MAJOR ARVIND KUMAR SUHAG Vs. STATE OF HARYANA
LAWS(P&H)-2010-5-475
HIGH COURT OF PUNJAB AND HARYANA
Decided on May 24,2010

Major Arvind Kumar Suhag Appellant
VERSUS
STATE OF HARYANA Respondents

JUDGEMENT

- (1.)The petitioner seeks for a direction for payment of an ex gratia amount from the State of Haryana vide policy issued through the Chief Secretary to Haryana that enables a person reported killed/missing/prisoners of war/disabled E.S.M. (Ex Servicemen) during various operations. The petitioner has suffered 100% disability in an accident while he was in service in Kargil area. The claim was made by invoking clauses of eligibility that the policy delineates. To our case would be relevant Clause 7(a) and (f), which are reproduced as under :-
"a) The families of personnel killed or missing and disabled personnel as a result of clash with hostile foreign nationals on J&K cease fire line or Ladakh or on/across the borders of India with foreign countries.

b) to e) ..................................

f) Families of personnel killed/disabled as a result of M.T. (Mechanical Transport) accident in operational area and covered by the Army Act except where the court of enquiry has blamed the individual for either negligence or self infliction or attempt to suicide."

The policy which was introduced originally in the year 1994 has undergone some changes in so far as it increased the ex gratia payment to Rs. 5 to Rs. 6 lacs. The petitioner has applied for ex gratia payment, relying on a certificate that the Additional Directorate General of Manpower/MP 5(B), Adjutant General's Branch, New Delhi has issued mentioning the cause of disability. The certificate that has been issued to whomsoever it may concern states as under:-

".... The officer's disability has been assessed by Invaliding Medical Board for 100% for life and the casualty has been classified as Battle Casualty vide letter No. 12812/AG/ OW/OPR/MP5(D) dated 10 Sep 2007."

(2.)Although there has been no formal order of rejection of petitioner's claim, the stand for the Government for its non-payment is known through the written statement filed on behalf of the respondent. It is contended that the cause of the injury was a subject of enquiry by the Army and it was borne out through the enquiry report that the petitioner and another suffered injuries in a motor transport accident and the negligence was on the part of the defence personnel. It is also stated that the injuries were not during any heroic act to enable the petitioner to make a claim.
(3.)Ex-gratia payment is not always, paradoxically, an act of charity. It is invariably supported by reasonable policy so that the State funds are not squandered by wrongful consideration. If the policy itself is in challenge, it shall definitely become possible for a Court to see the reasonableness of the policy. However, when the policy consideration is not in challenge, a person that makes a claim under the terms of policy definitely obtains a legal right for its enforcement and all that would be necessary to show is that the claim is within the four corners of the stated policy. In this case, the eligibility for a person to make the claim obtains specifically through Clause (f) which we have already extracted above that enables a person to claim the benefit arising out of disability through a motor transport accident in an operational area covered by the Army except when the Court of enquiry has blamed the individual for negligence or self-infliction or attempt to suicide. It can be noticed that it is not the stand of the government that there has been any self-inflicted or a wanton negligence, though in the written statement, it is stated out of the blue, as it were, that the negligence was on the part of the defence personnel. On the other hand, the text of the Court of enquiry, which has been placed as document shows that the injury sustained by the petitioner was attributable to military service. The act of heroism which the statement claims that the petitioner's act did not evoke, is in some sense a wrongly exaggerated expression. I do not see from the terms of the policy that the person must have been there actually placing his fingers on the trigger of a gun or hurling a bomb in military action to be entitled to the promised payment. A person, who is in the place of action at the Army and who suffers an injury in the manner contemplated in the policy, which includes an accident in an operational area that is not due to negligence of the person, could well make a successful claim. Learned counsel appearing for the State, Mr. Sharma, however, relies on a clarification issued by the Chief Secretary to the Haryana on 07.11.2001 that reads as follows :-
"..... The Haryana State Govt. has decided to provide exgratia grant only to the casualties taking place in or during operations in order to recognise the acts of bravery and sacrifice of the War Heroes. It is pertinent to mention here that any casualty taking place in operational area but not in operations i.e. where actual battle taking place/fighting etc. is not covered under the said ex-gratia grant policy of the State Government. No other type of casualties except Battle casualties and Battle accidents are covered under ibid policy dated 20.09.99."

The learned counsel states that the casualty taking place in an operational area itself shall not enable a person to obtain the benefit. The clear expressions are that no type of casualty except the battle casualties or battle accidents are covered under the policy of the year 1999. If we must give the expression battle casualty any meaning, I would understand it to mean to a situation where a person while actively involved in the military service in an area, which is a battle zone suffers an injury, then it shall be a battle casualty. In fact, the certificate issued by the Additional Directorate General characteristic the injury suffered by the petitioner as a battle casualty. If an entitlement to a benefit under ex gratia policy has to be applied, the Government ought not to be looking for any certification more than how the army itself has treated the injury as having arisen. If there is, therefore, a certificate that the petitioner has suffered a battle casualty (see para 1 above), to take a different view and stonewall the claim of the petitioner from obtaining a benefit of the policy will make meaningless the beneficent and lofty objective which the policy prefers. A State cannot drive a person, who claims a benefit under the policy for a fulfledged adjudication in a Civil Court to ascertain the nature of injury, so long as the policy statement itself does not require any specific mode of proof. There could be no better proof than how the Army has itself perceived the injury as having resulted and that ought to be sufficient for the State to apply its Policy. The claim of the petitioner is perfectly justified and the statement in defence refusing to extend the benefit on a specious plea that the petitioner was negligent in his conduct that led to his injuries and that again the injury was not a battle casualty, are meaningless defenses that have to be only discarded as unworthy of acceptance.



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