Central Administrative Tribunal - Cuttack
Fudki Mohanta Alias Phudakia Mohanta vs South Eastern Railway on 1 August, 2024
1 M.A.No. 260/0002 of 2024
O.A.No. 260/0004 of 2024
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
M.A.No. 260/0002 of 2024
(In O.A.No. 260/0004 of 2024)
Reserved on 29.07.2024 Pronounced on 01.08.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Fudki Mohanta @ Phudakia Mohanta W/o late Baidhar
aged about 68 years, At/PO- Dahikoti, Dist.
Mayurbhanj, PIN-757100.
......Applicant
VERSUS
1. Union of India, through the General Manager, South
Eastern Railway, Garden Reach Road Kolkata-49.
2. The Divisional Railway Manage, S.E.Railway, At/Po-
Kharagpur, Dist. Paschim Medinipur, West Bengal PIN.
721301.
3. The Sr. Divisional Personnel Officer, S.E. Railway, At/Po-
Kharagpur, Dist.- Paschim Medinipur, West Bengal,
721301.
4. The Sr. Divisional Finance Manager, S.E.Railway, At/Po-
Kharagpur, Dist.- Paschim Medinipur, West Bengal
721301.
5. The Senior Section Engineer, (P.Way), JER, S.E. Railway
At/Po-Jaleswar, Dist.-Balasore, Odisha, PIN 756032.
......Respondents
For the Applicant : Mr. C. Jena, Counsel
For the Respondents : Mr. M.R.Mohanty, Counsel
2 M.A.No. 260/0002 of 2024
O.A.No. 260/0004 of 2024
ORDER
PRAMOD KUMAR DAS, MEMBER (A):
The instant OA has been filed by the applicant under Section 19 of the AT Act inter alia praying for a direction upon the respondents for payment of family pension and remaining settlement dues, if any, to the heirs of the deceased railway employee, late Baidhar (late husband of the applicant).
2. Ld. Counsel for the applicant submits that the applicant is the widow of late Baidhar, who while working as Gangman under the respondents and under immediate control of the PWI/JER [now SSE(P.Way)], S.E.Railway died on 01.12.1990. It is submitted by him that the husband of the applicant being a permanent railway employee and governed by the Railway Family Pension Rules, 1964 (PF No. 467167), the applicant is entitled to family pension and other settlement dues but the same was not paid to her. It is submitted that after the death of her husband, on being asked, applicant had submitted some documents and, thereafter, she and her daughter were paid Rs 8,374/- and Rs 2781/- respectively but family pension was not granted. Being an illiterate, she could not pursue the matter with the respondents for sanction of family pension in her favour. The applicant after obtaining the "Legal Heir 3 M.A.No. 260/0002 of 2024 O.A.No. 260/0004 of 2024 Certificate" in the year 2006 had applied for family pension but could not pursue the matter further. Applicant submitted representation on 28.11.2019 to the respondent No.3 followed by reminder dated 18.08.2023 (A/5 series) seeking family pension but the same having not been considered, she has filed this OA.
3. Applicant has filed MA 02/2024 seeking condonation of delay in filing this OA. It is submitted that the applicant is a poor, illiterate, rusticated lady, belonging to weaker section of the community and residing in a very remote area and was ignorant of railway rules and hence could not immediately pursue the claim for family pension and other benefits. As per Section 21(3) of the A.T.Act, 1985, an application can be entertained if the applicant can satisfy the Tribunal that he/she had sufficient cause for not making the application within the specified period enumerated in Sub-Section (1) & (2). Further, family pension being a recurring cause of action, delay need not be taken as a ground for forfeiture of the right of the applicant. Ld. Counsel for the applicant submits that the Hon'ble Apex Court in the case of Union of India & Others -Vs-Tarsem Singh, CA No.5151-52 of 2008, SCC (2008) 648, has held that "an exception can be made in the case of continuing wrong as 4 M.A.No. 260/0002 of 2024 O.A.No. 260/0004 of 2024 the same gives rise to continuing cause of action subject to the qualification that third party rights will not be affected." Further, "continuing wrong refers to a single wrong act which causes a continuing injury. Ld. Counsel for the applicant further submits that Hon'ble Supreme Court in the matter of N. Balakrishnan -Vs- M. Krishnamurty, (1998) 7 SCC 123, has held that the purpose of Limitation Act was not to destroy the rights. It is founded on public policy fixing a life span for the legal remedy for general welfare. The primary function of a court is to adjudicate disputes between the parties and to advance substantial justice. It is submitted that as per the decision of the Hon'ble Apex Court in the case of All India Reserve Bank Retired Officers Association Vs. UOI, AIR 1992 SC 767, has held that pension is not a charity or bounty or is it gratuitous payment solely dependent on the whim and sweet will of the employer. It is differed wages of an employee. Accordingly, Ld. Counsel for the applicant prays for condonation of delay in filing this OA.
