Entitlement in case of death due to Operational Flying Accident (Air Force)


The Hon'ble AFT Jaipur held that if a pilot (Indian Air Force) is died due to operational flying accident then the Pilot will be entitled for 100 % family pension.


IN THE ARMED FORCES  TRIBUNAL,REGIONAL BENCH,

JAIPUR [RAJ.]

: ORDER :

SMT. MADHURI SINGH VERSUS UNION OF INDIA & Ors 

ORIGILNAL APPLICATION NO.787 OF 2012

Under Section 14 of the Armed Forces Tribunal Act, 2007.

:::

DATE OF ORDER ::: MAY 08, 2014.

:PRESENT:

HON’BLE DR. JUSTICE (MRS.) MEENA V.GOMBER,

MEMBER (J)

 HON’BLE LT GEN V.K. AHLUWALIA, MEMBER (A)

Mr. O.P. Sheoran, Counsel for the applicant..

Mr. Aslam Khan, Counsel for the respondents.

Wing Cmdr. A Dayal, OIC Legal for the respondents.

BY THE TRIBUNAL:

1. The applicants Smt. Madhuri Singh and Shri Dharam Veer Singh, the parents of No.26537R F(P) late Flying Officer Abhimanyu Singh Chauhan have filed this application under section 14 of the Armed Forces Tribunal Act 2007 for grant of liberalized family pension, remaining amount of Rs.5,00,000/0 towards ex-gratia and Gratuity with effect from the date of death of their son i.e. from 14th November 2002 with interest at the rate of 18% p.a.

2. The brief facts giving rise to this application are: that applicants’ son late Flying Officer Abhimanyu Singh Chauhan joined National Defence Academy in July 1997 and after completion of three years training, he was sent to Air Force Academy for training on flying aircrafts. After successful completion of training, he was commissioned as Fighter Pilot on 16th June 2001. Initially, he was posted to Hyderabad and later on, he was posted to Tejpur and then to Bagdogra

Air Field in No.8 Squadron of the Indian Air Force and was detailed for carrying out fighter aircraft flying missions as per operational plan involving flying of Military Fighter Air Craft (MIG-21) in rehearsing of war plan in one of the valley flying mission at ultra low level on the International Indo China Border area. On 14th November 2002, while he was flying the Fighter Air Craft which he was maneuvering for the exercise in the hilly area at the ultra low level on Indo-China Border, a sudden mishap occurred and the aircraft crashed leading to the sad and sudden demise of Flying Officer Abhimanyu Singh Chauhan. After his death, the applicant  Dharam Veer Singh being his father (Next of Kin) was granted ex-gratia lumpsum award of Rs.5,00,000/- vide letter No.DCA/Pen/AF/O/4990 dated 4th March 2003. On the basis of casualty details/ information received from Air HQ, dependent pension @ Rs.2565/- + Dearness Relief was sanctioned to the NOK of the Officer Shri Dharamveer Singh (Father) vide PPO No. 08/14/A/F/OFP/017 dated 12th March 2003 on the basis of GOI MoD letter No.1(2)/97/D(Pen-C) dated 31st January 2011 (Para 5.6) under the head of Special Family Pension for the dependent parents @ 50% of Special Family Pension for Rs.3565/- p.m. with effect after the date of casualty. Additionally, death gratuity amounting to Rs.77976/- was also paid to NOK vide Corr/PPO No.08/14/ A/Family/OFP/043 of 2003. However, despite representing the matter number of times, the applicants were not granted

liberalized family pension. Hence this application.

