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2015 DIGILAW 1306 (GAU)

State of Nagaland v. Tekanukshila

2015-10-08

MANOJIT BHUYAN, UJJAL BHUYAN

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Manojit Bhuyanj,:-- 1. Heard Mr. Zulu Jamir, learned counsel for the State appellant as well as Mr. Justin Magh, learned counsel representing the respondent/writ petitioner. 2. This appeal by the State is directed against the judgment and order dated 23.3.2012 passed in WP(C) 179(K) of 2Q11, whereby while allowing the writ petition, a direction was also made to the State respondents to take all necessary steps towards payment of extraordinary pension to the respondent/writ petitioner in terms of the Office Memorandum dated 6.6.1995. 3. The facts in brief is that the respondent/writ petitioner's husband was appointed as Constable under the establishment of Superintendent of Police, Mokokchung, Nagaland by order dated 17.10.2001. The appointment was made effective from 1.10.2001 and the writ petitioner's husband was also allotted DBF No.2792. At a time when he was serving under the Establishment of Superintendent of Police, Mokokchung, an order was issued on 26.2.2002, thereby releasing him w.e.f. 27.2.2002 for the purpose of undergoing Basic Training at PTS Chumukedima w.e.f. 4.3.2002. In the said Release Order dated 26.6.2002, the writ petitioner's husband's name figured at SI. No.7 of the List indicated in the said order. A tragic situation occurred when the writ petitioner's husband during the period when he was undergoing Basic Training at PTS Chumukedima suffered death at the hand of unidentified gunmen on 9.6.2002, being caught in the cross-firing between two extremist factions. 4. Being faced with extreme financial hardship, the writ petitioner eventually made an application to the Director General of Police, Nagaland, through the Superintendent of Police, Mokokchung, praying for grant of ex gratia payment and other terminal benefits. The said application was presented on 27.6.2004. Insofar as payment of ex gratia amount is concerned, the same was a processed and it was only on 20.10.2008 that an order came to be passed allowing grant of Rs.2 lakhs as ex gratia to the writ petitioner on account of the demise of her husband in the manner indicated above. So far as the grant of extraordinary pension to the writ petitioner is concerned, the same was also processed, as would be evident from the letter dated 16.3.2009 issued by the Deputy Inspector General of Police (HQR), Nagaland and addressed to the Principal Secretary (Home) Nagaland. So far as the grant of extraordinary pension to the writ petitioner is concerned, the same was also processed, as would be evident from the letter dated 16.3.2009 issued by the Deputy Inspector General of Police (HQR), Nagaland and addressed to the Principal Secretary (Home) Nagaland. Eventually on 18.6.2009 a final decision was made on the issue of extraordinary pension, holding that since the petitioner's husband was not on duty at the time of death and since his death did not occur while in action, as such, his case do not fall for grant of extraordinary pension. 5. The denial of extraordinary pension to the respondent/writ petitioner constrained institution of a writ proceeding before this court, which was registered and numbered as WP(C) 179(K) of 2011. The basic ground for assailing the decision of the State respondents was that the same was wholly contrary and inconsistent to the Office Memorandum dated 6.6.1995, issued by the Government of Nagaland, Office of the Personnel and Administrative Reforms (Pension and Pensionary Welfare Cell). The said office Memorandum was issued under the hand of the Chief Secretary to the Government of Nagaland. The respondent/writ petitioner herein claim that the said Office Memorandum made it abundantly clear that in so far as Pensionary benefits is concerned, the family of the deceased Government servant would be entitled to the last pay and allowances drawn by the Government servant by way of extraordinary pension until the age of superannuation that the deceased would have availed, followed by normal pension as per Rules. At this stage, it would be worthwhile to mention that although the writ petitioner has been denied extraordinary pension, however, until this date she is receiving family pension as per rules in force. 6. The contention of the State respondent was basically on the ground that the benefits of the Office Memorandum dated 6.6.1995 will not be available to the respondent/writ petitioner, inasmuch as, the husband of the respondent/writ petitioner did not suffer death while on duty or while in action/encounter. This is the primary stand taken by the appellant/respondents while responding the writ petition. 7. This is the primary stand taken by the appellant/respondents while responding the writ petition. 7. By judgment and order dated 23.3.3012 the learned Single Judge arrived at a finding, having regard to the Office Memorandum dated 6.6.1995 as well as the Notification dated 20.9.2001 pertaining to payment of ex gratia, that there is no indication in the Notification dated 20.9.2001 that the Office Memorandum dated 6.6.1995 had been superseded. Further, it was held that both the Office Memorandum and the Notification as above, are two different documents and the case of the respondent/writ petitioner is squarely covered by the Office Memorandum dated 6.6.1995. Upon such finding, direction was made to the State respondents that the writ petitioner being entitled to get extraordinary pension in terms of the said Office Memorandum dated 6.6.1995, as such, immediate steps be taken for making payment. 8. The judgment and order of the learned Single Judge dated 23.3.2012 is now assailed by the State on grounds that the learned Single Judge had erred in reaching the conclusion that the husband of the respondent/ writ petitioner was on bona fide duty at the time of incident. A further ground taken is that for the purpose of awarding extraordinary pension there should be a causal relationship between "Government Service and Death". According to the appellant, the aforesaid two factors were totally ignored from consideration. 