Shrikant Tripathi, Member (J):
1. The applicant, Komalam N.B., widow of late Havildar Dinesh K.P., filed Writ Petition No.12741 of 2008 and W.P. (C)No. 7174 of 2009 in the High Court of Kerala at Ernakulam based on almost the same cause of action arising on unnatural death of her husband at the duty station. The first Writ Petition, W.P. (C). No. 12741 of 2008, was filed for a writ of mandamus directing the respondents to sanction and pay her special family pension as per the Rules with effect from the date of death of her husband along with 12% interest. She further claims for education and health allowance for the benefit of her minor daughter. By the second Writ Petition, i.e. W.P.(C) No. 7174 of 2009, the applicant prayed for quashing of the Court of Inquiry, Ext. P11. In addition, she claims an amount of Rs.9 Lakhs as compensation due to the death of her husband in mysterious circumstances at the place of posting.
2. After the establishment of this Bench of the Armed Forces Tribunal, the Hon'ble High Court transferred the Writ Petitions to this Bench, which are registered here respectively as T.A.Nos. 130 of 2010 and 171 of 2010. As the controversies raised in both the matters pertain to the same incident of the unnatural death of the applicant's husband, they were heard together and are being disposed of by this common order.
3. The relevant facts are that the applicant's husband late Havildar Dinesh K.P. No. 14607876 was enrolled in the Army on 27th November, 1987 and died in an unnatural manner on 18th July, 1993. According to the respondents, the deceased committed suicide by hanging while serving with 294 Armed Workshop Company of 633 EME Battalion due to personal family problems. The stand of the applicant is however different. According to the applicant, her husband had no family problems nor he had any strained relationship with her, so there was no question of his committing suicide.
4. It is also significant to state that all the legitimate terminal/death benefits have already been paid or released in favour of the applicant. Even ordinary Family pension was also sanctioned in her favour vide the PPO No.F/NA/204/94 dated 8th February, 1994. She, however, claimed special family pension, but it was denied on the ground that the death of her husband was neither attributable to nor aggravated by the Military service and in such matters, special family pension was not payable as per Regulation 213 of the Pension Regulations for the Army, 1961 (Part I).
5. The applicant has pleaded that she was married to the deceased in December, 1990 and a daughter was born out of the wedlock in August, 1992. During January/February, 1993 her husband had come on leave to the native place and returned to Hissar on 8th March, 1993 to resume the duty. The deceased told her, during the said visit, that he had problems with senior officers due to the reason that he was in charge of the store and certain senior officers had abused him as he had declined to fulfill their illegal demands for liquor in the midnight, as it was quite illegal to deliver liquor in the midnight. There had been a similar quarrel on several occasions with the senior officers. Her husband, however, informed her that he would not succumb to the pressure and harassment of the senior officers and continue to discharge his duties as per the Rules. It was also pleaded that after reaching Hissar the applicant's husband had written a letter to his father regarding the problems he had with the senior officers. His father however replied him that as he was to be transferred very soon from Hissar on completion of the tenure of three years at that station, so he would be able to take his family with him. The applicant received another letter of her husband on 17th July, 1993, whereby he informed that he would come to the native place for attending the first birthday anniversary of his daughter on 1st August, 1993.
6. The applicant further alleged that she was however informed on 19th July, 1993 that her husband met with an accident, so one of her relatives along with one more person decided to go to Hissar. Before moving for Hissar, they obtained her signature on three blank papers pretending that the same will be utilized as authorisation. On 20th July, 1993 a Minister of the Kerala State Ministry came to her house and offered condolences on behalf of the State Government of Kerala on the death of her husband. She came to know about the death of her husband, which was a shocking news, for the first time on receiving the said condolences. On 22nd July, 1993, she received condolence messages even from the senior officers of the deceased, and according to some of such messages, the deceased had committed suicide by hanging. Even one of her neighbours informed her that he had a telephonic talk with the Hissar office, which informed regarding the suicide committed by the deceased. She further pleaded that her relatives, who had proceeded to Hisssar, brought the dead body of the deceased on 24th July, 1993 at about 11 a.m. But surprisingly she was not shown the dead body. More so the dead body had foul smell and it was difficult to approach the same. After about one month of the arrival of the dead body, one Padmakumar, a resident of Kerala, who was junior in rank to the deceased and was serving at Hissar at the relevant time, came to her residence and handed her over a suitcase containing clothes and other belongings of her husband.
