Central Administrative Tribunal - Delhi
Mukesh Kumar vs M/O Railways on 26 October, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.928 of 2016
Orders reserved on : 08.10.2018
Orders pronounced on : 26.10.2018
Hon'ble Ms. Nita Chowdhury, Member (A)
Shri Mukesh Kumar age 30 years
s/o Shri Dev Dutt,
Ex. Peo/RPF/Vadodara,
O/R House No.820, Vill & P.O. Kapasada
New Delhi.
....Applicant
(By Advocate : Shri Khairati Lal)
VERSUS
Union of India
Through
1. The General Manager,
Head Quarter Office,
Church Gate, Mumbai-400020.
2. The Divisional Railway Manager,
Western Railway, Vadodara.
.....Respondents
(By Advocate : Shri Kripa Shankar Prasad)
ORDER
By filing this OA, the applicant is seeking the following reliefs:-
"i) Direct the respondent no.2 to grant family pension to physical crippled applicant named Shri Mukesh Kumar being the son of a deceased railway employee working as peon/RPF under DRM, Pratap Nagar, Vadodara in view of Railway Board direction and para 75 (6) of Railway service (Pension) Rules, 1993 along with arrears of pension till the pension is released.
ii) Any other relief which the Hon'ble Tribunal deem fit and proper."2
2. Brief facts of the case are that the applicant is physically crippled and disabled and is unable to earn his livelihood, as per Civil Surgeon certificate, the applicant cannot stand or walk properly being 70% handicapped due to polio (Annexure A-II). Both of his parent father and mother were expired as his father was expired on 2.7.2008 and mother was expired on 18.3.2015. 2.1 After the death of his mother, family pension has been stopped and therefore, the applicant being physically crippled son of the deceased Govt. employee has applied for family pension under the Railway Rules but the same has not been started so far. 2.2 The Railway Board has specifically issued instructions to all concerned to grant family pension to physically crippled children of Railway employees vide Railway Board letters dated 25.2.2010 and 3.8.2011. The names of such physically crippled son be included in the PPO as per aforesaid letters on receiving intimation from the physically crippled son of the deceased Railway employee. 2.3 The disability which manifests itself before the retirement or death of the Railway servant while in service shall be taken into account for the purpose of grant of family pension under Section 75 (6) of RSPR, 1993. The applicant fulfills this condition as his disability exists prior to death of his father and mother. Reliance is placed on judgment of Hon'ble High Court of Gujarat in the case of Natwar Lal vs. DRM Western Railway, 2007 (51) All India Cases
912. 3 2.4 The applicant has submitted his representations dated 31.3.2015, 16.6.2015, 4.7.2015 and 23.8.2015 to sanction family pension to him as he is unable to earn being physically crippled for which he has submitted medical certificate from Civil Medical Authority, Rewari (Annexure A5).
2.5 When no response received on the said representation, applicant gave a legal notice dated 15.11.2015 to the respondents in this regard but still there is no response from the respondents. 2.6 Feeling aggrieved by inaction of the respondents, the applicant filed this OA seeking the reliefs as quoted above.
3. Pursuant to notice issued to the respondents, they have filed their reply in which they have stated that on receipt of application of the applicant for family pension, his case was processed for family pension. As per Rule 75(6) of Railway Service (Pension) Rules, 1993, he was medically examined by the Medical Board of Railway doctors. The Medical Board has declared him 70% physically disability of left lower limb and certified that he can earn an independent livelihood. He has studied up to graduation degree level. Hence, Medical Board did not recommend his case for inclusion of his name in PPO (Pension Pay Order) which was approved by the Chief Medical Director, Western Railway, Churchgate- Mumbai on 29.8.2016. The conclusion and recommendation of the said Medical Board are as under:-
"Conclusion -
A case of residual postpolio paralysis of left lower limb with nearly flail left limb with fixed flexion deformity of hip and knee (left) of about 20 degrees each, with fixed 4 equinovarus foot deformity with short limb gait. He has a permanent physical disability of 70% (seventy percent) of left lower limb.
Recommendation -
Mr. Mukesh Kumar s/o Late Davdutt Verma, 33 years male is having post polio residual paralysis involving left leg with equinovarus foot. In opinion medical board, he can earn an independent livelihood. He has studied up to graduation degree level. Hence medical board does not recommend inclusion of his name in PPO."
In view of the above recommendation of Medical Board, applicant's name cannot be included in PPO and accordingly, he is not entitled for family pension.
