Central Administrative Tribunal - Ernakulam
C P Bhahuleyan vs Bharat Sanchar Nigam Limited on 5 December, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.180/290/2022
Tuesday, this the 5th day of December, 2023
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
C.P. Bahuleyan., Aged 57 years, S/o V.P.
Balakrishnamenon Mentally challenged person
Represented by his guardian and brother
C.P.Vijayagopalan, S/o V.P. Balakrishnamenon
Aged 55 years, Residing at 14/184, Saradendu
Parrotnagar, Pirayiri P.O., Palakkad- 678004.
- Applicant
[By Advocates : Mr.M.R.Hariraj, Mr.Viswajith C.K., Ms.Gisha G Raj,
Mr.Rejivue K.C., Ms.Alina Anna Kose, Mr.Gayatri Viswanathan]
Versus
1. Bharat Sanchar Nigam Limited represented by its Chairman
and Managing Director, Bharath Sanchar Bhavan
New Delhi- 110001
2. Chief General Manager, Telecom, Kerala Circle
Thiruvananthapuram-695004
3. Controller of Communication (Accounts)
Department of Telecom, Youth Sanchar Bhavan
Thiruvananthapuram- 695033.
- Respondents
[By Advocates: Mr.P.Muraleedharan for R1 and R2
Mrs.O.M.Shalina, SCGSC for R3]
The application having been heard on 16.10.2023, the Tribunal
on 05.12.2023 passed the following:
O.A 290/2022 2
ORDER
Applicant is a mentally challenged person, represented by his younger brother as guardian and next friend. The mother of the applicant Smt. C.P.Sarada was a Telephone Supervisor in the Department of Telecom, who passed away in harness on 29.01.1987. She was survived by her husband, a disabled Ex-serviceman and four children including the applicant. After her death family pension was granted to the father, who passed away on 04.09.1989. It is submitted that, after the death of the parents, the children became practically orphans and the applicant was granted family pension till he attained the age of 25 years. Thereafter, his younger siblings were granted family pension till 1994.
2. The grievance of the applicant is that, being a mentally challenged person, he is entitled to get family pension. His mother had fallen ill during his childhood. Even though he had shown signs of mental illness from childhood, became uneasy at the slightest provocation and made hallucinative statements, due to the prolonged illness of the mother and financial constraints he was not given proper O.A 290/2022 3 treatment and the ailments were tried to be cured through prayers and poojas. According to the next friend, 'probably the father of the applicant might have taken him for some local treatment', for which records are not available. When offer of compassionate appointment was made, due to the health situation the applicant did not take it and the job was given to the younger brother in 1989. When the responsibilities of the family were taken over by the second brother, he tried to procure treatment for the applicant by consulting a psychiatrist, as indicated in Annexure-A1. Even though the application for family pension was submitted, that has not been considered by the respondents. Then the applicant approached the Court of the Chief Commissioner of Persons with Disabilities, where the respondents agreed to consider his application for family pension. But now they have taken an untenable stand that a certificate should be produced stating that on the date of death of the parents, he has been suffering from mental disability. The stand of the respondents, based on Annexure-A11 Office Memorandum that a certificate of disability O.A 290/2022 4 should be obtained after the death of the parents is illegal, arbitrary, ultravires and violative of Articles 14 and 16 of the Constitution.
3. According to the applicant, getting family pension is a right offered by the Statute: refusing the same on the ground that documents are not available to show that the applicant was disabled on the date of death of the parents is illegal. He was sick and disabled even when the parents were alive. Family pension is available to a major child suffering from disability. Even assuming that the applicant became disabled subsequent to the death of the mother, it will not disentitle him for consideration. Attempt to differentiate, based on the time of attaining the disability is without any intelligible differentia or rational nexus.
4. Thus the applicant seeks a declaration that he is entitled to get family pension from 1994, to direct the respondents to grant him family pension with arrears from 1994 onwards with interest at the rate of 12% per annum.
5. Respondents 1 and 2 filed a joint reply whereas the 3 rd respondent filed a separate reply. But the stands taken by them are O.A 290/2022 5 identical. They denied the claim that subsequent to the death of the father, the applicant was granted family pension. Relying on Annexure- R3(A), it is submitted that on the basis of the 'No Objection' letter issued by the applicant and two siblings, family pension was granted to the younger brother, Sri.C.P.Sasidharan. Similarly, based on Annexure- R3(B), it is submitted that at that time the applicant was employed also.
6. According to the respondents, grant of family pension depends on statutory rules, Office Memoranda, guidelines etc. The respondents are unable to verify the assertions made by the applicant that he had shown signs of mental illness during the life time of parents which could not be seriously noticed due to the illness of the mother etc. Pursuant to Annexure-A4 order of the Court of Chief Commissioner of Persons with Disabilities, the applicant had to produce necessary documents, but it were not produced. As provided in Annexure-A11 Office Memorandum it is necessary to show that the disability had existed prior to the death of the pensioner or family pensioner. Moreover, an application for family pension was filed after O.A 290/2022 6 a lapse of 21 years. Such pension can be granted only on the basis of nomination given by either the pensioner or family pensioner, as provided under Rule 54 of the CCS(Pension) Rules, 1972. According to the respondents, it is evident that the applicant was affected with mental illness only after the death of the parents and in the circumstance, he is not entitled to get any relief. Thus the Original Application is sought to be dismissed.
