ORDER
V.K. Bali, J. (Chairman)
1. I.S.Sharma, Divisional Officer in the Moti Nagar Fire Station of Delhi Fire Service died in harness at 0045 hours on 25.5.2003. Smt. Sudershan Sharma and Hemlata Sharma, wife and daughter of the deceased officer, have filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking a direction to be issued to the respondents to implement OM dated 11.9.1998 and in consequence thereof, to give the applicants ex gratia lump sum compensation of Rupees five lakhs along with interest calculated at the rate of 18% per annum. The question that arises for determination in the present Application is as to whether death of I.S.Sharma occurred in actual performance of bona fide official duties and a causal connection has been established between the occurrence of death and government service, or as to whether the death has neither occurred in actual performance of bona fide duties nor has a causal connection and nexus with government service. Surely, with a view to determine the only question as required to be adjudicated in the present case, it would be necessary to refer to the facts of the case.
2. The case set up by the applicants in the Application is that I.S.Sharma was working with respondents satisfactorily and for his brave actions and devotion to duty, he was decorated with the Fire Service Medal for risking his life earlier also while saving lives of many in the “Gopal Tower Fire” case. At the relevant time, when he was working as Divisional Officer in the Moti Nagar Fire Station, on 14.5.2003 a fire broke out at Kidwai Nagar. I.S.Sharma took extraordinary steps in preventing the spread of fire to other hutments in the area. He took special steps in providing the number of fire fighting jets, uninterrupted water supply and manually holding the branch pipes etc. As a result, the fire could be confined to only a small section of the jhuggis and thus about 300 lives, including women and children, and property were saved. It is the case of the applicants that due to stress caused in the fire fighting exercise, I.S.Sharma developed certain respiratory distress at the scene of fire itself, and due to inhalation of black smoke, including soot and other poisonous gases, his condition deteriorated very fast. From the very beginning, there were large clouds of poisonous gases and black smoke all over in the environment due to the devastating and ravaging fire. Sharma was inhaling all smoke as there was no way otherwise to reach the spot to extinguish the fire. He went through the dense black sooty smoky black gas and reached the place from where fire fighting operation was again resumed. During the operation due to inhaling of poisonous gases and smoke and due to stress, he became seriously ill. On seeing his deteriorating condition caused due to fire fighting operation, the operation incharge, DCFO-II, rushed him to RML Hospital for immediate and urgent treatment, and after conducting certain tests, he was referred to be shifted to ICU but due to non-availability of bed, he was shifted to Sir Ganga Ram Hospital, where the doctors opined for bypass surgery immediately. Sharma, however, developed complications thereafter and died on 25.5.2003 at 0045 hours. It is the positive case of the applicants that health of the deceased deteriorated while actual fire fighting operations and that became the only cause of his death. That being so, the applicants made request to the respondents to give them ex gratia compensation, but when their entreaties brought no tangible result, present Application for the relief indicated above has been filed.
3. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing their counter reply contested the cause of the applicants. It has inter alia been pleaded in the counter reply that I.S.Sharma did not die on duty during fire fighting operation on 14.5.2003, and that he was admitted in RML Hospital and subsequently shifted to Sir Ganga Ram Hospital from where he was discharged and later admitted to Escorts Heart Institute with heart problem where he was operated for bye pass surgery but he expired after two-three days on 25.5.2003 at 0045 hours due to his heart problem in Escort hospital, from which he was suffering prior to the fire also. It is the case of the respondents that as per OM dated 11.9.1998, ex gratia compensation under Clause (c) of para 5 will generally be restricted only to those cases where the death of the employee is directly caused by actual field operations, whereas the present case differs from above clause. In the fire which broke in Kidwai Nagar J.J. cluster on 14.5.2003, it is pleaded, there were about 70 fire personnel involved in the operation, and if the gases coming out from the fire were so poisonous, then others would also have suffered from the same problems. The resume of history, as per discharge summary dated 17.5.2003 of the deceased issued by Sir Ganga Ram Hospital, is as under:
This 58 yrs gentleman, a known case of CAD, was admitted with complaints of excessive fatiguability, nausea and sweating around 5 am on 14.05.03. There was no history of chest pain or breathlessness at that time. He is a chronic smoker, occasional alcoholic and has discontinued anti-anginal medications.