7. It is also pleaded by the applicant that a fresh postmortem examination on the dead body of the deceased was not possible in Kerala due to the reason that the dead body had decomposed. The aforesaid Padmakumar on being asked as to the circumstances of the death, informed that in the night at about 10 p.m. on 18th July, 1993, the deceased and others went to sleep. At about 12 p.m. a goat had come inside the hall, so all of them woke up. The deceased took the goat out of the hall and then all again went to sleep. Mr. Padmakumar next informed that in the morning at about 5 a.m. someone else went to the bathroom and found the deceased hanging by his 'kaily mundu' (Dhoti). In this connection the applicant stated that the deceased had no problem whatsoever either at home or elsewhere to commit suicide. More so her husband was in the habit of maintaining a diary as he was a Postgraduate in Economics, wherein he used to write important events. But the letters and the diary were not given to the applicant, who was told that the same will be given only after 21 years of the death. Even the diaries of 1991, 1992 and 1993 as well as the letters sent to the deceased were not given to the applicant.
8. The applicant next pleaded that the Court of Inquiry wrongly concluded that the deceased committed suicide due to family problems and financial constraints and his death was neither attributable to nor aggravated by the Military service. The diaries, letters and other relevant evidences were not taken into account by the Court of Inquiry, so the finding of the Court being contrary to the record was a sheer waste paper. If there was any doubt as to what prompted the deceased to commit suicide for want of adequate evidence, the applicant was entitled to the benefit of doubt due to the reason that the unnatural death of the deceased occurred at his duty station in the night in a mysterious circumstance. There was much possibility of the murder of the deceased at the behest of the officers, with whom the deceased had strained relations. She next stated that if for argument sake it is assumed that the deceased committed suicide, even then, he did so due to the circumstances prevailing at the service station created by the senior officers and in such eventuality the death of the deceased must be deemed to have occurred on account of service conditions, so the denial of special family pension and other benefits to her was unwarranted in law. The applicant lastly pleaded that the claim for special family pension, education and medical allowance for her daughter and also for compensation of Rs. 9 lakhs was liable to be allowed.
9. The respondents have, on the other hand, pleaded that the Court of Inquiry was held in a fair and impartial manner to find out the circumstances under which death of the deceased took place. The Court, after considering all the relevant materials, arrived at the conclusion that the deceased had strained relations with the applicant and their matrimonial life was sorrowful. The Court further opined that the deceased had become introvert, sentimental and quiet etc. after the birth of the daughter and was also suspecting the character of his wife before the date of his marriage, so the deceased committed suicide due to family problems. The respondents next pleaded that the postmortem examination report prepared after the postmortem examination on the dead body of the deceased clearly supports the theory of suicide, so the contention that the deceased was killed at the behest of seniors was not only baseless, but also bereft of merit. The contention that the applicant's husband had strained relations with few senior officers is false, frivolous and concocted story. The applicant has not disclosed the names and other details of the officers with whom her husband had strained relations.
10. It is further pleaded by the respondents that even according to the letters sent by the deceased to the applicant and other family members and also the letters sent to the deceased by the applicant and other family members no where indicated in any way that the deceased had any problems from his senior officers. So the suicide committed by the deceased was due to the family problems only and as such the death of the deceased was neither attributable to nor aggravated by the Military service. As such there was no question of sanctioning and paying the special family pension to the applicant. The respondents lastly pleaded that the other claims of the applicant with regard to education and medical allowance to her daughter and compensation have also no substance.
