Central Administrative Tribunal - Delhi
Chaman Lal vs M/O Railways on 27 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 2067/2014
Reserved on: 25.05.2016
Pronounced on:27.05.2016
Hon'ble Mr. P.K. Basu, Member (A)
Shri Chaman Lal, Age 80 years
Designation - Fitter (Retired), Group - C
S/o late Shri Balasa Ram
R/o House No.336/2, Rambir Colony,
Jind, Haryana ... Applicant
(Through Shri Ravinder Kumar Sharma, Advocate)
Versus
1. Union of India through
The General Manager
Northern Region, Baroda House,
Copernicus Marg,
New Delhi-110001
2. The Divisional Manager
Delhi Division, State Entry Road
Paharganj, New Delhi ... Respondents
(Through Shri Kripa Shankar Prasad, Advocate)
ORDER
The applicant was appointed as a Fitter with the respondents. He was retired from service on 7.11.1989 on medical grounds. His son was appointed on compassionate grounds in April 1990. In the original PPO issued by the respondents, the applicant was shown as retired on superannuation. Later on, however, vide revised PPO dated 16.09.2013, type of pension was revised to invalid pension. The applicant approached this Tribunal in OA 2871/2011 seeking 2 OA 2067/2014 disability pension and Constant Attendant Allowance, which was disposed of by this Tribunal vide order dated 18.12.2012. The operative part of the said order reads as follows:
"6. On a consensual basis, this application is disposed of with liberty to the applicant to make a detailed representation to the respondents requesting for converting his superannuation pension to disability pension. If such a representation is acceded to by them, they may also proceed further to consider grant of Constant Attendant Allowance as per the applicable rules. However, if the respondents decide otherwise, the applicant be informed of the reasons therefor through a reasoned and speaking order. Upon receipt of the representation, if any, as aforesaid, the respondents shall consider the same and pass appropriate orders thereon within a period of three months from the date of receipt of the said representation.
7. The OA is disposed of in above terms."
A Contempt Petition (CP) No.234/2013 was also filed thereafter, which was disposed of vide order dated 20.09.2013, closing the CP in view of letter dated 3.09.2013 issued by the respondents with liberty to the petitioner to challenge the aforesaid speaking order as well as the revised Pension Payment Advice.
2. This OA has been filed with the following prayers:
(A) To quash and set aside the order dated 3.09.2013 and direct to the respondent fix the pension as per the correct PPO issued on 16.09.2013.
(B) To direct the respondents for grant of Extra Ordinary Pension (Disability pension) with interest @ 12% from the date of retirement of applicant.
(C) To direct the respondent grant the Constant
Attendant Allowance as per
3
OA 2067/2014
recommendation of 6th C.P.C. with interest @ 12%.
(D) To allow the OA in favour of applicant with exemplary costs.
3. By speaking order dated 3.09.2013, the respondents have rejected the applicant's claim for disability pension as laid down in Railway Service (Extra Ordinary) Rules, 1993 on the ground that primarily as per Rule 15 of the said Rules:
i) the applicant must have applied on the prescribed form;
ii) there should have been recommendation of Accounts Officer;
iii) there has to be recommendation of medical authorities; and
iv) based on above, the proposal is to be sent to Railway Board for sanction of disability pension.
The order dated 3.09.2013 states that no such procedure was followed in case of the applicant for sanction of disability pension. Moreover, it is stated that he had been invalidated by the Medical Board being a case of extensive myopic chlorioretinal where medical history of applicant does not reflect any injury inflicted upon him and diminition of vision attributable to his service. As such, the provisions of disability pension are not attracted in his case.
4. During the course of arguments, learned counsel for the applicant also stated that as per Railway Board letter dated 4 OA 2067/2014 16.12.2009, the pensioners who retired on disability pension under 1993 Rules for 100% disability (where the individual is completely dependent on somebody else for day to day functions), a constant attendant allowance of Rs.3000/- per month shall be allowed in addition to the disability pension on the lines it existed in Defence forces. To this, the respondents stand is that since the applicant is not eligible at all for disability pension under 1993 Rules, there is no question of sanctioning constant attendant allowance. In fact, the circular dated 29.04.2009 (Annexure A-7) is primarily regarding constant attendant allowance for those who retired under disability pension under 1993 Rules.