7. I heard Smt.Gayatri Viswanathan, the learned counsel for the applicant as well as Smt.O.M.Shalina and Sri.P.Muraleedharan, the learned Standing Counsel for the respondents.
8. Applicant is the son of Smt.Sarada, who was a Telephone Supervisor in the Department of Telecom, who passed away on 29.01.1987 while in service. Smt.Sarada had died leaving behind her husband and four children. The applicant is the eldest child, born on 01.05.1965. He has three siblings below him, first brother C.P.Vijayagopalan born on 28.05.1966, others C.P.Sasidharanan and C.P.Umadevi, who are twins, born on 13.08.1969. After the death of Sarada, family pension was granted to her husband, who was an Ex- O.A 290/2022 7 serviceman.
9. The applicant claims that after the death of the father right of family pension has devolved on him; till attaining the age of 25 years he got the same, after him the right had passed to his younger brother and sister. The claim that he had drawn family pension after the death of the father has been denied by the respondents. The applicant did not produce any document to show that he had drawn family pension after the death of the father, till his age of 25 years. On the other hand, controverting his claim, Annexures-R3(A) and R3(B) have been produced by the respondents. Annexure-R3(A) dated 24.07.1990 suggests that the applicant and his siblings Vijayagopalan and Umadevi had conveyed their 'no objection' in giving family pension to their younger brother C.P.Sasidharan, twin brother of Umadevi. Moreover, highlighting Annexure-R3(B) it has been pointed out that during 1990s when the question of grant of family pension had arisen, the applicant as well as the younger brother C.P.Vijayagopalan were employed and had means of earning so that they could not have claimed the benefit.
10. That means, there are clear materials to say that during the O.A 290/2022 8 passing away of the father in 1989 the applicant was employed and could not claim family pension.
11. Now the applicant wants to impress the Tribunal that even during the period of his parents he had been showing signs of mental illness, but it was not addressed seriously because of the financial and social adverse circumstances of the family; only in 1995 a psychiatrist was consulted and treatment was arranged to him by the guardian and next friend. Elaborating Annexure-A1 with the aid of Anneure-A12 document, the learned counsel for the applicant submitted that at that time the applicant was taken to Dr.Ramakrishnan, a Psychiatrist as referred by Dr.Ganga. He had complaints of weakness, paranoid tendency, vague thoughts, inappropriate gestures, talking to himself and the Doctor had diagnosed him suffering from Schizophrenia with suspected duration of two years. According to the learned counsel, it may be true that the applicant might have been employed for sometime, but all were temporary engagements, because of the mental disability, which is congenital in nature; because of the mental disposition he never stuck to any vocation, ultimately he lost the jobs. O.A 290/2022 9 Learned counsel also relied on the Annexure-A3 disability certificate issued by the National Institute of Mental Health and Neuro Sciences dated 12.01.2016 as well as Annexure-A6 disability certificate issued by the Medical Board of the District Hospital, Palakkad. In both the certificates he has been diagnosed as a person suffering from Paranoid Schizophrenia. In Annexure-A3 percentage of disability is 55 whereas the Medical Board of District Hospital, Palakkad has certified permanent disability of 50%. Learned counsel also submitted that he had features of such an ailment from the period of adolescence which had gradually developed when he grew up. According to the learned counsel, prior to 01.01.1990, there was no necessity of giving details of the family to the employer so that family constitution might not have been entered in the Pension Payment Order. Referring to Annexure- A11 she pointed out that the applicant is not in a position to obtain the certificate to the effect that he was suffering from mental illness on the date of death of the mother or the father. There is absolutely nothing in the Statute which insists that he shall be entitled to get family O.A 290/2022 10 pension only if such a disability existed on the date of death of the mother or the father. According to her, a subsequent manifestation would also enable him to claim the benefit under Rule 54(6) of the CCS(Pension) Rules, 1972.
12. On the other hand, both the learned Standing Counsel representing the respondents argued that the applicant is not entitled to get any relief. According to them, the applicant could not prove that he had shown any sign of such ailment during the life time of the parents. Annexure-A1 dated 31.08.1995 is the first document showing the treatment obtained in 1995. It is not capable of tracing history of his disability; Annexure-A1 is only a prescription. According to them, now the applicant is 58 years old, such a claim has been raised after long lapse of time. They also relied on Annexures-R3(A)and (B) to buttress their contentions.
13. The claim of mental illness of the applicant could not be traced by the respondents owing to the non-production of material documents sought by the respondents. Such an application stood stuck by Annexure-A10 dated 11.05.2022, whereby it was informed O.A 290/2022 11 that the crucial date for claiming family pension is the date of death of the employee or her spouse. Therefore, he was asked to produce certificate showing the date from which he has been suffering from mental disability. In this connection, Annexure-A11 Office Memorandum dated 27.01.2016 also was relied on. According to the applicant, it is practically impossible to procure such a document. Serious attempts were made by the learned counsel by placing literature explaining the characteristic features of the ailment namely, Paranoid Schizophrenia and submitted that due to the social and financial condition of the family, even though the applicant had demonstrated symptoms of such ailments in his early adolescence, that were gone unaddressed and proper treatments were not imparted. The mother was ill, the father was also invalid, so that his ailment was not properly taken care of.
