ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI

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1 ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI O.A.NO. 66 of 2015 FRIDAY, THE 01ST DAY OF JANUARY, 2016/11TH POUSHA, 1937 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) P.P.MANI, AGED 61 YEARS, M/O.LATE CFN K.M.MANOJ, NO , KEERAMPILLY PARAMBIL, HOUSE NO.32/193, KUNNUMMEL ROAD, VADUTHALA.P.O., ERNAKULAM DISTRICT, KERALA APPLICANT: BY ADV.SRI.V.K.SATHYANATHAN. Versus RESPONDENTS: 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI THE CHIEF OF ARMY, INTEGRATED HQ OF MOD (ARMY), D.H.Q.P.O., NEW DELHI THE OIC RECORDS, EME RECORDS, SECUNDERABAD PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS), OFFICE OF THE P.C.D.A.(P), DRAUPADI GHAT, ALLAHABAD, UP ADDL.R5 IMPLEADED: ADDL.R.5.M.S.SHINY, D/O.M.G.SURENDRAN, SHAJI NIVAS, S.P.PURAM COLONY, PALLURUTHY, KOCHI Impleaded as Addl.R5 as per order dated in MA.No.363/15. BY ADV. SRI. TOJAN.J.VATHIKULAM, CENTRAL GOVT. COUNSEL.

2 OA No. 66 of 2015 : 2 : O R D E R VAdm.M.P.Muralidharan, Member (A): 1. The Original Application has been filed by Smt.P.P.Mani, mother of late CFN K.M.Manoj, No essentially seeking family pension. 2. Mr.V.K.Sathyanathan, the learned counsel for the applicant submitted that the applicant had donated a kidney to her son, late CFN KM Manoj, but despite the transplant he died due to 'Sub acute Heptic Failure' on 02 March Soon after the death of the applicant's son, Respondent No.5 had sought terminal benefits claiming to be the widow of the applicant's son. At that juncture, the applicant along with her husband and her second son had filed Succession O.P.No.26/2002 in the Sub Court at Ernakulam. While the OP was still pending in the Sub Court, the Army Authorities had initiated action for sanction of family pension to the 5 th respondent. At that stage the

3 OA No. 66 of 2015 : 3 : applicant and her husband had submitted to EME Records that the 5 th respondent was not married to the applicant's son as claimed by her and had therefore requested that the matter be kept in abeyance till the disposal of the Succession OP pending before the Sub Court, Ernakulam (Annexure A2). The applicant had also filed O.P.No.30440/2002 before the Hon'ble High Court of Kerala seeking terminal benefits subsequent to death of her son late Cfn Manoj. 3. The learned counsel further submitted that Succession O.P.No.26/2002 was decided in favour of the applicant, declaring that the 5 th respondent Ms.Shiny was not the legally wedded wife of the applicant's deceased son (Annexure A3). The Hon'ble Sub Judge, Ernakulam held that the applicant is the only Class I heir to succeed the estate of her late son and a succession certificate was issued in the name of the applicant entitling her to claim Army Group Insurance amount due post death of her son. While the Original Petition was still pending at the Hon'ble High

4 OA No. 66 of 2015 : 4 : Court of Kerala, all terminal benefits except family pension were granted to the applicant based on the decision of the Succession OP. On formation of the Armed Forces Tribunal, O.P.No.30440/2002 was transferred from the Hon'ble High Court to this Tribunal and re-numbered as T.A.No.93/2010. The Transferred Application was closed in July 2010 without prejudice to the right of the applicant to claim family pension, if she was entitled to it and it was open to her to make the claim before the competent authority (Annexure A4). 4. The learned counsel further submitted that the applicant assumed that her counsel would do the needful follow up legally and therefore she did not take any further action at that stage. The applicant eventually came to know from her old counsel that it was her responsibility to make an appeal to the Army authorities for pension. She then preferred a petition before Respondent No.2 (Chief of the Army Staff) in March 2015 seeking family pension. In the interim, the husband of the applicant who is a pensioner