The respondents plead that from the discharge summary reproduced above, it is clear that I.S.Sharma was a chronic smoker, occasional alcoholic and had discontinued anti-anginal medication, and that there was no problem of chest pain or breathlessness on 14.5.2003. The respondents have denied claim of the applicants for advise of bypass surgery by Sir Ganga Ram Hospital. It is then pleaded that the employee died in Escort Hospital and not in Sir Ganga Ram Hospital. Death report issued by the Escort Hospital has been annexed as Annexure R-2. It is also pleaded that fire fighting is in the essential duties of fire fighting staff where there may be smoke everywhere. The respondents also plead that the applicants have been duly compensated on account of payment of pension, leave encashment, DCRG, insurance etc.
4. From the pleadings of the parties and the records made available to us, what clearly emerges is that a fire had indeed engulfed Kidwai Nagar JJ cluster on 14.5.2003. I.S.Sharma was, amongst others, involved in extinguishing the fire. His physical condition deteriorated at the time he was engaged in fire fighting exercise. The incharge of operation, DCFO-II, it is not disputed, rushed him to RML Hospital for immediate and urgent treatment. He was admitted in Sir Ganga Ram Hospital on 14.5.2003 itself. In the discharge summary Annexure R-1 dated 17.5.2003 under the caption “Resume of history” it has been mentioned that I.S.Sharma, a known case of CAD, was admitted with complaints of excessive fatiguability, nausea and sweating around 5 am on 14.5.2003, and there was no history of chest pain or breathlessness at that time, and that he was a chronic smoker, occasional alcoholic and had discontinued anti-anginal medication.
5. I.S.Sharma, while he developed some health complications at the spot, it appears, was rushed to RML Hospital for immediate and urgent treatment, and after some tests were conducted, he was shifted to ICU, but due to non-availability of bed he was shifted to Sir Ganga Ram Hospital. He was advised bypass surgery immediately. It appears that on the day he was discharged, i.e., 17.5.2003 from Sir Ganga Ram Hospital, he was shifted to Escorts Heart Institute, as would be clearly made out from Annexure R-2 certificate of death issued by Escort Heart Institute and Research Centre, New Delhi. He remained in Escort Heart Institute from 17.5.2003 up to 25.5.2003, on which day he died. What thus is clearly borne out from the records is that I.S.Sharma left home on 14.5.2003, the day of the incident, and thereafter till 25.5.2003 he remained in hospitals never to come back home.
6. Before we may deal with the rival contentions of the learned Counsel representing the parties on the issue framed above, it would be useful to take note of OM No. 45/55/97-P&PW(C) dated 11.9.1998 dealing with the conditions governing payment of ex gratia lump sum compensation and guidelines to be observed. Relevant part of the same is reproduced below:
1. The main condition to be satisfied for the payment of ex gratia lump sum compensation in the specified circumstances is that the death of the employee concerned should have occurred in the actual performance of bonafide official duties. In other words, a causal connection should be established between the occurrence of death and government service.
2. Powers having been delegated to the Administrative Ministries to sanction ex gratia payments under these orders, it shall be their responsibility as well as that of the Financial Advisers to satisfy themselves that the death of the government servant to be compensated by the payment of the lumpsum ex gratia to the family in fact occurred in the actual performance of bonafide official duties and to establish its causal connection and nexus with government service. This could be done on the basis of medical and other documents relating to the case.
3. Even if a Government servant had died in such circumstances that a medical report could not be secured, the nexus and causal connection with government service would need to be adequately established in determining the entitlement to the ex gratia lumpsum payment. In deciding this issue all evidence (both direct and circumstantial) shall be taken into account and the benefit of reasonable doubt given to the claimant. The benefit of reasonable doubt will be extended more liberally in field service cases, as provided in the guidelines for conceding attributability of disablement or death to Government service forming part of the Central Civil Services (Extra ordinary Pension) Rules.
