Smt. Namrata Chauhan vs Union Of India & Ors.

Per: Pradeep Mittal, J

The petitioner has filed this miscellaneous petition praying for the following reliefs:-.

The facts leading to the filing of the present petition are that the petitioner is the widow of Late Havildar/Clerk Rajesh Chauhan, who was enrolled in the Indian Army on 18.01.1988. While serving in the Jammu & Kashmir Sector under Operation Rakshak, he was diagnosed with Anxiety Neurosis/Hypomania. Owing to his illness, he could not rejoin duty after medical leave, remained under continuous treatment, and died on 31.01.2012. Thereafter, the respondents passed an order dismissing him from service on 20.04.2012, i.e., after his death.

The petitioner challenged the dismissal order before the Armed Forces Tribunal in O.A. No. 71(J)/2017. By order dated 15.11.2017, the Tribunal quashed the dismissal order and held that the petitioner was entitled to ordinary family pension.

Subsequently, the petitioner filed O.A. No. 45 of 2020 claiming Special Family Pension on the ground that her husband's illness was attributable to and aggravated by military service. The said Original Application was, however, dismissed by the Armed Forces Tribunal by order dated 28.08.2024 on the ground of constructive res judicata.

The Tribunal failed to appreciate that the earlier Original Application concerned the petitioner's entitlement to ordinary family pension, whereas the subsequent Original Application sought Special Family Pension based on a distinct cause of action. Aggrieved by the impugned order dated 28.08.2024, the petitioner has filed the present miscellaneous petition seeking its quashing and the grant of Special Family Pension or, in the alternative, remand of the matter to the Armed Forces Tribunal for fresh adjudication on merits raising the following grounds.

It is submitted by the learned counsel for the petitioner that the Tribunal failed to appreciate that the reliefs and causes of action in the first and second Original Applications were distinct. The first Original Application related to the grant of ordinary Family Pension after challenging the dismissal order, whereas the second Original Application sought Special Family Pension on the ground that the deceased employee's illness was attributable to and aggravated by military service.

That the claim for Special Family Pension could not have been raised in the earlier proceedings, as the issue therein was confined to the petitioner's entitlement to family pension. The Tribunal, therefore, erred in holding that the subsequent claim was barred by constructive res judicata, as ordinary Family Pension and Special Family Pension are separate and distinct benefits governed by different provisions.

Per contra, the learned counsel for respondents supports the impugned order and prays for dismissal of this miscellaneous petition.

The Tribunal observed that, vide order dated 15.11.2017, it had already set aside the dismissal of the petitioner's husband, deemed him to have died in harness, and directed the grant of family pension based on 15 years of qualifying service, along with all consequential retiral benefits, including AGIF benefits, which had since been duly implemented. It further held that the petitioner's subsequent claim for Special Family Pension (SFP) and other consequential benefits, on the ground that her husband's illness was attributable to and aggravated by military service, was not supported by any fresh documents or substantial new material. As the issues relating to attributability and aggravation had already been considered and adjudicated in the earlier proceedings, and the directions contained in the order dated 15.11.2017 had been fully complied with, no further interference was warranted.

Heard the learned counsel for the parties and perused the record.

Having heard the learned counsel for the parties and upon perusal of the record, it is evident that the petitioner's husband was enrolled in the Army on 18.01.1988. During his service, he was diagnosed with anxiety neurosis/hypomania and was admitted to the Military Hospital. Thereafter, he was granted leave from 29.09.2001 to 18.10.2001. During the said leave period, he remained under treatment at Hamidiya Hospital, Bhopal. After the expiry of his leave, he could not rejoin his duties owing to his medical condition, and he ultimately succumbed to the illness on 13.01.2012. Subsequently, he was dismissed from service by order dated 20.04.2012. After the death of her husband, the petitioner, in the year 2017, filed an application seeking quashing of the dismissal order dated 20.04.2012 and prayed that her husband be treated as having remained in service until 13.01.2012. She further sought grant of family pension along with all consequential and retiral benefits. In the first round of litigation, all the reliefs claimed by the petitioner were granted. The petitioner has now claimed the grant of Special Family Pension with effect from the date on which she was sanctioned family pension. However, the learned Armed Forces Tribunal (AFT) rejected the claim on the ground that it was barred by the principle of res judicata.

