Central Administrative Tribunal - Ernakulam
V.K. Lakshmikutty vs Union Of India on 22 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO. 1020 OF 2010
Monday, this the 22nd day of August, 2011
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
V.K. Lakshmikutty
W/o. (late) A. Vasu
Residing at : Korangottu House
Kanjiramattom, Ernakulam District. - Applicant
(By Advocate Mr. T.C. Govindaswamy)
Versus
1. Union of India
Represented by the Secretary
to the Government of India
Ministry of Railways, Rail Bhavan
New Delhi.
2. The Financial Adviser & Chief Accounts Officer
Southern Railway, Headquarters Office
Park Town (P.O), Chennai - 3.
3. The Senior Divisional Finance Manager
Southern Railway, Palghat Division
Palghat.
4. The Senior Divisional Personnel Officer
Southern Railway, Palghat Division
Palghat.
5. The Divisional Railway Manager
Southern Railway, Palghat Division
Palghat. - Respondents
(By Advocate Mr. Thomas Mathew Nellimoottil)
The application having been heard on 22.08.2011, the Tribunal on
the same day delivered the following:
O R D E R
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER The applicant is the wife of a missing employee of the Railway. The applicant is receiving family pension since 2004. According to the applicant, her husband was missing from August, 1996 and therefore, she is entitled for family pension for the period from 1996 to 2004 as well. She made a compliant to the Magistrate Court under Section 206 Cr. PC for investigation only in 2004 and based on that an F.I.R was registered. Therefore, family pension since 2004 was paid. Even though, the applicant's counsel orally contended that the complaint was already lodged earlier, but there was no document produced before this Tribunal or before the Magistrate Court. The applicant is getting family pension subsequently based on the complaint made before the police station pursuant to Section 206 proceedings and family pension is sanctioned and paid strictly in compliance with the Railway Board order vide Annexure A-5 produced in the case. According to the applicant, once an F.I.R is registered, she becomes entitled for family pension from the date on which her husband was found missing. The restriction contained in Annexure A-5 that family pension will become payable only from the date of filing the F.I.R is arbitrary.
2. In the reply statement filed by the respondents, it is contended that the applicant was sanctioned family pension from 17.02.2004 in compliance with the order of this Tribunal dated 29.07.2005 in O.A 574/2005 filed by the applicant earlier. It is also contended that in the instant case, the applicant having known the fact that her husband was missing from 1996, if true, would have lodged a complaint to the Police for registering an F.I.R within a reasonable time. There is no averment either in this O.A that the applicant has taken earnest steps for filing any such complaint. They also seek to support the Annexure A-5 Railway Board's order that the applicant had accepted family pension from 17.02.2004. Therefore, she has estopped from raising any further claim.
3. We have heard the counsel for the applicant Mr. T.C. Govindaswamy and Mr. Thomas Mathew Nellimoottil, counsel for the respondents. The short point for consideration in this case is:-
(1) as to whether the long delay of 1095 days in filing the application is liable to be condoned.
(2) Whether Annexure A-5 is vitiated on any ground, as stated by the applicant.
(3) Whether the applicant is entitled for family pension since 1996 till 2004 or whether the family pension is payable from the date of the seven years period provided under the Evidence Act - Section 108.
4. In the M.A. 934/10 filed by the applicant seeking condonation of delay, the reasons stated is that the applicant was leading an extremely miserable life for the past 11 years and even on compassionate grounds she is entitled for family pension and since no consideration was forthcoming from the respondents this Original Application has been filed. We are not impressed with the reasons as stated in the application for condonation of delay. This application is filed only during 2009, six years after the family pension was being paid to the applicant. Even though, the applicant has approached this Tribunal earlier by filing O.A. 574/2005, and it was only in compliance thereon that family pension is now paid. The family pension actually paid was sanctioned as per Annexure A-2 dated 28.11.2005 and it is only after the receipt of the entire monetary benefits namely retiral benefits due to the employee from the year 2004 onwards that the applicant has filed this O.A, that too five years thereafter. Under these circumstances, there is no satisfactory reason to condone the delay.
5. However, since this O.A was pending for more than one year, it is appropriate to consider her claim on merit as well. Normally, the family pension is payable under the provisions of the Indian Railways Pension Rules, only after the death of the incumbent. The presumption of death by legal dictum arises only after seven years after the person was found missing or not heard of. But the presumption of death under Section 108 arises only regarding the factum of death and not regarding the date of death. But in the service law, after considering the representation of the employees the Railway thought it fit to provide for relief without waiting for seven years. But as per Annexure A-5 they ensured that at least there should be a complaint lodged with the Police and one year is to expire thereafter, for claiming family pension. Thus, as against the normal period of seven years family pension becomes payable as per Annexure A-5 within one year after lodging a complaint. Thus one need not wait for family pension for several years against manipulation and forlorn claims the Railway thought it fit to insist that the claimant should have filed an F.I.R which is very reasonable. Lodging a complaint before the police is a minimum requirement for a person to come up and say that her husband is missing and therefore she is entitled to get family pension. Therefore, there is nothing unreasonable or arbitrary in Annexure A-5 in importing a condition for seeking benefit.
6. According to the applicant, on the expiry of seven years period, even in the absence of lodging a complaint, the applicant is entitled to get the family pension. But the date of missing should be confirmed by a positive act or material. No material is produced to show that the employee was found missing from 1996 and the complaint itself was lodged only in 2004. That means for eight years though her husband was found missing she did not move her little finger. Normally, when a person is found missing, one is expected to approach the police within a reasonable time and that has not been done in this case. What is the date of missing is thus a fact not proved. Therefore, we cannot extend the period of family pension prior to 2004. In this result, there is no merit in this case.
7. O.A. is dismissed. No order as to costs.
(Dated, the 22nd August, 2011.)
K. GEORGE JOSEPH JUSTICE P.R. RAMAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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