W.P.(C)/7731/2018 of RAM DEVI Vs UNION OF INDIA AND ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI18

+ W.P.(C) 7731/2018

RAM DEVI ..... Petitioner

Through: Mr Ankur Chhibber, Advocate.

versus

UNION OF INDIA AND ORS. ..... Respondents

Through: Mr Rakesh Kumar, CGSC for UOI.

CORAM:JUSTICE S.MURALIDHAR JUSTICE I.S.MEHTA

O R R11.03.2019

1. Aggrieved by the denial of special family pension, by the impugned order dated 17[th] May, 2018 issued by the Directorate General, Border Security Force („BSF‟) (Respondent No.2), the Petitioner has filed the present writ petition for directions to the Respondents in that regard.

2. The husband of the Petitioner late Head Constable („HC‟) Yatinder Singh was enrolled in the BSF as constable on 30[th] June, 1989. He was promoted as HC with effect from 5[th] November, 2009.

3. On 16[th] December, 2010, whilst he was posted at Border Outpost („BOP‟),the Petitioner‟s husband was detailed to perform „ambush-cum-patrolling‟ duty from 0030 hours to 0630 hours. He returned to the BOP, Jagmal in Gujarat at around 0645 hours. After taking breakfast, he was resting in the barracks. At around 1130 hours, he suddenly felt acute pain in

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his chest and became unconscious. He was rushed to the nearby civil hospital at Radhanpur, where the medical officer declared him as „brought dead‟.

4. According to the Respondents, as per the departmental enquiry and the remarks with the Court of Enquiry, the deceased expired “due to cardio respiratory arrest due to multi-organ diseases, which is considered to be natural death”. The Petitioner made several representations which were rejected by the Respondents leading the Petitioner to filing W.P.(C) No. 3527/2013 in this Court.

5. By an order dated 27[th] May, 2015, while allowing the writ petition, this Court held that the Petitioner would be entitled to ex-gratia lump sum compensation payable in terms of the OM dated 11[th] September, 1998 as modified by the subsequent OM dated 2[nd] September, 2008. It was held as under:

“...a person on active duty, when returns to the barrack after patrolling along the Line of Control would continue to be stressed for sometime before the adrenaline levels fall and the body is at even metabolism.”

6. Further, interpreting the two OMs, it was held as under:

“20. Blending the statutory definition of active duty in the portion of the two Office Memorandums, in harmony with the rule of interpretation of beneficial legislation, it can be said that the death of force personnel due to heart attack suffered just after performing actual duty would be case of an accidental death in the course of performance of duties. An accident would be an unfortunate incident that happens unexpectedly and unfortunately; an event that happens by chance or that is without apparent or deliberate cause; circumstance or attribute portion of the two Office Memorandums, in harmony with the rule of interpretation of beneficial legislation, it can be said that the death of force personnel due to heart attack suffered just after performing actual duty would be case of an accidental death in the course of performance of duties. An accident would be an unfortunate incident that happens unexpectedly and unfortunately; an event that happens by chance or that is without apparent or deliberate cause; circumstance or attribute

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that is not essential to the nature of something; misfortune.

21. The late husband of the petitioner died on September 16, 2010 within 15 minutes of completing ambush-cum-patrolling duty at the Border Outpost Jagmal at the Line of Control in Kutch. He may have had liver problem which may have contributed to the heart attack suffered by him but no less could be the contribution of the stress occasioned while performing ambush-cum-patrolling duty. The late husband of the petitioner was on active duty and the concept of accident envisaged by the two Office Memorandums dated September 11, 1998 and September 02, 2008 has to be given liberal interpretation keeping in view that the two Office Memorandums embody beneficial executive policy. The liberal interpretation of accident would be as per para 20 above. Thus we hold that the petitioner would' be entitled to the ex-gratia lump sum compensation payable under the Office Memorandum dated September 11, 1998 as modified by the Office Memorandum dated September 02, 2008. The compensation payable would be Rs.10,00,000/- (Rupees Ten Lacs only) which we direct to be paid to the petitioner within 8 weeks from today failing which the amount shall be paid with simple interest @ 8% per annum reckoned 8 weeks from the date of this decision.”

7. This Court accordingly held that the Petitioner would be entitled to ex-gratia lumpsum compensation payable under the two OMs. The compensation payable to the Petitioner was fixed at Rs.10 lacs. It was directed to be paid within eight weeks failing which simple interest @ 8% per annum within eight weeks from the date of the decision when it became payable.

