Vijay Kumar vs Union Of India & Others

Pradeep Kumar, Member (A)

The applicant herein is the son of one late Shri Banwari Lal, who was a Loco Pilot in Jaipur Division. He superannuated on 31.12.1993 and was in receipt of pension till 01.03.2011 when he unfortunately died. The wife of late Shri Banwari Lal had unfortunately already expired on 14.6.2008.

The applicant herein had met with an accident and his left leg was amputated below his knee while right leg has a steel rod. He is categorized as 75% disabled. The applicant sought family pension and made a representation on 9.5.2011. He was advised on 15.10.13 and 3.3.14 to submit supporting documents.

The applicant, however, did not appear before the Medical Board of the respondents and instead he approached the Principal Bench of the Tribunal in OA No. 662/2015. This was disposed of on 3.10.2016. The relevant part of the order passed by the Tribunal reads as under :-

"1. The Railway's have a provision that disabled son daughter of retired Railway employees is eligible for family pension on the basis of his her disability certificate and after being examined by the Medical Officer not below the rank of Divisional Medical Officer and certified that the nature of disability is such that she he is not able to earn his her livelihood. The applicant was intimated vide letter No. 17.9.2015 to be present in the Central Railway Hospital, Jaipur for examination of the nature his disability. It stated by the learned counsel for the respondents that the applicant did not appear before the Central Railway, Hospital, Jaipur, rather he informed vide letter dated 23.9.2015 {received on 28.09,2015} through post that the Railway Director does not have any authority to examine the applicant. In fact, the applicant has produced a medical certificate issued by Orthopaedic Surgeon of General Hospital, Rewari, Haryana.

The stand taken by the applicant is incorrect. The Railway authorities would only go by a medical certificate issued by their own doctor.

In view of the above circumstances, the OA is disposed of with a direction to the applicant to appear before Central Railway Hospital, Jaipur for examination for his disability. The applicant would make a representation intimating to the respondents that he wishes to be examined by Central Railway Hospital, Jaipur. On receipt of such representation the respondents will ensure examination of the applicant in the Central Railway Hospital, Railway, Jaipur to ascertain his disability within a period a period of one month from the date of receipt of such representation. Thereafter, as per the provisions of rules, the respondents shall take a decision on family person to the applicant within a period of 90 days of receipt of the medical certificate from the Central Railway Hospital, Jaipur."

Following this, the medical examination was conducted by a Medical Board constituted by the Railway, which comprised of an Orthopaedic Specialist also. The Medical Board assessed the disability as 75% but also recorded that the disability is not such that applicant cannot earn his livelihood. The observation by Medical Board read as under :

:"In reference to aforesaid subject and letter the case of family pension of Shri Vijay Kumar S/o Late Shri Banwari Lal (Retd. Passenger driver, Bandikui) was examined by medical board on 02/02/2017 under Railway pension services 1993 Para 75 sub para 6 and observed that nature of inability of the said person is of permanent nature but he can earn his livelihood."

However, the applicant did not make any representation to the respondents for payment of family pension and instead he preferred the OA No. 119/2019. This was disposed off on 11.1.19. The operative part of directions read as under:

"In view of the above foregoing, the present OA is disposed of at the admission stage itself, without going into the merits of the case, with a direction to the applicant to make a representation to the respondents within four weeks from the date of receipt of a copy of this order, and thereafter, respondents shall pass a reasoned and speaking order within a period of three months on receipt of such a representation."

Following this, a representation was made. The respondents have rejected the claim of the applicant for grant of family pension vide order Dt. 6.9.19.

Feeling aggrieved, the applicant preferred the instant OA. It is pleaded that once applicant has 75% disability, it has to be taken that he cannot earn his livelihood.

The applicant also relied upon a judgment of Hon'ble High Court of Delhi dated 26.3.2008 in the case of Om Prakash vs The Ministry of Indian Railway 149 {2008} DLT 599, wherein a person having 55% disability was granted family pension.

However, there had been 199 days delay in submitting the OA and he preferred MA No. 947/2021 seeking condonation of delay. The reasons recorded are due to Covid-19 and disability of the applicant.

Matter has been heard. Shri R.S. Gautam, learned counsel represented the applicant and Shri K K Sharma, learned counsel represented the respondents on advance information.

For the reasons stated therein, MA stands allowed. OA be numbered.

When the entire case has been seen and was argued by the learned counsel for the applicant, it was felt that no useful purpose is going to be served by keeping OA pending. The instant OA is also decided.

The rules for family pension permit the same to be paid to a disabled son, under the condition that one is not able to earn his livelihood. In the instant case, disability is 75% and the relevant Medical Board which comprised of a specialist also, had recorded that disability is not such that the applicant cannot earn his livelihood. Under such conditions, the rejection of family pension's request vide orders Dt. 6.9.19, cannot be faulted.

The order Dt. 6.9.2019 is by the competent authority, who relied on Medical Board recommendation, before rejecting the case. There is no whisper or challenge to the Medical Board recommendations, in the OA, except pleading that person with 75% disability cannot earn his livelihood. In absence of any supporting documents, such a plea cannot be accepted.

The reliance on the orders by Hon'ble High Court of Delhi {supra} is misplaced, as in that case even though the disability was 55%, yet the Medical Board has not made any remarks to the effect whether the applicant can earn his livelihood or not. It was under such conditions, that Hon'ble High Court of Delhi was pleased to grant family pension.

As against this, in the instant case, there is a specific recommendation that disability is not of a nature wherein the applicant cannot earn his livelihood.

The relied upon judgement is therefore of no help in the instant case. Reliance is misplaced.

In view of the foregoing, there is no merit in the OA. The same is accordingly dismissed. No costs.