insurance Saving Rs.4720/- benefits

(e) Final Settlement of Accounts Rs.275/- (f) Armed Forces Personal Provident Rs.4724/- Fund.

(g) Army Central Welfare Fund Rs.2,000/- (h) Regt. of Artillery Association Rs.10,000/- Ex.Gratia"

The petitioner was, however, not granted ex-gratia lump sum compensation of Rs.5,00,000/- which was admissible under a decision of the government of India, Ministry of defence letter No.20 (1)/98/D (Pay/Services) dated 22.09.1998 as amended vide Govt. of India Letter No.20 (1)/98/D (Pay/Services) dated 03.08.1999, Annexure P-7. Consequently, the petitioner made a representation to the respondents for the payment of the ex-gratia award of Rs.5,00,000/-. The first application was made on 06.03.2002. When no response was received, another application was made on 15.06.2002. Ultimately, the claim C.W.P.No.16430 of 2002 [7]

of the petitioner for ex-gratia lump sum award has been rejected by respondent No.2 by order dated 28.08.2002, Annexure P-6. The aforesaid order reads as follows:- "Ex-GRATIA AWARD; NO.14426858 LATE GNR.

AMANDEEP SINGH DIED ON 05.08.2000.

Madam,

1. Further to our letter No.14426858/H (b) D-Exg./Pen-3 dated 5 Aug 2002.

2. It is intimated that claim for grant of ex-gratia award has again been rejected by PCDA (P) Allahabad vide their letter

No.G4/7/02/8936/III/169 dated 05 Aug 2002 stating that the deceased had died due to shot of his own personal weapon, therefore, the cause of death of the deceased does not come under the provision of Govt. of India, Min.

of Def. letter No.20 (1) (98)/D (Pay/Services) dated 22 Sep. 98 for grant of ex-gratia

award".

Learned counsel for the petitioner has

submitted that the order dated 28.08.2002, Annexure P-6, is unsustainable as it is clearly contrary to the decision of the Union of India contained in the letter dated C.W.P.No.16430 of 2002 [8]

22.09.1998 Annexure P-7. The claim of the petitioner has been rejected on the ground that the ex-gratia lump sum award cannot be granted to the petitioner as the death of Amandeep had occurred due shot from his personal weapon and, therefore, the cause of death of the deceased does not come under the purview of the letter dated 22.09.1998 for grant of ex-gratia award. The same justification is given in the preliminary objection Nos.1 and 2 of the written statement filed on behalf of the respondents.

Mr.R.S.Rai, learned Senior Standing counsel for the respondents, has submitted that the claim of the petitioner has been considered in accordance with the rules and the benefits which have been enumerated above, have already been granted to the petitioner. He submitted that since Amandeep died from a gun shot fired from his own weapon, the claim would not fall within the decision of the Government contained in the letter Annexure P-7.

We have considered the submissions made by the learned counsel for the parties.

The letter dated 22.09.1998, Annexure P-7 lays down certain conditions governing the payment of ex-gratia lump sum compensation and guidelines to be observed. It is a decision of the President. At this stage, it would be apposite to reproduce the relevant provisions of the letter Annexure P-7, which are as under:- C.W.P.No.16430 of 2002 [9]

"Copy of Govt. of India, Ministry of Defence, letter No.20 (1) /98/D (Pay/Services) dated 22 Sep. 98 as amended vide Govt. of India letter No.20 (1)/98/D (Pay/Services) dated 3 Aug 99.

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 COMMISSIONER.

Sir,

I am directed to refer to Government of India, Ministry of Personnel, Public Grievances & Pension, Department of Pension & Pensioner's Welfare O.M. No.45/55/97-P&W (C) dated 11.9.98 and state that the President is pleased to decide that the families of Defence Services personnel who die in harness in the performance of their bonafide official duties shall be paid the following ex-gratia lump sum compensation:- (a) Death occurring due to Rs.5.00 Lakhs accidents in the course

`f Performance of duties.

C.W.P.No.16430 of 2002 [10]

(b) Death occurring in the Rs.5.00 Lakhs course of performance of

Duties Attributable to

acts of violence by

terrorists, Anti-social

elements, etc.

(c) Death occurring (i) Rs.7.50 Lakhs

during border skirmishes

and (ii) action against

militants, terrorists,

extremists, etc.

(d) Death occurring during Rs.10.00 Lakhs enemy action in

International war or such

war like engagements

which are specifically

notified by Ministry of

Defence.

2. The graded structure of ex-gratia lump sum compensation takes into account the

hardship and risks involved in certain

assignments, the intensity and magnitude of the tragedy and deprivation that

C.W.P.No.16430 of 2002 [11]

families of government servants experience on the demise of bread winner in different circumstances, the expectations of the

employer from the employee 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.

Annexure to letter No. 20 (1)/98/D

(pay/Services) dated 22 Sep 98.

CONDITIONS GOVERNING THE PAYMENT OF EX-GRATIA LUMP SUM COMPENSATION AND GUIDELINES TO BE OBSERVED.

1. The main condition to be satisfied for the payment of the ex-gratia lump sum compensation in the specified circumstances is that the death of the employee concerned should have occurred in the actual performance of bonafide official duties. In other words, a causal connection should be established between the occurrence of death and government service.