8. The Petitioner‟s case is that she should be granted special family pension along with ex gratia compensation and that the two are mutually exclusive. The Petitioner has referred to OM dated 20[th] November, 2014 in light of the

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CCS (EOP) Rules read with OM dated 18[th] September, 1998. The Petitioner initially filed W.P.(C) No.1627/2018 for directions to the Respondents to release the special family pension in her favour along with arrears and pay @ 9% per annum interest thereon. On 21[st] February 2018, the said writ petition was disposed of with the following directions:

“With the consent of the parties, the present petition is disposed of with direction to the respondents to consider the submissions made by the petitioner in the present petition and take decision on her claim for special family pension, keeping in mind the observations made by the Division Bench in the earlier petition filed by her, decided on 27.05.2015. Appropriate orders in respect of the relief prayed for, by the petitioner shall be passed within eight weeks from today, under written intimation to her. " of with direction to the respondents to consider the submissions made by the petitioner in the present petition and take decision on her claim for special family pension, keeping in mind the observations made by the Division Bench in the earlier petition filed by her, decided on 27.05.2015. Appropriate orders in respect of the relief prayed for, by the petitioner shall be passed within eight weeks from today, under written intimation to her. "

9. However, the Respondents once again rejected the Petitioner‟s representation on 17[th] May, 2018, stating as under:

“Since the cause of death of the deceased is cardio-respiratory failure due to multi-organ decease, as such the cause of death Petitioner's husband cannot be termed as attributed to or aggravated by Govt. Service. Moreover, such type of disease does not occur immediately but generally develops over period of time. Hence, the case of Petitioner's Husband does not fall under Category 'B', Schedule II, of CCS (EOP) Rules, 1939, but covered under Category 'A', Schedule II, of CCS (EOP) Rules, 1939, where normal family pension is admissible, which the Petitioner is already drawing. As such, the request of the petitioner for grant of special family pension under Category 'B', Schedule II, of CCS (EOP) Rules, 1939, is not considered by competent authority and rejected being devoid of any merits.”failure due to multi-organ decease, as such the cause of death Petitioner's husband cannot be termed as attributed to or aggravated by Govt. Service. Moreover, such type of disease does not occur immediately but generally develops over period of time. Hence, the case of Petitioner's Husband does not fall under Category 'B', Schedule II, of CCS (EOP) Rules, 1939, but covered under Category 'A', Schedule II, of CCS (EOP) Rules, 1939, where normal family pension is admissible, which the Petitioner is already drawing. As such, the request of the petitioner for grant of special family pension under Category 'B', Schedule II, of CCS (EOP) Rules, 1939, is not considered by competent authority and rejected being devoid of any merits.”

10. This Court has heard the submissions of Mr Ankur Chhibber, learned counsel for the Petitioner and Mr Rakesh Kumar, learned Central

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Government Standing Counsel for the Respondents/Union of India.

11. It is pointed out by Mr Chhibber that as per the CCS (EOP) Rules, the Petitioners husband falls under the Category 'B' i.e., "Death or disability due to causes which are accepted as attributable to or aggravated by the Government service. Diseases contracted because of continued exposure to hostile work environment, subjected to extreme weather conditions or occupational hazards resulting in death or disability would be examples.”

12. That the Petitioner‟s husband died while on active duty is now settled by the judgment dated 27[th] May, 2015 of this Court. That question cannot be reopened since that order appears to have attained finality. The reasons given by the Respondents are repetition of the same reasons given by them for refusing ex gratia lump sum compensation, rejected by this Court in its judgment dated 27[th] May, 2015. Clearly, therefore, those grounds cannot hold good for rejecting the plea of the Petitioner for special family pension.

13. Learned counsel for the Petitioner has also drawn attention of this Court to the judgment dated 2[nd] July, 2013 passed by the Supreme Court of India in Civil Appeal No.4949/2013 (Dharamvir Singh v. Union of India & Ors.) where it was explained, by referring to Regulation 173 of the Pension Regulations for the Army that “disability pension in normal course is to be granted to an individual (i) who is invalidated out of service on account of disability which is attributable to or aggravated by military service and (ii) who is assessed at 20% or over disability unless otherwise it is specifically provided.”

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“(i) Evidence both direct and circumstantial to be taken into account by the Board and benefit of reasonable doubt, if any would go to the individual;

(ii) disease which has led to an individual‟s discharge or death will ordinarily be treated to have been arisen in service, if no note of it was made at the time of individual‟s acceptance for service in Armed Forces.

(iii) If the medical opinion holds that the disease could not have been detected on medical examination prior to acceptance for service and the disease will not be deemed to have been arisen during military service the Board is required to state the reason for the same.”

15. The above decision would equally apply in the facts of the present case. Viewed from any angle therefore, the only conclusion that is possibly to be drawn is that the Petitioner‟s husband died while on active duty and, therefore, there was no reason to refuse the Petitioner‟s request for grant of special family pension. She would be eligible for it under Category „B‟ of the CCS (Extraordinary) Pension Rules.

16. The writ petition is accordingly allowed. While setting aside the order dated 17[th] May, 2018 of the Respondents, this Court directs Respondent No.2 to issue an order granting the Petitioner special family pension with effect from the date of death of her husband. The arrears will be paid not later than eight weeks from today failing which the Respondents will be liable to pay the Petitioner simple interest @ 9% per annum thereon for the period till the date of the payment.

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17. The writ petition is allowed in above terms. No costs.

S. MURALIDHAR, J.

MARCH 11, 2019 rd

I.S. MEHTA, J.

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