4. Respondents, on the other hand, by filing objection to MA 2/2024 have prayed for dismissal of this OA on the ground of delay and laches. It is submitted by Ld. Counsel for the respondents that, as averred in 5 M.A.No. 260/0002 of 2024 O.A.No. 260/0004 of 2024 this OA, applicant's husband died on 01.12.1990 and legal heir certificate was issued in the year 2006 but the applicant neither intimated the authorities nor approached for family pension immediately thereafter. It has been stated by the applicant's counsel that applicant made representation on 28.11.2019, which is after 29 years of the actual cause of action and there is no authenticity about filing of such representation. Further the Privilege Second Class Pass No. 216568 (A/4) was issued in favour of the deceased railway employee, late Baidhar, with one son 06 years and one U/M daughter of 13 years but without inclusion of wife. Further, as per averments made in para 4.2 of the OA, late Baidhar was allotted PF No. 467167 and governed by the Non-Contributory Scheme but in the representation dated 18.08.2023, it has been stated by the applicant that her husband was a pensionable employee, governed by the PF Contributory Scheme, which are contradictory statements and needs verification of record to get to the authenticity/genuineness of the facts, which is not possible at this distance stage without availability of records. As per Estt. Sl. No. 90/99, the preservation period having expired, the records have been weeded out. Hence, at this belated stage, i.e. after passage of more than 33 years, railway records cannot be traceable to verify the genuineness of the 6 M.A.No. 260/0002 of 2024 O.A.No. 260/0004 of 2024 claim of the applicant that she is the widow of late Baidhar. Ld. Counsel for the respondents submits that applicant has relied on the decision of the Hon'ble Apex Court in the case of N. Balakrishnan (supra) to claim that Limitation Act was not to destroy the rights and it is founded on public policy fixing a life span for the legal remedy for general welfare but, in the said decision, the Hon'ble Apex Court has also observed that "It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. XXXXXX But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation." So far as reliance made by the applicant in the case of All India Reserve Bank Retired Officers Association (supra) to state that pension is not a charity or bounty or is it gratuitous payment solely dependent on the whim and sweet will of the employer, it is submitted by Ld. Counsel for the respondents that statements and averments of the applicant are very important to verify with railway records to ensure the correctness of the claim but at this distance place of time, i.e. after 33 years it is not possible to the Railways to verify the same. Relying on the various decisions of the Hon'ble Apex Court in the cases of UOI & Ors Vs. M.K.Sarkar, (2010) 2 SCC 59, State of 7 M.A.No. 260/0002 of 2024 O.A.No. 260/0004 of 2024 Tamilnadu Vs. Seshachalam, (2007) 10 SCC 137, Chennai Metropolitan Water Supply and Sewerage Board & ors. Vs. T.T.Murali Babu, AIR 2014 SC 1141, etc., Ld. Counsel for the respondents prays for dismissal of the MA and, consequently, OA on the ground of delay.
5. We have heard Ld. Counsel for both the parties and have gone through the records.
6. There is no denying the fact that there is undue delay in filing this OA. The husband of the applicant died in the year 1990 and legal heir certificate, as submitted by the Ld. Counsel for the applicant, was obtained in 2006 but the applicant preferred representation only on 28.11.2019, i.e. after more than 29 years of the cause of action. Further, no plausible reason has been given by the applicant for such a delay. We are also in agreement with the stand of the applicant that pension is not a charity or bounty or is it gratuitous payment solely dependent on the whim and sweet will of the employer but, at the same time, we also cannot brush aside our sight from the fact that without verifying the records, which are stated to have been weeded out as per Estt. Sl. No. 8 M.A.No. 260/0002 of 2024 O.A.No. 260/0004 of 2024 90/99 after expiry of the preservation period, entitlement of the applicant cannot be established.
