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Punjab High Court · body

2009 DIGILAW 2016 (PNJ)

Santosh v. Union Of India

2009-11-20

PERMOD KOHLI

body2009
Judgment Permod Kohli, J. 1. Husband of the petitioner, namely, Subhash Chander was a Havaldar working in Topkhana No. 7-D and was posted on Line of Control in the State of Jammu and Kashmir. On 3.11.2005, the petitioner was informed about the death of her husband caused on 2.11.2005. A communication dated 2.11.2005 was also sent to the petitioner from Col. Kirpal Singh, Commanding Officer of the Unit. A similar communication dated 4.11.2005 was received by the petitioner from Pankaj Gupta, Officiating Command Officer 1812 Light Regiment which was followed by another communication dated 13.12.2005 from Lt. General Charanjit Singh, Director General & Colonel Commandant, Regiment of Artillery. These communications were followed by communications from the State of Haryana and other Army Authorities. Copies of the same have been placed on record as Annexure P-1 (Colly.). It is the case of the petitioner that she was informed that her husband died during the "Karma Operation" while discharging his duty on the Line of Control in the Gore Sector in Kashmir and he was a "Martyr". The body of the deceased husband of the petitioner was brought to the Village and consigned to fire. The cremation was attended by Additional Deputy Commissioner, Deputy Superintendent of Police with full military honour. The petitioner was informed vide letter dated 20.11.2005 (Annexure P- 2) from Lt. General A.S. Bajwa, Commandant and Colonel Commandant, School of Artillery, Devlali that her husband expired suddenly. According to the petitioner, her husband died while defending the nation and being posted in Gore Sector and being a Martyr, died in harness while defending the nation. The petitioner was entitled to be treated as "Martyrs Widow" and ex gratia as also other benefits which are payable to the Martyrs Widow under various Government instructions. The petitioner has relied upon Government Instructions dated 30.9.1999 and 15.6.2001 (Annexures P-3 and P-4) as also the Government of India, Ministry of Defence instructions issued vide letter dated 22.9.1998 (Annexure P-5). The petitioner made a request to the respondents to treat her husband as "Shaheed". The request was, however, rejected vide letter dated 18.4.2006 (Annexure P-6). In this letter, it was communicated petition that her husband was performing his duty on Line of Control. On to the November 2, 2005 her husband complained of feeling cold. He was advised to take rest and he slept in his Morcha. The request was, however, rejected vide letter dated 18.4.2006 (Annexure P-6). In this letter, it was communicated petition that her husband was performing his duty on Line of Control. On to the November 2, 2005 her husband complained of feeling cold. He was advised to take rest and he slept in his Morcha. At around 9.45 when his companions tried to awake him up, they found him unconscious. The Command Officer arranged for his treatment through Helicopter and a doctor was sent immediately for his treatment. At 10.35 he was brought down where he was declared dead. His post- mortem was conducted and cause of death was found "heart attack". It is, however, admitted that due to wrong information of the unit, he was declared "Shaheed". It is stated that since he died due to heart attack, his death has been considered in general category. Aggrieved of the aforesaid declaration, the petitioner served a legal notice dated 28.6.2007 (Annexure P-7) which too has been rejected by respondent No. 4 vide letter dated 31.8.2007 (Annexure P-8). The petitioner has thus filed this petition seeking a direction that the husband of the petitioner he declared as a "Martyr" and the petitioner be granted exgratia and other benefits available under the "Shaheed" category. 2. In separate replies filed by respondent Nos. 1 and 2 and 3 & 4, respectively, it is stated that the death of the deceased husband of the petitioner was due to "Myocardial Infraction leading to Cardiac Arrest" and it does not call in any of the categories qualifying for exgratia amount as Martyrs widow. The further stand of the respondents is that after the death of husband of the petitioner, a court of enquiry was ordered into the cause of the death and the court of enquiry returned a finding that it was a death due to heart attack. 3. The sole question which needs to be considered is whether the death of the husband of the petitioner falls in any of the categories notified by the Government whereunder the petitioner is entitled to any other benefit. The petitioner has relied upon three government policies (Annexure P-3, P-4 and P-5). Annexure P-3 is the policy dated 30.9.99 issued by the Government of Haryana. The relevant portion of the aforesaid policy reads as under :- "...Haryana Govt. The petitioner has relied upon three government policies (Annexure P-3, P-4 and P-5). Annexure P-3 is the policy dated 30.9.99 issued by the Government of Haryana. The relevant portion of the aforesaid policy reads as under :- "...Haryana Govt. has decided that with effect from 1.4.1999 the Exgratia grant/compensation to the families of the Defence Services Personnel and of Para Military Forces who lie in harness in the performance of their bona fide official duties while serving in operations