1. It is the admitted case of the petitioner that his son Harpal Singh had consumed Monocrotophos (poison) on January 4, 1996 and he died on January 5, 1996. It is alleged that he had gone into depression on account of some incident which had occurred in service but there is no corroborative circumstance disclosed in the petition which led the deceased to take such an extreme step. It is the admitted case that he was on the sanctioned leave on that day and that he had over-stayed beyond the leave which had been sanctioned. It is also the case that on January 3, 1996, one Hawaldar had come to the village and asked Harpal Singh to report to the Unit at Bathinda and it is, thereafter, Harpal Singh took poison and died on the date as aforesaid. The petition has been filed claiming special family pension on account of death of Harpal Singh son of the petitioner. The stand of the respondents is that the deceased cannot be said to have died during military service, which can be termed as attributable to or aggravated by military service. It is contended that the basic ingredient which is required to be fulfilled is missing, the death has occurred not on account of military service but due to the extreme step taken by the deceased on account of circumstances which are not attributable to military service.
2. However, learned Counsel for the respondents has fairly conceded that the petitioner may be entitled to ordinary pension as per the rules on account of the amendment which has been carried out recently. It is further contended that such pension would be payable only if the petitioner falls within the ambit of the conditions provided in respect thereof.
3. Learned counsel for the petitioner has contested this stand of the respondents and has claimed that the petitioner had in fact been granted ordinary pension vide order dated 6.12.1996 (copy Annexure P-6) and that endorsement thereon was communicated to State Bank of Patiala and in pursuant thereto, the ordinary pension amounting to Rs. 75344/- was duly disbursed. However, now vide order dated 22.4.1998, it has been communicated that no regular monthly pension had been sanctioned to the father of the deceased, as such, the excess payment stood made to the petitioner amounting to Rs. 75344/-. It has been ordered that unless specific pension pay, Order is issued by the competent authority, no future monthly pension should be given to the petitioner and that further the amount paid in excess has been ordered to be recovered which has been duly appropriated against the fixed deposit receipt of the petitioner. The petitioner made a representation against this order and the same has been rejected holding that only death gratuity amounting to Rs. 11761/- had been granted and no family pension had been sanctioned and that the bank had wrongly paid family pension with effect from 5.1.1996 at the rate of Rs. 980/- p.m. plus Rs. 15/- plus Rs. 200/- plus Rs. 1692/- as D.A. total amounting to Rs. 2887/- P.M.
4. It has been argued that it is an after thought that no family pension had been sanctioned. In fact the perusal of Annexure P-6 categorically shows that the word special has been deleted and that ordinary family pension has been retained. Thus the respondents have fallen into error by giving a direction to the bank for recovering the family pension paid to the petitioner. The reason to deny such pension is that the son of the petitioner died as a bachelor. Reliance has been placed upon the instructions issued by the Government vide letter dated 7.8.1987 which read as under:-
6. "3.4: Where the Government servant dies as a bachelor or as a widower without children, pension will be admissible to person without reference to their pecuniary circumstances at ¾th of pay last drawn by the Government servant for both the parents and at ¾th of this rate for a single parent. On the death of one parent, dependent pension at latter rate will be admissible to the surviving parent."
5. It has been further argued that the aforesaid except of the letter has been relied upon by this Court while rendering judgment in C.W.P. No. 8805 of 1988. Reference has also been made to Regulation No. 215 and 216 of Pension Regulations for the Army-1961 (Part-I). The said regulations read as under:-
"xx xx xx xx xx
Pension intended for the whole family
215. A family pension is intended for the support of all the eligible members of a family, irrespective of in whose name it stands.
Eligible members of the family
216. The following members of the family of a deceased individual shall be viewed as eligible for the grant of a family pension, provided that they are otherwise qualified:-
(a) Widow lawfully married.
(d) Son, actual and legitimate (including validly adopted).
(e) Daughter, actual and legitimate (including validly adopted).
Note 1:- The term "widow" used in the above or any other regulation in this sub-section in respect of special family pensionary awards shall be deemed to include such a widow who was married after the individual's discharge/invalidment.
Note 2:- The "child" used in the above or any other regulation in this sub- section in respect of special family pensionary awards shall be deemed to include such a child born out of a marriage after discharge/invalidment of the individual.
