Allowed

Kamlesh v. Shashi Kant Sharma, Secretary Ministry of Defence, N.Delhi

Punjab & Haryana HC21 Oct 2013COCP/2925/2012

Case brief

AI extract

What is this about?

In contempt proceedings, a Bench allowed the petitioner's appeal against non-compliance with a prior order. The court held that a defence personnel dying of a heart attack during counter-insurgency operations qualifies for the higher ex-gratia amount of Rs. 7.50 lacs and directed the release of the remaining balance.

What did the court decide?

Directed the respondents to release the balance of Rs. 2.50 lacs to the petitioner within one month of receiving the certified copy of this order.

Kamlesh Vs Shashi Kant Sharma… — Pension and Retirement Benefits | Punjab & Haryana HC (2013)

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COCP No. 2925 of 2012

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[1]

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

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CHANDIGARH.

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COCP No. 2925 of 2012

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Date of Decision: October 21, 2013

Kamlesh

…..Petitioner

Vs.

Shashi Kant Sharma, Secretary,

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Ministry of Defence, New Delhi and another

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…..Respondents

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CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI.

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-.-

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Present:Mr.K.S. Malik, Advocate for the petitioner.

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Mr.S.S. Sandhu, Advocate.

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-.-

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M.M.S. BEDI, J.

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Petitioner is a wife of martyr who died during operation against terrorists. Her writ petition for grant of benefit of ex-gratia was declined by a single Bench of this Court but vide judgment of LPA Bench dated July 7, 2011, she was held entitled to the ex-gratia grant/ compensation payable to her according to the policy of Union of India and the policy of the State within a period of six months of receipt of the certified copy of the order.

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Gupta Sanjay 2013.11.29 13:35 I attest to the accuracy and integrity of this document High Court Chandigarh

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COCP No. 2925 of 2012

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[2]

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As a controversy was raised by Union of India regarding her status as wife of a martyr as per policy of the State Government and the instructions issued by the Government of India, Ministry of Defence on account of husband of the petitioner having died on account of acute myocardial infraction during the tenure of anti-terrorism operation, the Division Bench observed as follows:-

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“As per the letter dated 22.9.1998 (Annexure P/6), addressed to the Chiefs of Army Staff, Naval Staff and Air Staff, the ex-gratia lump sum compensation is payable to the families of the defence service personnel who died in harness in the performance of their official duties, as per the following table:-

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(a) Death occurring due to accidents in the

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course of performance of duties: 5.00 Lakhs

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(b) Death occurring in the course of performance of duties attributable to acts of violence by terrorists, anti-social elements etc: 5.00 Lakhs.

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(c) Death occurring during (i) enemy action in international war or border skirmishes and (ii) action against militants, terrorists, extremists etc.

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It is mentioned in that letter itself that the graded structure of ex-gratia lump sum compensation takes into account the hardship and risks involved in certain

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Gupta Sanjay 2013.11.29 13:35 I attest to the accuracy and integrity of this document High Court Chandigarh

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COCP No. 2925 of 2012

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[3]

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assignments the intensity and magnitude of the tragedy and deprivation that families of government servants experience on the demise of the breadwinner in different circumstances etc. As per the appendix to that letter, compensation is admissible to the families of service personnel who are killed in action against armed hostile, extremists and terrorists. The condition to be satisfied for payment of ex-gratia lump sum compensation in the specified circumstances is that the death of the employee concerned should have occurred in the actual performance of bonafide officials duties. In other words, a casual connection should be established between the occurrence of death and government service.

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The detailed report of physical causality in respect of Havaldar Bijender Singh has been annexed with the writ petition as Annexure P/4. No doubt the cause of death has been given as acute myocardial infraction, but the same was suffered while inducting for deployment in counter insurgency operation. The brief description of the circumstances, as recorded therein, are as under:-

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“No. 2884838Y Hav. Bijender Singh was part of Commanding Officer quick reaction team

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Gupta Sanjay 2013.11.29 13:35 I attest to the accuracy and integrity of this document High Court Chandigarh

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COCP No. 2925 of 2012

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[4]

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which was inducting for deployment to conduct counter terrorism operation “Tilmat...”.

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It is very much clear from the said report that Havaldar Bijender Singh suffered some chest pain after counter terrorism operation had started and couple of minutes had already passed. In these circumstances, we have no hesitation in concluding, in view of the letter Annexure P/6 and the annexures thereto, that the death of Havaldar Bijender Singh had occurred during the actual performance of bonafide official duties and its connection has been established from the time that elapsed between the occurrence of his death and performance of his duties. It is not always necessary that the death of a defence personnel for the purpose of grant of ex-gratia payment to his family members should always be on account of the bullet fired by the enemy or the terrorists or militants. When there is a close nexus between the death and the performance of the duties, it is to be held that the defence personnel died in harness in performance of his bonafide official duties. Learned Single Judge erred while holding that the husband of the appellant did not die in harness in the performance of his bonafide official duties. By virtue of the letter Annexure

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Gupta Sanjay 2013.11.29 13:35 I attest to the accuracy and integrity of this document High Court Chandigarh

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COCP No. 2925 of 2012

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[5]

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P/6, the petitioner is entitled to ex-gratia lump sum compensation in accordance with the above re-produced table and the Union of India respondent No.1 is liable to pay the same…..

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In the result, this appeal is allowed. The order passed by the learned Single Judge is set aside and the respondents are directed to calculate the ex-gratia grant/compensation payable to the appellant in accordance with their respective policies and to pay the same within a period of six months of receipt of certified copy of this order.”

