Central Administrative Tribunal - Delhi
Mrs. Janaki Devi vs Union Of India And Others on 12 August, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 1885/2013
Reserved On:10.07.2014
Pronounced on:12.08.2014
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (J)
Mrs. Janaki Devi
W/o Late Shri Sita Ram
Aged about 76 years,
R/o C-4B/32, Janak Puri,
New Delhi-110058. .Applicant
By Advocate: Shri G.D. Bhandari.
Versus
Union of India and Others
1. The General Manager,
Northern Railway,
Baroda House,
New Delhi.
2. The Divisional Railway Manager,
Northern Railway,
Ambala Cantt.
3. The Divisional Railway Manager,
Northern Railway,
State Entry Road,
New Delhi. ..Respondents
By Advocate: Shri Sat Pal Singh and Shri Shailendera
Tiwary.
ORDER
Honble Mr. G. George Paracken, Member (J) The Applicant is the widow of Late Shri Sita Ram who retired from the service of the Respondents on 31.07.1984 and later expired on 07.11.2004. Her grievance is that Respondents have not granted her the family pension.
2. The brief facts of the case are that the Applicants husband Shri Sita Ram retired from service on 31.07.1984 from the post of Permanent Way Mistry (PWM for short), Civil Engineering Department, Northern Railway. At the time of his retirement, he was working as PWM and posted at Kandaghat on Kalka-Shimla Section. On his retirement from service, the Respondents issued him the Annexure A-2 Pension Payment Order (PPO for short) in her favour on 31.07.1984. As regards the family pension is concerned, it has been stated in the said order family pension not due is being alone. On the basis of the aforesaid PPO, Shri Sita Ram has drawn pension till his death on 07.11.2004.
3. According to the Applicant, Late Shri Sita Ram has three children from the wedlock with her one son and two daughters. The son Shri Roshan Lal expired in the year 2001. One of the two daughters has also died later.
4. Further, according to the Applicant, Shri Sita Ram was working as Gangman/Keyman at Shoghi Railway Station and only at the fag end of his service, he got his promotion as PWM. Since there was no vacancy of the said post at Shoghi Railway Station, he was posted at Kandaghat, another Railway Station near Shoghi. During the period he worked in the promotional post at Kandaghat, he did not take his family along with him and he was living there alone. The concerned Inspector of the Railway Department who prepared his pension papers without verifying the family details of late Shri Sita Ram and on the basis of his statement that he was staying alone there at Kandaghat reported that family pension not due is being alone. As a result, the Respondent Department has not sanctioned the family pension in the impugned PPO dated 31.07.1984.
5. After the expiry of Shri Sita Ram when the Applicant did not get the family pension admissible to her, she approached the Respondents and found out that she was not sanctioned the family pension for the aforesaid reason recorded by the Inspector. Thereafter, explaining the actual position, the Applicant made a number of representations to the Respondents. In order to prove the fact that she was the wife of Late Shri Sita Ram, she produced Annexure A-4 certificate issued by Gram Panchayat Adhikari, Vikas Khand, Anatpur which is the extract from the Pariwar Register maintained by the home village of the family in District Shimla. The said certificate shows the name of Shri Sita Ram as head of the family, the Applicant as his wife as well as Shri Roshan Lal his son and Ms. Kamal and Ms. Gita as his two daughters. She has also produced another certificate Annexure A-5 from the Gram Panchayat Avam Vikash Adhikari, Gram Panchayat Anadpur, District Shimla (H.P.) wherein it has been mentioned that she is the widow of Shri Sita Ram. Another document produced by her is the Annexure A-6 certificate dated 07.03.2007 issued by Gram Panchayat Adhikari whereby he certified that she is the widow of late Shri Sita Ram. She has also produced Annexure A-7 copy of the ration card issued to her on 23.04.2007 containing her name and showing her as wife of Late Shri Sita Ram. The Applicant has also produced Annexure A-8 copy of Photo Election Card wherein her name has been shown as Janki wife of Shri Sita Ram. However, in spite of all the documents, according to the learned counsel for the Applicant, she has not been granted any family pension. Again, as demanded by the Respondents, she submitted Annexure A-10 sworn affidavit on 17.06.2005 solemnly affirming that she is the legally wedded wife and is now widow of late Shri Sita Ram. She has also submitted Annexure A-9 representation dated 20.07.2005 stating the entire facts. As the Respondents have not taken any decision on her aforesaid representation and documentary proof provided by her, she approached the Railway Pension Adalat and vide order dated 05.12.2005 but the Adalat simply rejected her case on the ground that at the time of retirement of Shri Sita Ram, he showed that he was alone in the declaration regarding the list of family members.
6. In the meanwhile, Delhi Division was bifurcated into two, namely, Ambala Division and Delhi Division. The Railway Station, Kandaghat came within the jurisdiction of Ambala. However, the Sr. DPO, Ambala called for the file of the Applicant vide letter dated 19.09.2006. The Applicant has also made a representation on 15.10.2006. In the said application, she has again filed photographs showing her marriage with late Shri Sita Ram.
