Central Administrative Tribunal - Madras
S Dhatchayani vs M/O Railways on 11 March, 2022
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1 OA 98/ 2021CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA/310/0098/2021 ® deed Dated \t-°3 .29, thet 'day of March, 2022 PRESENT HON'BLE SHRI T. JACOB, MEMBER(A) S. Dhatchayani, D/o. (late) G. Srinivasan, No.20,1%t Street, Ekangipuram, Ayanavaram, Chennai-600 023.
»-- Applicant By Advocate M/s R. Pandian Vs
1. Union of India Rep. By its General Manager, Integral Coach Factory, Chennai-600 038;
2. Assistant Personnel Officer/Bills, Integral Coach Factory, Chennai-600 038. ...Respondents By Advocate Mr. A. Abdul Ajees 2 . OA 98/2021 ORDER .
( Pronounced by Hon'ble Mr.T.Jaccb, Member(A)) The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"to call for all the leading to the issuance of the impugned order No. PB/Sett/561481/GS dated 19. O1, 2020 rejecting the claim of the applicant, an unmarried daughter of the ex-employee/pensioner, for sanctior: of Family Pension, to quash the impugned order as unlawful and:- : .
» to direct ttie respondents to sanction Family Pension to the applicant from the date after the date of 'death of the applicant's 'father (Pensioner) i.e. from 08.08.2018; and . to pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."
2. The brief facts of the case submitted by the applicant are as follows:
The applicant's father, a Railway pensioner, breathed his last on 07.08.2018 and her mother was missing right from her childhood. The applicant is unmarried and had been under the care of her father and dependent on his pension until his death. The family has no other source of incame. At the time of retirement of the applicant's father, the respondents recorded the fact that the mother of the applicant (wife of late employee/pensioner) - had "been missing and sanctioned pension in favour of him duly recording the sameé in the PPO. The applicant and her father availed the benefit of free pass and médical facilities provided by the respondents after her father's retirement. After the death of her father (Pensioner), she applied for family pension as per her entitlement but 'the respondents sought a "non-traceable certificate" issued by the Police Authority, which the applicant is not in possession of, nor is it possible to obtain the one at this remote point of time i.e. after more than 20 years of her mother missing from 30 COCO OA 98/2021 Gre scene. Thereby, the claim of the applicant for family pension has been rejected by the respondents and, hence, she is before this Tribunal for intervention and to render justice.
3. The applicant has sought the aforesaid relief, inter alia, on the following grounds:-
a) The rejection of the claim of the applicant for Family Pension by the respondents is unjust, unfair and is against all cannons of law which is untenable;
b) As per Rule 75(6) (iii) of the Railway Services(Pension) Rules, 1993 the unmarried daughter is entitled to Family Pension until she gets married or starts earning her livelihood whichever is earlier. As the applicant remained a spinster and has no independent source of income, the denial of Family Pension by the respondents is violative of the above rule provision and hence unsustainable;
c) As per DOPPW's Order No. 1/13/09-P&PW(E) dated 28.4.2011 adopted by Railway Board vide RBE No. 69/2011, an unmarried daughter is eligible for family pension even after completion of 25 years of age after fulfilling other conditions.
Failure to sanction Family Pension citing vague reasons is unsustainable as it deprives the right to life of the applicant:
d) The respondents, having included the name of the applicant in the Family Composition of her father and permitted Post-Retirement Complimentary Passes in her favour as unmarried daughter and further permitted her to avail medical facilities in Railway Hospitals during the life time of the Pensioner, should not have rejected her claim for Family Pension which denies her rightful livelihood and her right to life and hence violative of Article 21 of the Constitution of India.
€) The respondents have failed to take into consideration that the applicant has remained unmarried and had all along been dependent on her father and now 4 OA 98/2021 ~ after the death of her father on 07.08.2018, is struggling for survival with no one to support her. Not considering the applicant for Sanction of Family Pension is against extant rules and hence unsustainable;
f) The respondents have accepted the declaration of the ex-employee (when he retired from service on 30.06.2008) that his wife is missing and recorded the Same in the Pension Payment Order. But now by an arbitrary decision have sought for "non-traceable certificate" issued by Police Authority, which is not possible at this remote point of time and thereby indirectly rejected the claim of the applicant for Family Pension.