2. Powers having been delayed to the C.W.P.No.16430 of 2002 [12]

Administrative Ministries to sanction ex-gratia payments under these orders. It shall be their responsibility as well as that of the Financial Advisers to satisfy themselves that the death of the service personnel to be compensated by the payment of the lump sum ex-gratia to the family in fact occurred in the actual

performance of bonafide official duties and to establish its causal connection and nexus with government service. This could be done on the basis of medical and other documents relating to the case.

3. Even if a Defence personnel had died in such circumstances that a medical report could not be secured, the nexus and causal connection with government service would need to be adequately established in determining the entitlement to the ex-gratia lump sum payment.

In deciding this issue, all evidence (both direct and circumstantial) shall be taken into account and the benefit of reasonable doubt given to the claimant. The benefit of

reasonable doubt will be extended more

liberally in field service cases, as provided in the guidelines for conceding attributability of disablement or death to Government service forming part of the Liberalised Pension Award C.W.P.No.16430 of 2002 [13]

Scheme, Pension Regulations for Defence

Services".

Undoubtedly, these orders would be binding on the respondents. They emanate from the President of India with the concurrence of Defence (Finance) vide their U.O.

No.1869/Addl.FA (D)/98 dated 11.9.1998. A perusal of the conditions contained in the letter dated 22.09.1998, Annexure P-7, would show that they have been made with the object of achieving a very humanitarian aim. The only requirement of a cautious nature is that at the time of giving of ex-gratia lump sum compensation to the family of a deceased, it should be established that the accident occurred in the actual performance of bonafide official duties and to establish a causal connection and nexus with government service. It is provided that this could be done on the basis of medical and other documents relating to the case. Even if a medical report could not be secured, the causal connection can be established by other means. In deciding this issue, all evidence (both direct and circumstantial) shall be taken into account and the benefit of reasonable doubt given to the claimant. In fact, it is provided that the benefit of reasonable doubt will be extended more liberally in field service cases, as provided in the guidelines for conceding attributability of disablement or death to Government Service forming part of the Liberalised Pension Award Scheme, Pension Regulations for Defence Services. It is also provided C.W.P.No.16430 of 2002 [14]

that the ex-gratia compensation should be granted to the families of the deceased by even ignoring the deceased's personal default or contributory negligence. It is specifically provided that the default or contributory negligence shall not be taken into account in sanctioning the compensation. We are of the considered opinion that the aforesaid guidelines which are benevolent and beneficient in nature, have been totally ignored by respondent No.2. The attitude displayed by respondent No.2 borders on callousness. The petitioner is clearly entitled to the benefit of ex-gratia lump sum compensation on the basis of paragraph (a) of the letter dated 22.09.1998 as amended vide Government of India letter No.20 (1)/98/D (pay/Service) dated 03.08.1999. The aforesaid paragraph provides as follows:- (a) Death occurring due to accident Rs.5.00 in the course of Performance Lakhs.

of duties.

A perusal of the aforesaid provision shows that it admits of no exception if death results from a shot fired from a gun of the deceased. This exception which has been carved out in Annexure P-6 by respondent No.2, is contrary to the orders issued by respondent No.1.

Even otherwise, a perusal of the instructions clearly shows that the compensation is intended to provide C.W.P.No.16430 of 2002 [15]

an additional insurance and security to the employees who are required to function under trying circumstances and are exposed to different kinds of risk in the performance of their duties. The provisions being beneficient in nature, were required to be liberally construed by respondent No.2. Even if there was a default or contributory negligence on the part of the deceased, the same was required to be ignored as it is specifically so provided in the instructions in condition No.3. The impugned order smacks of arbitrariness and total non application of mind. It is cryptic in nature. The quasi judicial authorities exercising powers with far reaching consequences, are required by law to pass well reasoned speaking orders in support of their decisions. We are constrained to observe that the order passed by respondent No.2 is woefully lacking any cogent reason in support thereof.

On facts, it deserves to be noticed that both the inquest report and the Court of Inquiry, have held that the death has occurred due to accident. It has been held that the death has occurred whilst Amandeep was on duty. It has also been held that Amandeep was performing duty in Insurgency Area popularly known as "Operation Rakshak". It has been categorically held that the death is attributable to military service. These findings have been confirmed by the Competent Military Authority in the field, Brig. Harendra Mohan. Such being the position, we C.W.P.No.16430 of 2002 [16]

are unable to comprehend how the grant of ex-gratia lump sum compensation could have been declined to the petitioner.

For the fore-going reasons, we allow the present writ petition. We issue a writ of certiorari and quash the order dated 28.08.2002, Annexure P-6. We also issue a writ of mandamus directing the respondents to pay to the petitioner ex-gratia lump sum compensation of Rs.5,00,000/- with interest at the rate of 9 per cent per annum from the date the aforesaid benefit became due and payable to the petitioner. The petitioner shall also be entitled to the costs in the sum of Rs.5000/-. In view of the attitude adopted by respondent No.2, we direct that the costs be recovered from the officer responsible for passing the order dated 28.08.2002, Annexure P-6. This order be also brought to the notice of the officer concerned to prevent any such future tragedy.

(S.S. NIJJAR)

JUDGE

April 22, 2003. (HEMANT GUPTA)

BLS JUDGE

Note: Refer to Reporter or not: Yes/ No

C.W.P.No.16430 of 2002 [17]


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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