IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 WP(C).No. 4840 of 2006(A) --------------------------------------- PETITIONER: -------------------- STELLA EDISON, PANACKAL HOUSE, P.O. CHERAI, S.M.H.S., ERNAKULAM DISTRICT. BY ADV. SRI.ELVIN PETER P.J. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, NEW DELHI-110 001. 2. THE ADJUTANT GENERAL, ARMY HEADQUARTERS, MINISTRY OF DEFENCE, DHQ P.O., NEW DELHI-11. 3. THE CONTROLLER OF DEFENCE ACCOUNTS, ALLAHABAD. 4. THE OFFICER-IN-CHARGE, SENA CHIKITSA CORPS ABHILEKH, ARMY MEDICAL CORPS RECORDS, LUCKNOW-226 002. BY ADV. SRI.S.KRISHNAMOORTHY, CGC SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.4840/2006 A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF LETTER DTD. 3/11/1982 SENT BY THE COMMANDING OFFICER. EXT.P2: COPY OF TELEGRAM SENT TO THE PETITIONER. EXT.P3: COPY OF TELEGRAM SENT TO THE PETITIONER. EXT.P4: COPY OF REPORT DTD. 19/01/1983 SENT BY THE COMMANDING OFFICER. EXT.P5: COPY OF ORDER DTD. 29/12/1983 ISSUED TO THE PETITIONER. EXT.P6: COPY OF ORDER DTD. 26TH SEPT.1983 ISSUED BY THE 4TH RESPONDENT. EXT.P7: COPY OF THE COMMUNICATION DTD. 4/01/985 SENT BY THE OFFICER-IN-CHARGE TO THE PETITIONER. EXT.P8: COPY OF ORDER DTD. 21ST MARCH 1985 ISSUED BY THE 1ST RESPONDENT. 1ST RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE OPINION DTD. 10/12/1992. EXT.R1(B): COPY OF THE LETTER NO.13931338/FP-1 DTD. 17/05/1983. XT.R1(C): COPY OF THE REJECTION LETTER FOR THE CLAIM OF SPECIAL FAMILY PENSION IN RESPECT OF THE PETITIONER DTD. 5/08/1983. EXT.R1(D): COPY OF THE LETTER NO.13931338/FP-1 DTD. 26/09/1983. EXT.R1(E): COPY OF THE LETTER NO.8/2427/84/D (PEN A) DTD. 21/03/1985. /TRUE COPY/ P.A.TO JUDGE Kss V.GIRI,J. ------------------------- W.P ( C) No. 4840 of 2006 -------------------------- Dated this the 7th March, 2008 J U D G M E N T Petitioner is a widow of late Maleikal Rocky Edison who was employed in the Indian Army as a Sepoy. M.R Edison died on 3.11.1982 in an unfortunate incident. He was part of the Commanding Officer, 405 Field Ambulance, C/o. 99 APO which was stationed at the North Eastern part of the country. Family of the deceased is entitled to family pension and apparently family pension was granted to them. They applied for special family pension which was rejected under Exhibit R1 © and thereafter, under Exhibit P6. An appeal filed by the petitioner was also rejected as evidenced by Exhibit P8 dated 29.3.1985. It seems that the petitioner did not take any action thereafter till the writ petition was filed on 17.2.2006. 2. Family pension and special family pension in the Army is governed by Regulations 212 and 213 of Pension Regulations for the Army, 1961. The said two provisions are relevant and extracted hereunder. W.P ( C) No. 4840 of 2006 2 “212. Ordinary family pension: An ordinary family pension may be granted to the family of a Junior Commissioned Officer granted honorary commission as a commissioned officer while on the effective list, who dies during service or after retirement for causes neither attributable to nor aggravated by military service. 213. Special family pension: A special family pension may be granted to the family of an individual if his death was due to or hastened by- (a) a wound, injury or disease which was attributable to military service or (b) the aggravation by military service of a wound, injury or disease which existed before or arose during military service.” 3. According to the petitioner, Edison’s death was attributable to military service and therefore his family is entitled to special family pension. 4. In the counter affidavit filed by the respondents, it is stated that the cause of death of M.R Edison was ASPHYXIA DUE TO THROTTLING which has been declared by the Court of Inquiry as “Attributable to the Military Service in Field Area.” Exhibit R1 (a) is referred to in this regard. It is further stated that the petitioner’s husband expired on 3rd November, 1982 due to an altercation with two of his colleagues while serving with 405 Filed Ambulance. Thereafter, ordinary family pension has W.P ( C) No. 4840 of 2006 3 been given to the family of the deceased. But the petitioner’s request for special family pension was rejected because though the death of the petitioner’s husband was attributable to the military service, petitioner’s husband was engaged in gambling in the unit lines along with his colleagues in the early hours at the time of death. This is an activity which was prevented as per para 338 of the Defence Service Regulation Vol-1 and also because the death of the husband of the petitioner was not connected with Military Service. 5. I heard learned counsel for the petitioner Mr.Elvin Peter and Sri.Krishna Moorthy, learned Standing Counsel for the respondents. 