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2001 DIGILAW 425 (ORI)

Krushna Chandra Baliyarsingh v. Union of India

2001-09-28

P.K.MOHANTY

body2001
JUDGMENT P. K. MOHANTY, J. — The petitioner is the father of the de¬ceased constable P. K. Baliarsingh, who was shot at by a fellow constable while discharging his official duties and succumbed to the injuries in the hospital, has approached this Court for a direction to the opposite parties to grant all legal dues like death-cum-retirement gratuity, family pension etc. and a lump sum compensation of Rs. 10 lakhs. 2. Undisputedly, the deceased constable P. K. Baliarsingh, son of the petitioner, was serving in 123 Bn. BSF. While deployed at Dera Baba Nanak, Punjab, he was shot at by another constable Ganapathy G, while on duty, causing bullet injuries in his left arm and left abdomen and was immediately admitted to Gurudev Nanak Dev Hospital for first-aid and subsequently shifted to the Civil Hospital at Amritsar for better treatment, but after four hours of treatment, he was declared dead. A Court of enquiry was conducted to investigate into the circumstances, under which the incident took place and it was established that the constable G. Ganapathy had fired a shot at the deceased P. K. Baliarsingh and the latter succumbed to the injuries. Disciplinary action is being initiated against G. Ganapathy under the provisions of the Border Security Force Act. 3. Opposite parties 1 to 4 through the Deputy Inspector General, Border Security Force. Faridkot (Punjab) had filed the counter affidavit and it is stated that the amount towards T.A., leave, bonus and G.P.F. have been paid by Bank Draft dated 1.10.92 and 12.2.93. The C.G.E.I.S. amounting to Rs. 30, 193/- has also been paid by Bank Draft Dated 28.9.1993. However, admit¬tedly the death-cum-retirement gratuity and financial benefit have not been paid and it is stated that they are under process and will be released in due course to the rightful claimant. The claim for lump sum payment towards compensation has been denied. The relationship of the petitioner as the father of the late constable has already been admitted in the counter affidavit. The deceased Constable P. K. Baliarsingh is stated to have died on 22.5.1992 a about 16.20 hrs and under the rules, his name was struck off the strength from the Department as per Rules. It is further stated that as per the nomination of the deceased consta¬ble in favour of his mother Smt. Sarojini Baliarsingh as NOK she has been paid the dues. It is further stated that as per the nomination of the deceased consta¬ble in favour of his mother Smt. Sarojini Baliarsingh as NOK she has been paid the dues. The counter affidavit was filed on 24.11.1995 repeatedly stating therein that the payment towards death-cum-retirement gratuity as per C.C.S. Pension Rules and the family pension are under process and will be released in due course to the rightful claimant. It is submitted by Sri Pattnaik, learned counsel for the petitioner, that the amounts are yet to be paid. Nothing has been shown to indicate as to why the legiti¬mate dues like the D.C.R.G. and family pension had not been promptly paid, even till 24.11.1995, when the counter affidavit was filed and till date, the deceased constable having died since 22.5.1992. It is repeatedly said and it is the settled law that the service benefits on death or retirement are not bounties, but are the legal entitlements and that has to be paid with all promptitude. The deceased constable has died since May, 1992 and his dependent parents, since he was the only earning member of the family, were left with no source for their maintenance and remained in distress. The deceased constable died an unnatural death being killed by a fellow constable by gun shot. The author¬ities under whom he was working ought to have taken all care to save the family of the deceased employee and release all the entitlements in all promptitudes, but even after nine years, the amount is yet to be paid for no tangible reason due to the inac¬tion and apathy on the part of the opp. parties and as such, the opp. parties are liable to pay interest @ 12% per annum from the date of death till the amount is paid. 4. Now the question is, as to whether the petitioner is entitled to any amount towards compensation because of the nature of death of his deceased son while in active service. The deceased constable was the only bread-earner of the family. The petitioner and his wife were his dependants along with a minor brother. The counter affidavit does not disclose the reason as to why the deceased constable P. K. Baliarsingh was shot at by the fellow constable while in active deployment by the competent authorities at an early age of about 30 years only. The petitioner and his wife were his dependants along with a minor brother. The counter affidavit does not disclose the reason as to why the deceased constable P. K. Baliarsingh was shot at by the fellow constable while in active deployment by the competent authorities at an early age of about 30 years only. The parents and any other dependants would have normally depended on the income of the son and the care and comfort from their son, but they have been left with no financial support nor the expected care and comfort from their son. The deceased constable was employed under the opp. parties in a disciplined Border Security Force in the interest and for the security of the Nation and has died an unnatural and pathetic death. For the alleged action of his fellow constable, who is also an employee under the opposite parties. The Apex Court in Nilabati Behera (Smt) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) v. State of Orissa and others (1993) 2 S.C.C. 746 , in case of custodial death of her son, observed that enforcement of the constitutional and grant of redress embraces award of compensation as part of the legal consequences of its contravention. Award of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. ‘A claim in public law for compensation’ for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution- is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by re¬sorting to a constitutional remedy provided for the enforcement of a fundamental right is ‘distinct from, and in addition to, the remedy in private law for damages for the tort’ resulting from the contravention of the fundamental right. it is the obligation of the State to ensure that there is no infringement of the indefeasible right of the citizen in accordance with the proce¬dure established under law. 5. it is the obligation of the State to ensure that there is no infringement of the indefeasible right of the citizen in accordance with the proce¬dure established under law. 5. In the present case, the admitted fact is that the deceased P. K. Baliarsingh was deployed on duty at the time when he is alleged to have shot at by his fellow constable and ulti¬mately he succumbed to the injuries. He was under the service and protection of his employer and serving in a disciplined organisa¬tion like the Border Security Force for the security of the country and as such, his dependants who are deprived of the affection, care and financial help permanently, should be provid¬ed with some amount as a relief by awarding a lump sum amount. The payment of compensation in such cases is not to be understood as by way of a civil action for damages under the private law but in a broader sense of providing relief by an order for making monetary relief under the public law. In such view of the matter, I feel that the dependant parents are entitled to some lump sum payment by way a redress and therefore keeping in view the age of the deceased, the age of the dependants-parents and that also a dependant brother who may be expecting some help from him, I feel a sum of Rs. 1,50,000/- (Rupees one lakh fifty thousand) would meet the ends of justice. 6. In such view of the matter, I direct the opp. parties to disburse and pay the death-cum-retirement gratuity and family pension as is admissible, to the petitioner and his wife or the nominee mother as indicated in the counter affidavit within a period of three months along with an interest of 12% per annum from the date of death till the amount is paid, filling which the amount shall carry a higher interest @ 18% per annum. In addi¬tion, a lump sum payment of Rs. 1,50,000/- (Rupees one lakh fifty thousand) shall be paid within the said period of three months, but, however, it shall not carry any interest. 7. It is submitted by the learned counsel for the peti¬tioner that the petitioner has a dependent son who is the brother of the deceased and as such his case may be considered for reha¬bilitation assistance. 1,50,000/- (Rupees one lakh fifty thousand) shall be paid within the said period of three months, but, however, it shall not carry any interest. 7. It is submitted by the learned counsel for the peti¬tioner that the petitioner has a dependent son who is the brother of the deceased and as such his case may be considered for reha¬bilitation assistance. without expressing any opinion with regard to eligibility or otherwise, it is observed, if any application is filed for the purpose, the same may be considered in accord¬ance with the Rules covering the field. The writ application is allowed to the extent indicated with a cost assessed at Rs. 500/-. Application allowed to the extent indicated.