Case Background
The petitioner is the wife of a late Sepoy of the Indian Army. Her husband was serving with an EME unit and was posted at Hissar.
On 05.07.1989, while he was on duty at Hissar, he suddenly went missing from his place of duty. After attempts to trace him failed, he was initially declared a deserter with effect from 05.07.1989.
A Staff Court of Inquiry was later convened. Over a period of about four years, no trace of the Sepoy, his body, or any reliable information regarding his whereabouts could be found. Ultimately, in 1992, he was declared “missing presumed dead”.
The petitioner, who was fully dependent on her husband’s income, expected that the authorities would start her family pension. She approached different authorities and correspondence began between EME Records, Secunderabad and PCDA (P), Allahabad for processing pension and Death-cum-Retiral Gratuity.
PCDA (P) insisted on certain documents, particularly an FIR regarding the missing soldier and a police investigation report. The local police station at Hissar reportedly refused to register the FIR, stating that the occurrence was already about five years old and difficult to investigate.
Despite reminders, the FIR was not lodged for many years. The petitioner, a widowed and illiterate village woman, was made to chase various offices, while the Army authorities kept insisting on technical compliance for audit purposes.
Finally, in 2017, she approached the Patna High Court by filing C.W.J.C. No. 15598 of 2017, seeking a direction to start her family pension and to pay arrears. She also sent a detailed representation to the Army Chief on 16.04.2018 describing the hardship faced by her.
After this intervention, the Army authorities finally lodged the FIR in 2018, almost 29 years after the disappearance. The previous writ petition was disposed of on 15.03.2019, directing PCDA (P), Allahabad to consider her claim and pay all retiral benefits including pension/family pension within three months.
Ordinary family pension was thereafter sanctioned. However, the authorities refused to grant her Special Family Pension and ex-gratia lump sum compensation. During the pendency of the present writ petition, the claim for Special Family Pension and ex-gratia was expressly rejected by order dated 15.10.2019.
What the Court Examined and Decided
In this writ petition (C.W.J.C. No. 7461 of 2021), the petitioner invoked Article 226 of the Constitution of India. She sought a writ of mandamus commanding the Union of India and other respondents to grant her Special Family Pension and ex-gratia compensation, with arrears and interest, on the ground that her husband’s death was attributable to military service.
Her counsel argued that she was completely dependent on her husband and had been deprived of pension for long only because the authorities failed to lodge an FIR and to investigate properly. According to her, the Court of Inquiry itself had noted that her allegation of foul play regarding her husband’s disappearance had never been disproved and had recommended investigation by a competent agency.
Despite this recommendation, no police case was registered for nearly three decades, and the matter was not handed over to any investigating agency. Counsel submitted that the authorities tried to close the matter by declaring the Sepoy “missing presumed dead” in 1992 without complying with Section 108 of the Indian Evidence Act, 1872, which generally recognises presumption of death after seven years of a person not being heard of.
He relied on the Supreme Court decision in LIC of India v. Anuradha, (2004) 10 SCC 131, regarding presumption of death under Section 108, and argued that the Army’s own inaction could not now be used against the widow to deny Special Family Pension. He further submitted that under Para 213 of the Pension Regulations for the Army, 1961 (Part-I), Special Family Pension is payable where death is attributable to or aggravated by military service.
The petitioner’s counsel argued that because the missing occurred while the Sepoy was on duty and in mysterious circumstances, and because the authorities failed to investigate despite Court of Inquiry observations, they could not now say that the death was not attributable to service. He relied on State of Bihar & Ors. v. Kalyanpur Cement Ltd., (2010) 3 SCC 274, to contend that authorities cannot benefit from their own lapses.
He also cited Charanjit Kaur (Smt) v. Union of India, (1994) 2 SCC 1, where the Supreme Court had directed payment of Special Family Pension and compensation to a widow whose husband died in mysterious circumstances while in Army service. Additionally, reliance was placed on a decision of the Armed Forces Tribunal, Regional Bench, Chennai, in O.A. No. 47 of 2013, where Special Family Pension was granted to the widow of a missing presumed dead soldier.
The Union of India, represented by the Additional Solicitor General, raised preliminary objections. First, he argued that since the Armed Forces Tribunal has been established under the Armed Forces Tribunal Act, 2007 to deal with service matters of defence personnel, this writ petition should be transferred to the Tribunal under Section 34 of that Act.
Secondly, he contended that the writ petition was barred by res judicata or constructive res judicata. According to him, the petitioner had already approached the Patna High Court for family pension in the earlier writ petition, and that matter had been decided. The claim for Special Family Pension and ex-gratia, if at all available, should have been raised then and could not be re-agitated.