It is pertinent to mention that on the same very day, i.e., on 11.9.1998, another OM came to be issued by the Ministry of Personnel, Public Grievances & Pensions (Department of Pension & Pensioners’ Welfare) pursuant to OM of even date, as mentioned above. The same appears to have been issued while taking into consideration the recommendations of the Fifth Central Pay Commission. The caption of the OM mentioned above and relevant part thereof would read as follows:
Subject: Special Benefits in cases of Death and Disability in Service-Payment of Ex Gratia Lumpsum compensation to families of Central Government Civilian Employees who die in harness. Recommendations of the Fifth Central Pay Commission.
Central Government Civilian Employees paid from Civil Estimates, other than those to whom the Workmen’s compensation Act applies, who sustain injuries or contract diseases or die or are disabled or incapacitated on account of causes which are accepted as attributable to or aggravated by government service are eligible for certain special benefits under the Central Civil Services (Extra ordinary Pension Rules). The benefits available under these Rules have been amended and liberalized from time to time. Separate orders have also been issued by Government to provide for the grant of Liberalized pensionary Awards in cases of death or disability arising in certain special circumstances, such as (i) attack by or during action against extremists, anti-social elements etc. and (ii) enemy action in international war or border skirmishes. Instructions issued in this regard from time to time were consolidated in this Department’s O.M. No. 33/5/89-P&PW (K) dated April 9, 1990.
A conjoint reading of OM dated 11.9.1998 and the OM of even date, would manifest that even though the main condition to be satisfied for payment of ex gratia lump sum compensation in the specified circumstances is that the death of the concerned employee should have occurred in actual performance of bona fide official duties, but the same has been explained or clarified to mean that a causal connection should be established between the occurrence of death and government service. It is the responsibility of the concerned authorities to satisfy themselves that the death of the government servant to be compensated by payment of lump sum ex gratia to the family in fact occurred in actual performance of bona fide official duties and to establish its causal connection and nexus with government service, on the basis of medical and other documents relating to the case. Even if a medical report is not secured, the nexus and causal connection with government service would need to be adequately established in determining the entitlement to ex gratia lump sum compensation, and in deciding this issue, all evidence ” both direct and circumstantial ” would be taken into account and the benefit of reasonable doubt given to the claimant. The benefit of reasonable doubt has to be extended more liberally in the field of service cases, as provided in the guidelines for conceding attributability of disablement or death to government service forming part of the Central Civil Services (Extraordinary Pension) Rules. Central Government employees who may sustain injuries or contract diseases or die or are disabled or incapacitated on account of cases which are accepted as attributable to or aggravated by government service, are eligible for certain special benefits under the Extraordinary Pension Rules.
7. Shri Arun Bhardwaj, learned Counsel representing the applicants, vehemently contends that whereas, it may be true that Shri Sharma had some heart problem during life time, but his death is closely connected with his actual performance of bona fide official duties. His death, it is thus urged, had a causal connection and nexus with government service, or, in any case, his death is attributable or aggravated by government service. Shri Ajesh Luthra, learned Counsel representing the respondents, per contra, would exclusively rely upon the medical reports in his endeavour to show that the applicant had died only because of heart ailment from which he was suffering prior to the incident of 14.5.2003, and that he died because of that alone.
8. We have heard the learned Counsel representing the parties and with their assistance examined the records of the case.
