IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.2797 of 2001 Date of decision: 7.5.2009 State of Haryana. ----- Appellant Vs. Raj Bala and others. -----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE JITENDRA CHAUHAN Present:- Ms. Palika Monga, AAG, Haryana. for the appellant/State. Mr. Rajesh Lamba, Advocate for the respondent. ------ ADARSH KUMAR GOEL, J.: 1. This appeal has been preferred against judgment of learned Single Judge dated 10.1.2001. In the prayer, order dated 27.9.2000 (should be 2001), has also been mentioned. 2. The writ petition was filed by the widow of late L/Nk. Bhim Singh, who was serving in the Army. He joined the armed forces in the year 1988 and died on 2.7.1999 at Gulmarg post in Kargil sector during Operation Vijay. He was 33 years of age. Alongwith the petition, certificate dated 3.7.1999 issued by Medical Officer, Regimental Medical Officer, High Altitude LPA No.2797 of 2001 Welfare School, was filed as Annexure P-1. Cause of death was mentioned as forehead injuries. The widow received message of death from the SDM, Fatehabad. At the funeral, Home Minister of Haryana, Superintendent of Police, Deputy Commissioner and other senior officers of the district were present. The Chief Minister, Haryana also sent a condolence message. On 13.8.1999, a State level function was organised by Maharishi Dayanand University, Rohtak for honouring the widows of the martyrs, in which the petitioner was also honoured. The Governor presided over the function and the Chief Minister was the Chief Guest. A meeting was held in the Haryana Vidhan Sabha on 27.7.1999, wherein a reference was also made to the sacrifices of the husband of the petitioner. However, ex-gratia payment, which was announced by the State, was not given to the widow, on account of which, she filed a writ petition. She also stated that she had three minor children aged 3, 5 and 7 years and she had no source of income except pension. Though lip sympathy was shown to her, she was not given ex-gratia, which was declared by the State. Inspite of opportunity given, the State did not file its reply. 3. Learned Single Judge held that as per instructions dated 25.7.1999, the Haryana Government had announced ex- gratia payment of Rs.10 lacs which had not been paid without any valid reason. Accordingly, the writ petition was allowed with a 2 LPA No.2797 of 2001 direction to release payment of Rs.10 lacs i.e. Rs.5 lacs to the widow and Rs.5 lacs to the parents of the deceased. Thereafter, the State of Haryana filed a review petition on the ground that written statement could not be filed. 4. Learned Single Judge noticed that sufficient opportunity had been given, but no written statement had been filed. There was no valid justification for not filing the written statement. Moreover, the facts that Bhim Singh was posted in Gulmarg post; the Chief Minister, Haryana sent his condolence letter; the widow was duly honoured in a function organized to honour widows of martyrs in Operation Vijay in Kargil Sector, were not disputed in the proposed written statement, nor it was disputed that condolence was paid to the deceased in the Haryana Vidhan Sabha on 27.7.1999. Accordingly, the review petition was dismissed. 5. In the grounds of appeal, it has been stated that death of L/Nk Bhim Singh took place when he was sleeping in 180 LBS Tent pitched between Mandir and Signal Centre at TAC HQ Gulmarg alongwith six other Jawans. On 3.7.1999 at about 0055 a.m., the patrolling sentry heard the cries of the deceased. The deceased had already vomited outside the tent and also near his cot. He was crying with pain in his chest. He was rushed to Medical Inspection Room of High Altitude Warfare School and was given emergency treatment, to which he did not respond. He 3 LPA No.2797 of 2001 was declared dead at 0230 hours. His body was handed over for post-mortem and was, thereafter, sent in a Government vehicle for being handed over to the next of his kin at his home town. The remarks of the Commandant were as under:- “The death of deceased No.873651868 L/Nk Bhim Singh happened due to “Cardio Respiratory Arrest”. However, in this connection FIR has been lodged with Police Station, Gulmarg vide our letter No.OPS/ THQ/193 Bn/99, dt. 3rd July, 99. Copy enclosed alongwith eye sketch. Sd/- Commandant, 193 Bn BSF.” The body was received and State funeral was given and an amount of Rs.2.5 lacs was also given to the widow without receiving the documents, showing cause of death. It was later revealed that death was not on account of “battle casualty”, but was natural and case of the writ petitioner was not covered by the Haryana Government instructions. It has been further stated that order of learned Single Judge was obtained by the petitioner by fraud by misstating that the deceased died while fighting with enemies. It has been further stated that all dead bodies of army/paramilitary forces are given due honour as mark of respect and it does not make the dependents of the deceased eligible for the ex-gratia benefit. 6. We have heard learned counsel for the parties. 