Central Administrative Tribunal - Delhi
Smt. Sarita Devi vs Union Of India Through The General ... on 10 October, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA No.906 of 2012 Orders reserved on : 28.09.2012. Orders pronounced on : 10.10.2012. Honble Dr. Dharam Paul Sharma, Member (J) Smt. Sarita Devi W/o Late Sh. Dhananjay Singh, r/o C/o Railway Quarter No.29-B, Railway Colony, New Guard Line, Railway Station Jind, (Har.). .... Applicant ( By Advocate Yogesh Sharma ) VERSUS 1. Union of India through the General Manager, Northern Railway, Baroda House, New Delhi. 2. The General Manager (P) Northern Railway, Baroda House, New Delhi. 3. The Divisional Railway Manager, Northern Railway, Delhi Division, State Entry Road, New Delhi. 4. The Assistant Divisional Engineer, Northern Railway Station, Jind (Har.). .. Respondents ( By Advocate : Shri P.K. Yadav) O R D E R
This Application is directed against the respondents communication dated 28.11.2011 addressed to the applicant herein informing her that her claim for payment of lump-sum ex-gratia compensation could not be accepted for the reasons that (1) there is no casual connection between death while on duty & employment; & (2) this case does not fulfill the conditions of lump-sum ex gratia compensation.
2. The applicant is legally wedded wife of late Shri Dhananjay Singh, who was working as a Peon under ADEN, Northern Railway, Jind, in Delhi Division. ADEN, Jind sent Shri Dhananjay Singh on tour duty to Delhi to deliver certain official documents of the office of the respondents at Jind to the office of the respondent no.1 on 24.9.2004. On his way back to Jind from Delhi, he met with an accident at Jind Junction Railway Station and died on 24.9.2004. The applicant filed a case no.9/2006 before the Commissioner under Workmens Compensation Act (hereinafter referred to as WCA) on 4.5.2006 and the same was decided in her favour on 20.12.2008. A copy of the order passed under the WCA is at Annexure A/5. The applicant was awarded 9% interest on the amount awarded under the WCA in terms of decision dated 20.11.2009 of the Honble High Court of Punjab and Haryana at Chandigarh in FAO No.3885/2009 (O&M) filed by the applicant herein. A copy of this order is at Annexure A/6. It has further noted that pursuance to the recommendations of Vth Pay, the Department of Pension and Pensioners Welfare, Ministry of Personnel, Public Grievances & Pensions vide their O.M. No.45/55/97-P&PW(C) dated 11.9.1999 decided to grant ex-gratia lump sum compensation to the wards of Government servant died while performing duties. This benefit has been extended to the Railway servants by Railway Board vide R.B.E. No.285/99 (Circular No.E(W)99/CP-1/1 dated 5.11.1999). The Railway Board further clarified that the benefits of ex-gratia lump sum payment would also be applicable to the persons who are governed by the WCA and the same would be an additional benefit to the family of the deceased employee in addition to compensation under WCA. The Railway Board further directed the concerned authorities vide its circular dated 10.5.2008 to fix the time limit of three months for payment of ex-gratia amount to the wards of the deceased employee from the date of death of the employee. Since the husband of the applicant has died while performing bonafide duty, after the award of compensation under the WCA, the applicant approached the respondents for grant of ex-gratia lump-sum payment, but of no avail. She also sent a legal notice. When no reply was received, she also filed OA N0.1308/2011 before this Tribunal and the same was decided vide order dated 7.4.2011 with directions to the respondents to consider the representations/legal notice of the applicant. In compliance with these directions, the respondents have now passed the impugned order dated 28.11.2011 rejecting the claim of the applicant. The grievance of the applicant has been that whereas Railway Board clearly prescribed a period of three months that payment of ex-gratia yet the applicant has not been paid this for over a last eight years. The applicants husband had admittedly been deputed on tour duty to Delhi to deliver certain documents. His body was found on Railway track on 24.9.2004. The Police after investigation submitted a report that the death occurred due to accident with unknown train vide their report dated 01.11.2004. The Court of the Commissioner under WCA vide its order dated 20.12.2008 decided the issue in favour of the applicant, namely, whether the injuries arising out during the accident caused to death of Dhananjay Singh during the course of employment, if so with what details. The case of the applicant is squarely covered by the Railway Board No.285/1999, which inter alia provides as follows:-
Clause (a): Death Attributable to accident while on duty.
1. Death, as a result of an accident while traveling in a public, private or official vehicle or otherwise of a Group D employee, Despatch Rider, Messenger, Postman, notice server etc. deputed to distribute dak, notices etc., or of personnel on field duties.
3. The applicant is thus entitled to the benefit of ex-gratia lump-sum payment of Rs.5 Lakhs by way of additional benefit apart from compensation awarded under the WCA and there is no reason and justification for not granting it to the applicant, the denial of which is ex facie illegally and arbitrary.
4. The applicants claim is controverted by the respondents in their counter reply, wherein it has inter alia been stated that no Railway accident was reported at Jind Railway Station on 24.9.2004 or on 25.9.2004. As per the statement of SS/JHI, the death of Shri Dhananjay Singh cannot be said to have occurred out of and during the course of his employment as no casual connection can be established between death while on duty and because of employment. Accordingly, the compensation claim of the applicant has not been covered under the relevant rules. Even if there was no sufficient grounds for compensation under the WCA but the judgment was implemented to honour the Honble Courts order.
5. At the hearing of the Application, the learned counsel for the appilicant took us through the order of the learned Court of Commissioner under Workmens Compensation Act, 1923 for Bhiwani Circle, at Jind dated 20.12.2008 wherein it has been stated as follows:-
..The respondent No.2 had sent the said Dhananjay Singh on tour to Delhi to deliver certain official documents of the office of respondent No.2 in the office of respondent No.1 on 24.09.2004. On his way back to Jind from Delhi, he died after meeting with an accident at Jind Junction Railway Station, Jind. He died while crossing the railway line at Jind Junction Railway Station at about mid night between 24.09.2004 and 25.09.2004. The post mortem of his dead body was got done by the Government Railway Police, Jind in the General Hospital, Jind vide PMR No.SSJ/45/04 dated 25.09.2004. The Medical Officer opined that the deceased died due to the injuries suffered by him in the railway accident. The police of Police Station, GRP, Jind recorded FIR No.68 dated 25.09.2004. After thorough investigation, the police closed the case by giving opinion that the death occurred due to railway accident with some unknown train vide report dated 01.11.2004. The accidental death of the above said Dhananjay Singh reported to the respondents. The respondents were requested to pay compensation to the petitioners as the death of Dhananjay Singh had occurred while performing the duty of the respondents. The respondents promised to pay compensation to the petitioners under the Workman Compensation Act but the respondents finally refused to pay compensation vide letter No.P/3 dated 13.4.2006. The petitioners were dependent on the income of the deceased Dhananjay Singh, who was a workman as defined in the Workmens Compensation Act. Said Dhananjay Singh was getting wages to the tune of Rs.5,000/- per month. It is prayed that the claim petition may kindly be accepted and an award for a sum of Rs.10 lacs along with interest @ 15% per annum from the date of death of Shri Dhananjay Singh be passed in favour of the applicants in the interest of justice.
Usual notices were issued to the parties; the parties appeared and filed their pleadings. Respondents, the employer of deceased Dhananjay Singh admitted the employment and death of deceased during the course of employment. Respondents denied the claim of the applicants on the basis of rules and regulations of the Indian Railways Act and on merits.
On the basis of the pleadings of the parties, following issues were framed by my predecessor:
1) Whether there is any relation of master and servant between Dhananjay Singh & respondent no.1? if so with what details?
2) Whether the injuries arising out during the accident caused to death of Dhananjay Singh during the course of employment? If so with what details?
3) Whether the applicants are entitled to the claim any compensation amount? If so and from whom?