Note 3:- The term "father" and "mother" or "Parents" used in the above or any other rule in this sub-section shall also be deemed to include such putative parents (or surviving parents as the case may be) as had not contracted a lawful marriage, but were living as husband and wife at the time of, or got lawfully married subsequent to, the conception of deceased member of the forces.
xx xx xx xx xx xx xx"
6. The argument is that pension intended for the whole family is payable to all the eligible members of the family irrespective of the fact that it may be in the name of one person. The eligible members of the family have been duly spelt out which includes father and mother. Thus, the family pension has been correctly sanctioned vide order dated 6.12.1996 and was paid by State Bank of Patiala but now it has been incorrectly ordered to be recovered and the future payment has been stopped. The claim that in view of the amendment made vide letter dated 26.8.1998, the dependent pension to parents can be granted but only with effect from 26.8.1998 is not sustainable whereas the rider has been put by virtue of the communication that the person should not be earning more than Rs 2550/- P.M. and that he was fully dependent upon his deceased son. Thus, the order of recovery and in pursuant thereto recovery having been made by the bank is not sustainable under law. The petitioner is, therefore, entitled to the pension and the instructions which have been promulgated in the year 1998 are not applicable to the case of the petitioner, thus, cannot be subjected to any conditions, which have now been promulgated. The family pension as envisaged under the aforesaid rules was not subjected to any constraints which have been promulgated in the letter dated 26.8.1998. Thus, the petitioner being entitled to family pension in pursuant to the aforesaid rules should be granted family pension and the recovery so ordered should be repaid with interest.
7. On the other hand, learned Counsel for the respondent has contended that the aforesaid rules are applicable only in case of special family pension and not ordinary pension. The perusal of the provision does not support the contention of learned Counsel for the respondents. Wherever the framers of the rules intended the inclusion of words "Special Family Pension", the same has been duly inserted. It has been further argued that the aforesaid provisions are not enabling provisions. In fact it is by virtue of the instructions dated 26.8.1998 that the parents have been included and made them entitled to the family pension.
8. I have considered rival contentions of counsel for the parties. I am of opinion that the petitioner is not entitled to Special Family Pension as the death of Harpal Singh had occurred on account of having committed suicide by taking poison and such act cannot be termed as attributable to or aggravated by military service. Thus, the claim of special family pension has been correctly declined by the respondents.
9. So far as the claim of Ordinary Family Pension is concerned, it has been incorrectly declined by the respondents. Whereas, the fact is that the same was duly sanctioned vide communication dated 6.12.1996 and which was duly disbursed by State Bank of Patiala. The respondents have fallen into error by passing an order/communication dated 22.4.1998 (copy Annexure P-8) vide which the family pension so paid has been ordered to be recovered and that future payment of family pension has been stopped. The stand that by virtue of a communication dated 26.8.1998, the family pension shall be made payable to the parents does not seem to be correct. According to the stand which is spelt out in para 11 of the written statement, it looks that family pension has been hence forth subjected to the condition that the claimant is not earning more than Rs. 2550/- P.M. and that he was fully dependent upon the deceased son. This inference has been draw in view of the stand taken in the aforesaid para of the written statement but in the absence of the copy of the letter (not produced by the respondents) such inference is not sustainable. The claim of the petitioner is respect of the ordinary family pension cannot be permitted to be subjected to the rigours of the condition now promulgated by communicatio
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n dated 26.8.1998. The case of the petitioner had been duly considered in accordance with the regulations noticed above and having been duly sanctioned and disbursed accordingly, cannot be allowed to be recovered and cannot be allowed to be stopped. Therefore, the petition is partly accepted and the impugned communication dated 2.7.1998 (copy Annexure P-10) whereby family pension has been declined and or has been alleged to have been given wrongly is quashed. The petitioner is entitled to family pension in accordance with Regulations 215 and 216 and that the recovery made from the petitioner is directed to be refunded with interest payable at the rate of 12% P.A. from the date of recovery effected upto the date of refund made accordingly by the respondents. The resumption of payment of family pension shall be ordered by respondents within two months from the date of receipt of certified copy of this judgment, failing which the respondents shall be liable to pay interest at the rate of 12% P.A. which shall be recovered from the official(s) responsible for passing such order.