4 LPA No.2797 of 2001 7. Learned counsel for the appellant submitted that the written statement could not be filed on account of pen down strike in the Secretariat. Learned counsel further submitted that the office of the Advocate General informed the State only on 11.12.2000 and the concerned officer requested the Advocate General to seek adjournment for one month and was under the impression that adjournment will be granted and, therefore, reply could not be filed. On account of pen down strike, letter dated 8.1.2001 was not delivered in the office in time and proper instructions could not be given to the Law Officer. It was submitted that in these circumstances, learned Single Judge was not justified in deciding the case without written statement having been filed. It was next submitted that the death was a natural death and not on account of “battle casualty”, which was the only situation in which compensation was to be given. The widow has not approached the Court with clean hands by not mentioning that an amount of Rs.2.5 lacs had already been received by her. She only stated that she received only Rs.18,000/-. 8. Learned counsel for the writ petitioner supported the impugned orders. It was submitted that the petitioner was entitled to compensation due as per declared policy which was clearly applicable. Mere fact that receipt of Rs.2.5 lacs could not be mentioned in the writ petition, did not mean that the writ petitioner deliberately withheld the information. The said amount could be 5 LPA No.2797 of 2001 adjusted in the final payment, which is yet to be made. Neither policy of ex-gratia payment was shown to be confined to “battle casualty” nor the said term could be given restricted meaning to deny compensation to the petitioner, having regard to peculiar situation which was sought to be dealt with by the policy in question. All persons dying, while on duty at high altitude, during Kargil Operation, constituted one class. 9. Question is whether the petitioner was entitled to ex- gratia payment, as held by learned Single Judge? 10. We are of the view that no interference is called for with the view taken by learned Single Judge. Inspite of due opportunity, the State failed to defend the case. As has been held in the review order, notice was issued to the State for 30.11.2000. Thereafter, the case was taken up on 4.12.2000. The State had been duly served and was represented by counsel. Except saying that the Advocate General’s office did not inform the concerned officer upto 8.1.2001, there is no explanation for not filing the written statement. Alleged pen down strike was on 8.1.2001. The State had received notice on 30.11.2000. The nature of case was urgent one as widow of a martyr was seeking justice and such a case had to be given top priority. All concerned were expected to act efficiently. If Advocate General office did not act efficiently, it was lapse of the State itself which did not furnish any ground for seeking review. 6 LPA No.2797 of 2001 11. In any case, even if we take into account the written statement, there is no ground whatsoever to deny relief to the petitioner widow. No document has been filed with the written statement or with the appeal which may show that the writ petitioner was not entitled to the financial benefit declared for the widows of the martyrs. Admittedly, L/Nk Bhim Singh was on duty in Kargil Sector. He was 33 years of age. He was on duty in connection with the Army operations. Annexure P-1, the report of the Regimental Medical Officer, High Altitude Welfare School, mentions that the deceased had injuries on the forehead. According to Annexure R-1/2, filed on behalf of the State, the death was due to cardio respiratory arrest at THQ, Gulmarg. Mere fact that in the post-mortem report, there was no mention of head injury and death was said to due to “myocardial infarction due to high altitude” which led to pulmonary edema, made no difference to the decision of the case. 11. The fact remains that the death was while serving the Army during Operation Vijay at a forward posting at high altitude, which by itself involved risk to life. The deceased was not on a pleasure trip, but was there to serve the cause of armed forces. He was in prime of his youth. His death cannot be called natural death, not attributable to the cause of serving the Army. In such a situation, if he lost his life, it cannot be said that he was not a martyr. If the State declared a policy of giving financial aid to 7 LPA No.2797 of 2001 families of martyrs, it cannot deny such aid on hyper technical grounds now pleaded. Action of the State must match its words. The deceased had widow and three children aged 3, 5 and 7 years, apart from parents. They have been deprived of financial aid for almost a decade. They have been entangled in needless litigation. 12. We are of the view that claim of the widow in the writ petition was just and should have been readily accepted by the State without any contest. 13. Accordingly, this appeal is dismissed with costs quantified at Rs.50,000/-. The amount which remains unpaid be now paid within one month from receipt of a copy of this order with interest @ 9% per annum from the date the amount was due upto the date of payment. (ADARSH KUMAR GOEL) JUDGE May 07, 2009 (JITENDRA CHAUHAN) ashwani JUDGE 8