LPA No. 575 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 575 of 2011 (O&M) Date of decision: July 7, 2011 Kamlesh ...Appellant Versus Union of India and others ...Respondents CORAM:- HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Kartar Singh Malik, Advocate, for the appellant. Mr. Brijeshwar Singh, Advocate, for respondents No. 1 to 4. Mr. Aman Chaudhary, Additional Advocate General, Haryana, for respondent No.5. 1. To be referred to the Reporter or not ? 2. Whether the judgment should be reported in the Digest ? GURDEV SINGH, J. The instant appeal under Clause X of the Letters Patent has been preferred by the appellant/writ petitioner, Kamlesh wife of Bijender Singh, against the order dated 24.2.2011 passed by the learned Single Judge, vide which her CWP No. 3341 of 2011 for issuance of a writ in the nature of Certiorari for quashing of orders dated 22.12.2005 (Annexure P/4), 21.9.2006 (Annexure P/5), 13.12.2010/27.2.2010 (Annexure P/11), LPA No. 575 of 2011 2 passed by respondents No. 3 and 6, declining the benefit of ex-gratia, after declaring her husband as shaheed/martyr and for the issuance of a writ in the nature of mandamus directing the respondents to treat her husband as shaheed/martyr and to give all the benefits under the ex-gratia category, was dismissed. According to the petitioner, her husband joined the army as a soldier on 22.7.1987 and was promoted as Havaldar. He was posted in village Daradpura, Sub Tehsil Bandipur, Baramula J&K and had been discharging his duties sincerely, diligently and honestly to the satisfaction of the respondents. On 4.12.2005, while he was on duty a message was received that some terrorists were hiding themselves in the village. On receipt of that message, he, alongwith Subedar Krishan Singh and other companions, went to the village to catch the terrorists. When they reached in the village, a group of terrorists attacked them and it was during that encounter that he died. She was informed that he had laid his life for the nation during the encounter/operation with the terrorists. His dead body was cremated in the presence of the military officers and District Administration with full military honour. The army authorities and the Zila Sainik Board informed her, vide letter dated 13.12.2005, that her husband expired in counter insurgency operation. Inspite of that he was not treated as martyr (shaheed) and she was not allowed ex-gratia grant as per the policy of the State Government and the instructions issued by the Government of India, Ministry of Defence, vide letter dated 22.9.1998. The contentions raised by the learned counsel for the appellant did not find favour with the learned Single Judge and accordingly, the writ petition was dismissed by observing that only the families of those defence LPA No. 575 of 2011 3 personnel are entitled to ex-gratia grant, who were killed in the military encounter and are declared as battle causalities, whereas the death of Havaldar Bijender Singh, husband of the petitioner, was a result of acute myocardial infraction. After notice of motion was issued Shri Brijeshwar Singh, Advocate, put in appearance on behalf of respondents No. 1 to 4 and Shri Aman Chaudhary, Additional Advocate General, Haryana, put in appearance, on behalf of respondent No.5. We have heard learned counsel for the parties at length. It has been contended by the learned counsel for the appellant that the husband of the appellant, Havaldar Bijender Singh, died while fighting with the terrorists in an encounter. It was during the anti-terrorism operation itself that the death of Havaldar Bijender Singh had taken place, though it was on account of acute myocardial infraction. He might not have died as a result of bullet fired by the terrorists but the fact remains that he died during the encounter with the terrorists. Therefore, he falls in the category of martyr and, as such, the appellant, who is his wife, is entitled to receive all the ex-gratia benefits, as per the policies of the Union of India and the State of Haryana. While refuting the contentions, so raised by the learned counsel for the appellant, it has been submitted by the learned counsel for the respondents that it cannot be said that Havaldar Bijender Singh died during enemy action in the war or action against militants or terrorists. The cause of death was found to be acute myocardial infraction, which can not be said on account of insurgency operation or operation against the terrorists. Therefore, the appellant is not entitled to any such ex-gratia benefit on LPA No. 575 of 2011 4 account of his death. As per the letter dated 22.9.1998 (Annexure P/6), addressed to the Chiefs of Army Staff, Naval Staff and Air Staff, the ex-gratia lump sum compensation is payable to the families of the defence service personnel who died in harness in the performance of their official duties, as per the following table:- (a) Death occurring due to accidents in the course of performance of duties. 