like Kargil and other sectors shall be Rs. 10 lacs for all categories namely Officers, Junior Commissioned Officers and other ranks and to the disabled as explained under for all categories depending upon the percentage of disability as assessed by concerned authorities irrespective of the fact whether they are retained as welfare measure or boarded out...." 4. The aforesaid policy was followed by policy dated 15.6.2001 (Annexure P-4) which reads as under :- "1. XX XXX XXX (a) A Reward Money of Rs. Ten lac in recognition of acts of bravery, gallantry and sacrifice would be paid to the families of those who Die during an enemy action in International War or such war like engagements, which are specifically notified by the Ministry of defence, Govt. of India. This would be in addition to whatever exgratia relief is admissible under Govt. of India instructions. (b) Exgratia will be admissible to the families of those defence personnel who hail from Haryana and get killed in militant encounters and declare as battle casualties as per amounts given in Annexure-A and conditions of eligibility given in Annexure B...." 5. In the first policy, it is provided that exgratia compensation be paid to the families of the defence service personnel and para military forces who died in harness in performance of their bona fide official duties while serving in operations like Kargil and other sectors. In the subsequent policy letter, such benefits are payable to such of the officials who earned recognition of acts of bravery, gallantry and sacrifice and who died during an enemy action in International War or such war like engagements, which are specifically notified by the Ministry of Defence, Govt. of India. Such ex gratia is also admissible to families of defence personnel who hail from Haryana and get killed in militant encounters and is declared as battle casualties. of India. Such ex gratia is also admissible to families of defence personnel who hail from Haryana and get killed in militant encounters and is declared as battle casualties. Similar instruction have been issued by the Government of India vide its letter dated 22.9.1998 wherein a different kind of compensation has been provided under following categories :- "...... a) Death occurring due to accidents in the course of performance of duties 5.00 Lakhs b) Death occurring in the course of performance of duties attributable to acts of violence by terrorists, anti-social elements etc. 5.00 Lakhs c) Death occurring during (i) enemy action in international war or border skirmishes and (ii) action against militants, terrorists extremists etc. 7.50 Lakhs" 6. I have heard learned counsel for the parties. No doubt, the petitioners husband was posted at Border in a remote area and was member of the Operation Karma, but he died on account of heart failure while discharging his duty in Gore Sector which is known as a coldest place. At the time of his death, the petitioner was not engaged in any military action, though part of the Operation Karma and posted at the Morcha. The entire stand of the respondents that he died of heart attack. The tact that he was part of the Operational Unit and was posted at the Line of Control in a Morcha is not disputed. Though he did not die in an encounter or in the battle, but he was in the battlefield. His case is, however, not covered by the Government instructions, issued by the Ministry of Defence (Annexure P-5) whereby the ex gratia is attributable to acts of violence by the terrorists and anti-national elements and during enemy action in international war or border skirmishes and action against militants/terrorists/extremists. The case of the husband of the petitioner also does not fall under the Government instructions dated 15.6.2001. However, the Government instructions dated 30.9.1999 provides for exgratia compensation to the families of defence personnel who died in harness in the performance of their bona fide official duties while serving in operation like Operation Karma and was posted at the Line of Control in a Morcha. He was performing a bona official duty and died in harness while performing such duty. It is also admitted position that he died due to severe cold in the area. He was performing a bona official duty and died in harness while performing such duty. It is also admitted position that he died due to severe cold in the area. Such a situation cannot be divorced from the performance of the bona fide duty. It is not necessary that he should die by a bullet of the enemy or on account of any injury or other factor. Another aspect of the matter which cannot be ignored is that the Government of India instructions even provides for payment of compensation where death occurs due to accident in course of performance of duty. The accident does not mean only vehicular accident but has wider connotation. It can be of any kind of accident. The petitioners husband suffered on account of severe cold while discharging his duty and thus his case falls within the put purview of Government instructions dated 30.9.1999. 7. In view of the above, this petition is disposed of with a direction to the respondents that the petitioner be paid exgratia compensation in terms of the government instructions dated 30.9.1999 (Annexure P-3) within a period of three months from the date of receipt of a certified copy of this order. Order accordingly.