IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 WP(C).No. 33784 of 2006(V) ---------------------------------- PETITIONER(S): ------------------- 1. K.SIVASANKARA PILLAI, S/O.KRISHNAN PILLAI, SANKARAMANGALATHU VEEDU, P.O.ANAKKOTTOOR, EZHUKONE, KOLLAM DISTRICT. 2. SARASWATHY AMMA, W/O.SIVASANKARA PILLAI, SANKARAMANGALATHU VEEDU, P.O.ANAKKOTTOOR, EZHUKONE, KOLLAM DISTRICT. BY ADV. SMT.JAYASREE MANOJ RESPONDENT(S): -------------------- 1. UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. THE CHIEF ARMY STAFF, SENA BHAVAN, NEW DELHI. 3. THE OFFICER IN CHARGE, RECORDS ASSAM RIFLES, HAPPLY VALLEY, SHILLONG. 4. THE COMMANDANT, 16 ASSAM RIFLES, C/O.99 APO. R1 & 2 ADV. SRI.M.R.JAYAPRASAD, CGC R3 & R4 BY SRI.THOMAS MATHEW NELLIMOOTTIL,SR.PANEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.33784 OF 2006 --------------------------------------- Dated this the 30th day of November, 2010 JUDGMENT The petitioners are the aged parents of late Sri. Rajendra Kumar, who was serving under the 4th respondent as a rifleman. He, after coming to his native place on leave, left for rejoining duty by August, 1993. Thereafter, he did not come home and nothing was heard about him. Subsequently, the 4th respondent informed the petitioners that their son did not report for duty, after leave for the period from 15.6.1996 to 28.7.1996. They were subsequently informed by Ext.P1 letter dated 3.1.1997, the petitioners' son's name was struck off from the rolls with effect from 29.7.1996. By Ext.P4 dated, 21.2.1998, the petitioners were informed by the 4th respondent that the petitioners' son was declared as deserter from his unit following an enquiry. Subsequently, by Ext.P5 dated, 16.7.98 the petitioners were informed that the petitioners' son died of gun shot while trying to prevent attempt to escape from custody as W.P.(C)No.33784/06 2 an undertrial prisoner. The petitioners now seek family pension in respect of the service of their son. The petitioners seek the following reliefs: “(i) Declare that the petitioners were entitled for family pension on the death of their son while in service. (ii) issue a writ of mandamus or any other appropriate writ, direction of order directing the respondents to disburse the family pension due to the petitioners with arrears and interest thereon from the date of death of the petitioner's son. (iii) Issue a writ of mandamus or any other appropriate writ, direction of order directing the respondents to grant special pension to the petitioners in the event of their son's death while in the service of the Army. (iv) Issue a writ of mandamus or any other appropriate writ, direction of order directing the respondents to grant compensation to the petitioners for the premature and ultimately death of their son while in the service of the Army.” 2. A counter affidavit ha been filed on behalf of the respondents, wherein it is stated that the petitioners' son was removed from the rolls on account of desertion, since he did not rejoin the duty after the expiry of the leave on 28.7.1996. Subsequently, he was apprehended for crimes under the NDPS Act and a criminal case was registered against him. While so, he attempted to escape from custody and in the process of W.P.(C)No.33784/06 3 preventing his escape from custody, he sustained a bullet injury and succumbed to the same. An enquiry was conducted into the incident and it was confirmed that the firing was controlled/restrained firing by the Police to prevent the prisoner from escape. Consequently, the enquiry did not find anybody blameworthy for the death of the petitioners' son. According to the respondents, since the petitioner was removed from the rolls of the paramilitary force for desertion, he is not entitled to the benefit of his past service and therefore, the petitioners are not entitled to any kind of pension whatsoever. 3. I have considered the rival contentions in detail. Of course, the petitioners deserve sympathy. But on the basis of sympathy, I cannot direct payment of pension against law. The petitioners' son has been removed from the rolls of a paramilitary force on account of desertion. Such Forces have to enforce strict discipline for obvious reasons, since discipline is paramount in such Forces. This Court cannot pass orders on the basis of sympathy which would undo the discipline in such Forces. It cannot be disputed that, as per law, a deserter is W.P.(C)No.33784/06 4 not entitled to the benefit of past service which is also the law as per the Central Civil Services (Pension) Rules, which is applicable to the petitioners' son. Consequently, the petitioners are not entitled to any family pension. Accordingly, the writ petition is dismissed. S. SIRI JAGAN, JUDGE acd W.P.(C)No.33784/06 5 S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.33784 OF 2006 --------------------------------------- Dated this the 12th day of November, 2010 JUDGMENT The petitioners and counsel are absent. Accordingly, the writ petition is dismissed for default. S. SIRI JAGAN, JUDGE acd W.P.(C)No.33784/06 6 W.P.(C)No.33784/06 7