KANCHAN DUA Vs UNION OF INDIA
Bench: HON'BLE MR. JUSTICE L. NAGESWARA RAO, HON'BLE MR. JUSTICE HEMANT GUPTA
Judgment by: HON'BLE MR. JUSTICE L. NAGESWARA RAO
Case number: C.A. No.-007459-007460 / 2010
Diary number: 22727 / 2010
Advocates: VIVEK GUPTA Vs ANIL KATIYAR
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
Civil Appeal Nos.7459-7460 of 2010
KANCHAN DUA .... Appellant(s) Versus
UNION OF INDIA & ANR. …. Respondent (s)
J U D G M E N T
L. NAGESWARA RAO, J.
1. Sanction was accorded by the President of India for the
modifications to the Rules/Regulations concerning pensionary
benefits to the Armed Forces personnel on 31.01.2001.
Pensionary benefits upon the death or disability in
attributable/aggravated cases is dealt with in Part II thereof.
Category ‘E’ of Part II is as follows:
Death or disability arising as a result of: -
a) Enemy action in international war.
b) Action during deployment with a peace keeping
c) Border skirmishes.
d) During laying or clearance of mines including enemy
mines as also minesweeping Operations.
e) On account of accidental explosions of mines while
laying Operationally oriented mine-field or lifting or
negotiating mine-field laid by the enemy or own
forces in Operational areas near international borders
or the line of control.
f) War like situations, including cases which are
attributable to/aggravated by: -
i. Extremist acts, exploding mines etc. while on way
to an Operational area.
ii. Battle inoculation training exercises or
demonstration with live ammunition.
iii. Kidnapping by extremists while on Operational
g) An act of violence/attack by extremists, anti-social
elements etc. while on Operational duty.
h) Action against extremists, anti-social elements, etc.
death/disability while employed in the aid of civil
power in quelling agitation, riots or revolt by
demonstrators will be covered under this category.
i) Operations specially notified by the Government from
time to time.
2. The eligible members of the family of Armed Forces
personnel mentioned in Category ‘E’ shall be entitled to
Liberalised Family Pension in case of his death. The scope of
the above provision falls for our consideration in these appeals.
3. The husband of the Appellant was commissioned in the
Army in October, 1968. In 1990, he was promoted as a
Colonel. When he was posted as the Commandant of 890
Animal Transport Battalion in Nowshera, Jammu and Kashmir,
he was moved to Rajouri for Operational requirement in
Operation Ran Vijay at the location of HQ 25 Infantry Division.
In the morning of 25.01.1992, he was found dead in his room.
The cause of death was found to be sudden cardiac failure due
to high stress and strain. The Appellant was initially granted
ordinary family pension and, later special family pension. She
made a representation for grant of Liberalised Family Pension.
The Appellant complained that the entry in the service record
of her husband was wrongfully altered from “Physical casualty
under Operation Rakshak” to “Physical casualty”. As there was
no response, she filed a Writ Petition in the High Court of
Punjab and Haryana at Chandigarh seeking alteration of the
entry in the service record of her husband from “Physical
casualty” to “Physical casualty under Operation Rakshak”.
The High Court allowed the Writ Petition and directed the
alteration of the service record of the Appellant’s husband to
“physical casualty under Operation Rakshak”. Reliance was
placed by the High Court on the findings recorded in the Court
of Inquiry that the death of the Appellant’s husband was
attributable to bona fide military service in the field covered
under Operation Rakshak. The High Court further directed the
Respondents to consider grant of Liberalised Family Pension to
4. After altering the entry in the service record of the
Appellant’s husband from “physical casualty” to “physical
casualty under Operation Rakshak”, the Respondents found
that the Appellant was not entitled for Liberalised Family
Pension. Aggrieved by the rejection of the request for payment
of Liberalised Family Pension, the Appellant approached the
High Court of Punjab and Haryana by filing a Writ Petition. The
said Writ Petition was transferred to the Armed Forces Tribunal,
Regional Bench, Chandigarh. Being of the opinion that cardiac
failure does not fall under Category ‘E’ of Part II of the
Instructions issued by the Government of India on 31.01.2001,
the Tribunal dismissed the Transferred Application of the
Appellant. The legality of the judgment of the Tribunal is
assailed in these appeals.