11. Mr. T.A. Rajagopalan, appearing for the applicant, submitted that the applicant was initially sanctioned ordinary family pension to the tune of Rs. 628/- per month, but it was reduced by 40% to Rs.377/- per month. To substantiate this submission, Mr.Rajagopalan referred to Ext.P2 on the record of T.A.No. 130 of 2010. According to Mr. Rajagopalan reduction of the ordinary family pension without providing any opportunity to the applicant to show cause was not warranted in law. He next contended that no doubt, under Regulation 207 of the Pension Regulations for the Army, 1961, family pension awards could be reduced at the discretion of the competent authority, if the death of the individual was wholly or partly due to his negligence or misconduct, but there was no material to show that death of the applicant's husband took place due to his negligence or misconduct.
12. Learned counsel for the applicant next contended that the opinion of the Court of Inquiry (Annexure R1(b)) in T.A.No.130 of 2010 was rendered on altogether irrelevant materials. The Court wrongly arrived at the conclusion that the deceased had become introvert, sentimental and quiet etc. after the birth of his daughter on 11th August, 1992 and was also suspecting the character of his wife (the applicant) from the date of the marriage. He further submitted that the Court of Inquiry was nothing except a manipulated and waste document to provide unfair advantage to the respondents. He proceeded further to argue that the letters dated 19th March 1993, 25th March 1993, 29th March 1993, 7th June 1993, 15th June 1993 and 3rd July 1993 filed by the applicant along with the reply affidavit purported to have been written by the deceased to the applicant and family members, clearly prove the fact that the relation between the applicant and the deceased was cordial, and as such the conclusion of the Court of Inquiry that their relations were strained was not correct, specially when the Court of Inquiry did not give any due consideration to the aforesaid letters of the applicant's husband.
13. The learned counsel for the applicant next contended that the finding of the Court of Inquiry that the applicant's husband had financial difficulties was also without any basis because even according to the records of the Court of Inquiry, the deceased had credit balance of Rs.8396/- in his account and this fact was proved by Witness No.6 N.P. Ramudu during the inquiry while answering Question No.2. The learned counsel for the applicant referred to the statement of Witness No.5, D.C. Yadav pertaining to question No.14, who stated that he himself was at a loss to understand why a person of his nature could resort to such a course of action. The learned counsel for the applicant therefore submitted that these material aspects were overlooked by the Court of Inquiry. The learned counsel for the applicant then referred to Ext.P7 letter dated 3rd July, 1993 filed in T.A.No. 1712 of 2010, wherein the applicant's husband had stated that there were difficulties in his job. In the letter Ext.P8 also it was stated that Mohan Nair got posting after making quarrel after taking drinks. By letter, Ext.P10, the deceased had stated that he was thinking of getting discharged. Even during the court of inquiry the witnesses had stated that the deceased was thinking of getting discharged. But these material aspects were also overlooked by the Court of Inquiry.
14. Learned counsel for the applicant next contended that the court of inquiry wrongly put the blame on the deceased on the basis of the letters written from 29th November, 1988 to 23rd November, 1992. The diary maintained by the deceased from 10th February, 1992 to 5th January 1993 only was produced before the Court of Inquiry, but the diary from November, 1992 to July, 1993 and the diary from 6th January, 1993 to July, 1993 were neither produced nor any explanation offered as to what happened to those diaries. The respondents had deliberately withheld the letters and diary of the deceased, which ultimately adversely affected the conclusion of the Court of Inquiry.
15. The learned counsel for the applicant further contended that the deceased was posted at the field station and his death took place while in field service, so there was much possibility of harassment to the applicant's husband, which resulted in instigating him to commit suicide. It was next contended by the counsel for the applicant that the Court of Inquiry failed to observe due requirements of Rules 179(3), 180 and 184(2) of the Army Rules. More so, the Court of Inquiry neither provided any opportunity of hearing to the applicant and her family members nor examined them during the inquiry.
