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Himachal Pradesh High Court · body

2005 DIGILAW 214 (HP)

PARAMJIT KAUR v. UNION OF INDIA

2005-06-28

A.K.GOEL

body2005
JUDGMENT Arun Kumar Goel, J.—Facts as they emerge from the record of this case are that late Charan Singh, husband of the petitioner joined Indian Army and was enrolled on 14.5.1979. He died while on duty on 2nd April, 1996. At the time of death, deceased was holding the rank of Nk/MT. Petitioner has been granted admissible pension in accordance with Pension Regulations. On this factual matrix, parties are not at variance. 2. Petitioner has filed this writ petition seeking following reliefs : "(i) Annexure P-2 dated 30.5.1997 and Annexure P-6 dated 20.7.1999, so far as they relate to rejection of special family pension case of the petitioner, may kindly be quashed; (ii) The respondents may kindly be directed by an appropriate writ of mandamus to consider the special family pension case of the petitioner on account of death of No. 13865694 Naik Shri Charan Singh, and to pay such pension to the petitioner being the widow of No. 13865694 Naik Shri Charan Singh, with effect from 2.4.1996 along with appropriate rate of interest as this Honble Court deems just and proper. (iii) Records of the case may kindly be called for, for the* perusal of this Honble Court. (iv) Costs of this petition may kindly be awarded in favour of the petitioner and against the respondents. (v) Any other writ, order or direction as this Honble Court deems just and proper may also be passed in favour of the petitioner and against the respondents." 3. It is further admitted case of the parties that deceased husband of the petitioner had gone on annual leave between 25.12.1995 and 2.2.1996. While on leave, he met with an accident. He was admitted at Military Hospital, Dehradun for treatment due to this accident. After having fully recovered, he was discharged on 23.1.1996 from the hospital. Since he was physically fit and his annual leave was coming to an end, he joined back his unit and resumed his duty. While on duty, on 1.4.1996, Charan Singh fell ill and was admitted to Base Hospital, C/O 56 APO. He passed away on 2.4.1995. Petitioner is getting admissible pension as widow of deceased Charan Singh. 4. Now the dispute starts. Petitioner claims to be entitled for payment of Special Family Pension under Regulations 213, 215, 216 and 219 of the Pension Regulations for Army, 1961. He passed away on 2.4.1995. Petitioner is getting admissible pension as widow of deceased Charan Singh. 4. Now the dispute starts. Petitioner claims to be entitled for payment of Special Family Pension under Regulations 213, 215, 216 and 219 of the Pension Regulations for Army, 1961. Before filing this writ petition for the redressal of her this grievance, petitioner started correspondence with the Army authorities and even addressed communication to the then Defence Minister of India. She even got a legal notice issued, but without any consequence. Therefore, she filed the present writ petition for the grant of above reliefs. 5. When put to notice, respondents while admitting the above facts have denied petitioners entitlement for the grant of Special Family Pension under the relevant Army Regulations. A perusal of the stand of the respondents, as well as documents attached with their reply goes to show that the death is not attributable to the Army service or its having been aggravated due to such service. As per Annexure R-l, death was the direct consequence of CARDIO - RESPIRATORY ARREST. Similarly, in Annexure R-2, i.e. Certificate of Attributability All Ranks, death was held to be not attributable to or aggravated by military service for the reason:— "Result of injury sustained while on annual leave, as brought out by Court of Inquiry dated 5.4.1996". Thus they have denied their liability, as well as entitlement of the petitioner to claim Special Family Pension. Consequently, a prayer is made for dismissal of the writ petition. 6. Having examined the record of the case with the assistance of the learned Counsel for the parties and after having heard them, it is evident that Annexure P-10 is the Certificate Showing Particulars of a Deceased Soldier admittedly issued by the respondents. Its column No. 9 gives the cause of death. It reads as "CARDIO RESPIRATORY ARREST AND CEREBROBASCULAR ACCIDENT WHILE DEPLOYED TO OP- RAKSHAK AREA." 7. Reference to Annexure P-10 is made in paragraph 7 of the writ petition. This was a document relied upon by the petitioner in support of her case that she is entitled to Special Family Pension under the relevant Pension Regulations of the Army. In the reply filed by the respondents, not a word has been said touching Annexure P-10 by them in its para 7. This was a document relied upon by the petitioner in support of her case that she is entitled to Special Family Pension under the relevant Pension Regulations of the Army. In the reply filed by the respondents, not a word has been said touching Annexure P-10 by them in its para 7. In this paragraph of the writ petition, it is specifically pleaded case of the petitioner that stand of the respondent taken in Annexure P-9, (reply to the legal notice sent to her Counsel) has been wrongly taken by the Army authorities. Relevant extract from paragraph 7 of writ petition is : "7.... The authorities in Annexure P-9 have wrongly taken the stand that Shri Charan Singh had died due to head injury sustained in an accident during January, 1996 and his injury was not related to military service. The army authorities have issued a certificate showing the particulars of deceased Shri Charan Singh. A copy of said certificate is filed Annexure P-10. The SI. No. 8 of Ann. P-10 would show that said Shri Charan Singh had died on 2.4.1996 at Op-Rakshak area and cause of death at SI. No. 9 has been mentioned Cardio Respiratory Arrest and Cerebrovascular Accident while deployed in Op-Rakshak area." Reply of the respondents to paragraph 7 of the writ petition is as under: "Para 7 That the contents of this para are denied as no such representation has since been received by ASC Records (MT). However, a Legal Notice dated 20 February, 2001 served by Brig Rajinder Kumar (VSM) (Retd) advocate on behalf of the petitioner has been received by ASC Records (MT). Brief history and para wise comments on ibid Legal Notice were forwarded to Army Headquarters and all concerned vide ASC Records (MT) Letter No. 13865694/ Legal Cell dated 27 March, 2001. Army Headquarters, after duly examined the case in consultation with AG/PS-4 (b) and JAG Branch, have decided that the Legal Notice may be ignored vide their letter No. 78752/LN/713/PK/Q/ST-12 dated 21 May, 2001. Since the petitioners husband had died due to effect of head injury sustained during balance of Annual Leave, the death was not treated as attributable to or aggravated by Military service and hence the petitioner is not entitled to special family pension. She has been granted Ordinary Family Pension as per Order." 