ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 3598 of 2013

Transcription

1 1 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 3598 of 2013 Smt Santra Devi Petitioner(s) Vs Union of India and others Respondent(s) -.- For the Petitioner (s) : Mr Surinder Sheoran, Advocate For the Respondent(s) : Dr.Urmil Gupta, CGC Coram: Justice Rajesh Chandra, Judicial Member. Air Marshal (Retd) SC Mukul, Administrative Member. -.- ORDER By this petition the petitioner prays for grant of ordinary family pension from the date of discontinuation i.e. wef with interest and for setting aside the order dated (Annexure A-6) vide which the claim for disability pension has been rejected. 2. As per the averments of the petitioner, her husband late Sep Nihal Singh was enrolled in the Army on and died on while in service. After death of the individual, ordinary family pension in favour of the petitioner was sanctioned by the competent authority vide PPO dated The petitioner made a KAREWA with Dhan Singh, real elder brother of late husband Nihal Singh. The family pension of the petitioner was discontinued by PCDA(P) Allahabad vide letter dated on remarriage. The petitioner made representation for restoration of her family pension but of no avail. The petitioner got decree of divorce under section 13 of Hindu Marriage Act vide decree dated and resubmitted her claim for grant of ordinary family pension.

2 2 3. After the claim for restoration of family pension was rejected by the PCDA(P) Allahabad, the petitioner filed appeal which was rejected vide order dated Subsequently the petitioner forwarded a legal notice dated but the respondent No. 3 instead of restoring the family pension of the widow vide letter dated informed that the ordinary family pension was discontinued due to re-marriage with the real brother of late husband in terms of pension Regulation 98 of the Pension Regulations for the Army, Part-I. The respondent No. 3 further vide para 2, made it clear that as per provisions contained in para 11.3 of MOD letter No. 17(4)/2008 (20/D (Pen/Policy) dated , the childless widow of a deceased armed forces personnel retiring or dying in harness shall continue be paid family pension even after her remarriage subject to the condition that the family pension shall cease once her dependent income from all sources becomes equal to or higher than the minimum prescribed family pension in the central Govt. 4. The respondents in their written reply bring out that the individual while serving with 121 Infantry Battalion Territorial Army, committed suicide at Calcutta on As per Rule 8 of Appendix II to Entitlement4 Rules of Casualty Pensionary Awards, 1982, attributability/aggravation shall be conceded if casual connection between death and the military service is established. Evidentially, causal connection between death and military service was not established. Considering the cause of death of deceased as neither attributable to nor aggravated by military service, vide PCDA(P) Allahabad letter dated , (Annexure R-1), the next of kin i.e. the applicant was granted ordinary family pension (OFP) with effect from till re-marriage vide PPO Annexure R-2. The Special Army Instruction (SAI) 2/S/64 lays down that grant of

3 3 ordinary family pension will be admissible to a widow upto the date of death or re-marriage whichever is earlier. The PCDA (P) Allahabad found her ineligible for grant of ordinary family pension pursuant to the judgment dated passed by Sub Judge Ist Class, Mohindergarh in Civil Suit No. 699 of 1987 and directed to ensure recovery of excess grant of pension through DPDO Narnaul and bring the matter in the notice of competent authority for discontinuation of pensionary benfits in terms of Rule 101 of Pension Regulations. 5. The respondents further alleged that Rule 102 of Pension Regulations (Part-1), 1961 lays down that Family Pension of a widow which was discontinued on her re-marriage may be restored in the event of her again becoming a widow or such marriage being annulled by divorce or desertion by the second husband, if she is otherwise qualified and provided her pecuniary circumstances are such as in the opinion of President to justify restoration of the pension. On representing the case against discontinuation of ordinary family pension on the ground that she had divorced her second husband, PCDA(P) Allahabad directed DPDO, Narnaul for restoration of her family pension after obtaining sanction from Government of India vide letter dated (Annexures R-4 and R-5). On referring the case to Records JAT for according sanction of Government of India vide DPDO letter dated , the case was investigated through Army Recruiting Office, Charki Dadri. The investigation report revealed that the applicant had no child from the deceased soldier whereas she gave birth to four children from second marriage which stands dissolved by a decree of divorce on Since the applicant was living alone, the investigation authority recommended granted of ordinary family pension with effect from However, PCDA (P), Allahabad rejected the claim for ordinary family pension stating that there is no government order for admissibility of family