3. On behalf of the respondents, a detailed reply to the application has been filed and it has been submitted that on 14.11.2012 Wing Commander N Dogra and Flying Officer Abhimanyu Singh Chauhan of 8 Squadron were authorized to fly a Tail Chase Dual Sortie as call sign Flogger-2 in Mig-21 (T-69) Trainer Aircraft No.U-1727. Sqn Ldr N. Kumar call sign Flogger-1 was the leader in a Mig-21 (T-77) aircraft. The pilots had attended the Meteorological Briefing at 0600 hrs. The weather reported was visibility 3000 mtrs in Haze, clouds 2 altocumulus at 10000 feet, 1 Cirrus 25000 feet and Cautionary Met Report for visibility 3-4 Kms from 0700 to 0730 hrs. At the time of take off, i.e. at 0655h, the reported weather stated visibility 2500 mtrs with weather warning for

visibility 2-3 Kms. from 0700-0730h and there was no reporting or forecasting of any low clouds. Flogger-1 got airborne for a pick-up orbit and reported a thin layer of clouds at 300-400 Mtrs. Indicated altitude and above that it was all clear with visibility in excess of 4000 Mtrs. At 0657h,

Flogger-2 got airborne. After an uneventful exercise at 0713h, the formation reported for rejoin on dead side for runway 36 at 2 Km altitude. As per briefing, Flogger-1 turned for GCA and Flogger-2 reported low clouds with base at 250 Mtrs indicated i.e. 125 Mtrs above ground level. He

descended further on the base leg and with wings level flew into a tea garden. On impact, both pilots sustained fatal injuries and the aircraft disintegrated. The deceased Officer died on 14th November 2002 at approx 0730 hrs in a flying accident near Bagdogra airfield. Accordingly, the 

respondents granted Dependent Pension to the NOK & Ex Gratia Award as stated above. It was submitted that Special Family Pension is not applicable in the instant case as the deceased Officer was unmarried. Liberalised Family Pension is admitted to NOK of married Officer @ 100% of last

reckonable emoluments. However, in the case of unmarried Officer, Dependent Pension (Liberalised) is admissible, if eligible, as per existing Rules. It was further submitted that as per Para 6 and Para 4.1 of MoD letter No. 1(2)/97/D(PenC) dated 31st January 2001, the applicants are not entitled to Dependent Pension (Liberalised Family Pension).

4. The respondents also brought out that the case is abnormally delayed as no action was taken by the applicants between 2003 and 2012. This application has been filed on 27th May 2012.

5. We have heard Mr. O.P. Sheoran, the learned counsel appearing for the applicant and Mr. Aslam Khan, the learned counsel for the respondents and have carefully gone through the record of the case.

6. Mr. O.P. Sheoran, the learned counsel appearing for the applicant argued that death of the Officer occurred when he was at valley flying and missions involving operating at ultra low levels by fighter Aircraft on Indo-China border’s operational area. He was rehearsing operational plans in one of the Valley flying missions. Therefore, the applicants are entitled to Dependent (liberalized family pension) as per GOI Letter No.1(11)/2006-(Oen-C) PC dated 8th September 2009 and 5th March 2010 and GOI letter No.2(1)/2011/D(Pen/Policy) dated 3rd February 2011 whereby the categories mentioned in para 4.1 of GOI letter No.1(2)_/97/D(Pen-C) dated 31st January 2001 has been modified and vide para 3 thereof, in the circumstances enumerated under category E (f) (ii), the following has been included:

(a) Flying Operation involved in rehearsing of war plans and implementations of OP instructions

inclusive of international exercises.

(b) All combat and Tactical Sorties in preparation of War.

(c) Valley flying and missions involving operating at

Ultra low levels.

(d) All operational missions undertaking during peace like Special operations, Live ORP, Recce, 

Elint, Survey and induction trials of new weapons.

(e) Missions undertaken in support of troops and security forces deployed in forward areas.

(f) Flying missions involving landings on the ALGs. 

7. Mr. O.P. Sheoran, the learned counsel appearing for the applicant drew our attention to Para 1 of the reply to the legal notice (Annexure A/6) dated 6th June 2012 submitted by the Air Headquarters, which reads as under:

    “It is intimated that Flying Officer Abhimanyu Chauhan was flying a patrolling sortie on Indo-China border area. As per Court of Inquiry proceedings, the pilot was flying a tail chase dual check along with Wg Cdr N Dogra in a Mig 21 trainer ac. The same was being flown as a training mission towards Mig Operational Flying Training Syllabus.” It is well known that patrolling along Indo-China border is an operational sortie. Therefore, next of kin of Flying Officer Abhimanyu Chauhan who died during an operation sortie, close to Indo-China border should be granted Liberalised Family Pension. According to Mr. Sheoran, even from the point of view of ‘battle inoculation training exercise’, liberalized family pension should be granted to the applicants, as it is carried out to enhance operational preparedness.