7. The Hon'ble Supreme Court in D.C.S. Negi v. Union of India & others (Civil Appeal No.7956 of 2011) decided on 7.3.2011, condemned entertaining of the Original Applications by the Tribunal in disregard of the limitation prescribed under Section 21 of the Administrative Tribunals Act 1985. Thus, before going to the merits of the matter, it is expedient for this Tribunal to consider, at the first instance, the point of delay. In the case of D.C.S.Negi (supra), the Hon'ble Apex Court made following observations:
"Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the Applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads as under:
"21. Limitation - (1) A Tribunal shall not admit an application, -
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of subsection (2) of section 20 has been made and a period of six 9 M.A.No. 260/0002 of 2024 O.A.No. 260/0004 of 2024 months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. (2) Notwithstanding anything contained in sub-section (1), where -
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or , as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later. (3) Notwithstanding anything contained in sub-
section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period."
A reading of the plain language of the above reproduced Section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is 10 M.A.No. 260/0002 of 2024 O.A.No. 260/0004 of 2024 shown for not doing so within the prescribed period and an order is passed under section 21 (3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised, but we have not felt impressed. In our view, the Tribunal cannot abdicate its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant."
8. This Tribunal is reminded by the decision of the Hon'ble Apex Court in the case of Chennai Metropolitan Water Supply and Sewarage Board and Others v. T.T. Murali Babu, 2014 (4) SCC 108, the Hon'ble Apex Court have opined as under:
".....A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold." (emphasis added).
9. In the case of State of Uttaranchal and Another v. Shiv Charan Singh Bhandari and Others, 2013 (12) SCC 179, the Hon'ble Apex Court declined to exercise extraordinary jurisdiction for inordinate delay and held as under :
11 M.A.No. 260/0002 of 2024
O.A.No. 260/0004 of 2024 "In State of T.N. v. Seshachalam, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: ...filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."
10. In the case of Bhoop Singh v. Union of India, (1992) 3 SCC 136, it was held by the Hon'ble Apex Court as under:
"8. There is another aspect of the matter. Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified in acting on that belief. This is more so in service matters where vacancies are required to be filled promptly. A person cannot be permitted to challenge the termination of his service after a period of twenty-two years, without any cogent explanation for the inordinate delay, merely because others similarly dismissed had been reinstated as a result of their earlier petitions being allowed." (emphasis added)
11. In the case of P.K. Ramachandran Vs. State of Kerala & Anr., AIR 1998 SC 2276, the Hon'ble Apex Court while considering a case of condonation of delay of 565 days, wherein no explanation much less a reasonable or satisfactory explanation for condonation of delay had 12 M.A.No. 260/0002 of 2024 O.A.No. 260/0004 of 2024 been given, held that "Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds."
12. The Hon'ble Apex Court in the case of Postmaster General v. Living Media India Limited, (2012) 3 SCC 563, dismissed an application for condonation of delay of 427 days in filing the Special Leave Petition and held that condonation of delay is not an exception, and it should not be used as an anticipated benefit for the government departments. The Court also discussed several authorities on the subject to arrive at the conclusion. The Court reiterated that delay should not be excused as a matter of generosity.
13. Arguments advanced on behalf of the petitioner are that this being a matter relating to family pension, comes under recurring cause of action and, therefore, delay is liable to be condoned. We find this submission merits acceptance where the grievance is in respect of payment of pension as such amount becomes due and payable each month. Rather, this Tribunal cannot go beyond the provision of the AT Act and the law that an applicant, who approaches the court belatedly or 13 M.A.No. 260/0002 of 2024 O.A.No. 260/0004 of 2024 in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber, ought not to be granted the extraordinary relief by the courts/tribunal on the face of the specific decision of the Hon'ble Apex Court that delay defeats equity. Delay or laches is one of the factors which should be born in mind while exercising discretionary powers by the court and tribunal. In the instant case, the applicant, admittedly, approached this Tribunal after 29 years of the death of the railway employee without any such unimpeachable document to establish that the her husband was working in pensionable establishment. She has produced Xerox copy of bank account to show that after the death some amount was credited in the said account, on perusal of which it is not visible wherefrom such amount was credited and for what purpose. Therefore, this document cannot be accepted at this distance place of time to come to the conclusion in absence of any such supporting material that she was the wife of late Baidhar and was entitled to family pension. This Tribunal cannot make a roving inquiry so as to come to the conclusion that the applicant is actually the widow of ex railway employee and is entitled to family pension at this stage when it is the specific stand of the respondents that the records have been weeded out as per Estt. Sl. No. 90/99 after expiry of the 14 M.A.No. 260/0002 of 2024 O.A.No. 260/0004 of 2024 preservation period. Thus, taking into consideration all the facts discussed above, we see no such grounds to entertain this OA by condoning the delay.
14. The net result is that the MA No. 02/2024 is liable to be dismissed and is accordingly dismissed and, as a consequence, OA fails. Parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS