1. This is an application under Article 226 of the Constitution by the widow and minor children of the late Dr. Jagadish Chandra Dutta of Sriram Chandra Bhanja Medical College Hospital, Cuttack, challenging the validity of order No. 6890-H dated 11-9-1957 (Annexure 6) issued by the Secretary to the Government of Orissa, Health Department to the Director of Health Services, Orissa, cancelling a previous order of the Government in the same Department, No. 335-H dated 11-1-1957 (Annexure 2) in which extraordinary pension was sanctioned to the widow and children of the late Dr. Dutta under Rule 10(ii) of the Orissa Civil Services (Extraordinary Pension) Rules (hereinafter referred to as the Rules).
2. The late Dr. Jagadish Chandra Dutta was working as Professor of Pathology in the Sriram Chandra Bhanja Medical College Hospital, Cuttack.He was a close friend of the then Chief Minister Sri Nabakrishna Choudhury and was also Sri Choudhury's family physician.
3. In April, 1953 Sri Choudhury's brother-in-law (wife's brother) Sri K. P. Sen, was also stationed at Cuttack as the Director of Posts and Telegraphs. On 10-4-1953, Sri Choudhury's wife Srimati MalatiChoudhury, (who is well known public worker of Orissa) suddenly fell ill while on tour and she was admitted as an indoor patient in the Government Hospital at Dhenkanal (38 miles away from Cuttack) with high temperature. On that day Sri Nabakrishna Choudhury was at Bhubaneswar, busy with the Session of the Orissa Legislative Assembly, The earliest information about the sudden illness of Srimati Malati Choudhury was conveyed to her brother, Sri K P. Sen at Cuttack in the afternoon of 10-4-1953.
He tried to contact Sri Choudhury and inform him about his wife's condition butt as the latter was busy with Assembly work he could not contact him at once, (Annexure H-3). But Sri Sen contacted Col. Popatla, Director of Health at Bhubaneswar and consulted him as to what was to be done. Col. Popatla suggested that he should take Dr. Jagadish Chandra Dutta, to Dhenkanal immediately for diagnosis and blood examination. Mr. Sen thereupon contacted Dr. Dut(a on the phone and asked him to accompany him to Dhenkanal and also informed him that he had consulted Col. Popatla and that the latter had advised him to take Dr. Dutta with him to Dhenkanal. Thereafter, Sri Sen and Dr. Dutta left Cuttack in Mr. Sen's car. In ithe meantime, Sri Nabakrishna Choudhury at Bhubaneswar had been informed by his Personal Assistant about the action taken by his brother-in-law in contacting the Director of Health and, on his suggestion, arranging to take Dr. Dutta to Dhenkanal, (Annexure H-2).
At that time, Sri Choudhury had no clear idea about the nature of the illness of his wife, but as it was reported that there was some pain in the abdomen and that she had contracted fever while touring in the Agency tracts he had a suspicion that it might be a case of appendicitis and immediate pathological test was necessary. Dr. Dutta was eminently suited for that purpose and hence he approved the action of Mr. Sen in taking the help of Dr. Duttta. At about 7 P. M. on that day Sri Choudhury left Bhubaneswar for Dhenkanal in a big car and overtook the small car of Sri Sen at Mahanadi anicut. But as ho was very anxious to reach Dhenkanal earlier, he took Dr. Dutta in his car and proceeded ahead leaving Sri Sen to follow in the small car.
The car went alt a fairly good speed (about 45 to 50 miles per hour) but after proceeding some distance, there was a turn of the road and when the driver took the turn, he suddenly noticed a barricade on the road about 20 to 30 yards ahead. He tried to stop the vehicle by applying the brakes, but the car swerved to the left, dashed against a tree, took a plunge downwards, and turned turtle. Sri Choudhury, his niece Miss Sen, and the driver escaped with minor injuries, but Dr. Dutta was unfortunately crushed by the weight of the car and was fatally injured. In the meantime Sri Sen reached the place in his smaller car and with great difficulty they all extricated Dr. Dutta from the other car. Soon afterwards Dr. Dutta succumbed !to the injuries. His corpse was taken to Dhenkanal and the usual inquest followed.
4. The driver of the car Bhagaban Sahu was subsequently prosecuted for an offence under Sections 279 and 304A I. P. C. but was acquitted on appeal by the Sessions Judge of Cuttack (Annexure 1). The learned Sessions Judge was of opinion that the speed was not excessive, that the accident took place because the P, W. D. had put up a small bamboo barricade, with a diversion road, for the purpose of repairing the main road, but there was no proper warning, sign or danger signal at sufficient distance from the barricade for the driver of a fast moving vehicle to slow down the vehicle in time. Hence the driver was not able to notice the barricade until it was too late. His desperate application of the brakes at the last moment and his attempt to turn the car to the left led to its dashing against a tree and its turning turtle, and the unfortunate doctor was pinned down under the vehicle and killed.
