IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 WP(C).No. 24619 of 2008(E) -------------------------------------- PETITIONER: ------------------- SMT.SANKARI AMMA, W/O.LATE RAGHAVAN PILLAI, EXGS-148592-F, RESIDING AT PAYICKATHU KIZHZKATHIL HOUSE, THAMALLACKAL P.O., ALAPPUZHA. BY ADVS. MR.R.RAJASEKHARAN PILLAI, SMT.SABINA JAYAN. RESPONDENTS: ------------------------ 1. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY MINISTRY OF ROAD AND TRANSPORT AND HIGH WAYS, BRDB, B WING, 4TH FLOOR, KASHMIR HOUSE, DHQ PO., NEW DELHI-110011. 2. THE DIRECTOR GENERAL, BORDER ROADS, SEEMA SADAK BHAWAN RING ROAD, DELHI CANTT, NEW DELHI-110 010. 3. THE CHIEF ENGINEER, PROJECT, BEACON, C/O.56 APO., 4. THE COMMANDER COMMANDING, HQ 760 BRTF C/O.56 APO. 5. THE OFFICER COMMANDING CARE 53 RCC (GREF) (354 ROAD, MAIN PLATOON (GREF) CARE, C/O.56, APO) ADDITIONAL RESPONDENTS: 6. THE CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS) ALLAHABAD. W.P.(C). NO.24619/2008-E: *7. THE MANAGER, STATE BANK OF INDIA, HARIPAD, ALAPPUZHA DISTRICT. *(CORRECTED). *THE ADDRESS OF R7 IS CORRECTED AS “STATE BANK OF TRVANCORE” AS PER ORDER DT. 23/07/09 IN I.A. 8962/09. R1 TO ADDL.R6 BY MR. P.R. LESLIE STEPHEN, C.G.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.24619/2008-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE COMMUNICATION DTD. 31/10/2000 FROM THE R.5 TO THE PETITIONER. EXT.P.2: COPY OF THE COMMUNICATION DTD. 19/04/2005 FROM THE R.5. TO THE PETITIONER. EXT.P.3: COPY OF THE LETTER DTD. 28/07/2007 FROM THE R.5. EXT.P.4: COPY OF THE JUDGMENT DTD. 12/03/2008 IN W.P.(C).NO.17531/2006 OF THIS HONOURABLE COURT. EXT.P.5: COPY OF THE PROCEEDINGS OF DEPUTY LABOUR COMMISSIONER, KOLLAM DTD. 02/07/2008. EXT.P.6: COPY OF THE CALCULATION SHEET. EXT.P.7: COPY OF THE LETTER DTD. 27/05/2009 TO THE MANAGER, SBT, ALAPPUZHA, WITH THE ORDER OF THE ADDL.R6. EXT.P.8: COPY OF THE LETTER DTD 28/07/2007 FROM THE R.5. EXT.P.9: COPY OF THE WORKSHEET OF PAYMENT. RESPONDENTS' EXHIBIT: EXT.R1.A: COPY OF THE ORDER OF LIBERALIZED PENSIONARY AWARDS IN THE CASE OF DEATH/DISABILITY AS A RESULT OF (I) ATTACK BY OR DURING ACTION AGAINST EXTREMISTS ANTI-SOCIAL ELEMENTS ETC. (OM NO.33/5/89-P AND P.W.(K) DTD. 9TH APRIL 1990. //TRUE COPY// P.S. TO JUDGE. Prv. K.SURENDRA MOHAN, J ........................................... WP(C).NO.24619 OF 2008 ............................................ DATED THIS THE 11TH DAY OF JANUARY, 2010 JUDGMENT This writ petition is filed by the widow of a person, who lost his life in a terrorist attack in Jammu and Kashmir. The husband of the petitioner was working as a Group-D employee of the General Reserve Engineering Force under the Border Roads Organisation. He was engaged in building roads in the Border areas of Kashmir. The husband of the petitioner was killed in a brutal attack by the militants while he was engaged in duty. He was killed on 13.12.1999. 2. Immediately on his death, as a token of acknowledgment for the supreme sacrifice made by the petitioner's husband, she was sanctioned pension under the Liberalised Pension Scheme applicable to widows of such persons. Accordingly, she was drawing pension under the Liberalised Pension Scheme from 1999 onwards. 3. While so, the petitioner claimed compensation under the Workmen's Compensation Act, 1923. Her claim was considered by the Commissioner for Workmen's Compensation (Deputy Labour Wpc 24619/2008 2 Commissioner) and by Ext.P5 order dated 2.7.2008, the petitioner, her children and mother of the deceased were granted a total amount of Rs.1,46,200/- as compensation. The amount of compensation was deposited by the 5th respondent before the Deputy Labour Commissioner, Kollam. The petitioner was not able to withdraw the said amount. Therefore, she approached this court by filing WP(C) No.17531 of 2006. As per Ext.P4 judgment dated 12.3.2008, this court issued a direction to the Deputy Labour Commissioner, Kollam directing disbursement of the said amount. Accordingly, the amount was paid to the petitioner. However, the statutory interest due on the compensation amount was not paid. Therefore, the petitioner claims the said interest in the present writ petition. 