5 OA No. 66 of 2015 : 5 : deserted her and she is now living with her second son as recorded in the ration card issued by the Government of Kerala (Annexure A5). While the applicant had informed the respondents that she was not being looked after by her husband, without considering the appeal in totality, the respondents rejected her appeal for family pension essentially stating that her husband was getting Rs.5,000/- per month as pension from the Kerala Water Authority which exceeded the limit of Rs. 3,500/-prescribed by the Government for grant of family pension (Annexure A7) to parents. 5. The learned counsel further submitted that a similar case had been considered by the Hon'ble Punjab & Haryana High Court in Kartar Kaur & anr. vs. Union of India & Ors, CWP.No.19665/2009. The Hon'ble High Court had held that the petitioner therein who did not have any independent source of income other than the meagre pension of her husband, cannot be denied pension on the ground that her husband's pension exceeds the limit

6 OA No. 66 of 2015 : 6 : prescribed by the Government and had accordingly held the petitioner eligible for pension. The learned counsel also submitted that the Chandigarh Bench of the Armed Force Tribunal in O.A.No.2215/2013 considering a similar case, had held the applicant therein eligible for family pension. The learned counsel therefore prayed that the applicant be granted family pension. 6. Sri.Tojan J Vathikulam, the learned Central Government Counsel submitted that Government of India policy letter dated 26 August 1998, based on the recommendations of the Vth CPC, specifies that grant of ordinary family pension to parents, sons and daughters (Annexure R1) is subject to their monthly earning not exceeding Rs.2550/-. The same had been clarified to the applicant when she had made an request earlier for family pension (Annexure A1 and A7). The learned counsel further submitted that this Tribunal vide its order in T.A.No.93/2010 (Annexure A4) had permitted the applicant to make a claim for family pension in case her income is below the ceiling

7 OA No. 66 of 2015 : 7 : limit. The applicant moved a claim after nearly 05 years but same was rejected as her husband was getting an amount of Rs.5,000/- per month as basic pension from the Kerala Water Authority which exceeds the limit of Rs.3500/- now prescribed by the Government. 7. It was further submitted by the learned counsel that initially the 5 th respondent Ms.Shiny, had claimed terminal benefits as the wife of the late soldier. At that stage the applicant along with her husband and son had filed O.P.No.30440/2002 in the Hon'ble High Court of Kerala and based on interim order in IA.No.51540/2002 the respondents were directed not to disburse any benefits to Ms.Shiny. Payment of family pension and terminal benefits were therefore held up. Based on the succession certificate issued as per the directions of the Sub Court, Ernakulam (Annexure A3) benefits of Army group Insurance, Provident Fund and Gratuity were paid to the applicant. Learned counsel also submitted that in accordance with Government of India Ministry of Defence Letter dated 24 November

8 OA No. 66 of 2015 : 8 : 1999, only those parents who were dependent on the Armed Forces personnel were eligible for grant of ordinary family pension, provided the deceased soldier had left behind neither a widow nor a child (Annexure R2). Further, there was nothing on record to show that the applicant was solely dependent on the deceased soldier during his lifetime, as her husband had been employed by the Kerala Water Authority. The learned counsel contended that as the applicant was not entitled to family pension in accordance with rules she was not granted the same. 8. Heard rival submission and perused records. 9. It is not disputed that the applicant's son died while in service in March It is also not disputed that the applicant has been held as legal heir by a competent court (Annexure A3). 10. Reg 212 of Pension Regulations for the Army 1961 provides for ordinary family pension and it was amplified

9 OA No. 66 of 2015 : 9 : vide Army Instruction AI 51/80. Para 6 of the Army Instruction, defines 'family' for the purpose of family pension as wife/husband, sons below 25 years of age, unmarried daughters below the age of 25 and sons and daughters adopted legally upto the age limit prescribed for sons/daughters. On the basis of recommendation of Vth CPC, the definition of 'family' for the purpose of ordinary family pension was extended to include parents who were wholly dependent on the Armed Force personnel while he was alive, provided the deceased Armed Forces personnel had not left behind neither a widow nor a child, subject to dependency/income criteria of not more than Rs.2550/- per month (Annexure R1). 11. Reg 213 of Pension Regulations for the Army 1961 provides for grant of special family pension in case the death of Armed Forces personnel was due to or hastened by a wound, injury or disease which was attributable to military service or aggravated by military service of a wound, injury or disease which existed before or arose

