Abhiram Panda vs Union Of India & Others

Swarup Kumar Mishra, Member (J)

It is the case of the applicant that in the year 1992 the Medical Board had issued the certificate of disability to the extent of 50%, in the year 1999 70% and in the year 2004 80%. After the death of his father, he submitted application for grant of Disability Family Pension. Since no action was taken thereon, he approached this Tribunal in O.A. 260/2016, which was disposed of on 08.09.2016. After the order of this Tribunal, the respondents had sought documents, which were submitted by the applicant. Thereafter, in letter dated 19.02.2017, the respondents have intimated the applicant to submit recent disability certificate. The applicant appeared before the CDMO, Cuttack, who after examining issued certificate to the extent that the disability of the applicant is 74% but instead of acting on the report of the CDMO, the applicant was again asked to appear before the Medical Board at Main Hospital, South Eastern Railway, Kharagpur on 04.10.2017. Based on the report of the said Medical Board, the respondents rejected his prayer. He, therefore, again approached this Tribunal in O.A. 692/2017, which was disposed of on 17.09.2019. In terms of the orders of this Tribunal, the applicant submitted exhaustive representation with all documentation. On receipt of the representation, the applicant was once again asked to appear before the Medical Board at Central Hospital, GRC, Kolkata on 10.02.2020. The Medical Board after examining submitted the report stating therein that “the patient is a case of rheumatoid arthritis. The patient claims that he cannot stand or walk and totally wheel chair bound. On examination and X-Ray findings of his hips and knees. It is not very suggestive with his claim of not walking. He is of normal intelligence. All his ENT findings are normal. In view of the examinations, as stated above, the members of the medical Board does not recommend the case for Life Time Family Pension.” Accordingly, the prayer of the applicant for grant of Life Time Family Pension was rejection and the reason of rejection was communicated to the applicant under Annexure-A/15 dated 17.05.2020. Being aggrieved by the aforesaid order, the applicant has preferred the instant O.A. praying inter alia to quash the order dated 17.05.2020 and direct the respondents to grant him family pension.

Respondents have filed their counter inter alia stating therein that although the applicant states that he was suffering from medical disability due to Rheumatism since 1992, this fact was never brought to the notice of the respondents’ department by his father, who died on 24.11.1994. In terms of Sub Rule 6 (b) of Rule 75 of Railway Services (Pension) Rules, 1993, before allowing the family pension for life to any such son/daughter, the sanctioning authority shall satisfy that the handicap is of such, prevent his or her for earning his/her livelihood and the same shall be evidenced by a certificate obtained from Medical Officer not below the rank of DMO. In compliance of the order of this Tribunal, the medical examination was conducted by the competent medical board in the Divisional Hospital Kharagpur, who upon examination, certified that the applicant can earn his livelihood, which was duly intimated to the applicant vide letter dated 29.10.2017. However, the applicant again filed O.A. and in compliance of the order of this Tribunal, the applicant was again examined by the Medical Board at Central Hospital Garden Reach on 10.02.2020, who also, after examination, did not recommend for grant of Life Time Family Pension based on the disability condition of the applicant. Accordingly, the respondents submitted that there being no illegality in not granting the disability family pension in favour of the applicant, this OA is liable to be dismissed.

The applicant has filed rejoinder enclosing thereto the extract of the Rule and the copy of the medical certificate conducted on 04.10.2017 and 16.03.2020 at Garden Reach stating that the report submitted cannot be accepted in the eyes of law on the face of the certificate issued by the CDMO, Cuttack on 21.03.2018 certifying that the applicant is disabled person with 74% permanent disability of Locomotor and ENT category .

Heard Ld. Counsel for both the parties and perused the records.