16. The learned counsel for the respondents, on the other hand, submitted that the Court of Inquiry was quite fair, impartial and independent, which collected all possible evidences during the Inquiry and formed its opinion on the basis of the evidence so collected. There was no necessity to observe Army Rules 179(3), 180 and 184(2) as the deceased, who was subject to the Army Act, was no more available. The applicant was not entitled to be heard under the Rules. He next contended that the deceased committed suicide due to family problems, no doubt, at the duty station, but merely because the suicide was committed at the duty station, it could not be inferred that his death was attributable to the service.
17. We have considered the rival submissions and perused the record.
18. It is not in dispute that the deceased died in an unnatural manner in the intervening night of 18/19 July, 1993. He was found in the hanging condition in a bathroom at about 5 a.m. on 19th July, 1993. It is submitted that he committed suicide by hanging with his œkaily mundu? (dhoti). A copy of the postmortem examination report is on record. The Medical Officer, who conducted the postmortem examination, very categorically formed the opinion that the cause of death was ante mortem hanging, so the conclusion that the deceased committed suicide seems to be perfectly correct. In this view of the matter, we do not find any reason to interfere with the aforesaid opinion of the doctor. It is also quite relevant to observe that neither the applicant nor her family members made any attempt to have one more postmortem examination on the dead body of the deceased, any time after receiving the dead body from the Army. The applicant tried to set up the case that the dead body had decomposed, so no such attempt was made. In our view, the proper course for the applicant and her family members was to approach the Civil authorities for a fresh postmortem examination on the dead body of the deceased, if they had any doubt of foul play by the Army authorities regarding the cause of death of the deceased. If the applicant and her family members had moved so, the doctor would have got an opportunity to see whether or not a fresh postmortem examination on the dead body of the deceased was possible or the dead body had decomposed. But when no such attempt was made, so the applicant cannot be permitted to raise the aforesaid plea for the first time by way of Transferred Application.
19. In our view, not only according to the postmortem examination report, but also according to the pleadings of the parties, various annexures and submissions of the learned counsel for the parties, it appears to be a case of suicide by the deceased at the place of his posting. The story that the deceased was killed does not appear to be tenable in any way as there is no evidence at all to prove that someone else killed the deceased and put his dead body in the hanging condition. None of the witnesses, including the applicant, had given any evidence regarding the homicidal death of the deceased. So, keeping in view the facts and circumstances of the case and the medical evidence, we uphold the conclusion of the Court of Inquiry that the deceased committed suicide in the aforesaid manner.
20. The most important question that is involved in the matter is whether the deceased committed suicide due to family problems and financial constraints as concluded by the Court of Inquiry? In order to answer this question, we have to consider the materials collected during the course of inquiry, including the findings of the Court and the other materials available on record.
21. We have perused the original records of the Court of Inquiry. The Court assembled on 18th July, 1993 for the first time and also held sittings on subsequent days to find out the most possible cause of death and to pin point the responsibility on the suspected death or suicide of the deceased. During the inquiry, statements of 11 witnesses were recorded. Apart from the statements of the witnesses, 65 letters received by the deceased from his home and the diary maintained by him from 29th September 1988 to 17th September 1993 and again from 10th February 1992 to 5th January 1993 were also taken into consideration. Out of the 65 letters, the Court found nine letters dated 29th November 1988, 22nd March 1991, 2nd April 1991, 7th July 1991, 17th July 1991, 26th July 1991, 6th August 1991, 2nd November 1992 and 23d November 1992 (Annexures I to IX) written by the applicant and letter dated 3rd July 1992 (Annexure X) written by the deceased and letter dated 11th November 1991 written by Mr. N.N. Thlappil (Annexure XI) as relevant on the issue and accordingly considered them for forming the opinion. On the basis of the aforesaid letters and the personal diary of the deceased, the Court of Inquiry recorded the following conclusion in para 12 of its findings:
œ12. The contents of the letters and the personal diary reveals:-
(a) His strained relationship with his wife.
(b) Strained relationship between his wife and his parents.
(c) Arising of suspicion in his mind about the character of his wife.
(d) Both husband and wife wrote disturbing letter to each other.
(e) Pressure on him by his teachers/others from village that he should control his wife and ask her to adjust to new environment.