4 4 pension or restoration of ordinary family pension in favour of remarried widow or divorced ladies vide letter dated As per Government of India, Ministry of Defence letter dated and PCDA(P) Allahabad Circular dated , the childless widow of a deceased personnel retiring or dying in harness on or after shall continue to be paid ordinary family pension even after her re-marriage. The claim for restoration of ordinary family pension was again submitted to PCDA(P) Allahabad vide Records JAT letter dated However, the claim was rejected on the ground that the provisions of ibid Government Policy is applicable only for post retiree cases vide PCDA(P) Allhabad letter dated 09.03/ (Annexure R-6). 6. Heard the learned counsel for the parties and gone through the record on the file. 7. The learned counsel for the petitioner argued that stoppage of family pension by the respondents is arbitrary, discriminatory, illegal and against the principles of natural justice and against the Pension Regulations for the Army, 1961 Part-I that even petitioner made KERAWA marriage with elder brother of her late husband, she is entitled for family pension vide Regulation 219 of Pension Regulations for the Army, 1961 Part-I. Regulation 219 stipulates that his condition shall not apply to a widow who remarried her deceased husband s brother, and continues to live a communal life with and/or contributes to the support of the other living eligible heirs. In support of his argument, reliance was placed on a judgment of Delhi High Court in CWP No of 1995 Smt.Kashmiro Devi v. UOI and others decided on and the SLP (Civil NO of 2009 having been rejected by Hon ble the Apex Court on

5 5 8. The learned counsel for the petitioner further argued that in view of the provisions contained in para 11.3 of MOD letter No. 17(4)/2008 (20/D (Pen/Policy) dated , the childless widow of a deceased armed forces personnel retiring or dying in harness shall continue to be paid family pension even after her re-marriage subject to the condition that the family pension shall cease once her independent income from all sources becomes equal to or higher than the minimum prescribed family pension in the Central Govt. Reliance has been placed upon a judgment of this Tribunal in OA No of 2012 Smt. Sumitra Devi v. UOI and others decided on whereby the ordinary family pension was granted on similar grounds. 9. So far as this argument is concerned that the widow is entitled to ordinary family pension even on re-marriage under Regulation 219 of Pension Regulations for the Army, 1961 (Part-I) provided she remarriages with the real brother of the deceased, it is sufficient to mention that the claim for ordinary family pension even after re-marriage with real brother of the husband, has already been dismissed by Sub Judge (First Class) Mahindergarh (Haryana) in Civil Suit NO. 699 of 1987, decided on That decision has attained finality, hence the same controversy cannot be raised in this OA nor can it be entertained. This fact that the petitioner had already filed a civil suit was not disclosed in the petition, which practice is highly deprecated. When the fact was brought in the written statement, it was the bounden duty of the petitioner to bring the entire facts on record by filing a replication along with the copies of the plaint and the judgment. In any case, that judgment of civil Court has become final between the parties. 10. The scrutiny of the record reveals that at the time of death of her husband, the petitioner was childless. The current

6 6 policy with respect to grant of ordinary family pension in regard to childless widow is as under: The PCDA Circular No. 421 dated reads as under OFFICE OF THE PRINCIPLE CONTROLLER OF DEFENCE ACCOUNTS (PENSION), DRAUPADI GHAT ALLAHABAD Circular No 421 dtd To The OI/C Records PAO (Os) Subject Implementation of Govt decision on the recommendation of the Sixth Central Pay Commission regarding pensionary benefits for Armed Forces Personnel below Officer Rank (PBOR) retiring or dying on or after Reference GOI MoD letter No 17(4)/2008(2)/D (Pen/Policy) dtd circulated vide this office circular No 400 dtd Consequent on issue of GOI Mod letter No 17(4)/2008(2)/D (Pen/Policy) dtd , the scheme of Ordinary Family Pension has now been modified to the following:- (a) Childless widow is entitled to ordinary family pension even after her re-marriage. (b) Enhanced rate of ordinary family pension will be payable for ten years without any upper age limit from the date of death of the service personnel when the death takes place in service. 2. The childless widow of a deceased personnel retiring or dying in harness on or after shall continue to be paid ordinary family pension even after her re-marriage subject to condition prescribed under para 11.3 of above cited Govt letter. Accordingly, you are requested to prefer claim for re-grant of ordinary family pension to the childless widow on her re-marriage on revised corrigendum LPC-Cum Data sheet along with an application from the widow of the service personnel in Annexure A. 3. No GTS/Tech/0113-LVII Dtd S/d (R K Saroj) Dy CDA (P) 11. The respondents have rejected the claim of the petitioner dated vide letter dated , which is appended as under: To The Records Office, The Jat Regiment No.G-4VI G / O/O he Pr.CDA(P), Allahabad Dated 11/04/2011

