IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24619 of 2008(E)
1. SANKARI AMMA, W/O.LATE RAGHAVAN PILLAI
... Petitioner
Vs
1. UNION OF INDIA, REP.BY ITS SECRETARY
... Respondent
For Respondent :SRI.P.R.LESLIE STEPHEN, CGC
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :11/01/2010
O R D E R
K.SURENDRA MOHAN, J
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WP(C).NO.24619 OF 2008
............................................
DATED THIS THE 11TH DAY OF JANUARY, 2010
JUDGMENT
This writ petition is filed by the widow of a person, who lost his
life in a terrorist attack in Jammu and Kashmir. The husband of the
petitioner was working as a Group-D employee of the General Reserve
Engineering Force under the Border Roads Organisation. He was
engaged in building roads in the Border areas of Kashmir. The husband
of the petitioner was killed in a brutal attack by the militants while he
was engaged in duty. He was killed on 13.12.1999.
2. Immediately on his death, as a token of acknowledgment for
the supreme sacrifice made by the petitioner’s husband, she was
sanctioned pension under the Liberalised Pension Scheme applicable to
widows of such persons. Accordingly, she was drawing pension under
the Liberalised Pension Scheme from 1999 onwards.
3. While so, the petitioner claimed compensation under the
Workmen’s Compensation Act, 1923. Her claim was considered by the
Commissioner for Workmen’s Compensation (Deputy Labour
Wpc 24619/2008 2
Commissioner) and by Ext.P5 order dated 2.7.2008, the petitioner, her
children and mother of the deceased were granted a total amount of
Rs.1,46,200/- as compensation. The amount of compensation was
deposited by the 5th respondent before the Deputy Labour
Commissioner, Kollam. The petitioner was not able to withdraw the
said amount. Therefore, she approached this court by filing WP(C)
No.17531 of 2006. As per Ext.P4 judgment dated 12.3.2008, this court
issued a direction to the Deputy Labour Commissioner, Kollam
directing disbursement of the said amount. Accordingly, the amount
was paid to the petitioner. However, the statutory interest due on the
compensation amount was not paid. Therefore, the petitioner claims the
said interest in the present writ petition.
4. In the above circumstances, it is alleged that Exts.P7 and P9
proceedings have been issued. As per Ext.P7, the Liberalised Fanily
Pension of the petitioner has been reduced to ordinary pension. As per
Ext.P9, the arrears of excess pension paid to her over and above the
normal pension that was payable is sought to be recovered. The said
action is under challenge in this writ petition.
Wpc 24619/2008 3
5. A counter affidavit has been filed by the respondents
disputing the claim of the petitioner. The respondents have produced
Ext.R1(a), the rules for the grant of Liberalised Pension and other
benefits. Particular attention is drawn to clause 9 of Ext.R1(a) to
contend that the petitioner cannot claim the benefit of both
compensation under the Workmen’s Act as well as the benefits of the
Liberalised Pension Scheme at the same time. Clause 9 reads as
follows:-
“The Government servants governed by the
provisions of the Workmen’s Compensation
Act, 1923, shall also be eligible for the awards
under these orders. Where the benefit
admissible under these orders is more than the
benefits admissible under the Workmen’s
Compensation Act, 1923, the compensation
admissible under the said Workmen’s
Compensation Act, 1923, will not be separately
payable. If, however, the sum admissible under
these orders is less than the amount payable as
compensation under (i) the Personal Injuries
(Emergency Provisions)Act, 1962, as amended
Wpc 24619/2008 4
by the Personal Injuries(Emergency Provision)
Amendment Act, 1971, and (ii) the Personal
Injuries(Compensation Insurance)Act, 1963, as
amended by the Personal Injuries
(Compensation Insurance)Amendment
Act,1971, they shall have a right to receive an
amount equal to the difference between the sum
admissible under these orders and the amount of
compensation payable under the said Acts. For
the purpose of determining such difference, the
latter amount shall be converted, if necessary,
into a recurring monthly payment by applying
the table given in the anneuxre as in the
illustration below”.
The above clause provides that the persons like the petitioner would
have to opt for either the compensation under the Workmen’s
Compensation Act or for the Liberalised Pension Scheme. On the
above ground, the counsel for the respondents pray for dismissal of this
writ petition.
6. I have heard Advocate R.Rajesekharan Pillai, the learned
counsel for the petitioner and Advocate Leslie Stephen learned counsel
Wpc 24619/2008 5
for the respondents. I have also anxiously considered the rival
contentions.
7. Ext.P8 proceedings of the 5th respondent forwarding the
compensation to be paid to the petitioner under the Workmen’s
Compensation Act clearly mentions that the payment is in addition to
the Liberalised Family Pension released by the Government of India as
a special case, to the petitioner. It is certainly true that in the normal
circumstances, the petitioner would have had to opt for either the
Liberalised Pension or for the compensation under the Workmen’s
Compensation Act. However, in the present case the petitioner has been
granted the benefit of the Liberalised Pension Scheme by the
Government of India as a “special case”. In the above circumstances,
Ext.P7 and P9 which are proceedings issued by the additional 6th
respondent, cannot take away the benefit that has been granted by the
Government of India. Ext.P7 and P9 proceedings also does not refer to
the circumstances in which such proceedings had been issued or the
reasons for the issue of such proceedings. It cannot be denied that the
petitioner has been receiving the Liberalised Pension from 1999
Wpc 24619/2008 6
onwards. The benefit that has been granted by the Government on
compassionate grounds to the widow of a person who had laid down
his life for the country, is sought to be denied to her by Exts.P7 and P9
without any authority. The source of the power that has been exercised
by the additional 6th respondent is also not mentioned in either Ext.P7
or P9. Since Ext.P8 has stated in clear and unambiguous terms that the
Liberalised Family Pension was in addition to the compensation under
the Workmen’s Compensation Act, 1923, the stand of the respondents
cannot be sustained. Exts.P7 and P9 proceedings are therefore
absolutely without jurisdiction, unsustainable and are liable to be set
aside.
In the result, Exts.P7 and P9 are quashed. The petitioner shall be
paid all the amounts that are retained pursuant to the said proceedings.
In the above circumstances of the case, there will be no order as to
costs.
Writ petition is disposed of as above.
K.SURENDRA MOHAN, JUDGE
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