4) Relief. Issue No.2 above is relevant in the present context as the respondents have taken a different stand contrary to the finding recorded by the Commissioner of Compensation. It would be relevant to see as to how this issue has been dealt with by the Commissioner in the compensation case which is as follows:-
Issue NO.2:
To prove this issue, applicants examined two witnesses. PW1 Ravi Kumar, an official from the Indian Railways deposed that he knows deceased Dhananjay Singh, who was serving as Peon in the Railway Department in the office of AEN. Said Dhananjay Singh had gone to Delhi on official tour and when he returned back, he died in an accident. He was getting Rs.5,000/- per month from the respondents. Lovekesh, one of the applicants/petitioners was examined as AW-2 and reiterated the claim as maintained in the petition. He deposed that his father Dhananjay Singh, who was working as Peon in the office of A.E.N. was died on the intervening night of 24/25th September, 2004. His father Dhananjay Singh on 24.09.2004 had gone to Delhi for official work. Thereafter, on 25.09.2004 in the morning, they came to know that he had expired in Railway Train accident. Sarita Devi is his mother. His father was 44 years old at the time of his death and was getting Rs.5,000/- per month as his salary. They are dependent on the income of deceased Dhananjay Singh. This witness in his examination-in-chief also produced a photocopy of final investigation report Mark CB prepared by the Investigating Officer after investigation of the criminal case bearing FIR No.68 dated 25.09.2004 P.S.GRP, Jind by which the Investigating Officer given the final report narrating therein that the death of Dhananjay Singh occurred due to accident with unknown train. Besides this, this witness also produced the post mortem report of Dhananjay Singh, deceased in which also the information furnished by the police to the Medical Authorities is Railway accident. RW1 Smt. Bela Bansal appearing as witness and also produced a photocopy of Jind Bhaskar Newspaper dated 26.09.2004, in which news regarding death of Dhananjay Singh is also published and disclosed that the death was incidental. This news also shows that said Dhananjay Singh at the time of death was employee of respondents. RW1 also produced a joint report dated 25.09.2004 prepared by the Section Engineer (Works), Northern Railway, Jind as well as by the Station Superintendent and Chief Engineer of the Northern Railway, Jind Junction Ex.R1. As per this report, the death of Dhananjay Singh was a murder and not an accident. Respondetns also produced letter Ex.R-2. In this letter, it has written he was sent to duty on 24.09.2004 to DRM Office, Delhi but he was found dead near platform at Jind Railway Station on 25.09.2004.
Of course, the death of the employee has no nexus with the employment but it cannot be ignored that the case of the applicant falls under the principles of notional extension of employers premises and applying the above said principle, the place of accident has to be construed as the place of duty of the workman concerned even if he had not reached the actual place of work. This principle if fully applicable to the facts of the case of applicants as the employee i.e. deceased at the time of his death was coming to his house after performing his duties as were assigned by the respondents. This fact is duly proved from the document from Ex.R1, Ex.R3 and Mark A produced by the respondents themselves. In letter Ex.R3, the respondents also admitted this act of employment of deceased. Under section 3 (1) of the Act the injury and death must be caused to the workman by an accident arising out of and in the course of employment. Now question arises when an employment of deceased deemed to begin and when it ceased. The Counsel for the applicants cited ruling 2005 ACJ 630, wherein the Honble High Court of Judicature at Madras in C.M.A. No.2934 of 2004; has decided; section 3 (1) Arising out of and in the course of employment notional extension Death of workman when he was proceeding to the place of work whether applying the principle of notional extension of employers premises, the place of accident has to be construed as place of duty of the workman even if he had not reached the actual place of work and the dependent is entitled to compensation Held: yes.
Relying upon the aforesaid judgment the employment of deceased begins and ends when he had used the means of access and egress to and from the place of employment. A contractual duty or obligation on the part of an employee to use only a particular means of transport extends the area of field of employment to the course of the said transport. As per the documentary and oral evidence produced by the parties it is clear that on the day of death the deceased was under the employment of respondents and his dead body was found on the railway tracts at Jind railway station. It is also not in dispute that on that day he was coming to Jind i.e. at his house after performing his duties. Hence, replying upon the aforesaid authority and principle of notional extension I hereby decide this issued in favour of applicants and against the respondents.