5. Learned counsel for the applicant drew my attention to the pass issued by railways to the applicant for journey to be undertaken on 14.05.2014 (Annexure A-6). It is stated that apart from the applicant, his wife and children, pass has been issued to one attendant because of his 100% blindness. It is thus contended that the aforementioned pass issued in 2014 clearly shows that the respondents have been treating the applicant as 100% blind and, therefore, have issued railway pass for an attendant themselves and now they cannot deny him constant attendant allowance. The respondents reply to this is that as per the rules of Post Retirement Complimentary Pass (Annexure R-3 colly), sub-para (vii) provides as follows:
"vii. When a retired Railway servant himself or a member of his family eligible for inclusion in post- retirement complimentary pass is blind in both eyes, 5 OA 2067/2014 and travels alone, one attendant may be allowed to travel in the same class in which the blind person is travelling duly including the attendant in the complimentary pass, on production of a certificate from Medical Officer of the Railway concerned to the effect that the person concerned is blind in both the eyes."
It is stated that this has no link with the disability pension under 1993 Rules and, therefore, this cannot be made a ground to claim constant attendant allowance.
6. Learned counsel for the applicant next argued that the applicant who had retired in 1989, not being well educated, was unaware that in 1993, Railway Services (Extraordinary Pension) Rules 1993 were notified and that it was suggested to him by some of his colleagues that he could now claim disability pension under these Rules. In fact, the learned counsel pointed out that under Rule 2 of the aforesaid Rules, it is specifically provided that this will be applicable to those who entered or enter railway service on or after the 1st April 1937 and, therefore, these Rules should be applicable to the applicant as well.
7. My attention was also drawn to the Service Certificate issued by the railways dated 2.01.1990 in which reason for leaving service has been recorded as "medically retired on 1.11.1989." Similarly, the learned counsel for the applicant drew my attention towards certificate dated 22.04.2009 issued by General Hospital, Jind where it has been recorded that the applicant has 100% disability.
6OA 2067/2014
8. Learned counsel for the applicant further drew my attention to the report of the Medical Board dated 16.10.1989 in which against column no.16, "vision not good" has been recorded by the Medical Board based on which the applicant was sanctioned invalid pension. It has, therefore, been argued that since the applicant was granted invalid pension based on his vision not being good which later on degenerated into 100% blindness, his is a fit case for disability pension and, in case, his prayer for grant of disability pension is allowed, he automatically would qualify for constant attendant allowance by virtue of letter dated 29.04.2009 of the Ministry of Railways.
9. Learned counsel for the respondents argued that Rule 4 (1) (a) of the Railway Services (Extraordinary Pension) Rules 1993 makes it clear that disability pension is payable only if it is certified that it is due to wound, injury or disease which is attributable to railway service or existed before or arose during railway service and has been and remains aggravated thereby. It is stated that in case of the applicant, there is no evidence to show that disablement arose which is attributable to railway service etc. In fact, it is stated that the certificate of 100% disability has been issued by a private hospital at Jind, which cannot be accepted by the Railway Board.
10. Learned counsel for the respondents further drew my attention to Part II of the Medical Certificate produced by the applicant in which the following has been recorded: 7 OA 2067/2014
"He was invalidated by the medical Board being a case of wide spread chorioretinal progressive degeneration with marked diminution of vision."
In this regard, the learned counsel drew my attention to Schedule II of 1993 Rules and specifically to the list under the heading "Diseases not normally affected by service". Under the heading `eyes', at serial number (xv), myopia has been indicated. It is argued by the learned counsel for the respondents that what the applicant suffers from is a gradual degeneration of the eye sight due to myopia. This cannot be attributable to disablement due to railway service. Moreover, the medical certificate obtained by the applicant from General Hospital, Jind pertains to the year 2009, which is almost 20 years after his retirement and his eye sight could have deteriorated after retirement by the passage of time.
11. The bottom line of the argument of the respondents counsel is that disability under 1993 Rules can only be claimed if the disablement is due to wound, injury or disease which is attributable to railway service. In case of the applicant, there is no evidence to indicate that this is so and, therefore, there is no question of his eligibility to disability pension and also Constant Attendant Allowance.
12. In reply, learned counsel for the applicant drew my attention to the judgment of the Hon'ble Supreme Court in 8 OA 2067/2014 Dharamvir Singh Vs. Union of India and others, (2013) 7 SCC 316, where the Hon'ble Supreme Court held as follows:
".........Absence of disabilities or disease noted or recorded at time of entry into service/ armed force - Presumption of sound physical and mental condition at said time of entry on basis of - Availability of - Principles laid down in detail....