5.00 Lakhs (b) Death occurring the course of performance of duties attributable to acts of violence by terrorists, anti-social elements etc. 5.00 Lakhs. (c) Death occurring during (i) enemy action in international war or border skirmishes and (ii) action against militants, terrorists, extremists etc. It is mentioned in that letter itself that the graded structure of ex-gratia lump sum compensation takes into account the hardship and risks involved in certain assignments the intensity and magnitude of the tragedy and deprivation that families of government servants experience on the demise of the breadwinner in different circumstances etc. As per the appendix to that letter, compensation is admissible to the families of service personnel who are killed in action against armed hostile, extremists and terrorists. The condition to be satisfied for payment of ex-gratia lump sum compensation in the specified circumstances is that the death of the employee concerned should have occurred in the actual performance of bonafide officials duties. In other words, a casual connection should be established between the occurrence of death and government service. LPA No. 575 of 2011 5 The detailed report of physical causality in respect of Havaldar Bijender Singh has been annexed with the writ petition as Annexure P/4. No doubt the cause of death has been given as acute myocardial infraction, but the same was suffered while inducting for deployment in counter insurgency operation. The brief description of the circumstances, as recorded therein, are as under:- “No. 2884838Y Hav. Bijender Singh was part of Commanding Officer quick reaction team which was inducting for deployment to conduct counter terrorism operation “Tilmat...”. It is very much clear from the said report that Havaldar Bijender Singh suffered some chest pain after counter terrorism operation had started and couple of minutes had already passed. In these circumstances, we have no hesitation in concluding, in view of the letter Annexure P/6 and the annexures thereto, that the death of Havaldar Bijender Singh had occurred during the actual performance of bonafide official duties and its connection has been established from the time that elapsed between the occurrence of his death and performance of his duties. It is not always necessary that the death of a defence personnel for the purpose of grant of ex-gratia payment to his family members should always be on account of the bullet fired by the enemy or the terrorists or militants. When there is a close nexus between the death and the performance of the duties, it is to be held that the defence personnel died in harness in performance of his bonafide official duties. Learned Single Judge erred while holding that the husband of the appellant did not die in harness in the performance of his bonafide official duties. By virtue of the letter Annexure P/6, the petitioner is entitled to ex-gratia lump sum compensation in LPA No. 575 of 2011 6 accordance with the above re-produced table and the Union of India- respondent No.1 is liable to pay the same. The State of Haryana issued letter dated 15.6.2001 (Annexure P/8) for the reward of money and ex-gratia grant to the families of defence forces personnel killed in operational areas or those personnel invalided out due to disabilities. As per that letter, ex-gratia grant is admissible to those defence personnel who hail from Haryana and got killed in militant encounter and declared as battle causalities. The amounts payable as such are given in Annexure 'A' and conditions of eligibility are given in Annexure 'B'. Notice dated 7.5.2010 (Annexure P/9) was got served by the appellant upon the respondents for giving her the status of shaheed's wife and all the benefit admissible to such widow. The State of Haryana failed to take any action on that notice and accordingly the appellant filed CWP No. 15212 of 2010 which was disposed of with the direction to the respondents to take a final decision on the said legal notice within two months from the date of receipt of the certified copy of the order. That notice was disposed of by the State of Haryana vide order Annexure P/11, disallowing ex-gratia grant to the appellant on the ground that she was not covered under the State Government policy. A finding has already been recorded above that the husband of the appellant had died during operation against the terrorists and that he is covered under the Policy framed by the Union of India. The idea behind the policy of the State of Haryana is to give ex-gratia grant to the defence personnel covered by the Policy of UOI, who hail from the State of Haryana, in order to provide solace to the domiciles of the State of Haryana. Therefore, the petitioner is entitled to ex-gratia grant in accordance with the said policy of the State of Haryana. LPA No. 575 of 2011 7 In the result, this appeal is allowed. The order passed by the learned Single Judge is set aside and the respondents are directed to calculate the ex-gratia grant/compensation payable to the appellant in accordance with their respective policies and to pay the same within a period of six months of receipt of certified copy of this order. (M.M. KUMAR) (GURDEV SINGH ) JUDGE JUDGE July 7, 2011 prem