Ld. Counsel for the applicant submitted that the enabled provision for grant of family pension to the disabled children/wards of the railway employees introduced by the Ministry of Railway is only to save from harness and difficulties to meet the day to day requirement but in the instant case the respondents are playing with a disabled ward of a deceased railway employee by rejecting his request for grant of family pension beyond their authority. The Medical Board committed error in rejecting the claim of the applicant for grant of Life Time Family Pension without considering the disability of the applicant. The ENT findings are normal as opined by the Medical Board but normal condition of ENT could not make a person capable of earning when his main part of the body, i.e. legs, are not in normal condition. Nowhere the Medical Board has expressed any opinion about the nature of work which can be performed by the applicant for earning his livelihood. Hence, decision of Medical Board and its acceptance by the competent authority is purely non-application of mind. Hence, Ld. Counsel for the applicant submitted that there being gross injustice caused to the applicant in rejecting his claim, the Tribunal may come to the rescue of the applicant by directing the respondents to pay the disabled family pension after quashing the impugned order for sustenance of the applicant.

On the other hand, Ld. Counsel for the respondents submitted that grant of disabled family pension for life time in favour of child of the ex-employee is covered by guidelines contained in Railway Service (Pension) Rules 1993 under Rule 75 sub rule 6 (D) wherein it is stated that before allowing family pension for life to any such son or daughter, the appointing authorities shall satisfy that the handicap is of such nature so as to prevent him or her from earning his or her livelihood and the same shall be evidenced by a certificate obtained from a Medical Board comprising of a Medical Director or a Chief Medical Superintendent or in charge of a Zonal Hospital or Division or his nominee as chairperson and two other members, out of which at least one shall be a specialist in the particular area of mental or physical disability including mental retardation setting out, as far as possible, the exact mental or physical condition of the child. Respondents submitted that as per the said guideline a medical board was constituted and the applicant was directed to appear before it and after conducting medical examination, the medical board placed their recommendation being disagreed with allowing life time family pension and Competent Authority on being convinced with the opinion of the Medical Board accepted the recommendation and the applicant was informed thus. Since the case of the applicant was not recommended by the Medical Board, expert on the subject, the applicant’s prayer was rejected and intimated to him.

The entitlement of life time family pension by a disabled dependant son/daughter of a railway employee is subject to Medical Report certifying the disabled condition is such preventing him/her livelihood. In the instant case, the applicant produced the certificate of CDMO, Cuttack certifying that he is a disabled person with 74% disability of Locomoter and ENT category as per the disability certificate issued by the District Medical Board, Cuttack vide Disability Regd. No. 21071728059 dated 26.05.2017 whereas Medical Boards of Railways held on 16.03.2020 certified that “the patient is a case of rheumatoid arthritis. The patient claims that he cannot stand or walk and totally wheel chair bound. On examination and X-Ray findings of his hips and knees. It is not very suggestive with his claim of not walking. He is of normal intelligence. All his ENT findings are normal. In view of the examinations, as stated above, the members of the medical Board do not recommend the case for Life Time Family Pension”.

It is an admitted fact that rule making authority has vested the power under Sub Rule 6 of Rule 75 of the Railway Services (Pension) Rules, 1993 on the sanctioning authority to sanction family pension for life after being satisfied that the handicap is of such which prevents him or her for earning his or her livelihood on the basis of certificate obtained from a Medical Officer not below the rank of Divisional Medical Officer setting out the exact mental or physical condition of the child. Annexure-A/3 is the certificate issued by the Orthopaedic specialist certifying that the nature of disability is 80% due to Rheumatism. Annexure-A/3 page 18 is a Concession Certificate, Annexure-A/3 page 19 is a certificate of disability. In none of the certificates it has been stated that the applicant is not capable to earn his livelihood. The certificate produced under Annexure-R/C by the applicant has been issued by the CDMO, Cuttack stating that he is not capable to earn his livelihood whereas the certificate granted by the Medical Board of Railways clarifies that the applicant is a patient of rheumatoid arthritis but on examination and X-Ray findings of his hips and knees, it is not very suggestive with his claim that he cannot stand or walk and is totally wheel chair bound. He is of normal intelligence. All his ENT findings are normal. Hence, the members of the Medical Board did not recommend his case for Life Time Family Pension” based on which, the competent authority rejected the claim of the applicant. This Tribunal being not the expert over the report of the Medical Board and the compete4nt authority having satisfied that this is a case where Life Time Family Pension cannot be granted and rejected the claim, there is no scope of this Tribunal to interfere in the matter.

In view of the observations and discussion made above, the O.A. stands dismissed leaving the parties to bear their own costs.