KANCHAN DUA V/S UNION OF INDIA & ANOTHER
“Death or injuries caused in live action and its grant for natural death would diminish the sheen of sacrifice of militants killed in live action” [CASE BRIEF] KANCHAN DUA V UNION OF INDIA AND ANOTHERCase name: Kanchan Dua v. Union of India and anotherCase number: Civil Appeal Nos.7459-7460 of 2010Court: Supreme Court of IndiaBench: L. Nageswara Rao, Hemant Gupta J.J.Decided on: 23rd September, 2019Relevant Act/ Sections: Army Act, 1950, Article 226 of the Constitution of India• Brief Facts and Procedural History:  1. The husband of the appellant was commissioned in army and later on promoted as a colonel in 1990. When he was moved to Rajouri for operation Ran Vijay, he was found dead on 25th January 1992 in his room. The cause of death was found to be cardiac failure due to stress for which ordinary family pension was granted followed by special family pension. Appellant complained that entry in her husband’s service record was changed from ‘Physical casualty in Operation Rakshak’ to ‘physical casualty’.  2. Due to absence of any response, she filled a writ petition in Chandigarh high court seeking change in service record which was allowed on the ground of the proofs that the deceased was acting in bonafide military services for operation Rakshak and further directed to consider Liberalised Family Pension (LFP) of appellant. On non-receipt of LFP, the writ petition was transferred to Armed Forces Tribunal, Chandigarh by request of appellant but was rejected as tribunal opined 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. • Issue before the Court:  a) Whether the appellant is entitled to receive Liberalised Family Pension on the death of her husband and if the writ was maintainable before this Court? • Ratio of the Court: 1. The learned amicus curiae on the behalf of appellant has submitted that according to section 3 and 9 of the Army Act, 1950 the deceased was in active service at the time of his death as he was working on Operation Rakshak which was a notified operation under Category ‘E’ Para 4.1 of the instructions. Even though he was a commander of the Animal Transport Battalion and thus, he is entitled to LFP under para 6 of the instructions relying upon the judgement of High Court of Jammu and Kashmir and Punjab and Haryana.  2. On the other hand, counsel on the behalf of respondent placed reliance to the judgment in Brij Mohan Lal v Union of India 2012 (6) SCC 502, that LFP is associated with respect to death or injuries caused in live action and its grant for natural death would diminish the sheen of sacrifice of militants killed in live action. Instead, the death will fall under Category ‘B’ of the instructions under which Special Family Pension has already been granted by the court.  3. However, the notification issued by the Government extending concessions 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. The court considered the cases cited by the amicus curiae on the behalf of appellant but did not rely upon them as the high courts did not consider letter dated 24.02.1972 and notification dated 07.05.1990 in which the government declined recommendations of a committee of experts appointed by the Defence Ministry which were not acceptable. Decision held:  Considering the facts and circumstances, the court following the judgement passed by the tribunal decided that the appellant is not entitled to Liberalised Pension Scheme.
Non Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal Nos.7459 74610 KANCHAN DUA .... Appellant(s UNION OF INDIA & ANR …. RespondentBorder 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. 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 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 the Appellant. 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. 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 19651962 and 1947 1948 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 AwardsSCC 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 2005SCT 458 3 2010SCT 400 4 2011SCC 429 5 2013SCT 543 6 WPNo.3412 Delhi HCRCR3136SCT 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 dismissed. ..…................................J Nos.8588 85814 SMT. RADHIKA DEVI UNION OF INDIA & OTHERS W I T H Civil Appeal No. 7527 of 2019 Arising out of SLPNo.261015 …. RespondentNos.8588 85814 filed by Smt. Radhika Devi 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 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 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 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 9 Civil Appeal Nos.7459 74610 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 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 6. 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. 