5. Dr. Jagadish Chandra Dutta was a promising doctor aged about 40 years at the time of the accident. He was cut off in Ithe prime of life, leaving a widow and four minor children. Soon afterwards the question of granting pension to his widow and children under the provisions of the Rules was taken up. The then Accountant General, Orissa, Mr. Sandilya, in his letter dated 21-6-1956, addressed to the Secretary to the Government of Orissa in the Health Department (Annexure E) gave his opinion that the widow of Dr. Dutta was entitled to extraordinary pension under Rule 10(ii) of the Rules as the doctor was killed in an accident arising as a result of 'risk of office'.
It also appears that the then Law Department of the State Government was consulted and then the Government in the Health Department by their letter No. 335-H dated 11-1-1957 (Annexure 2) sanctioned pension to the widow and children of Dr. Dutta. There was however some delay on the part of the Accountant General in issuing the payment order to the Treasury Officer, Cuttack, to disburse the pension sanctioned to the widow and children. The Deputy Accountant General in his letter dated 4-2-1957 (Annexure 4) requested the Health Department to send a copy of the sanction order through the Finance Department and also wanted some other papers including the specimen signature of the claimants duly attested.
6. In the meantime Sri Nabakrishna Choudhury resigned from the Ministry and after lihe General Election of January to March 1957, a new ministry with Dr. H. K. Mahatab as Chief Minister took office from April 1957. The case was re-examined and in the impugned order dated 11-9-1957 (Annexure 6), Government informed the widow through the Director of Health Services that on re-examination of the Rules, Government were advised that the rules were not applicable to this case inasmuch as the circumstances leading to the death of Dr. Dutta did not justify the conclusion that he met with his death due to injuries received as a result of risk of office. As such the widow and children of late Dr. J. C. Dutta were not entitled to pension under the Orissa Civil Services (Extraordinary Pension) Rules. The previous order sanctioning the pension was accordingly cancelled. It does not appear that the Accountant General, Orissa, was given an opportunity to revise his opinion.
The reasons for cancelling the previous order are given in annexure D in which both the facts and the legal questions involved have been discussed at home length. This paper has not been signed by anybody. But the Advocate General filed this paper along with the counter-affidavit of the Deputy Secretary, Health Department, and in paragraph 10 of that affidavit he relied on the facts stated in annexure D. Apart from facts, annexure D deals with questions of law also, and as the Advocate General practically adopted the arguments given in this document in justification of the cancellation of the previous order, I have thought it advisable to discuss some of those arguments in this judgment. To a specific query from the Court the Advocate General stated that mis annexure is a copy of a note prepared by the Law Department of the Government of Orissa for his use at the time of the filing of the affidavit by the Deputy Secretary to the Government of Orissa, in the Health Department on 2-1-1959. On a previous occasion, the Law Department seems to have taken a different view as will be clear from the following passage at page 4 of annexure D:
'This point escaped the attention of the then Law Department who opined that no specific declaration was necessary'.
7. It is somewhat surprising that when the previous Government, after obtaining the opinion of the then Law Department and the Accountant General sanctioned pensions for the said widow and her minor children and communicated the order of sanction to the parties concerned, the succeeding Government should have re-examined the question without first ascertaining whether the Accountant General wanted to revise his opinion. The petitioner stated that after the death of her husband she was working as Lady Organiser in the Small Savings Scheme of the Government of India on a salary of Rs. 105/-per month and that, on receipt of the Government order sanctioning extraordinary pension she resigned the job in the hope that with the pension granted by Government she will be able to live comtortably with her children. The subsequent cancellation of the pension has thus brought her great financial distress.
8. It is now necessary to refer briefly to some of the provisions of the Rules. These were made under Sub-section (2) of Section 241 of the Government of India Act 1935 and have been continued in force by virtue of Article 313 of the Constitution. These rules have been made with a view to provide extraordinary pensions to Government servants or (if they are killed) to the membres of their families, if the injuries or deaith occurred due to accidents as a result of 'risk of office' or 'special risk of office'. Sub-rule (1) of Rule 3 defines the expression 'accident' and Sub-rules (6) and (7) define the expression 'risk of office' and 'special risk of office.' Rule 4 is as follows:
'No award shall be made under these rules except with the sanction of the Provincial Government. In making an award the Provincial Government may take into consideration the degree of default or contributory negligence on the part of the Government servant who sustains an injury or dies as a result of an injury or is killed.'
It is thus clear that the sanctioning authority, for this pension, is the State Government irrespective of the class of service to which the Government servant may belong. The pension sanctioned in these Rules is always described as an 'award'. The rest of the Rules deal with the question of pension to be calculated according to She nature of the accident and the disablement caused thereby. Sub-rule (ii) of Rule 10 which is the rule material for our purpose is as follows:
'10. Awards shall be mode to the widow and children of a Government servant as follows:
(ii) If the Government servant is killed or dips of injuries received as a result of risk of office, a pension the amount of which shall not exceed the applicable amount specified in Schedule III.'