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The petitioner has been paid an amount of Rs.5 lacs credited in

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her account on November 29, 2012 but through instant contempt petition, the petitioner has expressed a grievance that the order dated July 7, 2011 has not been complied with, in accordance with the policy of the Union of India though she had been released the ex-gratia compensation by State of Haryana and by Union of India to the extent of Rs.5 lacs. The petitioner claims that she is entitled to get Rs.7.50 lacs instead of Rs.5 lacs. The petitioner has relied upon the letter dated September 2, 1998 issued by the Ministry of Defence on the subject of special benefits in case of death and disability in service and payment of ex-gratia lumpsum compensation to the families of the defence service personnel who died in harness recommended by 5^th Central Pay Commission providing that defence service personnel

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Gupta Sanjay 2013.11.29 13:35 I attest to the accuracy and integrity of this document High Court Chandigarh

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COCP No. 2925 of 2012

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[6]

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who died in harness in performance of their bonafide official duties shall be paid the following ex-gratia lumpsum compensation:-

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“(a) Death occurring due to accidents in the Rs.5.00

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course of performance of duties. lakhs. (b) Death occurring in the course of Rs.5.00

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performance of duties attributable to acts of lakhs violence by terrorists, anti-social elements etc. (c) Death occurring during (i) enemy action Rs.7.50

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in international war or border skirmishes and (ii) lakhs”

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action against militants, terrorists, extremists etc.

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A copy of the letter has been placed on record as annexure R-

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The above said letter makes a distinction between the amount of exgratia payable as ex-gratia compensation on the basis of intensity and magnitude of the tragedy on demise of breadwinner in different circumstances. In this context, para 2 of the letter annexure R-4 dated September 22, 1998 is reproduced as under:-

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“2. The graded structure of ex-gratia lump sum compensation takes into account the hardships and risks involved in certain assignments, the intensity and magnitude of the tragedy and deprivation that families of government servants experience on the demise of the breadwinner in different circumstances, the expectations of the employer from the employees to function in extreme circumstances etc. The compensation is

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Gupta Sanjay 2013.11.29 13:35 I attest to the accuracy and integrity of this document High Court Chandigarh

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COCP No. 2925 of 2012

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[7]

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intended to provide an additional insurance and security to employees who are required to function under trying circumstances and are exposed to different kinds of risks in the performance of their duties.”

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The short question which is required to be determined in the present contempt petition is whether the respondents have willfully disobeyed the order of Division Bench of this Court dated July 7, 2011, granting ex-gratia amount of Rs.5 lacs instead of Rs.7.5 lacs on the basis of letter dated September 22, 1998 to the petitioner. The petitioner, a wife of martyr claims that as her husband had died during an action against terrorists, a sum of Rs.7.50 lacs was payable to her whereas the claim of the respondents is that death of the husband of the petitioner is not covered under clause (c) of the letter dated September 22, 1998 as such she has been granted a sum of Rs.5 lacs as lumpsum ex-gratia grant as per the policy.

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I have heard learned counsel for the petitioner as well as counsel for the respondents and carefully considered the contention of learned counsel for the respondents that the death of husband of the petitioner cannot be considered as a battle casualty but will fall under a death occurring due to accident in the course of performance of duties as the husband of the petitioner had suffered heart attack in counter-insurgency operation area and had not died due to militants/ terrorists or extremists action. He would be covered under criteria of physical casualty i.e. death caused due to natural causes/ illness/ accident/ suicide but cannot be

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Gupta Sanjay 2013.11.29 13:35 I attest to the accuracy and integrity of this document High Court Chandigarh

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COCP No. 2925 of 2012

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[8]

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considered as battle casualty for the purpose of grant of ex-gratia lumpsum compensation.

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The grant of special compensation to the widow of a defence personnel is in the nature of social legislation and has to be construed keeping in mind the fact that it is a social legislation framed with an objective to reward the family members of the martyr. Once a defence personnel is engaged in an operation, he cannot be classified for the purpose of grant of ex-gratia compensation on the basis of the cause of death. It is an admitted fact that the husband of the petitioner was present in the operation area in an action against the terrorists/ extremists and his death occurred during the process of action. No doubt, he did not suffer bullet injury. He cannot be denied the benefit of ex-gratia compensation of Rs.7.50 lacs on the ground that he does not fall in battle casualty but could be classified as a person who died on account of accident or illness. The anxiety in the operational area resulting in acute myocardial infraction resulting in death will not diminish the status of a martyr who has died in the operational area in an action against the terrorists/ militants. Besides this, the letter dated September 22, 1998 has to be considered as a piece of social legislation to be construed in favour of the beneficiary.

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Once a person has moved to an operation area of counterinsurgency, the reward of his martyrdom cannot be diluted on the pretext that he had died while preparing to launch a counter-insurgency operation. The petitioner is thus held entitled to a sum of Rs.7.50 lacs under clause (c)

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Gupta Sanjay 2013.11.29 13:35 I attest to the accuracy and integrity of this document High Court Chandigarh

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COCP No. 2925 of 2012

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of letter dated September 22, 1998. As there has not been lawful disobedience of the order passed by this Court by the respondents but the denial of Rs.7.50 lacs to the petitioner is on account of misconstructions of the relevant Army instructions, it is deemed appropriate to allow the present contempt with a direction to the respondents to ensure that balance of Rs.2.50 lacs is released to the petitioner within a period of one month after the receipt of a certified copy of the order. Ordered accordingly.

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October 21, 2013 (M.M.S.BEDI) sanjay JUDGE

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Gupta Sanjay 2013.11.29 13:35 I attest to the accuracy and integrity of this document High Court Chandigarh

Kamlesh v. Shashi Kant Sharma, Secretary Ministry of Defence, N.Delhi

Case brief

What is this about?

What did the court decide?

Kamlesh v. Shashi Kant Sharma, Secretary Ministry of Defence, N.Delhi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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