6. The learned Court of Commissioner under the WCA decided all the four issues in favour of the applicant. The applicant was accordingly awarded a sum of Rs.3,38,880/- as compensation amount to be payable within 30 days from the date of communication of that order, failing which the amount would be recoverable along with interest at the rate of 12% per annum from the date on which that order was passed till actual realization of the amount awarded.
7. In view of this, learned counsel for the applicant strongly contended that it is not open for the respondents to say that death was not caused due to the Railway accident during the course of employment. Learned counsel for the applicant referred to Office Memorandum, as at Annexure A/2, which, inter alia, provides that families of Civilian Govt. employees who died in harness while performing their official duties under various circumstances would be paid ex-gratia lump-sum as provided therein. Accordingly, ex-gratia lump-sum compensation of Rs.5 Lakhs as has been provided in case of death occurred due to an accident in performance of duties. The relevant extract of conditions governing the payment of ex-gratia lump-sum and guidelines are, inter alia, as follows:-
1. The Main condition to be satisfied for the payment of the ex gratia lumpsum compensation in the specified circumstances is that the death of the employee concerned should have occurred in the actual performance of bonafide official duties. In other words, a causal connection should be established between the occurrence of death and government service. The OM further provides for powers having been delegated to the Administrative Ministries to sanction ex gratia Payments under these orders, it shall be their responsibility as well as that of the Financial Advisers to satisfy themselves that the death of the government servant to be compensated by the payment of the lumpsum ex gratia to the family in fact occurred in the actual performance of bonafide official duties and to establish its causal connection and nexus with government service. This could be done on the basis of medical and other documents relating to the case.
8. The learned counsel for the applicant submitted that the respondent no.2 had sent the said Dhananjay Singh on tour to Delhi to deliver certain official documents of the office of the respondent no.3 to the office of the respondent at Delhi on 24.9.2012. On his way back to Jind from Delhi, he died after meeting with an accident at Jind Junction Railway Station, Jind. He died while crossing the railway line at Jind Junction Railway Station at about mid night between 24.09.2004 and 25.09.2004. The post mortem of his dead body was got one by the Government Railway Police, Jind in the General Hospital, Jind vide PMR No.SSJ/45/04 dated 25.09.2004. The Medical Officer opined that the deceased died due to the injuries suffered by him in the railway accident. The police of Police Station, GRP, Jind recorded FIR No.68 dated 25.09.2004. After thorough investigation, the police closed the case by giving opinion that the death occurred due to railway accident with some unknown train vide report dated 01.11.2004. The learned counsel for the applicant also referred to illustration (1) under Clause (a): Death attributable to accidents while on duty which reads as follows:-
1. Death, as a result of an accident while travelling in a public, private or official vehicle or otherwise of a Group 'D' employee, Dispatch Rider, Messenger, Postman, Notice Server, etc. deputed to distribute dak, notices etc. or of personnel on field duties.
9. On the strength of these provisions, the learned counsel for the applicant strongly contended that there is enough evidence in the form of Post Mortem Report, police report, the order of the Commissioner of Compensation to hold that the applicant died in harness while performing official duties. As such, the case is fully covered for the grant of ex-gratia lump-sum compensation to the applicant.
10. On the other hand, learned counsel for the respondents reiterated the averments made in the counter reply, more particularly, in paras D. and E. of their counter reply. Learned counsel for the respondents also referred to the impugned order, more particularly, clause (2) thereof which reads as follows:-
2. The case of your husband was critically examined by Divl. Authorities of Delhi Divn. as per instructions/guidelines laid down in workmen compensation Act, 1923 and after careful consideration, the following decision was taken, which was communicated vide letter dated 24.03.2006.