(f) During the annual leave of 1993 he was mentally disturbed and depressed after meeting his wife on 05 Jan 93.?
22. Besides the aforesaid findings, the Court of Inquiry recorded the final opinion as follows:
œ3. By nature, the individual was introvert, sentimental, remained quiet, engrossed in his own thoughts and did not discuss or reveal his problems with his colleagues and superiors. He did not have any close friends in the unit and did not take interest in the recreational activities organised by the unit, such as watching movies, reading of news papers and periodicals during off working hours. He remained aloof confined to his own bad lost in his own world.
4. Immediately after his marriage, he started having differences with his wife and not only that he was suspecting her character even before the marriage took place. His wife started having differences with his ailing parents who were solely dependent on him. The differences between his wife and parents were communicated to him separately by his wife, parents, a teacher and others from the village which was the main cause of his mental disturbance. The frequency of these letters was quite high. Being sentimental and emotional by nature he remained mentally disturbed throughout. As he did not discuss or disclose his problems and feelings to others, the same kept on accumulating. The situation was further aggravated by his financial liability to support a large family including the hostel and B.Ed course expenditure of his wife. The regular stress and strain of his domestic problems and disturbing letters made him unhappy, morose, dissatisfied and lowered his morale. He was further depressed and mentally dispersed after his meeting with his wife on 05 Jan 93 during his annual leave. As he did not discuss his problems with any one he had no outlet for his pent up feelings. He gradually went into depression which increased unabated and probably reached at its climax resulting in his opting for suicide.
5. The court is of the opinion that he committed suicide to get rid of his personal problems. There was no foul play suspected in the court. There is no one to be blamed.?
23. The learned counsel for the applicant tried to argue that copy of the Court of Inquiry filed as Annexure R2 in T.A.No. 130 of 2010 was apparently a manipulated document as paragraphs 3 and 4 of Annexure R2 are different from the contents of paragraphs 3 and 4 of the original Inquiry report produced by the respondents. According to para 3 of the original Inquiry report, the deceased was introvert, sentimental and quiet by his own nature. But in the copy of Annexure R2, the words œby nature? are missing and in their place the word œthereafter? has been transcribed. What is the import of the modified form of Court of Inquiry opinion (Annexure R2) is that after the birth of the daughter the individual had become introvert, sentimental and quite. But according to para 3 of the original report, he was so by own nature. The learned counsel for the applicant next contended that not only in paragraph 3 but also in paragraph 4 of the Inquiry report material modification was done before filing Annexure R2 in court, because according to paragraph 4 of the original report, the deceased was suspecting the character of his wife even before the marriage took place. But according to paragraph 4 of Annexure R2, he was suspecting his wife from the date the marriage took place. The learned counsel for the applicant submitted that the aforesaid modification made in Annexure R2 was nothing except to mislead the court and to obtain a favourable order.
24. We have considered the aforesaid submissions of the learned counsel for the applicant and found that the contradictions pointed out by the learned counsel for the applicant appear to be correct. So, instead of rejecting the opinion of the Court of Inquiry out rightly on the basis of the aforesaid contradictions, we consider it just and expedient to place reliance on the original of the Court of Inquiry report available on the original records instead of the copy thereof available as Annexure R2 to T.A. No.130 of 2010.
25. We have also perused the statements of the aforesaid eleven witnesses and the extract of the diary and the letters brought on record during the court of inquiry and on such perusal we find that the conclusion drawn by the Court of Inquiry was perfectly correct. But we do not consider it proper to refer to the contents of each letters and other documents, as we find that the letters and other documents were correctly read and understood by the Court of Inquiry. In our view, no other conclusion than the conclusion drawn by the Court of Inquiry was possible in the matter.
26. The contention on behalf of the applicant was that certain letters, which were relevant, had not been considered by the Court of Inquiry nor it attempted to procure those letters. The applicant has filed some of such letters as Exts.P4 to P13 annexed with the reply affidavit dated 9th December, 2008. In our view, the aforesaid letters, Exts.P4 to P13, in no way disclose the fact that the deceased had any problem whatsoever at the place of his posting either due to the senior officers or colleagues. The said letters do not indicate at all that the deceased had been subjected to any harassment at the place of his posting. In our view, the letters, Exts.P4 to P13 are of no help to the applicant.
