Waiting waiting waiting by Hiranthi Fernando

Since her soldier husband's death in 1993 she has been appealing for compensation. How long will it take?

Chithra Piyaseeli and her nine-year-old daughter Hasini are destitute. They live with Piyaseeli's brother and his family at Eheliyagoda, and are dependent on him. Piyaseeli's husband died while in active service with the Army in Trincomalee six years ago. She has appealed to the authorities for payment of compensatory and terminal benefits which she says she is entitled to, but has had little relief in six years.

"My husband, Lance Corporal Dhanapala died on July 21, 1993, when he was on duty at the Army detachment at Mahamariam Kulam in the Trincomalee District," Piyaseeli said.

"He was injured after a fall into a bunker, when carrying out orders given by his superior officers. He continued working until his condition worsened on July 21 and then was taken to the Kinniya Hospital on a tractor- trailer. We subsequently learned from the Court of Inquiry Report that he died enroute to the hospital. If he had received medical attention in time, his life could have been saved," she said.

Piyaseeli explained that the Commanding Officer concurred with the report of the Court of Inquiry, and recommended compensation applicable to servicemen killed in action. The recommendation was scrutinised by the Divisional Brigade Commander, who indicated that the death was attributable to Army service and recommended that full compensation and salaries applicable to those killed in action should be paid to his next of kin.

However, such relief has been slow in coming. In response to her several letters to Army authorities, Piyaseeli received a letter (dated December 20, 1994,) signed by the Director Pay and Records, to say that the Court of Inquiry had not recommended the payment of compensation and terminal benefits.

Piyaseeli appealed to the President on June 18, 1996. After this appeal, which was referred to the Army Commander, she received a letter from the Commander on August 16, 1996, informing her that she cannot be paid any benefits because the Preliminary Court of Inquiry appointed to ascertain the cause of death had concluded that the death was not attributable to Army Service as her husband died of an illness.

Three years later, Piyaseeli had received nothing from the Army. In desperation, she sought the assistance of the Armed Services Ranaviru Welfare Foundation - Sitawaka. Not satisfied with the cause of death as given by the Army, Piyaseeli, with the help of the secretary of this organisation, Commander Banagoda, a retired Navy officer, obtained a copy of the post-mortem report of the District Medical Officer of the Trincomalee Base Hospital.

The report gave the cause of death as "Cardio Respiratory failure due to shock and Haemothorax following rupture of a congenital bullae of right side lung" (a kind of internal bleeding in the lungs which eventually stops the heart functioning.)

She then appealed again to the President to say that there were contradictions in the cause of death as given by the Army.

"On probing the matter, the Secretary to the Defence Ministry, in a letter dated August 29, 1997, directed the Army Commander to pay the compensatory benefits as the Preliminary Court of Appeal had concluded that the death of my husband was attributable to service and his Commanding Officer and the Divisional Brigade Commander had recommended the payment of compensatory and terminal benefits," Piyaseeli said.

Thereafter, the Army Commander informed Piyaseeli on March 19, 1998, he had approved the payment of benefits.

In September 1998, five years after her husband's death, Piyaseeli was awarded 42 months basic salary payable to service personnel who die due to natural causes in operational areas. Half this amount was placed in a savings account in her daughter's name and the balance paid to her.

The Secretary of the Armed Service Ranaviru Welfare Foundation - Sitawaka, looked into the matter and helped her with her appeals.

He argues that in the recommendations of the Preliminary Court of Inquiry, late L/Cpl Dhanapala's Commanding Officer and Divisional Brigade Commander have recommended the payment of compensatory benefits as the death was attributable to army service. As previously stated by the Army Commander, that the recommendations of the Court of Inquiry are final, the benefits recommended are not the 42 months basic pay introduced in 1996 for those who die of natural diseases in operational areas but the benefits applicable to those killed in action.

Further it appears that according to the Cabinet decision of 21.7.82 on Cabinet Paper No.305, approval was granted for "next of kin of those personnel of the Armed Services and Police, who are killed whilst performing operational duties or as a result of terrorist activity or other law enforcement measures, to be paid the full salary and allowances of the diseased officer which were paid to him on the date of his death till such time as he would have reached 55 years of age if he was alive."