4. Respondents have filed a detailed reply. it is submitted that Shri G. Srinivasan, Emp No. 561481 had joined ICF on 08.06.1972 as Khalasi and finally elevated as Sr. Technician. On completion of 60 years of age he was superannuated from service on 30.06.2008. All the settlement benefits were processed and paid in his favour. Family pension alone was not Proposed since the ex employee had submitted an affidavit stating that his wife was missing. Pension was authorized to him vide letter No. AES/SETT/13282/GS dated 01.07.2008 in PPO No. 1001214006 duly mentioning that family pension has not been sanctioned as the Pensioner's spouse is missing. Further it is submitted that the applicant, Ms. S. Dhatchayani D/o. Late Shri G. Srinivasan requested to release family pension in her favour vide her representation dated 25.11.2020 duly stating that her father was drawing pension vide No. AES/SETT/13282/GS dated 01.07.2008 and he expired on 07.08.2018. Her mother was missing from her childhood. While in service the employee had declared the following members as his family as detailed below:-
OA 98/ 2021@ Document Names Relationship DOB IFORM 6 DtT\|Vidyavathy Wife 11.04.1953 06/11/2002 Thachayani Daugher 09.03.1978 Jayaprakash Son 15.11.1980 Form 6 DT S. Dhakchayani Daugher 09.03.1978 13/12/2004 S.Jayaprakash Son 15.11.1980 FORM 6 DT|G. Dhakchayani Unmarried 09.03.1978 13/05/2008 S.Jayaprakash Daugher Son 15.11.1980
5. In terms of Rule 75(6) (I) of the Railway Services (Pension) Rules, 1993 the period for which family pension is payable shall be as follows:-
(i) in the case of widow or widower, up to the date of death or remarriage whichever is earlier;
(ii) inthe case of an unmarried son, until he attains the age of twenty five years or until he gets married or until he starts earning his livelihood whichever is earlier;
(iii) in the case of Unmarried/Widowed/Divorced daughter, until she gets married or remarried or until she starts earning her livelihood whichever is earlier.
6. In terms of para 8.4 of Board's Lr. Dt. 15.09.2008 Family for the purpose of grant of Family Pension is categorised as:
Category -1
(a) Widow or widower upto the date of death or remarriage whichever is earlier; .
(b) Son/daughter (including widowed daughter) up to the date of his/her marriage/re-marriage or till the date he/she starts earning or till the age of 25 years whichever is earliest;
Category-I1
(c) Unmarried/Widowed/Divorced daughter, not covered by Category -I above upto the date of marriage/re-marriage or till the 6 OA 98/ 2021 date she starts earning or upto the date of death whichever is earliest.
Family pension to Unmarried/Widowed/Divorced daughter in Category II shall be payable only after the other eligible family members in Category-I have ceased to be eligible to receive family pension and there is no disabled child to receive the family pension. Grant of family pension to children in respective categories shall be payable in order of their date of birth and younger of them will not be eligible for family pension unless the next above him/her-has become ineligible for grant of family pension in that category. The applicant Ms. S. Dhatchayani D/o. Lat Shri G. Srinivasan whose date of birth is 09/03/1978 comes under Category II and Family Pension to Unmarried daughter in Category-II shall be payable only after the other eligible family members in Category-I have ceased to be eligible to receive family pension. The status of the widow is unknown
7. The applicant's brother Shri Jayaprakash (DOB:15.11.1980) son of Late G. Srinivasan is not entitled for family pension since he had attained 25 years of age provided he is not disabled. To ascertain that there are no eligible family members in Category-I, the applicant was advised to submit non-traceable certificate of her mother vide letter No. PB/SETT/561481/GS dated 19.01.2021. In terms of RSPR 1993(75)(6)(i) & Railway Board's letter dt.15.09.2008 family pension is payable to the widow up to the date of death or remarriage whichever is earlier. Hence the applicant was advised to submit Non Traceable Certificate (issued by Police Authority) of her missing mother. The applicant has not produced any proof or document to prove that her mother is legally dead by way of 'NOT TRACEABLE' certificate from the Police Department or from a competent Civil Court of Law. Hence the Respondents pray for dismissal of the OA.
7 OA 98/20218. Heard Id. Counsel on both sides and perused the pleadings and the documents on record.
9. Applicant claims that her mother was missing right from her childhood and same was entered in the records of the respondents when issuing PPO to the applicant's father. Her younger brother Mr. S. Jayaprakash got married and living separately. The ex-employee has not enclosed the joint photograph of his wife in the pension booklet and Family Pension alone was not proposed since the ex employee had submitted an affidavit stating that his wife was missing. At the time of his retirement i.e. dt 30.06.2008, the respondents proceeded with release of retiral benefits due to him as there was no complaint from the mother of the applicant. The ex- employee has passed away on 07.08.2018 and, thereafter, the issue of secondary family pension cropped up. She is also not aware whether her father had made any compliant about her mother's disappearance to Police Authorities nor does she find any record of the same in her house after more than 30 years of her disappearance. Applicant asserts that she has not heard about her for the last 30 years. According to the respondents, the applicant has not produced any proof or document to prove that her mother is legally dead by way of 'NOT TRACEABLE' certificate from the Police Department or from a competent Civil Court of Law. Respondents have not submitted any document claiming that applicant's mother is alive. The respondents have stated that this assertion of the applicant is false. If so, then the onus of responsibility lies on the respondents to prove that the mother of the applicant is alive as per Section 108 of the Indian Evidence Act, which reads as under.