27. Learned counsel for the applicant tried to submit that the crucial letters received by the deceased from November 1992 to July 1993 and the diary maintained by him from 6th January 1993 to July 1993 were not taken into consideration by the Court of Inquiry nor they were brought on record. The Court of Inquiry did not proceed to collect the said letters and the diary. In this connection the learned counsel for the respondents submitted that no such letters and diary were found in the belongings of the deceased. Whatever letters and diary were found, they were all taken into consideration by the Court of Inquiry. In our view, there is no material evidence on record to support the plea that the letters received by the deceased from November 1992 to July 1993 had been preserved by him. There is also no evidence to show that he had written any diary from 6th January 1993 to July 1993. So the contention of the applicant in this regard cannot be accepted.
28. It is true that neither the applicant nor her family members were afforded any opportunity of hearing during the Court of Inquiry nor they were examined. But this omission on the part of the Court of Inquiry does not appear to be relevant due to the simple reason that the proceedings of the Court of Inquiry was an internal matter of the Army, so providing an opportunity to an outsider was not in any way required in law. The applicant, who is not subject to the Army Act, was not entitled to be heard under Army Rules 179, 180 and 184. If for argument sake it is assumed that the applicant was entitled to be heard by the Court of Inquiry, even then it has no material significance as in these two matters the applicant was provided adequate opportunity of hearing, including the opportunity to adduce evidence and we have given due consideration to the evidences adduced by the applicant. In this view of the matter, it would not be proper to remit the matter for a denovo Court of Inquiry after about more than 20 years of the occurrence. Apart from this, the conclusion drawn by the Court is not going to be changed due to the simple reason that the additional materials, Exts.P4 to P13, filed by the applicant in these two matters also lead to the same conclusion as drawn by the Court of Inquiry. In our view, even on the basis of the entire materials collected during the course of inquiry, including the materials filed by the applicant in these two matters, lead to only one conclusion that the deceased committed suicide due to family problems as concluded by the Court of Inquiry.
29. In view of the fact that the deceased committed suicide due to the disturbing family problems, the respondents were perfectly right in holding that the death of the deceased was not attributable to the service. Merely because the deceased committed suicide at the work place, which was far from his native place, it cannot be inferred that the death was attributable to the service.
30. In our view, the respondents were fully justified in declining to sanction and pay the special family pension to the applicant. The special family pension was payable only when the death of the deceased was attributable to Military service. So far as the contention with regard to reduction of family pension from Rs.628/- per month to Rs. 377/- per month is concerned, it has no substance. It appears that due to clerical mistake the figure Rs.628/- was written in the PPO at the time of its preparation and when the mistake was noticed, it was corrected by substitution of figure Rs.377/- In our view, this type of error could be corrected without any objection. It is also significant to state that the ordinary family pension to the applicant was sanctioned with effect from 19th July 1993, being the next date of the death of her husband. The learned counsel for the applicant could not demonstrate as to how ordinary family pension to the applicant was payable at the rate of Rs.628/- per month with effect from 19th July 1993 as per the rate admissible at that point of time. What was required by the applicant is to establish that she was entitled to the ordinary family pension at the rate of Rs.628/- per month with effect from 19th July 1993. But she has miserably failed to prove this fact. In our view, the claim of ordinary family pension at the rate of Rs.628/- per month with effect from 19th July 1993 has no substance.
31. As the death of the applicant's husband was not attributable to service, the claims for education and health allowance to the minor daughter of the deceased and compensation of Rs. 9 Lakhs have also no substance.
32. For the reasons stated above, both the Transferred Applications are dismissed.
33. There will be no order as to cost.
34. Inform to the parties.
35. Let a copy of this order be placed on the record of T.A.No.171 of 2010.