As L/Cpl Dhanapala died whilst engaged in law enforcement duties in operational areas, his death has been accepted as being attributable to Army service, it could be concluded that he is entitled to compensation in terms of the Cabinet decision of 21.7.1982 and the Treasury approval dated 16.12.1985.

"In response to my request for a death gratuity due to me, the Army Pay & Records Directorate informed me on the October 13, 1997 that I am not entitled to a death gratuity since my husband was a volunteer," Piyaseeli said.

However, according to Commander Banagoda, this decision is an infringement of fundamental rights as members of the Volunteer Force cannot be differentiated from members of the Regular Force for benefits and discipline.

He quoted Regulation 3 (3) of the Army Act Chapter 357 of the Revised Edition of the Legislative Enactments which states "where the whole or any part of the Regular Reserve, Volunteer Force or Volunteer Reserve is called out as hereinafter provided on active service, or for military training, the officers and soldiers of such Reserve Force or part so called out shall during the period of such service or training be deemed for all purposes to be officers and soldiers of the Regular Force".

Also he said, "Regulation 24 of the same Act states that every officer or soldier not belonging to the Regular Force who is on active service shall be entitled to such pay and allowances and be quartered in such manner as may be prescribed in Regulation 26 (i) of the Army Pensions and Gratuities Code".

"The Army Pensions and Gratuities Code 1981 provides for the payment of a death gratuity for the dependents of soldiers who have completed five years of reckon able service.

Regulation 29 (a) of the Army Pensions and Gratuities Code 1981 defines the applicability of benefits that are being paid to regular members, to members of the Volunteer Force when they are deemed to be officers and soldiers of the Regular Force under provisions quoted earlier," he added.

"Regulation 28 (a) also provides for a Dependent's Pension as part of the terminal benefits".

Chithra Piyaseeli has appealed again to the present Army Commander on August 6. The major portion of the 24 months pay she received has been spent on medical expenses on her retarded daughter. She is anxiously awaiting a favourable response to her appeal in the hope that she would receive some redress.

Piyaseeli is just one case. There may be many other widows of servicemen who have had similar experiences and faced inordinate delays in receiving their legitimate dues.

"It is disheartening to find that there are dependents who are made to suffer due to erroneous decisions taken by service authorities when deciding the attributability of deaths of service personnel whilst serving in operational areas," Commander Banagoda said.

"The respective service pensions and gratuities codes provide for the payment of an annual pension to dependents on the recommendation of the respective Service Commander in the event of deaths caused by illness, certified by a Medical Board to be attributable to service conditions.

"Medical officers based at Headquarters, without paying any heed to the circumstances which lead to the death, conclude that the death is not attributable to service conditions. Acting on the verdict of the Medical Board, the Service Commanders reject the payment of terminal benefits to dependents thereby causing them great hardship due to the loss of the breadwinner," Commander Banagoda said.

The Army says…

L/Cpl Dhanapala is not entitled to the special compensatory benefits granted by the Cabinet decision of 21.7.82, since he died while engaged in normal duties in an operational area and not whilst on operational duty or law enforcement duty.

A sum of Rs.7,495.68 is however, available in L/Cpl Dhanapala's account and a cheque for this amount will be sent to his widow. A sum of Rs.4,197.90, as salary for the last month of service is also due to him. The necessary documentation for this payment will be completed in five days and the widow will receive the cheque in a week.

His total reckonable service is 7 years and 3 months. Gratuity is paid only to those with a minimum of 10 years of service.

For those who died in operational areas from a cause other than terrorist action after 1995, the Army pays 60 months salary. L/Cpl Dhanapala was not entitled to this payment since he died in 1993. However, as a special case, the Ministry had asked that his widow be paid 42 months salary. Pension is paid only to soldiers after 22 years of reckonable service.

To be eligible for the provisions of Regulation 26 (i) of the Army Pensions and Gratuities code, a soldier must have a minimum of 10 years or 22 years, depending on his death.

(The Sunday Times Plus 26th September 1999)