9. The facts aforementioned have been noticed. As the Office Memorandum dated 6.6.1995 assumes utmost importance in the adjudication of this appeal, the same is reproduced hereunder : GOVERNMENT OF NAGALAND OFFICE OF THE PERSONNEL & ADMINISTRATIVE REFORMS (PENSION & PENSIONARY WELFARE CELL) NO.PAR-A/62/89 Dt. Kohima the 6th June'95. SUB: LIBERALISATION, PENSIONARY AWARD TO THE GOVERNMENT SERVANTS INCLUIDNG IAS/IPS/IFS OFFICERS KILLED INACTION ENCOUNTER. The question of Liberalisation of Pensionary benefits to the government servants, killed in action/encounters have been under consideration of the government for sometime. After careful consideration of the matter in the light of the recommendation of the Government of India, Ministry of Home Affairs, New Delhi, Vide No.7/ 17/93 dated 22.9.1993, the Governor of Nagaland is pleased to order the following liberalisaiton Pensionary benefits to the Government servants of Nagaland who die in action/encounter, etc. 1. This order shall be applicable to the Government servants of all ranks inclusive of IAS/IPS/AFS Officers of Nagaland Cadre, etc. LUMP SUM GRANT 2. 1. This order shall be applicable to the Government servants of all ranks inclusive of IAS/IPS/AFS Officers of Nagaland Cadre, etc. LUMP SUM GRANT 2. All Government servants who had been killed while performing bona fide Government duty shall be entitled to ex-gratia grant from Rs. 1 lakh to five lakhs depending upon the nature of duty. 3. PENSIONARY BENEFITS The family of such deceased Government servant shall be entitled to the last pay and allowances drawn by the Government servants as Extraprdinary Pension and shall be admissible at the same rate at the age of superannuation of the deceased, followed by Normal pension as per rules. 4. HEAD OF ACCOUNT Consequent upon the grant of the extraordinary pension in Nagaland a separate Head of Account is being upon and will be circulated in due course. 5. This order shall come into force with effect from 22nd February, 1993. 6. This issues with the approval of the Cabinet on 31.3.1995 and also concurred by the Finance Deptt. Vide their U.O.No.1480 date 30.5.1995. Sd.T.C.K.LOTHA Chief Secretary to the Government of Nagaland." 10. The Office Memorandum pertains to liberalization of Pensionary benefits to Government servants killed in action/encounter, etc. The lump sum grant as envisaged in the said Office Memorandum is made applicable to all Government Servants who have been killed while performing bona fide Government duty. The Pensionary benefits as envisaged there under also provides that the family of such deceased Government servant would be entitled to the last pay and allowances drawn by the Government servant from by way of extraordinary pension. The said extraordinary pension is made admissible until the age of superannuation that the deceased person would have availed of. After the date of superannuation the extraordinary pension would be replaced by normal pension as per rules. 11. The question for consideration is as to whether the respondent/writ petitioner's husband died while performing bona fide Government duty. To this end, certain facts made above is reiterated. It is an admitted position that the husband of the respondent/petitioner was released from his duties as Constable on 27.2.2002 for the purpose of undergoing Basic Training at PTS Chumukedima and it was during the period when he was undergoing training that he suffered demise in the manner as indicated above. The question as to when would a Government servant may be treated as on duty, reference is made to RR. The question as to when would a Government servant may be treated as on duty, reference is made to RR. 9(6)(b)(i) which prescribes that a Government servant may be treated as on duty during a course of instruction or training in India. The said provisions under the F.R. makes it clear that the authority competent to appoint a Government servant to the post for which a training is essential, may be empowered to treat the period of training or instruction in India of the Government servant as on duty under the said rule. One of the essential conditions is that the training or instruction should be connected with the post which the Government servant is holding at the time of placing him for training or instruction. There is no gainsaying that the respondent/writ petitioner's husband was serving as Constable under the establishment of the Superintendent of Police, Mokokchung, Nagaland. The basic training to which he was sent was connected with the post that he was holding. That being the position, on the date when the respondent/writ petitioner's husband suffered demise at the hands of unidentified gunmen, he was discharging bona fide duty. 12. The action of the State respondents in denying Pensionary benefits to the respondent/writ petitioner in terms of the Office Memorandum dated 6.6.1995 do not appear to be fair and just decision. The claim of the respondent/writ petitioner for extraordinary pension is by way of right flowing from the Office Memorandum dated 6.6.1995. Such claim has not been made in the nature of a bounty. The necessary corollary to the above is that we find no infirmity in the judgment and order of the learned Single Judge dated 23.3.2012 passed in WP(C) No.1 79(K)/2011. Accordingly, the same stands upheld with direction to the appellants/ State respondents to take steps towards payment of extraordinary pension to the respondent/writ petitioner with further direction for completing the exercise within a period of three months from today. Such payment towards extraordinary pension shall be made in strict terms of the Office Memorandum dated 6.6.1995. 13. In view of the above, the writ appeal being devoid of merit is accordingly dismissed. The parties are left to bear their own costs.