10 OA No. 66 of 2015 : 10 : during military service. Reg 216 of Pension Regulations 1961, defines eligible members of the family for special family pension and includes mother. It is observed that no income criteria has been prescribed for grant of special family pension. Reg 219 of Pension Regulations 1961, further specifies that a relative specified in Reg 216 shall be eligible for the grant of family pension provided he or she is not in receipt of another pension from Government or that he or she is not employed under Government. 12. Under Reg 95(c) of Pension Regulations 1961, which pertains to dependents pension in respect of officers, it is observed that dependents pension shall be admissible to parents of the deceased officer if they were largely dependent on the officer for support, but no income criteria has been imposed on the dependent pension. Similar provisions have been included in Reg 115, when Pension Regulations were revised in It is also observed that when liberalised family pensions were introduced vide Reg 132 and 133 in 2008, no pecuniary limit was imposed on

11 OA No. 66 of 2015 : 11 : parents. It is further observed that in case of ordinary family pension, Reg 78 of 2008 envisages ordinary family pension to be drawn from only one source, ie, a person who is in receipt of family pension may opt for ordinary family pension from the Army or from any other source which was admissible. 13. At this juncture we would like to refer to the judgment of the Hon'ble Apex Court in D.S.Nakara & Ors. vs. Union of India, (1983) 1 SCC 305 wherein the status of pension had been looked into and relevant paragraphs are quoted below: 20. The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the

12 OA No. 66 of 2015 : 12 : grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh Viewed in the light of the present day notions pension is a term applied to periodic money payments to a person who retires at a certain age considered age of disability; payments usually continue for the rest of the natural life of the recipient. The reasons underlying the grant of pension vary from country to country and from scheme to scheme. But broadly stated they are (i) as compensation to former members of the Armed Forces or their dependents for old age, disability, or death (usually from service causes),......pensions under the first head are of great antiquity As observed by the Hon'ble Apex Court family pension is a compensation to dependents of members of the Armed Forces and it is a social welfare measure rendering socio-economic justice. As observed earlier, no

13 OA No. 66 of 2015 : 13 : income criteria has been prescribed for special family pension or liberalised family pension. Further even in case of ordinary family pension no income criteria has been prescribed in case of the surviving spouse, irrespective of the income he/she might have. It is also observed that AI 51/80 quoted earlier, specifies that in cases where both wife and husband are Government servants and if one of them dies while in service or after retirement, family pension is payable to the survivor, in addition to his/her pension, as the case may be. Therefore to deny the same benefit to the applicant only on the basis that income of her husband exceeds prescribed limit appears to be unreasonable and discriminatory. 15. The facts in Kartar Kaur's case (supra) examined by the Hon'ble Punjab and Haryana High Court were akin to the instant case, wherein the applicant's son had died in a military hospital due to disease and while benefits such as Provident Fund, Group Insurance and other related benefits were granted to the mother, she was not

14 OA No. 66 of 2015 : 14 : granted family pension only because her husband was a pensioner and his income from pension was higher than the income limit prescribed. The Hon'ble High Court referring to an earlier decision of its Division Bench in the case of Ishwanti Devi vs. Union of India, CWP No.11462/2006, had held that imposing condition of a financial limit of income, only in case of ordinary pension and not on any other pension is discriminatory and therefore held the applicant therein eligible for award of ordinary family pension. The Chandigarh Bench of this Tribunal in Balwinder Kaur & anr. vs. Union of India & Ors., O.A.No.2215/2013, had also considered an identical case, where ordinary family pension was denied because the husband of the applicant being an ex-service man was getting service pension. Citing the decision of the Hon'ble Punjab & Haryana High Court in Kartar Kaur (supra) it was held that the applicant was eligible for ordinary family pension. We do not find any reason to disagree with the above decisions.