"Section 108 - Burden of proving that person is alive who has not been heard of for seven years Provided that when the question is a 8 OA 98/ 2021 whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it."
10. Moreover, Hon'ble Supreme Court in Rubabbuddin Sheik v State of Gujarat, (2007) 4 SCC 404 has held that if the dead body is not found or the person is not found for a period of 7 years, then the said person can be presumed to be dead. In regard to the mother of the applicant, she is not found for more than 7 years and neither her dead body. Hence she has to be presumed to be dead in legal parlance.
11. Besides, Dept. of Pension and Pensioners Welfare (DOP&PW) vide memo No 4-52/86-Pen dtd. 24.6.2013, has presented the methodology in dealing with the issues pertaining to family pension of missing employees as under:
"4, In the case of a missing employee/pensioner/family pensioner, the family can apply for the grant of family pension, amount of salary due, leave encashment due and the amount of GPF and gratuity (whatever has not already been received)to the Head of office of the organisation where the employee/pensioner had last served, six months after lodging of Police report. The family pension and/or retirement gratuity may be sanctioned by the. Administrative Ministry/Department after observing the following formalities:-
(i) The family must lodge a report with the concerned Police Station and obtain a report from the Police, that. the employee/pensioner/ family pensioner has not been traced despite efforts made by them. The report may be a First Information Report or any other report such as a Daily Diary/General Diary Entry
ii) An Indemnity Bond should be taken from_ the nominee/dependants of the employee/pensioner/ family pensioner that all payments will be adjusted against the payments due to the employee/pensioner/ family pensioner in case she/he appears on the scene and makes any claim.9 OA 98/ 2021
5. In the case of a missing employee, the family pension, at the ordinary or enhanced rate, as applicable, will accrue from the expiry of leave or the date up to which pay and allowances have been paid or the date of the: police report, whichever is later. In the case of a missing pensioner/ family 'pensioner, it will accrue from the date of the police report or from the date immediately succeeding the date till which pension/family pension had been paid, whichever is later,
6. The retirement gratuity will be paid to the family within three months of the date of application. In case of any delay, the' interest Shall be paid at the applicable rates and responsibility for delay shall be fixed. The difference between the death gratuity and retirement gratuity shall be payable after the death of the employee is conclusively established or on the expiry of the period of seven years from the date of the police report."
12. The respondents need to grant family pension from the date of the police report after obtaining the indemnity bond as specified in the OM cited. Indemnity bond is a safety clause which safeguards the interests of the respondents. Railways, though independent, do follow the DOP&PW OMs to regulate pension related issues and hence the modus operandi prescribed in the OM has to be followed,
13. In fact, legal sanctity to the OM of DOPjPW referred to has been provided for by the Hon'ble High Court of Andhra Pradesh while adjudicating a similar issue in Writ Petition No 34859 of 2016 dated 30.1.2017 where in it was held as under:
"41. The above circular clinches the issue with respect to the claim of the respondent. Therefore, irrespective of our decision on the purport of Section 108 of the Evidence Act, 1872, the respondent is entitled to all the benefits as per the aforesaid decision of the Government of India under the Circular Letter No.4-52/86-Pen., dated 3-3- 1989.10 OA 98/2021
42. Hence, the writ petition is disposed of modifying the order of the Tribunal and directing the petitioners to grant all the benefits applicable to the respondent under the Circular Letter No.4-52/86- Pen., dated 3-3-1989 within a period of four (4) weeks."
The OM referred in the Hon'ble High Court judgment is based on the DoP & PW Memos issued on the subject. Hence, the request of the applicant is fully covered by the judgment of the Hon'ble High Court which is binding.
14.' The applicant's brother, Shri.Jayaprakash (DOB:15-11-1980)son of Late G. Srinivasan is not entitled for family pension since he had attained 25 years of age provided he is not disabled. Even the Mother of the applicant has not claimed family pension till date. In the absence of such a claim, it is not known as to why the respondents did not take the initiative to find out as to the circumstances in which the family of the deceased employee is placed, to take a decision in the matter, as is expected of a model employer.
15. In addition, the case of the applicant is further fortified by the OM No.1/19/03-P&PW (E) dated 6.9.2007 of DOP&PW wherein it was indicated that unmarried; daughters are eligible for family pension even if they are beyond 25 years of age.