9. We have already mentioned while giving the factual position of the case that Shri I.S.Sharma was indeed engaged in the fire fighting operation on 14.5.2003 which broke at Kidwai Nagar JJ cluster. He took extraordinary steps in preventing spread of fire to other hutments of the area. There is no denial to the pleading made in the Application that he took special steps in providing the number of fire fighting jets, uninterrupted water supply and manually holding the branch pipes etc. Because of his devotion to duty, he of course along with others, was able to save many valuable lives as also property. It is once again not in dispute that due to stress caused in the fire fighting exercise, he developed certain respiratory distress at the scene of fire itself and was rushed to RML Hospital by the incharge of the operation himself. It would be made out from the medical reports, as mentioned above, that when admitted in Sir Ganga Ram Hospital on 14.5.2003, he had complaints of excessive fatiguability, nausea and sweating. There was no history of chest pain or breathlessness at that time. It is recorded that he was a chronic smoker and would consume alcohol occasionally and had discontinued anti-anginal medication. What clearly emerges from the medical findings recorded in the discharge summary dated 17.5.2003, as mentioned above, is that Shri Sharma was admitted with complaints of excessive fatiguability, nausea and sweating, which can be said to be directly attributable to the fire fighting operation. The fact that he had discontinued anti-anginal medication would rather show that if he had some heart problem, there was some improvement in the same, as otherwise there was no occasion for him to discontinue anti-anginal medication. The respondents, however, are depending upon the death certificate issued by Escorts Heart Institute and Research Centre, New Delhi, dated 25.5.2003. Immediate cause of death there has been mentioned as “Hypoxic Ischemic Encephalopathy”. We have checked up as to what exactly Hypoxic ischemic encephalopathy (for short, HIE) means. In an article by Tonse NK Raju, MD, DCH, “HIE” has been explained as follows:
HIE is characterized by clinical and laboratory evidence of acute or subacute brain injury due to asphyxia (i.e., hypoxia, acidosis). Most often, the underlying cause remains unknown. The exact time of brain injury often remains uncertain, and an abnormal brain (eg, growth failure, impaired development) might be an underlying factor.
Autecedent cause of the death has been mentioned as “Ischemic heart disease with pre-existing poor liv. Function with intractable ventricular fibrillation (Post CABG).”
10. From the death certificate issued by Escorts Heart Institute, what emerges is that the immediate cause of death of I.S.Sharma was on account of acute or subacute brain injury due to asphyxia, which, in our view, could have been caused only because of inhaling of poisonous gases and smoke. Whereas, it may be also made out from the death certificate that he had heart disease as well and might have been operated for that, but that is not the immediate cause of his death.
11. From the medical reports fully detailed above and as also from the direct and circumstantial evidence, in our view, it can be said with certainty that the death of I.S.Sharma had causal connection and nexus with his service, or, in any case, was aggravated because of the same.
12. This Tribunal dealt with a somewhat similar issue in OA No. 3372/2002 decided on 3.10.2003 in the matter of Smt. Darshana Sharma v. Government of NCT of Delhi and Ors. The facts of the said case reveal that a fire broke out at Okhla Phase-II factory area near DTC Bus Depot on 24.4.1998 at about 2 am. The deceased was one of the members of the team to fight the fire. He was not only the driver of the water tanker but also was responsible for operating the pumping sets attached to the water tanker. After the water from the tanker emptied for the first time, he was sent to get the tanker refilled and return to the site of fire. While he was on his way back, he collapsed on the steering wheel before reaching the site of the fire incident. He was subsequently taken to AIIMS, where after some time he expired. The cause of death was given by AIIMS as heart problem in his casualty OPD card. No post-mortem was, however, conducted on the body of the deceased. For seeking compensation, it was urged on behalf of the counsel for the applicant that OM dated 11.9.1998 relates to special benefits in case of death and disability in service for which guidelines have been prescribed for payment of ex gratia lump sum compensation to the family of the civilian employee. As per illustrative examples of cases covered under the OM, serial number 12 of the OM aforesaid giving illustrative examples of cases covered under thereof states as under:
12. Death of fire fighting staff engaged in fire fighting operations
It was urged that the death of Sri Niwas occurred while he was engaged in fire fighting operation and, therefore, his case was fully covered under the above provision and rejection of the applicant’s request had resulted in complete miscarriage of justice. It was also urged that in the absence of any post-mortem examination, it could not be stated that the death was due to heart problem, and even if the deceased had been undergoing some treatment in the past, it could be conclusively inferred that the same would have got aggravated on his deployment as a member of the team engaged in fire fighting operation, and that, therefore, his death should be directly attributed to fire fighting operation. It was also urged that the scheme of ex gratia compensation carries with it human angle which the authorities appeared to have lost sight of in summarily rejecting the applicant’s representation without due consideration. The respondents, however, sought to defend the decision so as not to grant ex gratia compensation by urging that the deceased was a driver and even though he was a member of the fire fighting team, he did not expire on the site of the fire incident; he collapsed on his way after refilling the tanker, far away from the site of the fire incident, and, therefore, it could not be said that he was directly involved in the fire fighting operation. The Bench after considering the rival contentions of learned Counsel representing the parties, as mentioned above, observed as follows:
7. On careful perusal of the OM dated 11.9.1998 and the illustrative examples cited in the appendix thereto, we find that it has clearly covered the death of fire fighting staff engaged in fire fighting operation. It is not the case of the respondents that the deceased Driver was not engaged in fire fighting operation. Once he was part of the team ordered to proceed to the site of the fire incident, it has to be treated that he was duly engaged in fire fighting operation, irrespective of the duties as per his job he was to do. Besides, the respondents have not considered the fact that no post-mortem on the body of the deceased was carried out to establish the cause of death to be only on account of his heart problem in the normal course. That apart, as has been argued by the counsel for the applicant, a person with a minor heart ailment may get into severe complication when engaged in operation of the nature which entails emergency handling.
