Kamla Devi vs Union Of India & Others

Applicant is the widow of one Sh. Narayan Dutt, who was engaged as a casual labour on 18.12.1972 under the respondent-Railway. He was granted the authorised pay scale of Rs.196-232 w.e.f. 01.04.1974. He was drawing a basic pay of Rs.226/- p.m. when he unfortunately died on 28.07.1983. The applicant had left behind his widow (instant applicant), three children - a 4 years old son and two daughters; 2 years and 6 months at that time.

The applicant brings out that gratuity was paid to her at that time. Subsequently, her elder son Sh. Brij Mohan was appointed on compassionate ground basis as a Group-D employee by the respondent-Railway in pay scale of Rs.2550-3200 on 08.03.2001.

Applicant further pleads that her case is covered under Rule 75 of Family Pension Scheme for Railway Servants - 1964 for payment of family pension and other retiral benefits. The applicant made repeated representations since 1983, the last being on 10.11.2017. However, there has been no response and hence instant OA has been preferred.

Relief has been sought for directions to grant family pension, leave encashment, insurance, GPF, death-cum- retirement benefits along with arrears of family pension. No interim relief has been sought.

The applicant relies upon Rule 75 (supra) and a judgment by Hon‟ble Apex Court in Prabhavati Devi vs. Union of India and others, (1996) 7 SCC 27.

Per contra, the respondents opposed the OA. It was pleaded that late Sh. Narayan Dutt was not screened and as such he was not a regular employee.Even though appointment to applicant‟s son was granted on compassionate ground but it was as a fresh face for which General Manager is competent to appoint. It cannot be argued by applicant that since compassionate appointment was granted to her son, it has to be taken that her late husband was a permanent employee.

It was pleaded that since late Sh. Narayan Dutt was unscreened, his services cannot be treated as a Substitute or permanent and as such, applicant is not entitled for any of the benefit sought in the OA.

The applicant drew attention to Rule 75 (2) of Family Pension Scheme for Railway Servants - 1964, which reads as under:

"75. Family Pension Scheme for railway servants, 1964

Xxx      xxx       xxx

(2) Without prejudice to the provisions contained in sub-rule (3), where a railway servant dies:-

(a) after completion of one year of continuous service, or

Xxx      xxx       xxx

the family of the deceased shall be entitled to a family pension 1964 (hereinafter in this rule referred to as family pension) the amount of which shall be determined in accordance with the Table below .....

xxx       xxx       xxx

(3) The amount of family pension shall be fixed at monthly rates and expressed in whole rupees and where the family pension contains a fraction of a rupee, it shall be rounded off to the next higher rupee : Provided that in no case a family pension in excess of the maximum specified under this rule shall be allowed."

The applicant further brings out that in the instant case late Sh. Narayan Dutt had a total service from 18.12.1972 to 28.07.1983 out of which the service as an authorised scale employee was from 01.04.1974 to 28.07.1983 which is a period more than 9 years as against one year specified in Rules (supra) and as such she needs to be granted family pension.

It was further pleaded that in terms of the judgment of Prabhavati Devi (para 4 supra) in similar circumstances, the family pension was allowed by the Hon‟ble Apex Court. The said judgment reads as under:

"Leave granted.

Heard learned counsel for the parties.

The appellant herein is the window of Late Bipin Kumar Rai who was a temporary Railway servant in this manner : He, initially, was taken in the Railway Establishment as a casual worker; and w.e.f. 27.4.83 he acquired the status of a `substitute'. According to the definition given in Rule 2315 of the terms and conditions applicable to `substitute' in temporary service, they are persons engaged in the Indian Railway Establishments on regular scales of pay and allowances applicable to posts against which they are employed. These posts may fall vacant on account of a railway servant being on leave or due to non-availability of permanent or temporary railway servants and which cannot be kept vacant.