......Held, in absence of any evidence to show that applicant was suffering from "generalized seizure (epilepsy)" at time of entrance into service, it is to be presumed that appellant was in sound physical and mental condition at that time and that deterioration in health had taken place during service, and that disability of appellant bore casual connection with service conditions - It was immaterial in present case whether cause giving rise to disability or death occurred in area declared to be a field service/ active service area or occurred under normal peace conditions............
......Held, a member of armed forces is presumed to be in sound physical and mental condition upon entering service if there is no note or entry to the contrary in his records - In the event he is subsequently discharged from service on medical grounds, onus of proof that deterioration in his health was not due to service conditions lies on employer - In case of reasonable doubt, benefit thereof must go to employee.......
......Medical Board, held, must examine cases in light of etiology of particular disease, record conclusions with reasons in support, in clear terms and in language which Pension Sanctioning Authority would easily understand and appreciate while determining question of entitlement of disability pension....."
13. Learned counsel for the applicant states that the applicant was involved in Welder's job in his post and it is well known that welding definitely affects the eyes. It is claimed that deterioration of the eye sight of the applicant has been primarily because of that and hence the disablement definitely arose out of railway service. It is argued that, in fact, in the case of Dharamvir Singh (supra), the Hon'ble Supreme Court has laid 9 OA 2067/2014 down exactly the ratio that if there is no record at the initial appointment of any illness or disability and later on the official is discharged on medical grounds, any deterioration in his health is to be presumed due to his service and the onus of proof is not on the claimant but the employer.
14. Learned counsel for the respondents, however, stated that the judgment of the Hon'ble Supreme Court in Dharamvir Singh (supra) is not applicable in this case as the facts and circumstances are completely different.
15. Both the claim for disability pension and Constant Attendant Allowance hinges on one issue which is whether the disablement is attributable to the applicant's service in the railways. It is a fact that railways initially issued a PPO on the basis of superannuation though, as the applicant has pointed out that in the service certificate, it is clearly written that he was medically retired and in railway passes also issued to him, the applicant is shown as 100% blind. Similarly, in its report dated 16.10.1989, the Medical Board has recorded "vision not good"
and that the applicant was invalidated being a case of wide spread chorioretinal progressive degeneration with marked diminition of vision. The error in issuing of superannuation pension was later on corrected and the applicant was issued invalid pension. Rule 55 of Railway Services (Pension) Rules, 1993 which deals with invalid pension clearly states that invalid pension may be granted to a railway servant who retires from 10 OA 2067/2014 service on account of any bodily or mental infirmity which permanently incapacitates him for service.
16. The fact is that the applicant was a Welder and, therefore, there was strain in his eyes. The Hon'ble Supreme Court in Dharamvir Singh (supra) also states that if at the time of entry into service, there is no record to show that he was not in good physical and mental condition and later on his services are terminated because of permanent incapacity, then the presumption is that disablement has arisen due to service with the employer and the onus will be on the employer to prove that it was not so. In this regard, we also refer to order dated 24.07.2015 in OA 3577/2013, Smt. Pushpa Devi Vs. Govt. of NCT of Delhi and others where a similar issue had arisen and the Tribunal had examined various judicial pronouncements on the subject. We quote below relevant portion of the order:
"14. The Somnath (supra) judgment cites several past judgments on this issue which are quoted below. The principle that has been enunciated in Bai Shakri Vs. New Maneckchowl Mills MANU/GJ/0002/1960, is as follows:-
"The principles which emerge from these decisions are:
(1) There must be a casual connation between the injury and the accident and the accident and the work done in the course of employment (2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury (3) It is not necessary that the workman must be actually working at the time of his death or that death must occur while he is working or had just ceased work (4) Where the evidence is balanced, if the evidence shows a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed."11 OA 2067/2014
In Madras State Electricity Board Vs. Ambazhathingal Ithachutti Umma MANU/TN/0339/1965, the Hon'ble Court held:
"17..... should be broadly and liberally construed, in order to effectuate their evident intent and purpose, in the application of the provisions which govern the nature and determination of the injuries for which compensation may be had. Courts should favour adoption of liberal construction of the words "by accident arising out of and in the course of his employment."
In Devshi Bhanji Khona Vs. Mary Burno MANU/KE/0162/1984, it was held :
"18..... the leaning of the Court has to be towards the person for whose benefit the legislation is made."