5. It will be relevant to refer to the relevant Instructions to
understand the scope of the modifications made to the pension
Rules/Regulations governing the Armed Forces personnel from
time to time. By a letter dated 24.02.1972, the Chiefs of the
Army, Navy and the Air Staff were informed about
modifications to the then existing Rules and orders relating to
the grant of special family pensionary awards and disability
pension. Liberalised Family Pension was announced in favour
of the families of the Armed Forces personnel killed in action or
to those who have been disabled on account of injuries
sustained in the operations against Pakistan, commencing from
03.12.1971. The awards sanctioned therein were also made
applicable to personnel who were killed in action or were
disabled on account of injuries sustained in the international
wars of 1965 (including Kutch and Kargil Operations), 1962 and
1947-1948 (Kashmir Operations), as well as the Goa and
Hyderabad Operations. The Liberalised Family Pension was
further extended to personnel who died or were disabled as a
result of fighting in war-like Operations or border skirmishes
either with Pakistan on the ceasefire line or any other country
and those who fought against armed hostiles like Nagas and
Mizos and during fighting in service with peace keeping
missions abroad on or after 15th August, 1947. A decision was
taken pursuant to the recommendations of the 4th Central Pay
Commission regarding pensionary benefits to the Armed Forces
personnel on 30.10.1987. Part IV of the letter dated 30th
October, 1987 deals with Liberalized Pensionary Awards (battle
casualty and such other cases as may be specially notified by
the Government). The Government of India issued Instructions
on 31.01.2001 for implementation of the recommendations of
the 5th Central Pay Commission regarding Liberalised Family
Pension for the Armed Forces personnel retiring, invaliding or
dying in harness on or after 01.01.1996. There was a broad
division of cases arising out of attributable/aggravated causes
into five categories. Operations specially notified by the
Government from time to time were included in Category ‘E’.
The eligible member of the family of the Armed Forces
personnel falling in Category ‘E’ was entitled to Liberalised
Family Pension in case of his death or disability. As the
contention of the Appellant is that her husband was part of
Operation Rakshak which was notified by the Government of
India, it is necessary to refer to the notification dated
07.05.1990 for assessing her eligibility to Liberalised Family
Pension. Certain concessions were made to the Armed Forces
personnel who were deployed in Operation Rakshak by the said
notification. Apart from others, Liberalized Pensionary Awards,
subject to the conditions laid down in para I of the letter dated
24.02.1972 were made applicable to personnel in Operation
Rakshak. It is important to note that troops who were engaged
in active operations against militants were held to be entitled
to the field service concessions which were applicable to the
location. In addition, those troops which were engaged in
active operation against militants were held to be entitled to
Liberalized Pensionary Awards, subject to the conditions laid
down in the letter dated 24.02.1972.
6. Mrs. V. Mohana, learned Senior Counsel was appointed as
Amicus Curiae to appear for the Appellant. She submitted that
all the Army personnel working in the State of Jammu and
Kashmir were declared to be on active service as per the
notification dated 05.09.1977. She relied upon Section 3 and 9
of the Army Act, 1950 to submit that the Appellant’s husband
was in active service at the time of his death. Though the
Appellant’s husband was working as Commandant of the
Animal Transport Battalion, his death due to sudden cardiac
failure took place when he was in active service. She
emphasized that the Appellant’s husband died during his
service in Operation Rakshak which was a notified Operation
mentioned in Category ‘E’ of para 4.1 of the Instructions dated
30.01.2001. She submitted that according to the Instructions
that were issued on 31.01.2001, the Appellant is entitled to
Liberalised Family Pension as per para 6 therein. She relied
upon judgments of the High Court of Delhi, High Court of
Jammu and Kashmir and the High Court of Punjab and Haryana
in support of her submission that the family members of the
Armed Forces personnel who died during their service in the
notified Operations are entitled to Liberalised Family Pension.
