Sandhya Chakraborty vs Union of India

Nishita Mhatre, J.—The challenge in this petition is to the decision of the Central Administrative Tribunal, Calcutta Bench in O.A. No. 1182 of 1996 delivered on 17th March 1999. The petitioner claims that her husband was employed with the respondents as a porter under the Eastern Railways from 24th April 1962 and was posted as a regular porter on 27th April 1964. Her husband died in harness on 8th October 1965. No family pension or other service benefits were paid to her. The petitioner claims that she learnt for the first time in April 1989 that she was entitled to family pension on account of the death of her husband. She, therefore, applied for the same. However, she was informed by a letter dated 12th February 1991 by the Divisional Railway Manager that she was not entitled to such pension as no records were available with the respondents in support of her claim. The petitioner submitted representations again in February 1991, April 1992 and October 1992. She was informed that it was not possible to pay her any amount either by way of Provident Fund, Pension, Gratuity or ex-gratia as no particulars had been furnished by her regarding the service of her husband. Aggrieved by the decision of the respondents refusing to grant her pension, she approached the Administrative Tribunal by preferring the aforesaid Original Application. The application has been disallowed by the Tribunal. However, with regard to ex-gratia pension the Tribunal accepted the statement made in the communication received by the petitioner from the railways that the petitioner would be paid an ex-gratia amount.

Taking exception to the order passed by the Tribunal in the year 1999 the petitioner has preferred this petition in the year 2009.

An affidavit-in-opposition has been filed by the respondents relying on the Manual of Pension Rules 1950 and other relevant documents. According to the respondents the petitioner is not entitled to any amount by way of family pension.

The first submission urged on behalf of the respondents by Mrs. Bhattacharya, is that the writ petition has been filed after an inordinate delay of ten years and, therefore it should be dismissed. It is true, that the decision of the Tribunal has been impugned after ten years from the date of the order of the Tribunal. However, in her petition the petitioner has mentioned the reasons for the delay. Apparently she was prosecuting proceedings to challenge the order of the Tribunal before a wrong forum. It was only after she realised that she had not filed the proper proceedings that she approached this Court in the year 2009. The petition was admitted in the year 2010. Therefore, we need not consider this contention of Mrs. Bhattacharya, that the petitioner has been filed after an inordinate delay at this stage.

The Learned Counsel appearing for the petitioner relied on certain documents which according to him establish that that the petitioner''s husband was employed with the Eastern Railways on a permanent basis. The first document which the learned counsel has brought to our notice is an identity card issued by the railways. This document does not indicate the status of the petitioner''s husband; whether he was a permanent, temporary or casual employee. The second document is a local privilege ticket order. The third document is an order of punishment imposed on the employee on 30th November 1962 wherein his increment had been stopped for twelve months.

The learned counsel for the petitioner has submitted that the petitioner''s husband must be considered to be a regular employee or a permanent employee although he may have started off with the railways as a casual employee. Reliance is placed on the judgment of the Supreme Court in the case of L. Robert D''souza Vs. Executive Engineer, Southern Railway and Another, and the judgement of Prabhavati Devi Vs. Union of India and others, .

Mrs. Bhattacharya learned counsel for the respondents submitted that none of the documents which have been produced established that the petitioner''s husband was a permanent or regular railway employee. She submitted that the Identity Card is issued to every railway employee whether permanent, temporary or casual and, therefore the identity card did not authenticate the fact that he was a permanent employee. She further submitted that the punishment order issued to the Petitioner''s husband on 30th November 1962 also does not confirm that he was a regular or permanent employee. She pointed out that under the Railway Services (Pension) Rules, 1993 a substitute means a person engaged against a regular or permanent or temporary post and he cannot be deemed to be a railway servant unless he is absorbed in regular service. She has also brought to our notice a circular issued in October 1964 which provides that after completion of six months of continuous service, substitutes attain the temporary status. All privileges of temporary staff like passes including application of disciplinary and appeal rules are extended to them. Mrs. Bhattacharya, therefore, pointed out that assuming the employee had been issued a pass and action had been taken against him in the light of the disciplinary and appeals rules, it cannot lend credence to the Petitioner''s case. The petitioner is not entitled to family pension as her husband only completed three years of service. The main thrust of Mrs. Bhattacharya''s argument was that the petitioner cannot be granted any relief after 45 years of the death of her husband firstly because she approached the Tribunal after more than thirty years of the death of her husband and secondly because this petition has been filed ten years after her application was dismissed.

In Prabhavati Devi''s case (supra) the Supreme Court considered whether the dependents of a casual worker who completes one year''s continuous service before his death are eligible for family pension under Para 801 of the Manual of Railway Pension Rules. The Court held that a casual worker acquired the status of a substitute under Rule 2315 of the Railway Establishment Code. In terms of the Rules such an employee who completes six months of continuous service is entitled to all the rights and privileges admissible to a temporary railway servant and his family is entitled to pension under Sub-Rule (3)(b) of Rule 2311. The family of a temporary Railway Servant who dies while in service after completion of at least one year of continuous service is eligible for family pension under the provisions of Para 801 of the Manual of Railway Pension Rules. The Court thus granted family pension to the appellant.

The petitioner''s case has been considered wider Para 308(vii) of the Railway Pension Rules as evident from the affidavit filed in opposition to the writ petition. The order does not reflect that her claim has been rejected after taking into account Para 801 of the Manual of Railway Pension Rules. In our opinion, therefore, it would be appropriate to direct the respondents to reconsider the case of the petitioner taking into account the judgement of the Supreme Court in Prabhavati Devi''s case (supra).

The submission of Mrs. Bhattacharya for the respondents was that the delay of 45 years disentitled the petitioner to any relief. In the affidavit filed by the respondents it has been stated that petitioner first applied for family pension in 1989 and thereafter there was a delay in supplying certain details. The Railways also took a long period of time to decide whether she was eligible for pension. In the case of S.K. Mastan Bee Vs. The General Manager, South Central Railway and Another, the Supreme Court opined that the widow in that case being an uneducated, illiterate woman living in penury did not have the wherewithal to approach the employer for family pension. The Supreme Court was of the view that in such a case even a delay of 21 years cannot be said to be fatal as it was for the employer to process the pension papers because there was no dispute that the petitioner in that case was eligible for pension.

In our opinion the submission of Mrs. Bhattacharya that the petitioner''s case should be dismissed on the ground of delay cannot be accepted in view of the observations of the Supreme Court in S.K. Mastan Bee case (supra). Apart from this we find from the record before us that the Railway Authorities have not considered Para 801 of the Manual of Railway Pension Rules which led the Supreme Court in Prabhavati Devi''s case (supra) to direct payment of pension.

In our opinion the interest of justice would be sub served, by directing the petitioner to approach the respondents once again for payment of family pension, gratuity and any other dues payable on account of her husband''s service them. The respondents will consider her claim for pension in the light of the observations made by the Supreme Court in Prabhavati Devi''s case (supra) as well as S.K. Mastan Bee case (supra). The authority while deciding the case of the petitioner shall not be influenced by any observations made by the Tribunal in the impugned order. The petitioner shall approach the authorities within four weeks from today. The Railway Authorities will decide the claim of the petitioner as aforesaid within twelve weeks from the receipt of the application of the petitioner.

The petition is disposed of accordingly. No order as to cost. Urgent certified photocopies of this order, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.

Anindita Roy Saraswati, J.

I agree.