"The undersigned is directed to say that as per existing provisions under clauses (ii) and (iii) of sub-rule (6) of Rule 54 of the C.C. S. (Pension) Rules, 1972, read with of para 7.2 (b)of this Department's O.M. No. 45/86/97-P&PW (A)- Part I dated the 27th October 1997, son/daughter including widowed/ divorced daughter is eligible for grant of family pension till he/ she attains the age of 25 years or upto the date of his / her marriage/ remarriage, whichever is earlier subject to income criterion laid down in this Department's O.M. No. =~ 11 OA 98/ 2021 45/51/97-P&PW(E) dated the 5th March 1998 which stipulates that a son/ daughter, including widowed/ divorced daughter, shall not have an income exceeding Rs. 2550/- per month from employment in Government, the private sector and self employment, etc., to be eligible for family pension. Orders were also issued vide this Department's O.M. No. 45/51/97-P&PW (E)(Vol.II) dated 25th July 2001 regarding eligibility of disabled divorced/ widowed daughter for family pension for life subject to conditions mentioned therein. Further, orders were issued for making the widowed/ divorced daughter eligible for family pension vide this Department's O.M. of even number dated 25th August, 2004.
2. The Staff Side of National Council (JCM) had raised the issue of extension of scope of family pension to unmarried daughters of the Government servants/ Pensioners even after attaining the age of 25 years at par with the widowed/ divorced daughters, which has been agreed to in principle. It has, accordingly, been decided that the unmarried daughters beyond 25 years of age shall also be eligible for family pension at par with the widowed/ divorced daughters subject to other conditions being fulfilled. Grant of family pension to unmarried/ widowed/ divorced daughters shall be payable in order of their date of birth and younger of them will not be eligible for family pension unless the next above her has become ineligible for grant of family pension. It is further clarified that family pension to unmarried/ widowed/ divorced daughters above the age of 25 years shall be payable only after the other eligible children below the age of 25 years have ceased to be eligible to receive family pension and that there is no disabled child to receive the family pension.
3. This issues with the concurrence of 'the Ministry of Finance, Department of Expenditure vide their U.O. No. 380/E.V/2006 dated 05.01.2007."12 OA 98/ 2021
16. Subsequently, DoP& PW issued Notification No. 38/80/2008-P. & P.W. (A) (Part If), dated 8th June, 2011, published as GSR 176 in Gazette of India, dated the-8th June 2011, substituting Sub-Rule 6 of Rule 54 of CCS (Pension) Rules, 1972. Relevant portion of the said provision is as under:
"6. The period for which family pension is payable shall be as follows: -
(i) XXxx (il) xxxx
(iii) subject to second and third provisos, in the case of an unmarried or widowed or divorced daughter, until she gets married or remarried or until she starts earning her livelihood, whichever is earlier; " .
17. As per the legal principles laid down by the Hon'ble Supreme Court and the Hon'ble High Court, Section 108 of the Evidence Act and as well as the DOP &PW OMs/ Notification referred to, applicant is comprehensibly eligible to be granted secondary family pension. Besides, her father is dead and her mother is no more in the context of the legal principles explained in paras supra. It is in the record of the Railways that the applicant's father had informed Railways many years before his retirement that his wife was missing and not traceable. Further Railways had accepted the statement and after his retirement, in the PPO her mother's name was not recorded as family pensioner. Respondents cannot dither from granting family pension to the eligible family member after requisite documents have been submitted. The CAT Hyderabad Bench in a more or less similar issue in OA 499/2019 dated 18.6.2019 has directed the release of family pension.
18. It is a matter of record that the deceased Railway servant had periodically reflected the family details, in which the name of the spouse did not figure in. The deceased had never got any benefit from the Railways such as free pass etc., in # "8 13 OA 98/2021 respect of his wife. Again, the fact of his spouse missing had been conspicuously made known to the respondents and by now more than 20 years have passed from the date of missing of the petitioner's mother. Keeping in view the Provisions of Section 108 of the Indian Evidence Act and the fact that the Railways have, even while the applicant's father was in service, duly recorded in his service records that his wife was missing and even in the PPO, has not recorded her name for family pension, the order dated 19-01-2020 rejecting the claim of the applicant is quashed and set aside. Respondents are directed to consider the application for family pension made by the applicant if she is otherwise eligible in all respects under the existing statutory/executive rules without insisting for a police report for non-tracing certificate of the mother of the applicant or any other court order to prove that the mother of the applicant is still missing and issue the 'appropriate orders within a period of 3 months from the date of receipt of a copy this order.
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19. The OA is accordingly allowed. No costs. . _ [a