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Judgment
,,
M.A No. 411 of 2018:,,
The records reveal that though the instant matter was admitted on 31.07.2018, the delay could not be condoned. Keeping in view the averments made in the",,
miscellaneous application and finding the same to be bona fide, we allow the same condoning the delay of 215 days in filing the O.A.",,
0.A No. 557 of 2018:,,
The applicant is the wife of late Sgt Vijay Kumar Sharma and through the medium of the instant 0.A filed under Section 14 of the Armed Forces Tribunal Act 2007,",,
is seeking the following reliefs:,,
(i) Quash and set aside the Air HQ speaking order dated 31.01.2017 conveyed through Air HQ Records, Subroto Park, New Delhi vide letter dated 31.01.2017 and",,
03.02.2017 (Annexure Al) being arbitrary;,,
(ii) Direct the respondents to grant ex-gratia of Rs.10 lakhs in the light of the Government of India, Ministry of Defence (Army) policy letter dated 22.09.1998 and",,
03.11.2009 (Annexure A3) and in the light of the judgment of this Tribunal in 0.A No. 506 of 2013 in Smt. Bhawna Pawar v. Union of India and others dated 30.10.2014;,,
(iii) Direct the respondents to grant compassionate appointment to the applicant by way of DoPT Rules on the subject placed as Annexure A5 in view of the change,,
of status of the attributability factor of the fatal injury suffered by the husband of the applicant Sgt Vijay Kumar Sharma on 24.09.2001 vide the judgment of this,,
Tribunal dated 04.10.2016 in Usha Sharma v. Union of India and others in 0.A No. 507 of 2015 (Annexure A2); and,,
(iv) Direct the respondents to grant LPG agency to the applicant in the light of Annexure A6 policy letter.,,
The facts of the case, in a nutshell, are that Sgt Vijay Kumar Sharma, husband of the applicant, was enrolled in the Indian Air Force on 19.08.1985. While on duty on",,
24.09.2001, the husband of the applicant had gone to his residence to have lunch. He was electrocuted at his family accommodation, provided by the respondents, on",,
24.09.2001. A Court of Inquiry (Col), ordered to inquire into the circumstances, found that the husband of the applicant died o n 24.09.2001 due to electrocution of low",,
voltage and that the death was accidental but not attributable to military service. After the death of her husband, the applicant filed an application for grant of special",,
family pension and ex-gratia amount, which was rejected by the respondents on 09.04.2003. However, ordinary family pension was granted to the applicant on",,
18.07.2003. The applicant thereafter filed an application for appointment on compassionate grounds, which was also rejected by the respondents. Against the said",,
rejection, the applicant filed 0.A No. 59 of 2009, which was disposed of by this Tribunal vide its order dated 25.11.2009. It reads:",,
XX XX XX XX XX XX,,
Respondents have ..... pointed out that her case was considered against 5% quota for re-employment by the authorities and in that consideration she could not,,
come because people with greater distress was given re-employment. Only we can direct the respondents to keep her candidature open for future vacancies if she,,
can come in the merit criteria laid down by the respondents.,,
On the basis of the aforesaid order, the respondents again considered the case of the applicant for appointment on compassionate grounds and finally rejected the",,
same vide order dated 18.11.2010 stating that she did not come in the merit short-listing due to her lower computed merit position being 68 as against the last person,,
recommended for appointment on compassionate ground, who had secured 74 computed merit points. Against the aforesaid order rejecting her claim for",,
compassionate appointment as well as her claim for special family pension, the applicant filed 0.A No. 507 of 2015 before this Tribunal, which was allowed setting",,
aside the order dated 09.04.2003 issued by the respondents and directing the respondents as under:,,
(i) The respondents shall pay special family pension to the applicant with effect from the date of death of the applicant's husband. Arrear, however, is restricted",,
for a period of three years preceding the date of filing of the 0.A, which was filed on 15.07,2015, after adjustment of the amount paid towards ordinary family",,
pension.,,
(ii) The respondents shall also pay interest 9% from the aforesaid date till the date of payment on the arrears as directed above. The respondents shall pay the,,
arrear along with the interest to the applicant within three months from now.,,
(iii) The respondents shall, within a period of three months from today, take a decision on the entitlement or otherwise of the applicant for payment of ex-gratia",,