7. Ms. Madhavi Divan, learned Additional Solicitor General
contended that Liberalised Family Pension is associated
exclusively with pension granted in respect of death or injury
caused in live action. Placing reliance on a judgment of this
Court in Brij Mohan Lal v. Union of India1, she submitted
that grant of Liberalised Family Pension for death by natural
causes would diminish the sheen of sacrifice of the servicemen
who were killed in live action. The death of the Appellant’s
husband due to sudden cardiac failure would fall under
Category ‘B’ of the Instructions issued on 31.01.2001 and the
applicable Special Family Pension was rightly granted to the
Appellant. The very genesis of the Liberalised Family Pension
highlighted by the learned Additional Solicitor General was
through a communication dated 24.02.1972 which was issued
for the purpose of acknowledging the sacrifice of persons who
were killed in live action.
8. The basis of the claim of the Appellant for Liberalised
Family Pension flows from the Instructions dated 31.01.2001.
There is no doubt that Operation Rakshak is a notified
Operation falling under Clause 9 of Category ‘E’ thereof. There
is also no dispute that those covered in Category ‘E’ are
entitled for Liberalised Family Pension. However, the
notification issued by the Government extending concessions 1 2012 (6) SCC 502
to the Armed Forces personnel deployed in Operation Rakshak
provides that Liberalized Pensionary Awards are extended only
to those troops in active Operations against militants in terms
of para I of the letter dated 24.02.1972. A bare perusal of para
I of letter dated 24.02.1972 would make it clear that only
personnel killed or disabled on account of injuries in action are
eligible for Liberalized Pensionary Awards. Therefore, we are in
agreement with the Respondent that the Appellant is not
entitled for Liberalised Family Pension.
9. We have examined the judgments of the High Courts
cited by Mrs. V. Mohana, learned Amicus Curiae in Manju
Tewari v. Union of India2, Preeti Sidhu v. Union of India3,
K.J.S. Buttar v. Union of India4, Major Arvind Kumar
Suhag v. Union of India5, J. P Bhardwaj v. Union of
India6, Radhika Devi v. Union of India7 and Pushpa Devi
v. State of Haryana8. Though relief of Liberalised Family
Pension was granted by the High Courts in those judgments,
the High Courts have not examined the letter dated
24.02.1972 and the notification dated 07.05.1990. Therefore,
no relief can be given to the appellant on the basis of the said
2 2005 (3) SCT 458 3 2010 (28) SCT 400 4 2011 (11) SCC 429 5 2013 (15) SCT 543 6 WP (C) No.348 of 2012 Delhi HC (DB) 7 2014 (10) RCR (C) 3136 (DB) 8 2015(2) SCT 170
judgments. The judgments relied upon by Mrs. V. Mohana,
leaned Amicus Curiae have to be considered to have been
determined on the particular facts of those cases.
10. Mrs. Mohana relied upon the recommendations of a
Committee of Experts, appointed by the Ministry of Defence,
Government of India to review matters pertaining to service
and pension. Certain recommendations made in the said report
are in favour of the Appellant. It was observed in the said
report that persons disabled or dying in an Operational area
due to illnesses induced by harsh climatic conditions of such an
area or due to an accident while patrolling in such an area is no
less important a sacrifice than another dying by a bullet in the
same locale. After obtaining Instructions, the learned
Additional Solicitor General submitted a note according to
which the said recommendation of the Committee was not
accepted by the Government. Hence, we cannot rule in favour
of the Appellant on the basis of the recommendations of the
Committee of Experts.
11. Before parting, we appreciate the valuable assistance
rendered to us by Mrs. V. Mohana, learned Amicus Curiae.
12. For the aforementioned reasons, the appeals are
..…................................J [L. NAGESWARA RAO]
..…................................J [HEMANT GUPTA]
New Delhi, September 23, 2019.
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 7525-7526 of 2019 (Arising out of SLP (C) Nos.8588-8589 of 2014)
SMT. RADHIKA DEVI .... Appellant(s)
UNION OF INDIA & OTHERS.
