Family pension
Rajesh Tandon
(Querist) 20 January 2013
This query is : Resolved
1. I am presently looking after the ex-servicemen helpline. I received a case of a soldier's widow wherein she lost her husband and in the discharge book it has been mentioned that the death not attributable to military service and the cause of the death has been mentioned as heart attack. However she claims that the discharge book was asked back by the record office and when she had sent the discharge book to the record office, she had kept a photo copy of the discharge book wherein it has been shown that death attributable to military service and the cause of the death has been mentioned as heart attack.She claims that the record office has quietly changed the category from attributable to non-attributable. I personally examined the documents and I did find the difference between the two i.e fresh discharge book and the photocopied one. It does make a difference in the sense that if it is non-attributable she gets an ordinary family pension i.e 30% of the lost emoluments drawn and if it is attributable to military service then she gets the special family pension i.e 60% of the lost emoluments drawn.
2. There is another angle to the documents which he had shown to me. Through Army Central welfare fund (ACW F), she gets Rs one lakh amount in case of non-attributable to military service whereas in case of attributable to military service she gets only Rs 30,000/-. Maybe this has been done by the government as a sort of compensation to the widow whose husband has died on account of reasons of non-attributable to military service since in the longer run a widow who gets special family pension draws more than a widow with ordinary family pension. In the said documents the concerned officers signing the document has asked for two kind of certificates as under:-
(a) A Certificate from Next of Kin (NOK) that she has not got any other financial assistance from central government on account of death of her husband while claiming Rs. 1 lakh out of ACWF. The asking of this certificate is understood.
(b) A certificate that Next of Kin (NOK) that she will not petition to the government to reconsider the cause of death of her husband. Asking of such a certificate is somehow not understood. How come somebody can force a person in a democratic country to give this kind of certificate even when we have got criminals already convicted appealing to a higher court for reconsideration of the sentence/award given by a lower courts, to the extent that a convict has a right for a mercy petition to President for consideration even when Supreme Court has declared death penalty for a convict.
3. Further asking of a certificate as mentioned in para 2(b) above is rather alarming on account of para 69(c) of Pension Regulation 2008 Part II which mentions that in case the death is not held as attributable to military service, the next of kin of the deceased service personnel will be informed by the competent authority about non-entitlement as per Annexure VI To Appendix VI of the regulations giving reasons and quoting the rule position with advised to prefer appeal to the Appellate Committee on first appeal within six months of the receipt of the communication to that effect if he is aggrieved by the decision. In fact like a simple soul, this widow gave her consent on a separate letter giving reference of the record office letter saying that she will not represent to the government to reconsider the cause of the death of her husband.
4. Though para 82 of the Pension Regulation 2008 Part I, mentions the categorisation of the cases of the death for attributabl ity or non-attributablity wherein cases of death due to natural causes like chronic ailment of heart and renal diseases will entitle a widow for ordinary family pension. It could be just that a clerical mistake to mention the deaths as attributable to military service initially and then subsequently asking for the discharge book back and quietly amending the same ( on account of death due to natural causes) without informing the widow. For financial benefit, a possibility of relatives of widow misusing the document also cannot be ruled out. Today in the world of technology, hiding the remark of ‘not’ and photocopying it with the remark of attributable to military service is highly possible. But prima facie, it doesn't appear to be so on the photo state copy. Her claim appears to be genuine and more so when the certificate as mentioned in para2(b) above has been asked. Why should somebody ask such a certificate for non representation? Maybe they have just asked that so that if she represents and the category changes from Non-Attributable to attributable then she is not entitled to Rs. 70,000/-paid extra over the Rs. 30,000/-only applicable to cases of death attributable to military service and then whole process will have to be initiated to recover the amount of Rs 70,000/-
5.I got different reactions of the people with whom I discussed the case and I have got following different ambiguous questions for clarifications. These are as under:-
(a) can asking of such a certificate mentioned in para 2(b) above justified?
(b) Does asking of such a certificate mentioned in para 2(b) above be classified as an offence to force a person to render such a certificate?
(c) Does a person has the right of petition and appeal? If yes does it come under fundamental right of freedom of speech and expression and under human rights?
(d) Would asking of such a certificate fall under IPC 167-public servant framing and incorrect document with intent to cause an injury?
(e) The widow claims that the said certificate she has given since the requirement was spelt out in the letter issued from the record office. However if that be so can she represent now claiming that whatever certificate she has given, it has been under the misconception i.e IPC 90 whereby consent known to be given under fear or misconception?
Sudhir Kumar, Advocate
(Expert) 20 January 2013
Rendering such certificate doe snot amount to abdication of Fundamental right to constitutional remedies.
Even if such certificate is rendered and the individual comes to know better facts (by way of RTI) the equity demands decision taken on defection version be reviewed.
In case said certificate was not given by her the RO would have denied to process the pension. So consent was coerced from the widow.
In case the amended Discharge book is based on incorrect facts S/167 will apply but the accused will have to be identified and sanction to be sought from the
Rajesh Tandon
(Querist) 20 January 2013
THX A TON for your reply & clarifying the ambiguities. Regards.
R.K Nanda
(Expert) 20 January 2013
no more to add.
Raj Kumar Makkad
(Expert) 20 January 2013
I endorse the advice of Sudhir and dont want to repeat the same.