In State of Kerala Vs. Ramaniamma MANU/KE/0598/1998, it was held :
"20.......there is no room for taking a narrow view and the Court is entitled to be generous towards person on whom the benefit has been conferred."
In Post Master General Vs. Kaushalya Devi MANU/JK/0121/2002, it was held :
"21...... Since the Act is a welfare legislation, made for the interest of the poor workmen, even if any particular provision of the Act is capable of two interpretations, that which is more favourable to the person for whose benefit the legislation has been made, should be adopted.... Suciberal interpretation would accomplish the humane and welfare purposes of this legislation, the provisions of which are truly responsive to the socio-economic needs recognized by our society and also by the Constitution. The rights of workmen deserves to be treated generously while applying the statutory provisions. "
In Clover, Clayton and Co. Vs.Hughes, it was held :
37......Even if a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under circumstances which can be said to be accidental, his death results from injury by accident."
15. In the Somnath case also, the dispute was that the medical report stated that the victim died of a heart attack and the government took the stand that death was natural and no compensation was due. The Hon'ble High Court examined this issue in great detail, relying on several earlier judgments and came to the conclusion that 12 OA 2067/2014 compensation was payable. The judgments relied upon by the Hon'ble Court are listed below for ready reference :-
(i) Fenton Vs. J.Thorley and Co. [1903] A.C.443
(ii) McFarlane Vs. Hutton Borthers (Stevedores) Ltd.[1927] 96 LJKB 357
(iii) Muscroft Vs. Stewarts and Lloyds Ltd.140 LT 64
(iv) Falmouth Docks and Engineering Company Vs. Treloar [1933] A.C.481
(v) Partridge Jones and John Paton Limited vs. James [1933] A.C.501
(vi) In Madras State Electricity Board Vs. Ambazhathingal Ithachutti Umma MANU/TN/0339/1965
(vii) Devshi Bhanji Khona Vs. Mary Burno MANU/KE/0162/1984
(viii) Devibehn Dudhabhai Vs. Manager, lberty talkies and Anr. MANU/GJ/0275/1993 (1994)
(ix) State of Kerala Vs. Ramaniamma MANU/KE/0598/1998
(x) Post Master General Vs. Kaushalya Devi MANU/JK/0121/2002
(xi) Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port Trust, MANU/MH/0049/1954
(xii) Bai Shakri Vs. New Maneckchowl Mills MANU/GJ/0002/1969
(xiii) Assam Railways and Trading Co. Ltd. Vs. Saraswati Devi AIR 1963 Assam 127
(xiv) Amubibi Vs. Nagri Mills Co. Ltd MANU/GJ/0052/1976
(xv) Sri Jayaram Motor Service Vs. Pitchammal MANU/TN/0172/1981 (xvi) Director (TandM) Vs. Smt. D.Buchitalli MANU/OR/0298/1986 (xvii) United India Insurance Co. Vs. C.S.Gopalakrishnan MANU/KE/0343/1989 (xviii) Zubeda Bano Vs. Maharashtra SRTC MANU/MH/0237/1989 (xix) National Insurance Co. Ltd Vs. Balawwa MANU/KA/0204/1993 (xx) Thengackal Estate Vs. Reethammal MANU/KE/0365/1996 (xxi) National Mineral Development Corporation Vs. Bindi Bai MANU/MP/0115/1997 (xxii) Shanmuga Mudaliar Vs. Noorjahan MANU/TN/2325/2002 (xxiii) Mackinnon Machenzie and Co. Vs. Rita Fernandez 1969 II LLJ 812 (xxiv) The Divisional Controller Vs. Bai Jiviben Arjan MANU/GJ/0296/1980 13 OA 2067/2014
17. Viewing the issue in the light of the circumstances of the case and also the judgments of the Hon'ble Supreme Court cited above, we are of the opinion that the presumption would be that deterioration in the eye sight of the applicant took place due to his railway service. As a consequence, the applicant would be eligible for disability pension under Railway Services (Extraordinary Pension) Rules 1993 as well as Constant Attendant Allowance of Rs.3000/- per month.
18. The OA is thus allowed with direction to the respondents to sanction applicant disability pension and Constant Attendant Allowance within a period of 90 days from the date of receipt of a certified copy of this order. No costs.
( P.K. Basu ) Member (A) /dkm/