The deceased kept working as a `substitute' till 5.1.87 when he died. But, before his demise, he came to acquire certain rights and privileges under Rule 2318 of the Rules applicable to Railway Establishments. The said rule provides that substitutes shall be afforded all the rights and privileges as may be admissible to temporary railway servants, from time to time, on completion of 6 months' continuous service. Indubitably, the deceased had worked beyond 6 months and that too continuously. Having become a temporary servant in this manner, he became entitled to family pension under sub-rule 3(b) of Rule 2311; whereunder it is provided that the widow/minor children of a temporary Railway servant, who dies while in service after a service of not less than 1 year continuous (qualifying) service shall be eligible for a family pension under the provisions of para 801 of the Manual of Railway Pension Rules. Further, in their case the amount of death gratuity admissible will be reduced by an amount equal to the employee's 2 months' pay on which the death gratuity is determined. The Railways have paid to the appellant gratuity under this sub-rule, but have denied to her the family pension. Her claim before the C A T, Patna Bench, Patna, was dismissed which has culminated into this appeal.

On the acquisition of temporary status derived in the manner stated above, it is difficult to sustain the orders of the Tribunal and to deny family pension to the widow and children of the deceased. See in this connection for support L Robert D'Souza Vs. Ex. Engineer, Southern Railway and Anr. (1982 1 SCC 645 and U.O.I. and Ors Vs. Basant Lal and Ors. (JT 1992 (2) SC 459). We have put the proposition to the learned counsel appearing for the Railways but he is unable to support the orders of the Tribunal; overlooking as it does the chain in consequence, making the deceased acquire a temporary status and on his demise his widow and children acquiring the right to claim family pension.

We, thus, allow this appeal; set aside the impugned orders of the Tribunal and allow the claim to family pension as projected by the appellant. We also direct the railway to work out the pension due within 2 months from today and deliver the pension as also the arrears to the appellant within 15 days thereafter, if not earlier and also pay interest at the rate of 12% per annum from the date it was due till payment.

The appellant shall get her costs throughout."

Matter has been heard. Sh. T.D.Yadav, learned represented the applicant. Sh. K.K.Sharma, learned counsel represented the respondents.

The applicant had produced a notification signed by Assistant Personnel Officer-IV, Delhi Division, New Delhi dated 23.09.1983 wherein it was notified that Sh. Narain Dutt Joshi, Substitute S&T Khallasi working under Signal Inspector (West) Delhi had died on 28.07.1983 and in case there are any amounts due to the said employee, this information be sent to the Settlement Section of the Personal Branch. On such a notification, it was thereafter recorded by the same Assistant Personnel Officer that

"It is verify (sic) that he was appointed as Kh (pl. read Khalasi) w.e.f. 18.12.72 as C/L Rate (pl. read Casual Labour) and A/scale (196-232) (pl. read authorised scale) granted w.e.f. 1.4.74. PF (pl. read provident fund) deducted from 12-80 (pl. read December-1980). He is unscreened Khalasi. He is drawing Rs.226/- p.m. in grade Rs.196-232 (RS.) when died.

S/c (pl. read Service Card) not opened being substitute not absorbed against a regular post in his turn."

It is, therefore, seen that even though his initial appointment was as a casual labour, late Sh. Narayan Dutt Joshi was granted the authorised pay scale of Rs.196-232 and he reached the stage of Rs.226 when he unfortunately died on 28.07.1983. PF deduction was also made starting from December 1980. It is also clear that late Sh. Narayan Dutt had acquired the status of a substitute as mentioned in this note signed by Assistant Personnel Officer.

The truthfulness of this note has not been questioned by respondents.

Hon‟ble Apex Court in Prabhavati Devi (para 8 supra) had directed that under such conditions substitute shall be accorded all the rights and privileges as may be admissible to a temporary Railway servants from time to time on completion of six months continuous service.

In the instant case, late Sh. Narayan Dutt completed more than 9 years of continuous service after being granted the authorised scale.

In view of the foregoing, the applicant herein cannot be denied the benefit of family pension and other retiral dues as applicable to a temporary Railway servant.

In view of foregoing, the respondents are directed to allow family pension in this case at rates applicable from time to time and other terminal dues as per rules. The arrears shall also be drawn and paid within a period of eight weeks of receipt of this order.

The instant OA was preferred on 23.05.2018. The arrears for the period prior to 23.05.2018 shall not carry any interest. The arrears which were due as of 23.05.2018 shall carry interest @ 6% p.a. w.e.f. 23.05.2018 until the date of this order, if these are paid in time of eight weeks as allowed. Else interest will keep accruing till the date these are paid.

Parties shall bear their own costs.