15 OA No. 66 of 2015 : 15 : 16. Notwithstanding the above, we also observe that the Government vide Ministry of Defence, Department of Ex Service welfare letter No.01(05)/2010-D(Pen/Policy) dated 17 January 2013 had liberalised and approved the grant of dual family pension. Relevant sections are reproduced below:- The under signed is directed to refer to the provisions contained in Army Instructions 51/1980 read with provisions contained in this Ministry's letter No.10(6)/92/D(Pen/Sers) dated and Regulation 78 of Pension Regulations for the Army Part-I (2008) according to which the NOK of Armed Forces pensioners, who got re-employed in Civil Departments/PSUs/Autonomous bodies/local Funds of Central/State Governments after getting retired from military service with pension, are authorized to draw Ordinary Family pension either from military side or from civil side in terms of provisions contained in this Ministry's above said letter dated and Rule 54 (13-A) & Rule 54 (13-B of CCS (Pension) Rule In order to consider various issues on pension of Armed Forces personnel and Ex-servicemen, the Government had constituted a Committee of Secretaries headed by Cabinet Secretary. The Committee in its Report has recommended that NOK of a pensioner who gets second employment in the Government after discharge from military service

16 OA No. 66 of 2015 : 16 : would be entitled to draw two Family Pensions. 3. The above recommendation of the Committee has been accepted by the Government and the President is pleased to decide that the families of Armed Forces Pensioners who got re-employed in Civil Departments/PSUs/Autonomous bodies/local Funds of Central/State Governments after getting retired from military service and were in receipt of military pension till death, shall be allowed to draw Family pension from military side in additional to the family pension, if any, authorized from the re-employed civil department subject to fulfilment of other prescribed conditions as hithertofore It is not disputed that the applicant was eligible for family pension but was denied the same only because the income (pension) of her husband exceeds the prescribed income limit. As observed earlier, income criteria has been prescribed only for ordinary family pension and does not pertain to special or liberalized family pension. Even in case of ordinary family pension, in case of the wife, no such criteria has been prescribed. Further, the Government has reviewed provisions of Army Instruction 51/80 as well as

17 OA No. 66 of 2015 : 17 : Reg 78 of Pension Regulations 2008, pertaining to ordinary family pension and has approved drawing of two family pensions. When that be so, denial of ordinary family pension to the applicant only because her husband's income, which in this case is a pension exceeds prescribed limits, is clearly discriminatory. We are therefore of the view that the applicant is eligible for grant of ordinary family pension from the date of death of her son. However the arrears would be restricted to a period of three years prior to the date of filing of this Original Application in accordance with the principles laid down by the Hon'ble Apex Court in Union of India and Others v. Tarsem Singh ((2008) 8 SCC 648). 18. In view of the foregoing, the Original Application is partly allowed and the applicant is held eligible for grant of ordinary family pension from the date of death of her son. The respondents are directed to sanction and pay ordinary family pension to the applicant within a period of four months from the date of receipt of a copy of this order,

18 OA No. 66 of 2015 : 18 : failing which the unpaid amount will carry simple interest at the rate of 8% per annum. It is however made clear that the arrears would be restricted to a period of three years prior to the date of filing of this Original Application. 19. There will be no order as to costs. 20. Issue free copy to the parties. Sd/- sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN MEMBER (A) MEMBER (J) an 21. After pronouncement of the order, learned counsel for the respondents requested for leave to appeal to the Supreme Court. In our opinion, no question of law of general public importance is involved in the matter. Hence leave requested for is refused. Sd/- sd/- VICE ADMIRAL M.P. MURALIDHARAN, MEMBER (A) (true copy) JUSTICE S.S.SATHEESACHANDRAN MEMBER (J) an. Prl.Pvt.Secretary

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