8. On the other hand, Mr. Aslam Khan, the learned counsel for the respondents argued that as per Para 6 and Para 4.1 of MoD letter No. 1(2)/97/D(Pen-C) dated 31st January 2001, the applicants have been rightly denied Dependent Pension (Liberalised Family Pension). He has further argued that Govt. of India letter dated 3rd February 2011 cannot be applied retrospectively as the instant case peratains to 14th November 2002.

9. We have considered the rival submissions made at the bar by the learned counsel appearing for the parties.

10. From perusal of the record, it is apparent that vide letter Annexure A/6 dated 6th June 2012, the Dte of PS Air HQ (VB) New Delhi, in reply to the legal notice served on behalf of the applicants informed the counsel for the applicant that Flying Officer Abhimanyu Chauhan was flying a patrolling Sortie on Indo-China border area and as per court of inquiry proceedings, the pilot was flying a tail chase dual check along with Wg Cdr N Dogra in a Mig 21 trainer ac. The sortie was being flown as a training mission towards Mig Operational Flying Training Syllabus. 

11. A perusal of the correspondence made between the parties suggests that two views have been expressed regarding the said sortie on 14th November 2002: First: That flying Officer Abhimanyu Chauhan was flying a patrolling sortie on Indo-China border area. Second: That the pilot was flying a tail chase dual check along with Wg Cdr N Dogra in a Mig 21 trainer ac. It was one of the Valley flying mission at ultra low levels. As far as patrolling sorties on the Indo-China border is concerned, it is undisputed that it was an operational sortie. Any fatal casualty in such a sortie should result in grant of lilberalised family pension to the next of kin of the deceased Officer. In the second case, the operational training- close to the Indo-China border- should not be compared to routine flying syllabus training at training establishments like at Bangalore, Hyderabad etc. Operational training that is conducted close to the borders towards rehearsing war plans or for further enhancing the operational preparedness should be considered under category ‘E’ and not under category ‘C’ as given in Govt. of India, Ministry of Defence letter dated 31st January 2001, further amended vide PCDA Circular  No.458 dated 6th April 2011. The respondents have compared the said sortie to category ‘C’ which states “Accidents during participation in organized sports events/ adventure activities/expeditions/training”. A patrolling sortie or an operational training, sortie towards preparedness for war plans cannot be compared to an adventure activity or organized games. There is great different in flying a fighter aircraft on an operational sortie near Indo-China Border and organized games and adventure activities. Therefore, it must be appropriate to include the said partrolling/operational training close to the Indo-China border, sortie as part of category ‘E’ as per Govt. of India’s letter on the subject. In

this view of the matter, the applicants are entitled to liberalized family pension as per Govt. of India letter No. 1(11)/2006-(Oen-C) PC dated 8th September 2009 and 5th March 2010 and GOI letter No.2(1)/2011/D(Pen/Policy) dated 3rd February 2011. They are also entitled to gratuity,

ex-gratia and other facilities as admissible to an individual who is eligible to liberalized family pension. In this view of the matter, this application deserves to be allowed. Accordingly, this application is allowed and the respondents are directed to grant Dependent Pension (Liberalized Family Pension) to the applicants with effect from the date of death of their son No.26537R F(P) late Flying Officer Abhimanyu Singh Chauhan i.e. from 14th November 2002. They are further directed to grant gratuity, ex-gratia and other facilities admissible to an individual who is eligible to liberalized family pension with effect from the date of death of their son No.26537R F(P) late Flying Officer Abhimanyu Singh Chauhan i.e. from 14th November 2002. The arrears of Dependent pension (Liberalized Family Pension), gratuity and ex-gratia be paid to the applicants within three months from the date of this order with interest at the rate of 8% per annum. In the facts and circumstances of the case, the parties are left to bear their own costs.

[Lt Gen V.K. Ahluwalia]                                            [Justice Meena V. Gomber]

 Member (A)                                                          Member (J)