The use of the word 'shall' in this rule shows that the nension can be claimed as of right, if the other conditions are fulfilled. The only provision for review of an order sanctioning pension under these Rules is Sub-rule (2) of Rule 11, which says:
'Any award made under Sub-rule (1) of this Rule, will, in the event of an improvement in the pecuniary circumstances of the petitioner be subject to review in such manner as the Provincial Government have prescribed or may by order prescribe.' This sub-rule will apply only when the Government servant leaves neither a widow nor a child and the. award is made to his parents or to his minor brothers, and sisters dependent on him. Rule 10 deals with. the sanction of award to the widow and children of deceased Government servants but there is no provision in that Rule for a review of such an award on a subsequent occasion, though by virtue of Sub-rule (2) of Rule 12, the pension of a widow will cease on. her re-marriage and the pension for a minor son will cease on his attaining majority and the pension lor the daughter will also cease on her attaining, majority or on her marriage.
Sub-rule (1) of Rule 13 further says that in respect of matters of procedure all awards under the Rules are subject to any procedure rules relating to ordinary pensions for the time being in force, to the extent to which such procedure rules are applicable or are not inconsistent with those rules. Sub-rule (4) of Rule 13 describes in detail the procedure to be followed when a claim for pension under these rules is received by the Head of the Department. Clause (iv) of that sub-rule requires that when such a claim is made, the Head cf the Department should obtain a report from the Audit Officer concerned as to 'whether the award is admissible under the Rules. and if so of what amount,'
9. From the foregoing discussion it will be clear that it is one of the statutory conditions of service of a Government servant that if he dies of art accident as a result of 'risk of office' his family will be entitled to pension under the Rules. The use of the word 'claim' in Sub-rule (4) of Rule 13 is significant. According to the Oxford dictionary, the expression 'claim' means 'a demand for something as due; an assertion of a right to something.' Again the expression 'award' occurs in several provisions of the said Rule. This expression also according to the Oxford dictionary, means 'a decision after examination, a judicial sentence, especially that of an. arbitrator or umpire'. These two expressions, when properly construed can only mean that this pension can be claimed as of right and that the authority competent to sanction the pension (State Government) should arrive at some sort of quasi-judicial determination after ascertaining the facts.
Doubtless, Rule 4 says that the sanctioning authority is only the State Government. But by virtue of Clause (iv) of Sub-rule (4) of Rule 13 the report of the Audit officer, as to whether the award is admissible under the Rules, is required to be put up before the State Government and generally on these matters, the Audit Officer's opinion would be decisive. The main questions for determination in sanctioning awards under these rules are (i) whether the Government servant concerned died as a result of accident and (ii) whether the accident was brought about by 'risk of office' or 'special risk of office' (Clauses 6 and 7 of Rule 3). Once these questions are determined the fixation of the quantum of pension is a matter of mere arithmetical calculation.
10. The learned Advocate General contended that pension under the Rules, is in the nature of an 'ex-gratia payment' on compassionate grounds and the widow and children of the deceased Government servant cannot claim any right to such pension even if his death was brought about by 'risk of office'. I am unable to accept this contention. The use of the words 'award' and 'claim' in the said Rules will not permit of such an interpretation being given. Moreover, the language used in the Political Sufferers.' Pensions Rules (printed at pages 159-160 of Orissa Service Code Vol. II) -- Vide Resolution No. 4783 F. 138/48-F- dated the 1st June, 1948, confirms this view. There, instead of the word 'claim' the relevant words used are 'application for grant of pension.' Again instead of the word 'award' those rules refer to 'grant of pension'. Both the sets of rules were made by the same Government and the deliberate use of expression like 'award' and 'claim' in the extraordinary Pension Rules must, in thecircumstances, lead to the condition that pension to widows and children of Government servants can be claimed as a matter of right and does not depend on the charity of the Government, whereas pensions to political sufferers cannot be claimed asof right.
11. Ordinary pensions can always be claimed as of right. The Government of India have the following ruling :
'Pensions are not in the nature of rewards but theirs is a binding obligation on Government which can be claimed as of right. Their forfeiture is only on resignation, removal or dismissal from service. Before a pension is sanctioned the Sanctioning authority can reduce the amount due, under Article 470 of the Civil Service Regulations and after it is sanctioned its continuance depends on future good conduct--vide Article 351 C. Section R., but it cannot be stopped or reduced for other reasons.'
See G.I.M.F. u/o No. D 2776/E. V/52 dated 8th May, 1952--printed at page 160 of Choudhuri's Civil Service Regulations (2nd Edition)).