6. The short question is whether the petitioner is entitled to special family pension in terms of Regulation 213 of Pension Regulations for the Army. The counter affidavit filed by the respondents proceeds on the premise that special family pension may be granted to the family of the deceased, if his death was due to “a wound, injury or disease which was attributable to Military Service” Sri.Krishna Moorthy, learned Standing Counsel for the respondents submits that this was a W.P ( C) No. 4840 of 2006 4 case where the petitioner's husband died due to an altercation which occurred inside the unit lines while he was engaged in gambling with his colleagues . According to him, the death was therefore not due to a wound, which was attributable to Military Service. 7. Learned counsel for the petitioner submits that Regulation 213 must be read as distinguished from Regulation 212 Ordinary family pension is granted where the death is for causes neither attributable nor aggravated by military service. Special family pension is granted where the death was due to a wound injury or disease which was attributable to Military Service. He contends that being a benevolent statutory provision it must be interpreted keeping in mind the object. If the death is attributable to Military Service, he contends, the family is entitled to special family pension. 8. Both Exhibit R1 (c )and Exhibit P6 would affirm that the death was attributable to military service. Further in the counter affidavit filed by the respondents, it is clearly stated that the death was certified as attributable to Military Service. In my view, the words “Attributable to Military Service” occurring in W.P ( C) No. 4840 of 2006 5 Regulation 213 must be interpreted in a comprehensive manner. The question is whether the person concerned died by reason of the fact that he was placed in a position which is clearly attributable only to his status as a serving army man. This would obviously take in cases where the death occurs due to hostilities or even by accidents which take place during duty. I do not think it is reasonable to exclude cases where death takes place even while the service personnel are not precisely engaged in duty but are within the army lines. But this has to be distinguished from cases where they go out of their camp during free time. The words “Attributable to Military service” must be afforded a generic meaning. Did the petitioner's husband meet with his death on account of circumstances, which are attributable to military service. If the answer is in the affirmative, then the entitlement to family pension is covered by Regulation 213 and not 212. 9. As a matter of fact, it is not the case of the respondents in the counter affidavit that the death of the petitioner's husband is not attributable to military service. They say that though death is attributable to military service he was W.P ( C) No. 4840 of 2006 6 apparently engaged in an activity which is prohibited under the code of conduct. In my view, a conduct which is prohibited inside the lines may invite disciplinary action. But that by itself should not deprive the family of the deceased from family pension as regulated by Regulation No.213. No such exception is carved out from regulation 213. Therefore, the family pension payable to the petitioner must be determined under Regulation 213 as Special Family Pension and not under Regulation 212. 10. This brings me to the question as to whether this Court should really interfere in a case where there is considerable laches and negligence on the part of the petitioner in approaching this Court, within a reasonable time of passing Exhibit P6. Learned counsel for the petitioner brings to my notice a decision in Shivv Das Vs Union of India and Others [AIR 2007 SC 1330]. Paragraph 10 thereof is relevant and extracted hereunder. “In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the court would reject the same or restrict the relief which could be granted to a reasonable period of W.P ( C) No. 4840 of 2006 7 about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone.” 11. Following the dictum laid down by the Supreme Court, I am not inclined to dismiss the writ petition on the ground of delay and laches. But the benefit accruing from the judgment of this court would be available only from the date of judgment i.e. the benefit would only be prospective as distinguished from cases where normally the declaration of a right to receive pension is given effect to from the date on which the right arose. In the result, the writ petition is allowed in part . It is declared that the petitioner is entitled to special family pension in terms of Regulation 213. This shall be given effect to from the date of the judgment i.e. today. Consequential order shall be passed by the 3rd respondent within a period of three months from the date of receipt of a copy of this judgment. (V.GIRI, JUDGE) ma W.P ( C) No. 4840 of 2006 8 K.THANKAPPAN,J CRL.A. NO.92 OF 1999 W.P ( C) No. 4840 of 2006 9 ORDER 25th May, 2007