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2006 DIGILAW 34 (GAU)

Punya Chutia v. State of Assam

2006-01-05

RANJAN GOGOI

body2006
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. A.K. Dasgupta, learned Counsel for the Petitioner and Mr. H.K. Mahanta, learned Government Advocate, Assam. 2. The Petitioner is the wife of one Padma Kanta Chutia who was a Havildar in the Assam Police. At the relevant point of time he was attached as the Personal Security Officer of the Chairman of the Jute Mill at Silghat. In a road accident that had occurred on 11th June 2001 the husband of the Petitioner died while on duty. Failing to receive special family pension and ex-gratia payment in terms of the relevant Government Notifications in force, the Petitioner, as the widow of Late Padma Kanta Chutia, has approached this Court seeking appropriate judicial intervention in the matter. After the filing of the writ petition the Petitioner has filed an additional affidavit on 10th June 2003 citing three specific instances where ex gratia had been paid by the State to the families and dependents of deceased who, according to the Petitioner, died in circumstances similar to those in which her husband had passed away. 3. The claims made in the writ petition have been resisted by means of an affidavit filed by the Inspector General of Police, O.S.D., Assam, wherein the stand taken is that the Petitioner is neither entitled to special family pension nor to ex gratia in terms of the relevant Office Memorandum dated 6th of November 1997. In so far as payment of ex-gratia to other similarly situated persons, as mentioned in the additional affidavit of the Petitioner, is concerned, the stand taken in the counter affidavit filed by the Inspector General of Police is that those cases are distinguishable because of the special facts attending the same. 4. Having noticed the facts of the case, the relevant scheme and the basis on which the Respondents have sought to contest the proceeding, the Court finds it convenient to deal with the entitlement of the Petitioner to special family pension at the first instance. 5. The entitlement of a person to special family pension is covered by an Office Memorandum dated 26.08.1985 which has been enclosed as Annexure-E to the writ petition. Special family pension, equivalent to the last monthly emoluments of the deceased, is required to be paid to the kins/relatives of a deceased Government servants who may have died while engaged in discharge of duties. Special family pension, equivalent to the last monthly emoluments of the deceased, is required to be paid to the kins/relatives of a deceased Government servants who may have died while engaged in discharge of duties. It is a benevolent measure adopted by the State Government to enable the family members of a deceased Government servant, who had died suddenly, to tide over the crisis. A reading of the Office Memorandum dated 26.08.1985 would go to show that there is no condition imposed in the said Office Memorandum which makes the grant of special family pension contingent on the deceased Government servant, who have suffered death, in counter insurgency operations, as stated by the Inspector General of Police in the counter affidavit filed. The Office Memorandum clearly goes on to recite that special family pension would become payable in the event the person has died while being engaged in the discharge of his duties. In the present case that the Petitioner's husband died while on duty is a fact that has neither been denied nor disputed. In such circumstances, the entitlement of the Petitioner to special family pension would be beyond doubt. This Court, therefore, directs the concerned authority in the State Government to compute the payment that would be due to the Petitioner on account of special family pension and pay the same or the difference between special family pension and normal family pension that the Petitioner may have been awarded in the meantime. Such computation will naturally be made from the date/dates on which special family pension had become due to the Petitioner i.e. the date of death of the Petitioner's husband. The arrear amount that will be payable to the Petitioner will be so paid within a period of three months from the date of this order, failing which the amount will carry interest at the rate of 6% per annum. 6. This will bring the Court to a consideration of the question of entitlement of the Petitioner to ex-gratia. Ex-gratia being an act of gratis, the judicial verdict has, time and again, held that the Courts should be reluctant to recognize a legal right in an incumbent to claim ex-gratia. Certainly there can be no direction for payment of ex-gratia to an incumbent. Ex-gratia being an act of gratis, the judicial verdict has, time and again, held that the Courts should be reluctant to recognize a legal right in an incumbent to claim ex-gratia. Certainly there can be no direction for payment of ex-gratia to an incumbent. However, the above rule has to be understood subject to the requirement of the inherent fairness that the State must maintain in dealing with claims of ex-gratia and judicial interference will be justified and warranted in case the actions of the State display disproportionate or imbalanced acts. In the present case, by the Office Memorandum dated 06.11.1997, ex gratia has been made payable to only those Government servants who may have died in course of counter insurgency operations. As the policy to restrict the award of ex-gratia by the Office Memorandum dated 06.11.1997 is not under challenge, the Court must refrain from entering into the legality or validity of the said policy. However, the instances cited by the Petitioner in her additional affidavit dated 10.06.2003 clearly demonstrates that ex-gratia have been paid in the cases referred to in the additional affidavit in situations similar to what had befallen on the Petitioner in the present case. If that be so, some amount of discrimination in the conduct and actions of the State is discernible. The actions of the State in awarding ex gratia to the persons mentioned in the additional affidavit, notwithstanding that death in such cases had not occurred in counter insurgency operations, clearly demonstrate that the State itself has understood the Office Memorandum dated 06.11.1997 to be somewhat flexible. The ground advanced by the Inspector General of Police in the affidavit filed i.e. special circumstances or special facts of those cases leaves the Court unimpressed as the Court is unable to find any such special facts or any remarkably distinguishing feature between the case of the Petitioner and the cases of the three persons mentioned in the additional affidavit in whose cases ex gratia had been granted. In such circumstances, the Court is of the view that it would be correct to hold that the actions of the State in refusing ex gratia to the Petitioner has not been fair. In such circumstances, the Court is of the view that it would be correct to hold that the actions of the State in refusing ex gratia to the Petitioner has not been fair. However, as ex-gratia is an act to be born out of compassion and it is really for the State authority to act in the matter in the first instance, the Court directs the Director General of Police, Assam to take a decision to award ex gratia to the Petitioner of such amount as may be considered appropriate by the said authority. The Director General of Police, the Court is confident, will act in the matter with utmost expedition. In the light of foregoing discussions this writ petition has to be allowed which I hereby do. Petition allowed