7 7 Sub Nihal Pin C./O 56 APO Grant of family pension in respect of No late Sep/Clk Ragar. Ref: Your No /FP/DS/JR dated 24 Feb 2011 Claim received in this office under your letter cited at reference is returned herewith along with all connected documents with following remarks. 1. As per this office Circular No. 241, the childless widow of the deceased personnel retiring or dying in harness on or after shall continue to be paid ordinary family pension even after her remarriage. This provision is applicable only for post retiree case. In view of tehe above, the case is returned herewith unactioned. OA(P) 12. The learned counsel for the respondents argued that the provisions of this Government of India, MoD letter dated are applicable only w.e.f i.e. to the post-2006 retirees and since the husband of the petitioner died prior to this date, the benefit is not available to the petitioner. 13. The Principal Bench of AFT at Delhi in its judgment in OA 187/2009 in Saroj Devi Vs UoI & Ors given out on squarely deals with the present issue at hand. The judgment at para 6 reads as under:- 6. Learned counsel for the applicant has submitted that the condition of is a condition which has not been made applicable for other kinds of pension, ie Special Family Pension and Libralised Family Pension but has been imposed with regard to ordinary family pension. This condition is nothing but discriminatory. Learned counsel for the applicant has relied on the case of Union of India Vs SPS Vains {2008(9) SCC 125}. This decision has been based on Constitution Bench decision given in the case of DS Nakara Vs UoI (AIR 1983 SC 130). In this case their Lordships have held that such condition is arbitrary and has been struck down. Following this decision of Hon ble Supreme Court this bench also in case of Lt Col PK Kapoor Vs UoI (TA No 139/2009) has also struck down the imposition of condition of being arbitrary and violative of Article 14 of the Constitution. Similarly in the present case, we do not see the rationale in the

8 8 imposition of condition of in case of ordinary family pension whereas in other pensions like Special Family Pension and Libralised Family Pension such conditions have not been imposed. Even otherwise also we do not see any rationale that a person who dies after his widow will get pension whereas the person who died prior to will not get any pension. This is nothing but arbitrary. We do not think this kind of condition will be sustained. Accordingly, we set aside order of making discrimination on the basis of cut off date since pension is welfare measure and for welfare measure there should be no discrimination for the persons who are similarly situated on the basis of artificial cutoff dates. Therefore, we are of the opinion that the applicant is entitled family pension subject to the conditions laid down in Clause 11.3 of the Circular dated 12th November For emancipation of women, such kind of condition should not have been imposed. The petition is allowed. Applicant will be entitled to family pension subject to conditions in Clause 11.3 of the Circular dated from In the light of above, the present petition is allowed. The petitioner is entitled to grant of ordinary family pension wef subject to conditions as mentioned in Clause 11.3 of the letter dated The arrears will be restricted to six months prior to the filing of the petition as the limitation to approach the Tribunal is six months as mentioned in Section 22 of the AFT Act, The respondents are directed to make necessary calculations, and actual payment be now made to the petitioner, within a period of three months from the date of receipt of certified copy of this order by the learned counsel for the respondents, failing which the petitioner shall be entitled to 9% per annum from the date of order. (Justice Rajesh Chandra) (Air Marshal (Retd) SC Mukul) raghav Whether the judgment for reference is to be put on internet? Yes / No.