Allowed

Manjit Kaur v. State of Haryana and Others

Punjab & Haryana HC21 Nov 2019CWP/19612/2018

Case brief

AI extract

What is this about?

Writ petition challenging denial of ex-gratia payment for the wife of a BSF constable who died years after a service-attributable gun-shot injury. Court held retention in service did not bar benefit and directed payment.

What did the court decide?

Impugned order dated 31.05.2018 quashed. Mandamus issued directing respondents to pay Rs. 20 lakhs under applicable Policies within three months.

Manjit Kaur Vs State of Haryana and… — Pension and Retirement Benefits | Punjab & Haryana HC (2019)

¶1

SHIVANI GUPTA 2019.12.05 15:24 1

¶2

CWP No. 19612 of 2018

¶3

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

¶4

CWP No.19612 of 2018 Date of decision: 21.11.2019 `1

Manjit Kaur

....Petitioner(s)

Versus

State of Haryana and others

¶9

...Respondent(s)

¶10

CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA

¶11

Present: Mr. Rajeev Anand, Advocate, for the petitioner.

¶12

Mr. Shivendra Swaroop, AAG, Haryana, for respondent nos. 1, 4 and 5.

¶13

Ms. Anita Balyan, Advocate, for respondents no. 2 and 3.

¶14

G.S.SANDHAWALIA, J. (Oral)

¶15

The challenge in the present writ petition filed under Articles 226 and 227 of the Constitution of India is to the order dated 31.05.2018 (Annexure P-9) whereby, the petitioner's claim for ex-gratia amount on account of the death of her husband as an operational casualty has been denied by respondent no. 5 on the ground that he had been retained in service despite his disability and the individual died on 30.10.2014. The death is stated to be after a gap of 18 years on account of the following reasons:-

¶16

“Diabetes mellitus Type-II, Hypertension, CKD (Stage-V, HCV Positive, Pulmonary Koch's with Para paresis with Hypoxia- ischaemic encephalopathy with cardio respiratory arrest”

¶17

The other reason which prevailed with the said respondent to

¶18

¶19

CWP No. 19612 of 2018

¶20

deny the benefit was that as far as disability is concerned, since the individual was retained in service, he was not entitled under the disability clause as well and, therefore, the case not being covered under the existing Policy of the Government, the claim for ex gratia was denied.

¶21

The legal right on the basis of which the petitioner seeks exgratia is the policy dated 31.01.2014 and 25.08.2014 (Annexure P-6 and P- 7) framed by the State Government. The said policy covers all Central Para Military Forces (CPMF) who are killed in operational areas/terrorist activities who belong to the State of Haryana. Thus, the ambit as such of the instructions would cover BSF, ITBP, CISF, Home Guard, Assam Rifle, Rapid Action Force etc. The petitioner's husband, being from the BSF, stands covered to that extent. The amount of ex-gratia was fixed at Rs.2.50 lakhs under the said Policy and the eligibility for the deceased/disabled was that in case of death due to war action against militant, terrorists, extremists or during border skirmishes, the beneficiaries would be entitled for the ex gratia. Thus, the whole purpose of the policy as such is to recognize the bravery and the martydom achieved by the personnel of the uniformed Forces. This aspect seems to have been lost sight off by respondents no. 4 and 5 while deciding the claim of the petitioner. The relevant part reads thus:-

¶22

“(ii) ELIGILIBILITY FOR DECEASED/DISABLED

¶23

Ex-gratia is admissible to those personnel’s of Central Police Force who got disabled for life while serving in operational areas/terrorist activities, border skirmishes and who have been medically boarded out of Central Police Force and Para Military Forces on account of their disability. The disability element should be of permanent percentage fixed by the initial medical

¶24

CWP No. 19612 of 2018

¶25

¶26

board. Subsequent Review Medical Board reports will have no effect on the payment of Ex-gratia grant, which may increase or decrease the disability element.

¶27

In case of death due to war and action against Military, Terrorists, Extremists, or during border skirmishes including Internal Security duties, Natual calamity in Election duty, MT accident / Air Crash in only flood duty, in extra ordinary efforts in saving the lives of victims of non roadable country action against military/terrorist activities.

¶28

(iv) THOSE WHO ARE NOT ELIGIBLE

¶29

(i) Physical Casualities i.e. Natural death accidental deaths like MT accidents, air crash in general journey or handing of explosive in any area/sector

¶30

(ii) Those disabled soldiers who are retained in the Central Para Military Forces and not boarded out on medical grounds even though their disability is attributable to service.”

¶31

The basis of the denial is apparently on the ground that the deceased had suffered a gun shot injury on 22.10.1996 but had been retained in service. Therefore, having died on 30.10.2014 and had died 18 years later and not having been boarded out on medical grounds even though the disability is attributable to service had weighed with respondent no. 5 to reject the case.

¶32

A perusal of the file would, however, reveal that Constable Dilbagh Singh had been retained in service only on account of the fact that it would be difficult as such for the family to sustain and maintain him on account of the grievous injuries which he had received. From the report of the firing incident which took place would go on to show that the deceased was posted at a Border Out Post (BOP) (SH) Way which had come under

¶33

¶34

CWP No. 19612 of 2018

¶35

heavy firing from the Pakistan post. The Wireless antenna having got damaged and the communication being affected, the deceased-Constable had come out wearing a bullet proof jacket and steel helmet to repair the damaged antenna. A bullet hit Dilbagh Singh on chest just below the right nipple and exited from the back of his left side. He was evacuated to the Border Out Post, Devigarh after giving first aid in a bullet proof tractor and further evacuated to unit MI room and then to 166 Military Hospital. Resultantly, he was brought to the Command Hospital, Chandi Mandir and was placed on the Dangerously ILL List (D.I) list.