lumpsum compensation in terms of aforesaid communications dated 27.09.1998 and 03.11.2009. In case, the claim for such ex-gratia compensation is rejected, a",,
reasoned order disclosing the grounds for such rejection shall be passed within the aforesaid period of time.,,
Pursuant to the aforesaid direction, the respondents granted her special family pension. The issue of ex gratia lumpsum compensation was considered by the",,
respondents in detail and the same was rejected vide the impugned speaking order dated 31.01.2017 on the following grounds:,,
XX XX XX XX XX XX,,
AND WHEREAS, on careful examination of your case in accordance with GoI, MOD letter No.20(1)/98/D(Pay/Ser) dated 22 Sep 98 and CCPA (P) it is seen",,
that:- (a) This award is admissible to the family of deceased whose death occurred under the circumstances mentioned below:,,
Due to accidents in the course of performance of duties.,,
(10 In performance of duties attributable to acts of violence by terrorists, anti-social elements, etc.",,
(iii) During border skirmishes and action against militants, terrorists, extremists, etc.",,
(iv) During enemy action in international war or such war like engagements which are specifically notified by MoD.,,
(b) As per the Court of Inquiry, your husband died as a result of electric shock while at home, which does not fall within the purview of any of the circumstances",,
mentioned in Sub Para-,,
(a) above.,,
NOW THEREFORE, after considering the above facts, it has been decided by the competent authority that your claim for the grant of Ex-gratia lump sum",,
compensation Is not admissible.,,
Hence this 0.A by the applicant impugning against the rejection of her claim for ex gratia lumpsum compensation.,,
Ms. Archana Ramesh, learned counsel for the applicant has contended that the husband of the applicant died while on active duty and thus, the applicant is",,
entitled to ex-gratia compensation as per Annexure A3 and the action of the respondents in denying ex-gratia compensation to the applicant as per the impugned,,
order is illegal and, therefore, the same is liable to be set aside.",,
On the other hand, the case of the respondents is that the applicant is not entitled to ex-gratia compensation because he does not meet the basic criteria of",,
eligibility as per the policy letter in Annexure R1. He elaborated that this policy letter dated 22.09.1998 clearly states in its introductory paragraph itself that, only",,
those families of defence service personnel who die in harness in the performance of their bona fide official duties shall be eligible for ex-gratia lumpsum,,
compensation. In the instant case, the death of the applicant's husband does not meet the basic criteria of 'died in harness in the performance of their bona fide",,
(a),"Death occurring due to accidents
in the course of performance
duties",Rs.5.00 lakhs
(b),"Death occurring in the course of
performance of duties
attributable to ac 03.11.2009ts
of violence by terrorists, anti
social elements, etc",Rs.5.00 lakhs
(c),"Death occurring during (0 enemy
action in international war
border skirmishes and (ii) action
against militants, terrorists,
extremists, etc.",Rs.7.5 lakhs
When proceeding from his duty station to his leave station or returning to duty from his leave station, provided entitled to travel at public expense Le. on",,
railway warrant, on concessional voucher, on cash TA (irrespective of whether railway warrant/cash TA is admitted for the whole journey or for a portion only),",,
in government transport or when road mileage is paid/payable for the journey.,,
When journeying by reasonable route from one quarter to and back from the appointed place of duty, under organized arrangements or by private conveyance",,
when a person is entitled to use of service transport but that transport is not available.,,
An accident which occurs when a man is not strictly ""on duty"" as defined may also be attributable to service, provided that it involved risk which was definitely",,
enhanced in kind or degree by the nature, conditions, obligations or incidence of his service and that the same was not a risk common to human existence in modern",,
conditions in India.,,
Thus for instance, where a person is killed or Injured by another party by reason of belonging to the Armed Forces. He shall be deemed 'on duty' at the relevant time.",,
This benefit will be given more liberally to the claimant in cases occurring on active service as defined in the Army/Navy/Air Force Act.,,
Thus, if we look at the definition of 'duty' as defined above, death of the applicant's husband does not figure under any of the specific clauses which define 'duty'.",,