Sub-rule (1) of Rule 3 expressly says that on procedural matters the rules relating to ordinary pensions would apply to the grant of extraordinary pension also. Those Extraordinary pensions are also governed by statutory rules which are binding upon Government. These considerations coupled with the use of the words 'claim' and 'award' must lead to the necessary inference that the two clauses of pensions are practically on the same footing so far as the right of a Government servant or members of his family is concerned though the circumstances under which such extraordinary pensions are grantedare different from those under which ordinary pensions are granted. Moreover Note 2 to Rule 728 of the Civil Service Regulations compiled by Mr. Choudhury (2nd Edition, page 383) says :
'Note 2, All cases of ex-gratia awards of extraordinary pension shall be referred to the Federal Public Service Commission. If the Commission consider that a claim is covered by rules and recommend an award, it will be open to Government to examine the position before accepting the recommendation. If Government are satisfied that the case is covered by rules, they will accept the Commission's recommendations as to the amount of the award. In cases where the Commission are satisfied that no award is admissible under the rules, but would recommend such an ex-gratia payment, they will not make any recommendation about the amount of payment. Government will, in that case, retaindiscretion after giving all due weight to the Commission's recommendation whether or not to make an ex-gratia payment and to determine the amount of such payment.
This shows that even in cases where the facts may not justify the grant of Extraordinary pension under the Rules, Government may make ex-gratia payments. In other words, if the rules apply to the facts of a particular case, extraordinary pension may be claimed as of right, but even if the facts do not justify the applicability of these Rules, Government may oncompassionate grounds grant ex-gratia pensions. If payments of all extraordinary pensions are to be regarded as 'ex-gratia grant', the necessity for making a distinction between the aforesaid two classes would not have arisen. I must therefore reject the learned Advocate General's contention and hold that the extraordinary pensions under the Rules can be claimed by the widow and children of a deceased Government servant as of right if they could satisfy the Government that the Government servant concerned died as a result of accident brought about by 'risk of office'. Doubtless the State Government is the authority whose satisfaction is required by the rules but with a view to prevent any arbitrary or capricious order being passed by the State Government Clause (iv) of Sub-rule (4) of Rule 13 requires that the report of the Audit Officer as to whether the award is admissible under the Rules or not, must be placed before the Government prior to their taking any final decision.
12. On the 11th January 1957 the Secretary to the Government of Orissa in the Health Department communicated the sanction of pension to the widow and children of Dr. J. C. Dutta (see annexure 2) to the Director of Health. Before the order of sanction was passed the opinion of the Accountant General (Sri D. Sandilya) was also obtained. The Director of Health sent the order to the Principal, Sriram Chandra Bhanja Medical College, Cuttack by his memo no. 1197-M dated the 21st January 1957. The principal in his turn, sent a copy of that order to the petitioner in his memo no. 1198-M dated the 2lst January 1957. The decision of the Government communicated in the sanction order was expressed to be a final decision and not a mere tentative decision. The relevant words used are:--
'After careful consideration Government have been pleased to sanction the following extraordinary pension as a special case to the family of the late Dr. J. C. Dutta ....................'
The Secretary to Government is one of the persons authorised to issue orders on behalf of the Government under clause (2) of Article 166 of the Constitution. Hence, so far as third parties (like the petitioner) are concerned, the aforesaid order is a final order and fresh rights accrued to the widow and the children of Dr. J. C. Dutta by virtue of the same.
In my opinion, it is not open to the succeeding Government to reopen the matter unilaterally and cancel the previous order thereby adversely affecting the rights of the widow and her children. On receipt of the first order of the Government dated the llth January 1957 the petitioner was entitled to assume that the issue of the necessary authority slip from the Accountant General would follow as a matter of course; and on that assumption she resigned another job in which she was earning Rs. 105/- per month. Rules of natural justice and fair-play require that the succeeding Government should not have thus cancelled the previous order unilaterally.
13. I may refer in this connection to the decision of the Privy Council in R.T. Rangachari v. Secretary of State, AIR 1937 P. C. 27. There a Police Officer was permitted to retire from service and was granted pension in due course and had actually drawn the pension for some period. Subsequently, on a charge of misconduct said to have been committed by him while in service, he was dismissed from service retrospectively and the grant of pension was annulled. Their Lordships of the Privy Council held that such an order of annulment was clearly wrong and observed:--
'In these circumstances the case became a case in which, after Government officials duly competentand duly authorised in that behalf have arrived honestly at one decision their successors-in-office, after the decision had been acted upon and is in effective operation, purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision. It seems to require no demonstration that an order purporting to remove the appellant from service at a time when, as their Lordships held, he had for some months duly and properly ceased to be in the service, was a mere nullity and cannot be sustained. It follows that in their Lordships' view the appellant had and has, every right to complain of the stoppage of the pension as a breach of the rules relating to pension. Both Courts below so held and their Lordships are in entire agreement with their decision on this point.