14. Indisputably, Paranoid Schizophrenia is a chronic, severe and disabling brain disorder. A patient of the decease demonstrates an all round impairment of mental faculties; emotionally also he becomes flat and apathetic. It is no doubt a serious condition of destabilising O.A 290/2022 12 mental equilibrium, requiring constant attention by the kith and kin. Such a patient deserves an empathetic treatment from all corners.
15. All the same, we cannot forget the fact that, in such a claim the burden of proof is heavily on the applicant. No document is forthcoming to show that he had traces of any such ailment during the life time of the parents. Annexure-A12 hints that signs of such ailment might have developed two years prior to 1995.
16. As indicated earlier, during July and August 1990, when the application for grant of family pension, after the death of the father, was considered the applicant had given a 'no objection' in granting the same to his younger brother; moreover, at that time he was employed also. Such an employment is not denied by the applicant.
17. Going by the provisions of the CCS(Pension) Rules, 1972 or 2021 the crucial criteria for grant of family pension to an unmarried son is whether he is depending on the income of the service pensioner or family pensioner and also whether he has independent means of earning. Moreover, the crucial date seems to be the date of death of the pensioner or family pensioner. It is true that there is nothing in the O.A 290/2022 13 1972 Rules, unlike in the case of 2021 Rules, that what is reckonable is the disability existed before the date of death of the pensioner or his/her spouse. Such an aspect was highlighted through Annexure-A11 Office Memorandum dated 27.06.2016. But having regard to the totality of circumstances, it is inferable that what is important is the situation on the date of death of the service pensioner or family pensioner, the question of disability and also independent means of livelihood of the applicant should be traceable to that date.
18. After evaluating the materials, in my view, it is very certain that on the date of death of the parents there are no reasons to doubt that the applicant was not dependent on the income of the parents. The documents produced by the respondents clearly indicate that he was employed and had his own independent means of earning.
19. The argument of the learned counsel for the applicant that subsequent manifestation of such a disability also enures to his benefit, cannot be accepted. From Annexure-A11 it is clear that what is important is the situation on the date of death of the employee or the family pensioner. Even though that is not in accordance with the O.A 290/2022 14 provisions that existed at that time, still there is nothing against the general intention of the Statute. Now, that has been made amply clear from Rule 50(9)(h)(i) of the 2021 Rules, where it is made clear that the disability existed before the death of the Government servant or pensioner and his/her spouse is what matters. This provision is squarely applicable in the case of the applicant. The applicant could not bring any material to probabilise the contention that such disability existed prior to the death of his parents. In the absence of proper materials, this Tribunal cannot proceed on the basis of mere surmises and conjunctures.
Resultantly, the applicant is bound to fail. Original Application is dismissed, with regrets. No costs.
(Dated, this the 5th December, 2023) JUSTICE K. HARIPAL JUDICIAL MEMBER ds O.A 290/2022 15 List of Annexures Annexure A1- True copy of the prescriptions issued by Dr. N. Ramakrishnan, Psychiatrist, on 31/8/1995 Annexure A2- A true copy of the application dated 21/10/2016 Annexure A3 - True copy of the disability certificate dated 12/09/2016 issued from NIMHANS Annexure A4 True copy of order dated 28/09/2018 in case No. 8049/1024/2017 on the files of the Court of Chief Commissioner for Persons with Disabilities Annexure A5- True copy of letter No. ST/Family Pension/Bahuleyan/ 2018-19/23 dated 15/06/2019 Annexure A6 True copy of Disability certificate dated 26/06/2019 Annexure A7 - True copy of letter No. B4/5785/19 dated 01/07/2019 of Superintendent, Government Hospital, Palakkad along with English Translation Annexure A8 True copy of order No. B1 423/2021 Kdis 22-23 dated 26/02/2022 Annexure A9 True copy of the certificate dated 01.09.2018 issued by the Thahasildar C1-2018/12360/9/500 Annexure A10 - True copy of letter No. CCA/KRL/TA/10- 11/C-84/86- 87/part-1/446 dated 11/05/2022 Annexure A11- True copy of OM No. 1/18/2001- P&PWE(Vol.II) dated 27/01/2016 O.A 290/2022 16 Annexure R3(A): True copy of No Objection dated 24.07.1990 submitted by the applicant and his siblings for re- grant of family pension Annexure R3(B): True copy of Form-21 dated 08.08.1990 Annexure R2(a): True copy of communication No.E50/C.P.B/2016- 17/26 dated 24.9.2018 Annexure R2(b): True copy of Communication No.E-50/C.P.B/2016- 17/41 dated 1.8.2019.
Annexure R2(c): True copy of Communication No.E-50/CPB/2021- 22/PARTII/12 dated 5.3.22 Annexure R2(d): True copy of family particulars of Smt. C.P.Sarada ************