However, the very first clause of the MoD letter clearly defines the master criteria, which can decide whether an act is duty or not i.e. When performing an official task",,
or a task, failure to do, which would constitute an offence, triable under the disciplinary code applicable to him. In this particular case, death of the deceased soldier at",,
home took place when he had gone home to have lunch. As can be seen, this act is not qualifying to be called as 'duty', as per above-mentioned criteria, due to",,
following reasons:,,
(a) Whether a married soldier staying with family brings packed lunch or decides to go to his home (if it is nearby) to have lunch, during lunch break, is a matter of his",,
personal convenience and personal choice.,,
(b) Under no circumstances the personal decision of a soldier to have lunch at home and thereafter meeting an accidental death while at home, can be defined as an",,
act of official duty, whereby failure to do the same, would constitute an offence, triable under the disciplinary code.",,
Additionally, we have also noted that this Tribunal, vide its order dated 04.10.2016 in O.A No. 507 of 2015, while differing with the opinion of the Col, has specifically",,
stated that the stand taken by the respondents that the applicant's husband got electrocuted while doing some electrical work with his drilling machine at his,,
residential accommodation did not clearly reflect in the Col proceedings, though this aspect had been mentioned in the brief narrative of the Presiding Officer of the",,
Col. Additionally, the Tribunal has also observed that in the findings recorded by the Col, no clear reasons had been given, as to why the CoI considered the death",,
as not attributable to service. Hence the Tribunal has taken a beneficial approach and given benefit of doubt in favour of the applicant agreeing with the applicant's,,
contention that her husband died due to a nonserviceable electric gadget installed in the house. The Tribunal has considered the applicant's husband to be on duty,,
for the purpose of attributability of his death to military service primarily on the grounds that the death was due to negligence on the part of respondents because the,,
gadgets installed in the house were not supposed to cause electrocution, if they were maintained properly by service providers. Pursuant to this judgement, the",,
respondents upgraded the family pension of the applicant from 'ordinary family pension' to 'special family pension'.,,
We have also tried to understand the graded scheme of the Government in providing financial benefits to the families of deceased soldiers. In this respect, the",,
following broad picture has emerged i.e.:,,
(a) Even if a soldier has one day's service and if he dies (including by suicide), his next of kin (wife in the case of married soldier) is provided with ordinary family",,
pension, which is 30% of last drawn pay.",,
(b) If the death of the deceased soldier is considered as attributable to military service (through a due process), his next of kin is entitled to Special Family Pension",,
(SFP), which is 60% of last drawn pay.",,
(c) If the death of the deceased soldier is considered as attributable to military service, in war or war like operations, his next of kin is entitled to Liberalised Family",,
Pension (LFP), which is 100% of last drawn pay.",,
(d) In addition to family pension, gratuity and insurance cover after death are also provided to family.",,
(e) Ex-gratia lumpsum compensation is provided to families of deceased soldiers who have 'died in harness in the performance of their bona fide official duties'. The,,
amount of ex-gratia lumpsum compensation increases in a graded manner from death in harness due to accidents, while performing bona fide official duty; to deaths",,
in violence by terrorists/anti-social elements and to deaths due to enemy action at border or during operations against terrorists, etc. The logic for graded increase in",,
ex-gratia amount is explained in para 2 of the Government letter dated 22.09.1998 i.e.:,,
The graded structure of ex-gratia lumpsum compensation takes into account the hardships 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, the expectations of the",,
employer from the employees to function in extreme circumstances, etc. The compensation is intended to provide an additional insurance and security to employees",,
who are required to function under trying circumstances and are exposed to different kinds of risks in the performance of their duties.,,
Thus, the circumstances of death for a soldier, differs from case to case and the financial relief also differs even amongst those soldiers whose death is considered",,