14. These observations would apply with full force in the present case. Once the preceding Government after fully complying with the provisions of the Rules relating to grant of extraordinary pension sanctioned the pension and communicated the same to the petitioner in due course, it will be a breach of the rules, for the succeeding Government to re-examine the question and annul the order. There is no provision in the Rules for such a review of a previous sanction order. The Advocate-General attempted to distinguish the aforesaid Privy Council decision on the ground that, there, the order sanctioning pension was 'acted upon' and was 'in effective operation' inasmuch as the officer concerned actually drew the pension for some months.
Here, doubtless, the petitioner had not drawn the extraordinary pension even for one day. But I do not think that this circumstance makes any difference so far as the legal principle is concerned. The delay in the drawal of the pension was due to the Accountant General calling for some particulars from the Secretary to the department of Health. The delay was not due to any invalidity in the order of sanction itself. The letter of the Deputy Accountant-General, Orissa (Annexure 4) to the Health Secretary requesting him to send the sanction order through the Finance Department relates to only to a procedural detail. But so far as the validity and the binding nature of the sanction order are concerned, the letter of the Health Secretary is sufficient. The petitioner, in view of the order granting pension, resigned her job carrying a salary of Rs. 105/- per month which was the only sustenance for her and her children, after the death of her husband. Consequently she had altered her position in view of the orders sanctioning pension. Under these circumstances, Government bad no jurisdiction to annul the previous order of sanction.
15. The Advocate General then contended that, on the facts as stated above, the view taken by the previous Government and by the Accuntant General to the effect that the death of Dr. J. C. Dutta was the consequence of an accident due to 'risk of office' was wrong and that therefore, the sanction order was invalid. This point has been emphasised in the following passage occurring at the end of Annexure D.
'If the order is ultra vires in the eye of law there is no order. It is therefore the duty of the Government to revoke the order which is ultra vires.'
But I can see nothing invalid in the order sanctioning pension. The sanction order was issued by the State Government who alone are the authority competent to sanction the pension. The requirement about consultation with the audit officer (Accountant General) had also been followed. Merely because the succeeding Government, on its own interpretation of the words 'risk of office' occurring in the Rules, took a view contrary to that taken by the previous Government it cannot be said that the previous order was ultra vires or invalid. An authority who is conferred jurisdiction to decide on certain facts, has jurisdiction to decide rightly as well as wrongly. Even if the previous Government had given a wrong interpretation to the aforesaid expression 'risk of office' it cannot be said that the sanction based on such interpretation was without jurisdiction or ultra vires. Prima facie tbat interpretation cannot be said to be wrong because it was based on the opinion given by the Audit Officer (Accuntant- General) who is obviously the authority to give competent advice on such matters.
16. I may now refer to another decision; Gursewak Singh v. State, AIR 1954 Pepsu 129 where it was held that a review of a previous executive order will not be permissible. I may quote the following observations
'I need not point out that when a matter has been finally disposed of by the competent authority it cannot be reopened by his successor except under an express provision of law ..........
It is trite that no express provision exists regarding executive matters such as departmental enquiries but equity and justice demand that they should also be governed by the same principle. Otherewise, if enquiries that are finally disposed of by one authority are liable to be reopened by the successor of that authority this will not only result in injustice but in chaotic conditions and no one would be sure oi his rights.'
17. I would therefore hold that the impugned order annulling sanction of pension to the widow and children of Dr. J. C. Dutti is invalid as Government had no jurisdiction to unilaterally order the cancellation of a decision finally arrived at and communicated to the parties concerned. This is sufficient for the disposal of this petition. But as the learned Advocate-General strenuously argued on the expressions 'accident' and 'risk of office' and contended that in this case there was no 'accident' and 'risk or office' I will deal with the same on the admitted facts.
18. There can be no doubt that Dr. Dutta died as a result of an 'accident' as defined in the rules. It was a sudden and unavoidable mishap. The driver could not notice the warning signal as it was not properly placed so as to enable him to slow down the vehicle in time. The main controversy is whether death was due to 'risk of office'. Sub-rule (6) of Rule 3 of the Rules defines this expression as follows :
'(6)' Risk of office' means any risk not being a special risk, of accident or decease to which a Government servant is exposed in the course of, and as a consequence of, bis duties but nothing shall be deemed to be a risk of office which is a risk common to human existence in modern conditions in India, unless such risk is definitely enhanced in kind or degree by the nature, conditions, obligations or incidents of Government service.'
The words 'in course of and as a consequence of his duties' occurring in this clause are very similar to the words 'arising out of and in the course of employment' occurring in section 3(1) of the Workmen's Compensation Act; Mr. H. Mohapatra appearing for the petitioners cited several decisions under that Act and also under the corresponding sections of the English Act. But it is unnecessary to notice them in the judgment. In clause (6) of Rules 3 there are the following restrictive words:--
'But nothing shall be deemed to be a risk of office which is a risk common to human existence in modern conditions in India unless such risk is definitely enhanced in kind or degree by the nature conditions, obligations, or incidents of Government service.'