On merits, the Union argued that the Court of Inquiry’s recommendation about possible foul play had been examined by higher authorities. The 57 Mechanized Brigade and later the Major General, GOC, had concluded that there was no evidence of foul play in the Sepoy’s disappearance, though his missing/presumption of death could not be ruled out. They had directed that the case be further investigated by civil agencies to establish his final status.
The Union relied heavily on Para 213 of the Pension Regulations for the Army, 1961 (Part-I). It was argued that Special Family Pension is restricted to cases where death is clearly due to or hastened by a wound, injury or disease attributable to military service, or where such condition is aggravated by service. In this case, the Sepoy was declared missing presumed dead; his death was not factually established as arising from any such injury or disease. Hence, the condition for Special Family Pension was not satisfied.
On ex-gratia, the Union pointed to Ministry of Defence letter No. 20(1)/98/D (Pay/Service) dated 22.09.1998, as amended. Ex-gratia lump sum compensation is payable where death occurs due to accidents in the course of performance of duties, or due to terrorists/anti-social violence, enemy action, border skirmishes, action against militants, duty in specified high-altitude posts with extreme weather, or during evacuation from war-prone foreign zones. The Union argued that the Sepoy was posted in a peaceful area, and his being missing could not be equated with these categories.
The Union also relied on Renu Devi v. Union of India & Ors., (2020) 14 SCC 600, to counter the claim.
The Court first dealt with the preliminary objections. It reiterated that the existence of an alternative remedy, even by way of a specialised tribunal, is not an absolute bar to the High Court’s writ jurisdiction under Article 226/227. Once pleadings on merits are complete and the maintainability issue has not been decided at the threshold, it would be appropriate to adjudicate the case instead of sending the litigant to another forum, if facts so warrant. Reference was made to Smt. Kanak & Anr. v. U.P. Avas Evam Vikas Parishad & Ors., (2003) 7 SCC 693.
On res judicata and constructive res judicata, the Court noted that the earlier writ petition concerned the petitioner’s entitlement to ordinary family pension and other retiral benefits, which had been withheld mainly due to non-registration of an FIR. That petition had resulted in directions to pay family pension. The specific claim for Special Family Pension and ex-gratia, however, had not been adjudicated then. The rejection of her Special Family Pension and ex-gratia claim occurred later, by order dated 15.10.2019, and that rejection had been challenged by way of an interlocutory application in the present case. Hence, the present writ disclosed a separate cause of action and was not barred by res judicata.
On the question of “missing presumed dead” and Section 108 of the Evidence Act, the Court examined the Government of India, Ministry of Defence letter dated 03.06.1998 regarding release of DCRG, leave encashment and family pension in respect of Armed Forces personnel who are missing. Under this policy, when a member of the Armed Forces is declared missing while in service, his family is entitled to salary, leave encashment and fund amounts immediately after declaration of disappearance, and to family pension and gratuity after one year.
The letter explains that the seven-year rule under Section 108 causes severe hardship to families, and therefore the President decided to grant benefits earlier, with certain safeguards such as lodging of a police report and furnishing an indemnity bond. The provisions were made effective from 29.08.1986.
In light of this specific policy, the Court held that there was no illegality in declaring the petitioner’s husband “missing presumed dead” within four years of his disappearance. The policy was intended to mitigate hardship and operated independently of the general rule under Section 108.
Regarding Special Family Pension, the Court emphasised that under Para 213, death must be due to or hastened by a wound, injury or disease attributable to military service, or by aggravation of such condition by service. In cases of missing personnel, the Government has framed a separate and specific policy. Even if disappearance occurs while on duty and may be attributable to service, it does not automatically qualify the family for Special Family Pension. The special policy for missing persons would prevail over the general pension regulations because it is more specific to that situation.
The Court noted that the case of the petitioner’s husband, declared missing presumed dead, is different from cases where death is factually established, regardless of cause. For missing personnel, the Government has laid down a separate framework to declare them presumed dead and to pay terminal benefits and ordinary family pension to their families.
On these grounds, the Court concluded that the petitioner’s claim for Special Family Pension was not tenable.
However, the Court took a different view on ex-gratia compensation. It carefully examined the circumstances of disappearance. The Sepoy had been detailed to guard outside the residence of Major Anand as a security measure, as he had previously worked as the officer’s sahayak. He was described as a simple, quiet and willing worker. On 05.07.1989 at about 06:00 hours, it was found that he was missing from his duty post. His belongings were intact; his locker and private box were locked, and he had left no note. There was no loss of any property of the officer.