as attributable to military service. It is thus clear that the scheme of Government is to distinguish between the nature and circumstances of deaths and compensate,,
the families of soldiers in a graded manner. The most effective financial compensation to a family is the family pension where the graded financial compensation is,,
that the Ordinary Family Pension (OFP) is the base line, the Special Family Pension (SFP) is double the monthly amount of OFP and Liberalised Family Pension (LFP)",,
is the highest possible family pension (almost double of SFP). Similarly, when eligible, the ex-gratia compensation is also provided in a graded manner depending on",,
circumstances of death.,,
This Tribunal, vide its earlier order dated 04.10,2016, had considered the death of the applicant's husband as attributable to military service and the applicant is in",,
receipt of SFP due to this order. However, this order nowhere mentions that the deceased soldier was on 'bona fide official duty'. In fact, the Tribunal had ordered the",,
respondents to take a call on this matter and the same was considered by the respondents subsequently and was rejected vide their order dated 31.01.2017. We have,,
noted that the claim for ex-gratia lumpsum compensation was rejected by the competent authority stating that as per the Col, the husband of the applicant died as a",,
result of electric shock while at home, which did not fall within the purview of any of the circumstances mentioned in sub para (a) of the impugned order. That apart,",,
ex gratia lumpsum compensation is allowed only when death occurs due to accidents in the actual performance of 'bona fide official duties'.,,
After considering the rival contentions of the parties and after detailed perusal of the policy on ex-gratia, we are of the opinion that the death of late husband of",,
the applicant was considered as attributable to military service by this Tribunal for the purpose of extending the benefit of Special Family Pension to the applicant.,,
However, we find that the circumstances of death cannot be interpreted as died in harness, while carrying out a 'bona fide official duty'. The ends of justice have been",,
met by this Tribunal, vide its earlier order in 0.A No. 507 of 2015 dated 04.10.2016, by considering the death of her husband as attributable to military service,",,
however, it certainly cannot be stretched to interpret that the death took place during a 'bona fide official duty' in harness.",,
Pursuant to the direction given by this Tribunal, in its order dated 04.10.2016, the applicant has been granted Special Family Pension. She is also in receipt of the",,
DCRG and other benefits. Since the death of the husband of the applicant does not fall in any of the circumstances stated herein above, we are of the view that she is",,
not eligible for ex- gratia lump sum compensation, hence we have no justifiable reasons to interfere with the impugned order issued by the respondents.",,
Additionally, we also agree with the contention of the learned counsel for the respondents that the applicant had already been considered for compassionate",,
appointment as per the extant policy and had not made it into the merit list. In this matter, we are of the opinion that since the vacancies available in the Armed Forces",,
for compassionate appointments are limited to 5% of vacancies, it is not possible for the respondents to grant compassionate appointment to all eligible candidates.",,
The concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way",,
of a policy of an employer, which partakes the character of service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is",,
binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.",,
Furthermore, the purpose behind giving compassionate appointment is just to help the family in harness to get over the immediate crisis due to the loss of sole",,
breadwinner. This category of appointment cannot be claimed as a matter of right after certain period, when the crisis is over. Moreover, the financial status of the",,
family is also to be looked into as per the scheme framed by the employer while giving compassionate appointment and such appointment cannot be conferred,,
contrary to the parameters of the scheme. Hence applicant has a right to be considered in a fair manner for compassionate appointment but cannot claim,,
compassionate appointment as a right. We are convinced that the respondents have considered her in a fair manner and she has not been able to make it.,,
Resultantly, the 0.A fails and is dismissed. No order as to costs.",,
Interim applications, if any, pending in this 0.A will stand closed.",,
Pronounced in open Court on this the 25th day of June 2020.,,