No such restrictive words are found in Section 3(1) of the Workmen's Compensation Act and consequently decisions under that Act will not be of much help.
19. On the admitted facts, the questions for determination arc (1) Did the accident take place on account of the risk to which (the late Dr. Dutta was exposed in the course of and as a consequence of his duties; and (ii) Is the risk common to human existence in modern conditions in India and if so was the risk definitely enhanced in kind or degree by the nature, conditions, obligations and incidents of his office
20. The answer to the first question depends on whether, Dr. Dutta was travelling, 'on duty' when he went in the car of Sri Choudhury from Cuttack to Dhenkanal. He was the professor of Pathology in Sriram Chandra Bhanj Medical College Hospital at Cuttack. His departmental superior, viz., the Director of Health had asked Sri Sen to utilise Dr. Dutta's services for consultation and for examination of the blood of the patient who was then at Dhenkanal, (see Annexure B). As a subordinate it was not the look out of Dr. Dutta to question the propriety or legality of the order of the Head of his Department. Even though that order was couched in the form of an 'advice' given to Sri Sen yet, when it was conveyed to Dr. Dutta by Sri Sen, he was bound to obey the same.
Hence, the reasonable view would be that Dr. Dutta was proceeding 'on duty' to Dhenkanal. The fact that he was well known to Sri Nabakrishna Choudhury, or that he was his family physician, and that he readily agreed to accompany Sri Choudhury to Dhenkanal, is irrelevant. It was urged however, that under the Orissa Services (Medical Attendance) Rules, issued in Book Circular No. 7 (printed at pages 75-81 of Orissa Service Code, Vol. II) which contain detailed provisions for free treatment of Government servants and their families (which include the wives of Ministers also), Col. Popatla had no jurisdiction to direct Dr. Dutta to proceed to Dhenkanal from Cuttack.
Rule 6(1) of the said Rules requires that 'the authorised medical attendant' should alone first determine whether the patient's condition is so serious as to require medical attendance by some person other than himself and in that case the prior approval of the Director of Health should be obtained by that authorised medical attendant to requisition the service's of either a specialist or of some other medical officer for the purpose of treating the patient. Srimati Malati Choudhury was in Dhenkanal Hospital from mid-day of that day with high fever. Her authorised 'Medical attendant' according to the aforesaid Rules was the Civil Surgeon of Dhenkanal but that officer was then on leave.
The Assistant surgeon in charge admittedly did not contact the Director of Health or seek his approval for requisitioning the services of Dr. Dutta from Cuttack. There may be some justification for saying that Rule 6 (1) of the Medical Attendance Rules has not been literally followed. But, in my opinion, this does not affect the position. Even under that sub-rule the final authority to approve the requisitioning of the services of a medical officer other than the 'authorised medical attendant' is the Director of Health services. Hence, in an emergency even though the Director did not get a requisition from the authorised medical attendant, if he, in his discretion on receipt of information from some other source about Srimati Malati Choudhury's serious condition, directed a specialist like Dr. Dutta to attend on her that would amount to substantial compliance with this sub-rule.
It is implicit in the Rule that the authority who is competent to approve of a course of action by his subordinate officer can, in any emergency, direct the doing of that action on his own responsibility with a view to get it regularised later on. It should be remembered that these rules are intended for the benefit of Government servants and their families and a beneficent construction should be given to them. Col. Popatla also made the position further clear in 1m letter to the Secretary to the Government of Orissa, Health Department dated 9th July 1957 (annexure B) by stating that he was informed of the serious condition of Srimati Malati Choudhury and that he was fully aware of the provisions of Rule 6 (1) of the Medical Attendance Rules. The special circumstances under which he did not literally comply with the said sub-rule are given by him as follows:
'Though strictly according to Rule 6(1) of Book Circular No. 7 the authorised medical attendant should have, in the first instance, taken my permission to consult a specialist, yet, due to lack of telephonic connection in the head-quarters hospital Dhenkamal I could not contact Dr. Satyabadi Rath. I therefore, considered, in view of the urgency and serious condition of Srimati Malati Choudhury, as reported by Sri K. P. Sen that no time should be lost in sending the specialist to Dhenkanal and decided to give the necessary ex post facto sanction letter.'
These passages in Col. Popatla's letter should, I think, be taken as decisive on the subject. In extraordinary circumstances, where the Director considers that the life of a patient may be seriously endangered by delay, he may direct another medical officer, or specialist to attend on the patient, and regularise everything later on. At any rate this was a mattter for Col. Popatla to consider and not for Dr. J. C. Dutta. The latter was bound to obey the directions given to him by the Head of the Department. I must, therefore, hold that Dr. Dutta was proceeding 'on duty' on the fatal day when he accompanied Sri Choudhury from Cuttack to Dhenkanal in the latter's car.