The Staff Court of Inquiry noticed anomalies in the statements of personnel acquainted with him. It also confirmed that civil police verification yielded no trace. The Court of Inquiry found some support for the petitioner’s allegation of foul play and recommended that the case be handed over to a competent investigating agency. Even though higher authorities later opined that there was no evidence of foul play, those conclusions, in the High Court’s view, were not founded on cogent and convincing material, especially since no detailed investigation was carried out.
Against this background, the Court observed that disappearance of an Army personnel while on duty, in mysterious circumstances and without any finding of desertion, should ordinarily be presumed to be an “accident in the course of duty” unless the contrary is proved. The Court held that the facts of this case left no ambiguity that the Sepoy had disappeared in mysterious circumstances from his place of duty, based on witness statements and the Court of Inquiry record.
The Court accepted that the petitioner’s case is governed by the general policy for family pension, but nevertheless held that the totality of circumstances warranted positive consideration of her claim for ex-gratia compensation under the applicable regulations as on the date when her husband was declared missing presumed dead.
Accordingly, while the claim for Special Family Pension was negatived, the writ petition was partly allowed by directing the competent respondent authorities to consider her claim for ex-gratia compensation, in accordance with applicable regulations, preferably within three months from receipt or production of a copy of the judgment. No order as to costs was made.
Why This Judgment Matters
This judgment is important for families of defence personnel, particularly widows of soldiers who go missing while on duty and are later presumed dead.
First, the Patna High Court clarifies that where the Government has framed a specific policy for missing defence personnel, that policy prevails over general pension regulations. Because of this, families of missing soldiers are normally entitled to ordinary family pension, not automatically to Special Family Pension.
Second, the Court recognises the hardship caused to such families when authorities delay or avoid investigation. It notes that a disappearance in mysterious circumstances from a duty post, without evidence of desertion, can be treated as an “accident in the course of duty” for the purpose of ex-gratia compensation.
Third, the Court shows that prior litigation for basic pension does not bar a later challenge when a new, specific rejection order is passed regarding higher benefits such as Special Family Pension or ex-gratia.
Practically, for widows in similar situations, the case indicates that while Special Family Pension may be difficult to obtain for missing personnel, there is a real possibility of ex-gratia compensation if the disappearance occurred on duty and in unexplained circumstances.
Legal Issues and Answers
- Issue: Was the writ petition barred due to availability of the Armed Forces Tribunal remedy or by res judicata from the earlier writ?
Answer: No. The High Court held that alternative remedy is not an absolute bar under Article 226, and the claim for Special Family Pension and ex-gratia arose from a later rejection order, giving a fresh cause of action. - Issue: Is the petitioner entitled to Special Family Pension under Para 213 of the Pension Regulations for the Army, 1961 (Part-I)?
Answer: No. The Court held that Para 213 applies where death is clearly due to injury, wound or disease attributable to military service, whereas the petitioner’s husband was a missing presumed dead case governed by a separate specific policy for missing personnel. - Issue: Is the petitioner entitled to consideration of ex-gratia lump sum compensation for the disappearance of her husband while on duty?
Answer: Yes, for consideration. The Court held that disappearance in mysterious circumstances from a duty post, with desertion not proved, may be treated as an accident in the course of duty. The authorities were directed to positively consider her ex-gratia claim under the applicable regulations within three months.
Cases Cited by the Court
- LIC of India v. Anuradha, (2004) 10 SCC 131
- State of Bihar & Ors. v. Kalyanpur Cement Ltd., (2010) 3 SCC 274
- Charanjit Kaur (Smt) v. Union of India, (1994) 2 SCC 1
- Renu Devi v. Union of India & Ors., (2020) 14 SCC 600
- Smt. Kanak & Anr. v. U.P. Avas Evam Vikas Parishad & Ors., (2003) 7 SCC 693
Case Details
Case Number: Civil Writ Jurisdiction Case No. 7461 of 2021
Case Title: Shanti Devi v. The Union of India & Ors.
Citation: 2024 (2) PLJR 714
Court: High Court of Judicature at Patna
Coram: Hon’ble Mr. Justice Harish Kumar
Date of Judgment: 03.04.2024
Advocates:
- For the Petitioner: Mr. Amit Shrivastava, Senior Advocate; Mr. Kunal Tiwary, Advocate
- For the Union of India/Respondents: Dr. Krishna Nandan Singh, Additional Solicitor General; Mrs. Kanak Verma, Central Government Counsel
- For Punjab National Bank: Mr. Mritunjay Kumar, Advocate
Nature of the Case: Writ petition under Article 226 of the Constitution seeking mandamus for grant of Special Family Pension and ex-gratia compensation, in addition to ordinary family pension.
Link to Judgment: Click here to read the full Patna High Court judgment
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