13. A Division Bench of the Kerala High Court in United India Insurance Co. v. G.S. Gopalakrishnan and Anr. MFA No. 402/1983, dated 28.1.1989 and reported as II LLJ (Kerala) 30, held that “Though there should be causal connection between the employment and the death in the unexpected way, in order to bring the accident within Section 3, it is not necessary that it should be established that the workman died as a result of exceptional strain or some exceptional work that he did on the day in question. If the nature of the work and the hours of work caused great strain to the employee and that strain caused the unexpected death, it can be said that the workman died as a result of accident which has arisen in the course of his employment”. The facts of the case would reveal that the workman, a bus conductor, died of heart-attack while he was sleeping in the vehicle, after a strenuous schedule. Bus crew had to sleep in the vehicle at the halting place where no shelter was provided either for the bus or for the crew. On death of the workman, the Commissioner had allowed the claim for compensation. The employer and the insurance company denied liability as the death was not in the course of employment, and as the conductor was not permitted or authorized to sleep in the bus, and the death was due to natural causes. Section 3 of the Workmen’s Compensation Act, 1923 dealing with employer’s liability for compensation, reads as follows:
3. Employer’s liability for compensation ” (1) If personal injury caused to workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter.
The contention raised before the Division Bench against the order of compensation granted by the Commissioner was that the accident should arise out of and in the course of employment, and even if all the facts alleged were found to be proved, it could not be said that the accident had arisen out of the employment. The contention aforesaid was repelled. The Division Bench of the Kerala High Court placed reliance upon its earlier judgment in Devshi Bhonji Kohna v. Mary Burno 1984 II LLJ 70. The facts of the said case reveal that the workman was already suffering from heart disease. When he was subjected to over exertion, there was a sudden deterioration in his health which proved to be fatal. He was unable to bear the over exertion in the state of health in which he was, and he fell down while carrying the cashew boxes and died. In the facts as mentioned above, it was held that “The object behind the legislation being protection to the weaker sections with a view to do social justice, the provisions of the Act have to be interpreted liberally, so that, other things being equal, the leaning of the court has to be towards the person for whose benefit the legislation is made”.
14. Full Bench of the Assam High Court in Assam Railways and Trading Co. v. Saraswati Devi AIR 1963 (Assam) 127 observed as follows:
Even in cases where a person has been suffering from heart disease, if the nature of the work has contributed to the deterioration of the heart and his death, the personal injury can be said to arise out of employment.
15. It is a settled proposition of law that with a view to do social justice, the provisions have to be interpreted liberally. It has indeed been so stated in the OM dated 11.9.1998. The benefit of reasonable doubt is to be extended more liberally in the field of service cases.
16. In view of the discussion made above, we allow this Application. A direction is issued to the respondents to grant ex gratia lump sum compensation as may be admissible to the applicants whose bread winner died in harness. As considerable time has already gone by, the direction as mentioned above, may be complied with within a period of six weeks from receipt of certified copy of this order.
17. Before we may part with this order, we may mention that the plea raised by the respondents that the applicants have been duly compensated by payment of pension, leave encashment, DCRG, insurance etc., has to be simply rejected. The respondents have conferred no bounty on the applicants in giving them benefits that accrued to them under service rules. There shall, however, be no order as to costs.