3.1 They further stated that the judgment of the Hon'ble High Court of Gujarat in the case of Natwar Lal (supra) is not relevant in the case in hand, as in the said case, the petitioner was totally a blind man and competent Medical Board of Railway doctors had declared him 100% disability and also certified that he cannot earn his livelihood and hence his case was considered fit for family pension. However, in the present case, the applicant was declared only 70% physically disability of left lower limb and after medical examination, the Medical Board of Railway doctors certified that applicant has studied up to graduation degree level and can earn an independent livelihood and therefore, the applicant's name cannot be included in PPO and accordingly, he is not entitled for family pension.
4. In the rejoinder, the applicant has refuted the averments made by the respondents in their counter affidavit and reiterated the averments made in the OA. Applicant further placed reliance 5 on the judgment of the Hon'ble Delhi High Court in the case of Om Prakash vs. The Ministry of Indian Railway, 149 (2008) DLT
599.
5. Heard learned counsel for the parties and carefully perused the material placed on record.
6. Counsel for the applicant submitted that it is admitted fact that Medical Board of Railway doctors had although opined that the applicant has a permanent physical disability of 70% (seventy percent) of left lower limb but the further observation that the applicant being a graduate can earn his independent livelihood is erroneous and not sustainable in law. He also strongly relied upon the judgments of the Hon'ble High Courts in the cases of Natwar Lal (supra) and Om Prakash (supra) in support of the claim of the applicant.
7. Counsel for the respondents submitted that it is not for the Courts to interfere with the assessment of the Medical Board, except for very cogent jurisdictional reasons such as mala fides and ex facie perversity. As such when the said Medical Board, which, after examination of the applicant in respect of his claim for grant of family pension on the ground of disability, opined that applicant's case is of residual postpolio paralysis of left lower limb with nearly flail left limb with fixed flexion deformity of hip and knee (left) of about 20 degrees each, with fixed equinovarus foot deformity with short limb gait. He has a permanent physical disability of 70% (seventy percent) of left lower limb and also opined that he can earn an independent livelihood, as he has 6 studied upto graduation degree level, the same cannot be held to be a malafide and ex facie perverse decision. Therefore, the judgments relied upon by the applicant in support of his claim are not of any help to him.
8. After hearing the submissions of both the learned counsel, this Court is unable to accept the contention of the learned counsel for the applicant as it is settled position of law that opinion of the Medical Board cannot be questioned in a court of law unless and until the same is malafide and ex facie perverse. However, having regard to the report of the Medical Board which opined that the applicant has a permanent physical disability of 70% of left lower limb only and that the applicant having studied upto graduation degree level can earn his livelihood independently, this Court does not find any infirmity in the said conclusion arrived at by the said Medical Board which was also approved by the Chief Medical Director.
9. So far as judgment of Hon'ble Gujarat High Court (supra) is concerned, it was a case of a blind person. In that case, the applicant applied for employment but his prayer was declined. This shows that the petitioner was not capable of doing any job due to his blindness which shall remain continuous throughout his life and as such Court held that he was unable to earn because of his blindness and allowed family pension to him.
10. So far as the judgment of Hon'ble Delhi High Court (supra) is concerned, in that case, the petitioner's case was rejected not on the ground that the petitioner had not submitted a proper medical 7 certificate stipulating that petitioner is not able to earn his livelihood on account of his disability but on the ground that the nomination of the petitioner was not mentioned by the Railway employee at the time of retirement or before death during the course of the employment and that the respondents have not alleged that the petitioner is able to earn his livelihood. The Hon'ble Delhi High Court further held as follows:-
"17. The Rules 75(6) of the Railways family Pension Scheme for Railway Service, 1964 categorically contemplates the period for which the family pension shall be payable, under which the family pension is payable to a son until he attains the age of 25 years and even to such a son who has attained the age of 25 years provided he is suffering from a disability which has rendered him unable to earn a living even after attaining the age of 25 years. Consequently, according to the rules of the respondents, even though the petitioner has attained the age of 25 years but on account of his 55% disability of limbs has rendered him unable to earn his living, he shall be entitled for the family pension during his life time. The plea of the respondent that the disability was not acquired by the petitioner before the retirement of the Railway servant in terms of explanation to Rule 75 (6) is based on the misconception of the respondents that the explanation No. 1 to Rule 6 still persists though by notification No. F(E) III/94/PN-1/31 dated 3rd February, 1995 the explanation 1 stipulating that the disability must have been manifested before retirement or death of the railway servant while in service, was deleted."
11. In view of the above, this Court does not find that the said judgments are applicable to the facts of this case.
12. In the result and for the foregoing reasons, this Court does not find any illegality and irregularity in the decision of the respondents while rejecting the claim of the applicant for grant of 8 family pension. Accordingly, the present OA being devoid of merit is dismissed. There shall be no order as to costs.
(Nita Chowdhury) Member (A) /ravi/