4. In the above circumstances, it is alleged that Exts.P7 and P9 proceedings have been issued. As per Ext.P7, the Liberalised Fanily Pension of the petitioner has been reduced to ordinary pension. As per Ext.P9, the arrears of excess pension paid to her over and above the normal pension that was payable is sought to be recovered. The said action is under challenge in this writ petition. Wpc 24619/2008 3 5. A counter affidavit has been filed by the respondents disputing the claim of the petitioner. The respondents have produced Ext.R1(a), the rules for the grant of Liberalised Pension and other benefits. Particular attention is drawn to clause 9 of Ext.R1(a) to contend that the petitioner cannot claim the benefit of both compensation under the Workmen's Act as well as the benefits of the Liberalised Pension Scheme at the same time. Clause 9 reads as follows:- “The Government servants governed by the provisions of the Workmen's Compensation Act, 1923, shall also be eligible for the awards under these orders. Where the benefit admissible under these orders is more than the benefits admissible under the Workmen's Compensation Act, 1923, the compensation admissible under the said Workmen's Compensation Act, 1923, will not be separately payable. If, however, the sum admissible under these orders is less than the amount payable as compensation under (i) the Personal Injuries (Emergency Provisions)Act, 1962, as amended Wpc 24619/2008 4 by the Personal Injuries(Emergency Provision) Amendment Act, 1971, and (ii) the Personal Injuries(Compensation Insurance)Act, 1963, as amended by the Personal Injuries (Compensation Insurance)Amendment Act,1971, they shall have a right to receive an amount equal to the difference between the sum admissible under these orders and the amount of compensation payable under the said Acts. For the purpose of determining such difference, the latter amount shall be converted, if necessary, into a recurring monthly payment by applying the table given in the anneuxre as in the illustration below”. The above clause provides that the persons like the petitioner would have to opt for either the compensation under the Workmen's Compensation Act or for the Liberalised Pension Scheme. On the above ground, the counsel for the respondents pray for dismissal of this writ petition. 6. I have heard Advocate R.Rajesekharan Pillai, the learned counsel for the petitioner and Advocate Leslie Stephen learned counsel Wpc 24619/2008 5 for the respondents. I have also anxiously considered the rival contentions. 7. Ext.P8 proceedings of the 5th respondent forwarding the compensation to be paid to the petitioner under the Workmen's Compensation Act clearly mentions that the payment is in addition to the Liberalised Family Pension released by the Government of India as a special case, to the petitioner. It is certainly true that in the normal circumstances, the petitioner would have had to opt for either the Liberalised Pension or for the compensation under the Workmen's Compensation Act. However, in the present case the petitioner has been granted the benefit of the Liberalised Pension Scheme by the Government of India as a “special case”. In the above circumstances, Ext.P7 and P9 which are proceedings issued by the additional 6th respondent, cannot take away the benefit that has been granted by the Government of India. Ext.P7 and P9 proceedings also does not refer to the circumstances in which such proceedings had been issued or the reasons for the issue of such proceedings. It cannot be denied that the petitioner has been receiving the Liberalised Pension from 1999 Wpc 24619/2008 6 onwards. The benefit that has been granted by the Government on compassionate grounds to the widow of a person who had laid down his life for the country, is sought to be denied to her by Exts.P7 and P9 without any authority. The source of the power that has been exercised by the additional 6th respondent is also not mentioned in either Ext.P7 or P9. Since Ext.P8 has stated in clear and unambiguous terms that the Liberalised Family Pension was in addition to the compensation under the Workmen's Compensation Act, 1923, the stand of the respondents cannot be sustained. Exts.P7 and P9 proceedings are therefore absolutely without jurisdiction, unsustainable and are liable to be set aside. In the result, Exts.P7 and P9 are quashed. The petitioner shall be paid all the amounts that are retained pursuant to the said proceedings. In the above circumstances of the case, there will be no order as to costs. Writ petition is disposed of as above. K.SURENDRA MOHAN, JUDGE lgk