Constructive Res Judicata (Explanation IV): This is an extension of the doctrine that prevents piecemeal litigation. It states that any matter which might and ought to have been made a ground of defense or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in that suit. You cannot bring it up in a later suit just because you forgot to argue it the first time. In the present case, the petitioner could have raised her claim for grant of Special Family Pension in the earlier round of litigation while seeking the grant of family pension. However, she did not do so and confined her claim to family pension and the consequential benefits arising therefrom. Having failed to raise the claim at the appropriate stage, she is precluded from agitating the same in the present proceedings. Accordingly, the present claim for Special Family Pension is barred by the principle of constructive res judicata. Furthermore, the petitioner is not entitled to claim both Family Pension and Special Family Pension simultaneously, as both benefits cannot be granted together under the applicable pensionary scheme.

It is not borne out from the record that the death of the petitioner's husband occurred while in harness. However, by order dated 15.11.2017, it was deemed that the petitioner's husband had died while in harness. In the earlier round of litigation, the petitioner sought only the relief of Family Pension and did not claim Special Family Pension. The applicable pensionary scheme permits the grant of only one of these benefits, namely, either Family Pension or Special Family Pension. By confining her earlier claim to Family Pension, the petitioner abandoned her claim for Special Family Pension. After a lapse of five years from the earlier proceedings, the petitioner cannot seek Special Family Pension as an alternative relief. The present claim is barred by the principle of constructive res judicata as well as the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908, since the petitioner omitted to claim a relief which was available to her in the earlier proceedings. The principle governing the omission of relief under Order II Rule 2 of the Code of Civil Procedure bars a party from claiming, in subsequent proceedings, a relief that ought to have been claimed in the earlier proceedings. Having elected to pursue the relief of Family Pension in the first round of litigation, the petitioner is precluded from subsequently claiming Special Family Pension. The provisions of Order II of the Code of Civil Procedure are, therefore, relevant for adjudicating the present issue and are reproduced hereunder.

The petitioner's husband did not complete the minimum qualifying service of 15 years required for the grant of pension, as he had rendered only 13 years and 11 months of service. However, since his death was deemed to have occurred while in harness, his service was treated as qualifying service of 15 years, and, on that basis, the petitioner was granted Family Pension. Having accepted and obtained the relief of Family Pension in the earlier proceedings, the petitioner is not entitled to subsequently claim Special Family Pension. The present claim is barred by the doctrine of election (selection of remedies), as well as by the provisions of Order II Rules 2 and 3 of the Code of Civil Procedure, 1908.

We do not find any infirmity in the impugned order passed by the Armed Forces Tribunal. The Tribunal has rightly held that the petitioner's subsequent claim for Special Family Pension is barred by the principle of constructive res judicata. In the earlier round of litigation, the Tribunal had already considered the petitioner's claim arising out of the death of her husband, set aside the order of dismissal, deemed him to have died in harness, and directed the grant of family pension along with all consequential retiral benefits, which directions have admittedly been complied with by the respondents. The Tribunal further found that the issue regarding the attributability and aggravation of the deceased's illness had already been considered in the earlier proceedings, and the petitioner had failed to place on record any fresh material or subsequent development warranting reconsideration of the same issue. Merely seeking Special Family Pension by assigning a different nomenclature to the relief does not give rise to a fresh cause of action when the foundational issue has already attained finality between the parties. The Tribunal, therefore, rightly declined to reopen the matter by applying the doctrine of constructive res judicata. This Court finds the reasoning of the Tribunal to be cogent, well-founded, and in accordance with law. No ground is made out for interference in exercise of writ jurisdiction.

Accordingly, the miscellaneous petition, being devoid of merit, is dismissed. No order as to costs.