21. The next question is whether the death of Dr. Dutta was due to 'risk of office'. The learned Advocate General urged that journeys by car are so common to human existence' in modern conditions in India, that accident's during such journeys are also not uncommon and that Dr. Dutta took a risk to which everyone is exposed in the ordinary course of life and that it cannot be said that the risk was enhanced in degree or kind by the nature of duties he was required to perform as a Government Servant during that night. Some idea of what was meant by the latter portion of the definition of the expression 'risk of office' will be found from the decisions of the Government of India, which have been collected at pages 494 and 495 of Mr. Choudhuri's compilation of the Civil Service Regulations (Second edition) under 'Central Civil Services (Extraordinary Pension) Rules.'
Apparently the Government of Orissa merely copied out the provisions of the Central Rules with some slight verbal changes. Doubtless the interpretation given by the Government of India or by the State Government to a statutory rule is not binding on law courts, but that interpretation should be held to be binding on the Government. The following [three illustrations have been given in Rule 8 of the Central Services Extraordinary Pension Rules;
'Government of India's decisions: (1) A rifleman was required by his Commanding Officer to cut down branches for fuel and had to climb a tree to reach branches. He fell down and was injured. The question arose whether he was entitled to injury pension under the C. C. S. (Extraordinary Pension') Rules. It was decided that he was exposed to greater risk by the nature of the dutieshe was ordered to do. The injury therefore falls under Class C of Rule 8 of these rules. Therefore, under the Proviso to Rule 9(3) read with 9(2)(i) and 9(4)(i), the rifleman is entitled to injury pension with effect from the date of the injury.
(2) A village postman was killed by a tonga while returning from his beat. A question haying been raised for the grant of extraordinary pension, the Ministry of Finance held that the postman was governed by the Workmen's Compensation Act and is therefore excluded from the scope of the C. C, S. (Extraordinary Pension) Rules and that there is therefore no question of making any further award to the dependants ex-gratia or otherwise.
(3) A rifleman sustained injury while playing an organised game of Basket ball. It was held that the injury was sustained as a result of risk of office. In accordance with the medical report the injury was very severe and likely to be permanent.
Accordingly the Government of India agreed to the grant of gratuity under clause C of rules 8 and 9 read with Schedule II of the C. C. S. (Extraordinary Pension) Rules'.
Illustrations (1) and (3) are helpful. If a person climbs a tree and falls down it is ordinarily a risk common to human existence, vet in illustration (1) the risk was held to be a 'risk of office' inasmuch as the rifleman concerned was directed to climb the tree under the orders of his superior and he was on duty at that time. Similarly, in illustration (3) also, though when ordinarily if private persons are engaged in playing a game of basket ball and some of the players get injured it may be said to be a risk common to human existence yet, when a rifleman was playing an organised game of basketball as part of his duty and sustained injuries during that game, it was held to bo 'risk of office';
In the present instance also it must be held that when Dr. J. C. Dutta was directed by his superior, viz. the Director of Health, to proceed to Dhenkanal to attend a patient who was reported to be seriously ill, and he travelled by car accordingly, in obedience to such a direction, it must be held that the risk of travelling by car though it was common to human existence in modern conditions in India, was definitely enhanced in kind and degree by the nature, conditions, obligations and incidents of his duty as a Government servant. But for the command from his superior officer it would not have been necessary for Dr. Dutta to proceed to Dhenkanal after nightfall and the accident might possibly have been avoided if the car had travelled during the day time because visibility during day time is definitely greater and the barricade put across the main road would have been noticed in time to avert the accident. Moreover, under ordinary circumstances the car would not have been driven at so much speed but at that time everyone in the car was thinking of reaching Dhenkanal as quickly as possible in order to attend on the patient. In my opinion, therefore, the accident must be held to have taken place due to 'risk of office' within the meaning of the rules.
22. The learned Advocate General then invited our attention to the following passage in the Explanatory Memorandum on the Draft Superior Services (Extraordinary Pensions) Rules reproduced at pages 486-487 of Choudhuri's compilation of the Civil Service Regulations (2nd Edition):
' 'Risks of office' are broadly those risks in respect of which it is expedient that Government should retain in clear terms the right to exercise their discretion in the matter of making awards. The definition excludes common risks of a kind to which a private citizen pursuing his normal vocation at the same time and place would be equally liable. it would exclude, for instance, cases of officers killed in ordinary accidents to vehicles, or by the accidental discharge of fire arms.'
It may be noted that the language of the aforesaid Superior Services (Extraordinary Pension) Rules is somewhat different from that of the Orrisa Rules.