…. Respondent (s) W I T H
Civil Appeal No. 7527 of 2019 (Arising out of SLP (C) No.26105 of 2015)
J U D G M E N T
L. NAGESWARA RAO, J.
13. For the sake of convenience, the parties are referred to
as they are arrayed in Civil Appeal Nos.7525-7526 of 2019
arising out of SLP (C) Nos.8588-8589 of 2014 filed by Smt.
14. Naib Subedar Umed Singh was enrolled in the Army on
13.03.1976. On 19.12.2001, he was posted at the
International Border in Operation Parakram. While taking part
in the fire fighting drill activities at about 4.00 pm on
21.05.2002, he collapsed and was declared dead. According
to the death certificate, he died due to Ischemic heart disease
leading to cardiac arrhythmia (ventricular fibrillation).
15. The Respondents granted Special Family Pension to the
Appellant. Unsatisfied with the grant of Special Family Pension
instead of the Liberalised Family Pension, the Appellant filed
O.A. No.167 of 2011 before the Armed Forces Tribunal, Principal
Branch, New Delhi (for short “the Tribunal”). The Tribunal
dismissed the O.A. on 23.11.2011, holding that the Appellant
was not entitled to either Liberalised Family Pension or ex-
gratia payment. Aggrieved by the order of the Tribunal, the
Appellant filed a Writ Petition in the High Court of Delhi, which
was allowed. The High Court found that the Appellant was
entitled to Liberalised Family Pension and ex-gratia payment of
Rs.5 lakhs. The Appellant challenged the judgment of the
High Court to the extent that ex-gratia payment of Rs.7.5 lakhs
was not awarded in her favour. The Respondent, Union of
India has also filed an appeal questioning the judgment of the
High Court in so far as it relates to the declaration that the
Appellant is entitled to the Liberalised Family Pension and the
award of Rs.5 lakhs as ex-gratia amount.
16. The claim of Liberalised Family Pension by the Appellant is
on the basis of the Instructions issued by the Government of
India on 31.01.2001. As per the said Instructions, a member of
the family of a deceased Armed Forces Personnel whilst
employed in an operation notified by the Government of India
would be entitled to Liberalised Family Pension. In Kanchan
Dua v. Union of India & Anr.9, we have discussed in detail
the modifications issued to the rules and regulations granting
beneficiary awards to the family members of the Armed Forces
Personnel who died in action by the letter dated 24.02.1972.
We have also carefully examined the scope of the entitlement
of Liberalised Family Pension in case of the death of persons
employed in the operations notified by the Government of
India. After a close scrutiny of the relevant circulars, we have
held that Liberalised Family Pension in accordance with the
Instructions issued by the Government of India is payable only
to the family members of Armed Forces personnel who have
died in action.
17. In view of the death of the Appellant due to cardiac
failure, the Appellant is not entitled to Liberalised Family
Pension. In so far as the payment of ex-gratia amount/
compensation is concerned, we are convinced that the
Appellant is entitled to Rs.5 lakhs as ex-gratia compensation in
accordance with the Instructions dated 22.09.1998. The
special benefits that were granted by the Government of India
for ex-gratia payment is payable in all cases of death and 9 Civil Appeal Nos.7459-7460 of 2010
disability in service to the family members of the Armed Forces
Personnel who died in harness. As the death of the
Appellant’s husband was not during enemy action in
international war or border skirmishes and action against
militants, terrorists, extremists etc., the Appellant is not
entitled to Rs.7.5 Lakhs as claimed by her.
18. We set aside the judgment of the High Court declaring
that the Appellant is entitled for Liberalised Family Pension.
She is entitled only for the Special Family Pension. Further, we
uphold the judgment of the High Court that the Appellant is
entitled for ex-gratia payment of Rs.5 lakhs. With the above
observations, the Appeals are disposed of, accordingly.
..…................................J. [L. NAGESWARA RAO]
..…................................J. [HEMANT GUPTA]
New Delhi, September 23, 2019.