On perusal of records and statement of SS/JHI, death of Sh. Dhananjay Singh can not be stated to have occurred out of and during the course of his employment as no casual connection can be established between death while on duty and because of employment this can not be ground for compensation under WC Act. Accordingly the compensation claims of Late Sh. Dhananjay Singh under WCA, was regretted, as it was not covered under relevant rules. It has further been stated that even after payments pursuant to the order of the Commissioner of WCA and the Honble High Court of Punjab and Haryana at Chandigarh, the case of the applicant has again been critically examined in the light of the instructions/guidelines for payment of lump sum ex-gratia compensation and it has been found that there is no casual connection between the death while on duty & in employment. The case of the applicant does not fulfill the condition of lump sum ex-gratia payment. In para 6 of their counter reply, the respondents have stated that as per the conclusion of the Joint Enquiry Report of the accident prepared at the time of accident on 25.9.2004 revealed that it appears that Shri Dhananjay Singh has not committed suicide/met with Railway Accident but Sh. Dhananjay Kr. Singh has been murdered and dead body of Dhananjay Singh after murdered placed on the Rly. Track and as per SS/Jind report, there was no Rly. Accident occurred at Jind Junction on 25.9.04. It is also submitted that on 25.9.04 Sh. Dhananjay was not on duty. His duty was only upto 24.9.04 and he has to report on 25.9.04 in this office.
11. I have given my careful consideration to the respective submissions made by both the parties and I have carefully perused the records of the case, more particularly, the impugned order. The impugned order, inter alia, states in para 2 thereof that On perusal of records and statement of SS/JHI, death of Sh. Dhananjay Singh can not be stated to have occurred out of and during the course of his employment as no casual connection can be established between death while on duty and because of employment this can not be ground for compensation under WC Act. Accordingly the compensation claims of Late Sh. Dhananjay Singh under WCA, was regretted, as it was not covered under relevant rules. That being so, the respondents ought to have challenged the order of learned court of Commissioner under WCA. The statement of SS/JHI on which much reliance is stated to have been placed by the respondents is neither annexed with the counter affidavit of the respondents nor has been placed before us at the time of hearing for my consideration. As against this, there is evidence in the form of Post Mortem Report of the deceased, police report as well as the order of the learned court of Commissioner under WCA holding that the death occurred while the deceased employee was returning from official duties after delivering the official documents at Delhi as a result of some Railway accident.
12. Admittedly, the deceased employee was deputed on tour duty for delivering certain official documents at Delhi. He did not return back home from the tour duty and on his way back met with his death. The respondents stand that the applicant was never murdered and not met with Railway accident is not borne out by the records of the case. Had he been murdered, the authority concerned should have lodged a report to this effect with the police authorities. Similarly, SS/Jind report that there was no Railway accident occurred at Jind Junction on 25.9.2004 does not wipe out other evidence available to the contrary insofar as death of Shri Dhananjay Singh is concerned, but admittedly, Shri Dhananjay Singh was deputed on tour to Delhi on 24.9.2004 but he did not report back home and died while in way back from his tour duty. As against this, the Post Mortem Report as well as the police report along with the order of the compensation commissioner clearly indicates that Shri Dhananjay Singh died as a result of accident during the course of his employment.
13. Illustration (1) as given in Office Memorandum as at Annexure A/2 clearly illustrates that where Death, as a result of an accident while travelling in a public, private or official vehicle or otherwise of a Group 'D' employee, Dispatch Rider, Messenger, Postman, Notice Server, etc. deputed to distribute dak, notices etc. or of personnel on field duties is fall within the ambit of death attributable to accidents while on duty.
14. It is relevant to note in this regard that the OM itself provides for extension of benefits of reasonable doubt more liberally in field service cases. This is in accordance with the nature of grant of ex-gratia lump sum payment by way of special benefits in cases of death while in service as a welfare measure and as such ought to be liberally construed.
15. Having given my careful consideration to the issues involved in the case and after careful perusing the records, we are of the concerned view that the impugned order of the respondents is not sustainable as it goes contrary to preponderance of evidence indicating death of Shri Dhananjay Singh attributable to accident while returning from Delhi and, therefore, the applicant is entitled to special benefits by way of grant of ex-gratia lump sum compensation to the applicant on account of death of her husband while in service in the course of employment. Accordingly, we quash the impugned order dated 28.11.2011 and set it aside. The respondents are directed to pay ex-gratia lump sum compensation to the applicant along with interest at the rate of 9% within three weeks from the date of receipt of certified copy of this order.
16. In the result, the OA is allowed in above terms. No order as to costs.
(Dr. Dharam Paul Sharma) Member (J) /ravi/