Thus. Rule 29 of the former Rules confers discretion on the Government to award a pension to the widow if the Government servant dies as a result of accident arising from risk or office whereas Rule 10 of the latter Rules does not confer any such discretion. Again under the Superior Services (Extraordinary Pension) Rules, it is only in cases where the Government servant is killed or dies of injury as a result of violence by a terrorist, anarchist cr fanatic (Rule 27) or dies as a result of an accident arising out of a special risk (rule 28) that the award of pension to his widow is made mandatory.
But Rule 10 of the Orissa Rules makes such award mandatory irrespective of whether the death was due to special risk or ordinary risk of office. Hence, the aforesaid Explanatory Memorandum cannot be literally followed in construing the Orissa Rules. Moreover it refers ito 'ordinary accident to vehicles.' Here the accident cannot be said to be 'ordinary' inasmuch as the journey was undertaken suddenly after nightfall and everyone was anxious to reach Dhenkanal as quickly as possibly. For these reasons, I would not attach any importance to the aforesaid passage in the Explanatory Memorandum.
23. I may now dispose of two other contentions raised by the Advocate General. Firstly, he urged that at Dhenkanal the temperature of Srimati Malati Choudhury had come down to normal at 6 P. M. on the 10th April, 1953 and that consequently there was no urgent necessity for Dr. J. C. Dutta to proceed from Cuttack to Dhenkanal after nightfall on that day. This seems to have weighed very much with the Government as will be clear from annexure D. But strangely enough everyone seems to have overlooked the fact that Dhenkanal was about 38 miles from Cuttack and the fact that the temperature had come down to normal by 6 P. M. was not known Ho either Sri Sen at Cuttack or Sri Naha Krishna Choudhury at Bhubaneswar. Col. Popatla's letter dated 9-7-1953 shows that when he directed Dr. Dutta to proceed to Dhenkanal he was under the impression that the condition of Srimati Malati Choudhury was serious and that due to lack of telephonic connection at the head-quarters hospital at Dhenkanal, he could not contact the Civil Surgeon of the place. Hence the fact that the temperature of Srimati Choudhury had come down to normal at 6 P. M. on that day is irrelevant.
24. It was then argued that the accident was mainly the result of the foolish action of Dr. J. C. Dutta in opening the door of the car and attempting to come out and that there was 'contributory negligence' on his part which the Government could take into consideration by virtue of the latter portion of Rule 4 of the Rules. There is absolutely no evidence to show that there was any contributory negligence on the part of Dr. Dutta. The only eye-witness, namely Sri Nabakrishna Choudhury, whose deposition before the Criminal Court has been placed before us, did not state that Dr. Dutta attempted to get out of the car just before the accident, but stated that he got crushed under the vehicle. The accident was a matter of seconds and none of the occupants of the car knew exactly how Dr. Dutta got crushed by the vehicle. The learned Advocate General relied on some passages in the judgment of the Sessions Judge in Criminal appeal No. 13-N of 1954 in the Criminal case started against the driver where the learned Sessions Judge surmised that the accident must have been caused by Dr. Dutta attempting to get out. The fallowing passage in his judgment has been very much relied on:
'Nobody has seen as to how Dr. Dutta was thrown out from the car so as to ultimately meet with his death. The circumstances may well suggest that when Dr. Dutta found that the car was being involved in an accident, he tried to get out of the car to avoid any accident and very probably while he was doing so he became the victim to the accident which would not otherwise have taken place.'
These surmises were based on the fact that the locking arrangement of the door of the car was found to be open when it was subsequently inspected by the Motor Vehicles Inspector. But from this circumstance alone it would be hazardous to conclude that there was any 'contributory negligence' on the part of Dr. Dutta in attempting to get out of the car by opening the door. Moreover, the aforesaid observations made by the learned Sessions Judge are not only irrelevant in a criminal appeal, but are also wrong. The learned Judge ignored the fundamental proposition Ithat the doctrine of contributory negligence is no defence in a criminal case. In any case this is a matter for the competent authority to consider prior to the sanction of the pension to the widow and children of the deceased Government Servant. Moreover rule 4 leaves it to the discretion of that authority to decide whether in a particular case 'contributory negligence' should or should not be taken into consideration. When, therefore, after a review of all the facts and circumstances of the case the previous Government sanctioned extraordinary pension, the matter is concluded and it is not open to the succeeding Government to re-examine the question with a view to find out whether there was any contributory negligence on the part of the deceased Government servant so as to justify the cancellation of the pension.
25. For the aforesaid reasons, this application is allowed, the order of the Government of Orissa in the Health Department, No. 6890-H dated 11-9-1957, is quashed as invalid and a Mandamus is directed to be issued on the State Government to implement the original order of Government in the Health Department No. 335-H dated 11-1-1957, sanctioning extraordinary pension to the widow and minor children of the late Dr. Jagadish Chandra Dutta. The petitioners are also entitled to the costs of this application. Hearing fee is assessed at Rs. 200/- (Rupees two hundred only).
26. I agree.