¶36

The husband of the petitioner was serving the 102 Battalion BSF and, therefore, an Opinion of the Court of Inquiry was given that the injury was fully attributable to service. On account of Dilbagh Singh being paralyzed and needing full support and since he could not serve any where else in any form, monthly recurring income would have to be given, a recommendation had been made that the said benefit be given to keep up the morale of the Troops.

¶37

The said recommendation was approved on 25.06.1997 (Annexure P-2) by the DIG (BSF) qua the petitioner and two other employees that the injuries/disability which were sustained by these personnel who were on bona fide government duty be attributed to government service. Financial assistance, as admissible under the Rules, would be payable for the injuries sustained by them. The same was conveyed on 12.08.2008 (Annexure P-3) to the petitioner who was under treatment at BSF MI Room, R.K. Puram, New Delhi. The said exserviceman eventually expired on 30.10.2014 and an Operational Casualty Certificate as such was issued on 08.05.2018 (Annexure P-4). The relevant

¶38

¶39

CWP No. 19612 of 2018

¶40

part of the certificate whereby, his bravery was noticed reads thus:-

¶41

“On 21^st & 22^nd Oct 1996, heavy firing was started by Pakistan side on 102 Battalion Border Security Force Border Out Posts (BOPs) Chakbala and S.H. Way, Indian BOPs Chakbala and S.H. Way retaliated aggressively to the Pakistani firing. During exchange of fire, Constable (GD) Dilbagh Singh showed his exemplary professionalism and fought bravely without caring for his life. Unfortunately, Constable (GD) Dilbagh Singh sustained grievous gunshot injuries on his chest and after prolonged treatment attained martyrdom on 30 Oct’2014.”

¶42

It has been specifically pleaded in para nos. 6, 7 and 8 that the

¶43

injury had left Dilbagh Singh paralysed with 100% disablement and put him in a crippled condition for 18 long years. There is a denial to the said fact by respondents no. 4 and 5 on the ground that the petitioner was not eligible, as noticed, on the ground that he had been retained in the Central Military Service. The said paragraphs also are denied for want of knowledge.

¶44

However, respondents no. 2 and 3-BSF Authorities as such have admitted that it is a matter of record since the averments as such would directly be in their knowledge. It has also been mentioned by the said respondents that a claim for ex gratia compensation of Central Government of Rs.15 lakhs has also been passed, which has been paid to the petitioner on 21.03.2016 through Central Banking System. It is also mentioned that Rs.2.5 lakhs had been paid as ex gratia by the BSF Authorities.

¶45

Thus, it is apparent that the immediate employers also recognized that the deceased was a battle casualty as such and the injury as such had eventually led to his death 18 years later. All these long years, he

¶46

¶47

CWP No. 19612 of 2018

¶48

had suffered, which aspect has not been properly appreciated by the respondents who have rejected the case vide the impugned order dated 31.05.2018 (Annexure P-9). The purpose of the policy as such is only to grant the benefit to the residents of the Haryana State and the ex gratia amount is to ensure that the family of such ex-serviceman who lay down their life for the nation are well looked after financially. Merely because the BSF Authorities as such had retained Constable Dilbagh Singh in the Central Para Military Forces and had not boarded him out on medical grounds recognizing his valour would not be such a ground to deny the benefits on account of clause iv(ii).

¶49

A perusal of the above said clause also would go on to show that the said clause would not be applicable to disabled soldiers who continued to be retained in the Central Para Military Forces and were duly discharged after reaching the age of superannuation. The same would not be applicable to a person who died before his superannuation and on account of the injuries he had suffered in the exchange of fire on the border. Even otherwise, once the Operational Casualty Certificate (Annexure P-4) has been granted by the BSF who have also paid ex gratia amount and also the Central Government, it was incumbent upon the State to have recognized the said certificate rather than denying the relief on technical grounds.

¶50

Accordingly, the impugned order dated 31.05.2018 (Annexure P-9) is quashed. A writ of mandamus is issued directing the respondents no. 4 and 5 to make the payment of Rs.20 lakhs under the Policies (Anexures P- 6 and P-7). The said payment be made within a period of 3 months from the date of receipt of certified copy of the judgment. Petition stands allowed

¶51

CWP No. 19612 of 2018

¶52

¶53

accordingly.

¶54

21.11.2019 (G.S. SANDHAWALIA) shivani JUDGE Whether reasoned/speaking Yes/No Whether reportable Yes/No

¶55

CWP No. 19612 of 2018 8

Manjit Kaur v. State of Haryana and Others

Case brief

What is this about?

What did the court decide?

Manjit Kaur v. State of Haryana and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Surya Parkash Nagpal Vs State Bank of India and Ors.

The Land Acquisition Collector-Cum-Sub Divisional Magistrate and Others Vs Dr. Mandeep Kaur

Ranbir and Ors. Vs State of Haryana and Ors.

Jasbir etc. Vs State of Haryana and Anr.

G S Verma Vs Food Corporation of India and Ors.

Gulab Singh and Ors. Vs State of Haryana and Anr.