T.A. No. 84 of 2009. Case: Anu V.R. Wife of late Ratheesh Kumar G.S. Vs Union of India (UOI) represented by The Secretary To Government of India Ministry of Defence, Government of India and Ors.. Armed Forces Tribunal
| Case Number | T.A. No. 84 of 2009 |
| Counsel | For Appellant: P.B. Suresh Kumar, Adv. and For Respondents: S. Krishnamoorthy, Adv. |
| Judges | K. Padmanabhan Nair, J. (J) and Thomas Mathew (A), Members |
| Issue | Army for Pension Regulations, 1961; Casualty Pensionary Awards for Entitlement Rules, 1982 - Rules 6, 8, 9, 17 and 27 |
| Judgement Date | May 14, 2010 |
| Court | Armed Forces Tribunal |
Order:
Thomas Mathew, Member (A), (Regional Bench, Kochi)
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The petitioner is the widow of late Nk. Ratheesh Kumar G.S. of 203 Engineer Regiment, who was shot dead by a colleague on 19.3.2007 while serving in an operational area in Jammu and Kashmir. The soldier was declared a Battle Casualty by the Regiment, the Record Office and the Army Headquarters. The petitioner is aggrieved by the denial of Liberalised Family Pension, Family Gratuity and Ex-gratia award from the Central and State Governments to her. The 2nd respondent has sanctioned only ordinary family pension to the petitioner. This application has been filed by the petitioner to redress her grievance in the Honourable High Court of Kerala which has now been transferred to this Tribunal.
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The petitioner has averred that since her husband died while performing night duty in an operational area, he has been declared a Battle Casualty by all the concerned headquarters including Army Headquarters and the Record Office. However, the 2nd respondent has rejected the claim stating the reason that "no casual connection exist between cause of death and performance of bonafide official duty." The petitioner has prayed for directions to respondents 1 and 2 to disburse Liberlised Family Pension, Family Gratuity and Ex¬gratia award to her.
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The learned Counsel for the petitioner has contended that assessment/reassessment of attributability is a matter exclusively in the realm of administrative authority and the Principal Controller of Defence Accounts (Pensions), (PCDA (P)), has no role to adjudicate in this matter. The categorization of Battle Casualty as decided by the various Headquarters and the Senior Record Officer should be treated as final as per rules in vogue.
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The respondents have contended that late Nk. Ratheesh Kumar G.S. was shot dead by another soldier of the same unit named Nk. Rajesh MR in a personal feud and a drunken brawl under the influence of liquor. Further, even though normally injury in operational area will be categorised as Battle Casualty, in this case it will not come under the category of Battle Casualty. The administrative authorities had classified the death of petitioner's husband as Battle Casualty, but the competent pension sanctioning authority, i.e., PCDA (P), found that there was no casual connection between his death and performance of bonafide military duty and therefore it has been considered as physical casualty.
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Heard both sides and perused records made available. The brief facts of the case necessary for the disposal of this application are as follows:
(a) Late Nk. Ratheesh Kumar G.S was serving in a field area in J & K with 203 Engineer Regiment when he was shot dead by a colleague.
(b) On 19.3.2007 at about 1945 hours, there was a heated argument pertaining to detailment of night duty between the individual and Nk. Rajesh MR. Under the influence of excessive liquor, Nk. Rajesh MR fired two shots from his personal weapon on the individual, which resulted in the death of Nk. Ratheesh Kumar G.S. (Ext.R2).
(c) The unit, various headquarters in the Chain of Command upto Army Headquarters and the Records Officer, Madras Engineering Group, had classified the death as Battle Casualty(Exts.P3 and R2).
(d) The PCDA(P) did not agree with the classification of Battle Casualty by Senior Records Officer and Army Headquarters and sanctioned only enhanced ordinary family pension to the Next of kin(NOK)(Ext.R2).
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The office of the Controller General of Defence Accounts (CGDA), New Delhi vide their UO Note 5613/AT¬P/XXVIII dated 11.7.2008 have intimated the Ministry of Defence as well as the PCDA(P) that:
It has been observed from the Court of Inquiry proceedings that there was a heated argument between the above deceased (late Nk. Ratheesh Kumar G.S.) and Nk. Rajesh Kumar MR on the issue of detailment on night duty and under the influence of excessive liquor, Nk. Rajesh Kumar MR fired on the above deceased resulting into his death. The entire incident had taken place in a barrack. Hence, this office agree with the office of the PCDA(P), Allahabad that the case does not merit Liberlised Family Pension under the provisions contained in the Appendix 'A' to AO/01/2003 or GO1, MOD letter dated 31.01.2001.
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So, here we have a situation where the Army Authorities have classified the death of the soldier as "Battle Casualty" and the PCDA(P) has denied the benefits to the NOK, stating that the death is not attributable to military service. To resolve this issue, it is necessary to scrutinise the evolution of Government Orders on this subject and the rule position as applicable at the time of incident.
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Rules regarding the competent authority who is authorised to decide upon 'attributability' and 'aggravation' of the injury/disease/death of a soldier was first spelt out in the Pension Regulations for the Army 1961, Part-I and thereafter amended by various orders from the Government of India from time to time. Salient rules/regulations/orders are given in subsequent paragraphs.
Entitlement Rules for Casualty Pensionary Awards, 1982.
Rule 6. Disablement or death shall be accepted as due to military service provided it is certified by appropriate medical authority.
Rule 8. Attributability, aggravation shall be conceded if casual connection between death/disablement and military service is certified by appropriate medical authority.
Rule 9. The claimant shall not be called upon to prove the condition of entitlement. He/she will receive the benefit of any reasonable doubt. The benefit will be given more liberally to the claimant in field/afloat service cases.
Rule 17. Medical Opinion: At initial claim stage, medical views on entitlement and assessment are given by the IMB/RMB. Normally, these rules shall prevail for decisions in accepting or rejecting the claim. In case of doubt the Ministry/CDA (Pension) may refer such cases for second opinion to MA(P) sections in the office of DGAFMS/Office of CDA(P), Allahabad respectively. At appeal stage appropriate appellate medical authorities can review and revise the opinion of the medical boards on entitlement and assessment.
Corrigendum issued vide Government of India, Ministry of Defence Letter No. 1(1)/81/D(Pen-C) dated 21st June, 1996, Amendment to Rules 17 and 27 of Entitlement Rules.
Rule 17(a). For the purpose of these rules, the following authorities shall be the Appropriate/Competent Medical Authorities for giving medical opinion on the aspects of assessment of disability and acceptance of death/disablement due to causes...
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