8. Since the petitioners husband had died due to effect of head injury sustained during balance of Annual Leave, the death was not treated as attributable to or aggravated by Military service and hence the petitioner is not entitled to special family pension. She has been granted Ordinary Family Pension as per Order." 8. When confronted with this situation, learned Assistant Solicitor General of India submitted, that the opinion of the Board (Annexure R-2) specifies the true and correct position, therefore, claim of the petitioner to the contrary is liable to be rejected. With a view no buttress this submission, Shri Sharma further pointed out that his client has acted fairly by releasing admissible pension. 9. Suffice to say that so far release of admissible pension in favour of the petitioner due to death of her husband is concerned, it is not a bounty, nor a favour being done by the respondents to the petitioner. Reason being, pension is a property within the meaning of Article 300-A of the Constitution of India. It is earned by a person while in Government service having given best part of his life in the service. Therefore, to say that any concession or any magnanimity has been shown by the respondents when admissible pension was released in favour of the petitioner is a plea raised simply to be rejected. Ordered accordingly. 10. Legality and correctness of the facts contained in Annexure P-10 was not disputed by the respondents in their reply to the writ petition. They could and in fact should in law have controverted the facts. So far as existence or otherwise of this document as well as plea of the petitioner that stand of the respondent has been wrongly taken in Annexure P-9, (the reply to the legal notice sent to her Counsel), again, these facts have not been specifically denied in reply by the respondents. Thus, in accordance with law of pleadings, these facts shall be treated as admitted. Once this conclusion is arrived at then the stand to the contrary of the respondents that the death was attributable to the injury sustained by the deceased husband of the petitioner while on leave, as noted hereinabove, appears to be not in consonance with Ex.P-10. 11. Another reason not to accept this plea is, that death is admittedly of 2.4.1996, whereas Annexure R-2 purports to have been issued on 28.9.1995. 11. Another reason not to accept this plea is, that death is admittedly of 2.4.1996, whereas Annexure R-2 purports to have been issued on 28.9.1995. Again at the risk of repetition, it may be observed that if this was the position, case history of the petitioner when he was admitted as well as discharged from the Military Hospital, Dehradun, while he was on leave in 1995-96 and thereafter having resumed his duty on expiry of his annual leave after 2.2.1996, ought to have been produced and placed on record. Such record was the best evidence. It is also not the case of the respondents that factum of his having met with an accident and having sustained injuries in it was withheld by the deceased Charan Singh. In these circumstances, the stand of the respondents pritna facie cannot be supported either in law or on the basis of the materials on record. Rather it is controverted by Annexure P-10. Appeal filed by the petitioner was rejected by the competent authority, but such rejection is also not sustainable in view of what has been held in the preceding paras. 12. Faced with the above situation, Shri Sandeep Sharma urged that Annexures P-10 and R-2 are not in conflict with each other. As Annexure P-10 is dated 25.7.1996, whereas Annexure R-2 is dated 28.9.1996. Nothing prevented the respondents to have mentioned the cause of death of Charan Singh in Annexure P-10. Therefore, plea to the contrary urged by Mr. Sandeep Sharma is devoid of any merit and is accordingly rejected. 13. No other point is urged. 14. In view of the aforesaid discussion, this writ petition is allowed and consequently Annexures P-2 and P-6 dated 3.5.1997 and 20.7.1999 respectively are quashed and set aside denying family pension to the petitioner. At the same time, while allowing this writ petition, it is further ordered that now the case of the petitioner shall be processed afresh for the grant of admissible special family pension under the Regulations 213, 215, 216 and 219 of the Pension Regulations for Army, 1961, as well as in the light of the directions contained in this judgment, by or before 30.11.2005 and thereafter arrears of admissible family pension released by issuing necessary Pension Payment Order by or before 31.12.2005. Simultaneously issuing order for the regular monthly special family pension alongwith the pension being granted to the petitioner w.e.f. 1.1.2006. Simultaneously issuing order for the regular monthly special family pension alongwith the pension being granted to the petitioner w.e.f. 1.1.2006. In the event of matter being not finalized and the arrears not released by or before 1.1.2006, respondents shall be liable for payment of interest on the entire amount from the date of entitlement of the petitioner till its payment @ 10% per annum. Respondent No. 3 is directed to file affidavit by or before 1.1.2006, reporting compliance with the directions issued in this judgment. For this limited purpose, case is ordered to be listed in the first week of January, 2006. Direction regarding time frame is pre-emptory to be carried out by the respondents. Costs on the parties. Petition allowed.