7. The DRM, Ambala, vide his letter dated 23.10.2007, addressed to the General Manager (P), Northern Railway, New Delhi stated that a Senior Welfare Officer was deputed to conduct an enquiry in the matter and in his report, based on various documents submitted by the Applicant, particularly the legal heir certificate issued by the SDM, Shimla to prove that she is the real widow of the deceased Shri Sita Ram, marriage photographs, certificate from Gram Panchayat Head, Certificate from Village Patwari, voter ID Card issued by Election Commission of India, Ration Card, Family Register etc., it has been proved that Smt. Janki Devi (the Applicant herein) is the real widow of the deceased employee. In the said letter it has also been stated that the legal authority of the Ambala Division has also opined that the Legal Heir Certificate issued by SDM Shimla is sufficient to prove that the Applicant is the legally wedded wife of late Shri Sita Ram and she is entitled for family pension and other ancillary benefits. However, DRM, Ambala wanted a clarification whether at that stage her name could be inserted as wife of the deceased employee for the purpose of granting family pension to her. But the General Manager, Northern Railway did not give any clarification on the said query. The said letter is reproduced as under:-
Northern Railway No.720-E/3/P-A/06/Sett/UMB Divisional Office Dated: 23.10.2007 Ambala Cantt.
The General Manager/P, Northern Railway, Baroda House, New Delhi.
Sub: Admissibility of Family Pension to Smt. Janaki Devi W/o Late Shri Sita Ram ex-PWM, Kandaghat.
One Smt. Janaki Devi claiming to be wife of late Shri Sita Ram/BR who was working as PWS/KDZ has represented through Pension Adalat 2006 that though her husband who was retired in July, 1984 by DLJ Division has expired in November, 2004 but no family pension is being paid to her till date. The gist of the case is given in the succeeding paragraphs.
The above named employee was working as PWM/KDZ and was retired by DLI Divn on 31st July, 1984. Settlement dues were paid to the ex-employee at the time of his retirement. However, it has been intimated by DLI Divn that under PS No.1666, the settlement record of this employee had been destroyed. However, it has been ascertained from the Accounts Pension Document that name of Smt. Janki Devi, claiming to be wife of the deceased employee, is not mentioned in the Pension Papers filed by the deceased employee before his retirement. As such her name is not mentioned in the PPO of the deceased employee.
A detailed enquiry has been conducted by Sectional S&WLI who has confirmed that as per various documents, Photostat copies enclosed which include Affidavit by Smt. Janaki Devi, Legal Heir Certificate issued by SDM/SML, marriage photographs, certificate from Gram Panchayat Head, Certificate from Village Patwari, voter ID Card issued by Election Commission of India, Ration Card, Family Register etc. Smt. Janki Devi is proved to be real widow of the deceased employee. CLA/UMB has also opined that the Legal Heir Certificate issued by SDM/SML is suffice to consider Smt. Janaki Devi as wife of the late Shri Sita Ram.
In view of above, since the name of Smt. Janaki Devi claiming to be wife of late Shri Sita Ram ex-PM/KDZ is not mentioned in the Pension Documents prepared by DLI Divn during the year 1984, it may please be clarified whether at this stage her name can be inserted as wife of the deceased employee for the purpose of granting family pension to her.
An early clarification is requested please.
DA: As above. (Dinesh Bisht)
For Divisional
Railway Manager/P,
N.Rly/UMB.
8. In this regard the learned counsel for the Applicant has relied upon the Annexure A-15, a copy of the order dated 21.06.2012 in OA No.501/2011 R. Ambika W/o late Shri T. Rathiam Vs. U.O.I. and Others. The grievance of the Applicant in the said case was inaction on the part of the Respondents in not granting the benefit of family pension and other consequential arrears. The facts in the said case was that while the Applicants husband was working as Sr. Trackmen under the Sr. Section Engineer/Permanent Way, Bommidi Section of the then Palghat Division of the Southern Railway he was medically declared unfit and discharged from service during the year 2005. On that basis, his son was appointed on compassionate grounds. Applicants husband was drawing family pension from the third respondent. While so, on account of some difference between the Applicants husband and the Applicant, she was compelled to stay away from her husband. On 30.05.2009, the Applicants husband passed away leaving behind her. A legal heirship certificate was issued by the Taluk Officer. Subsequently, she came to now that her name was not included in the PPO in order to enable her to draw the family pension automatically. Applicant therein made several representations in the case but the same was not granted. The contention of the Respondents therein was that the Applicants identity as a widow of the deceased Railway pensioner and her entitlement to get the family pension consequent on the demise of her husband, was in dispute and the legal aspects which was to be adjudicated before the competent court of law. The Ernakulam Bench of this Tribunal allowed the said OA on the ground that since the Applicant therein was not remarried, she was still a legally wedded wife and widow of late Shri T. Rathinam and was, therefore, entitled for family pension. The relevant part of the said order reads as under:-
4. I have heard the learned counsel for the parties and perused the documents.
5. The short question that comes up for consideration is whether the Applicant is entitled to receive family pension due to the death of her husband, an employee of Southern Railway.
6. This is a second round of litigation. In compliance with the direction issued by this Tribunal in OA No.406/2010, the respondents issued Annexure A.11 impugned order. The respondents have instructed the applicant to obtain legal heirship certificate from the Tehsildar. In the aforesaid order the respondents rejected her claim for family pension mainly on the ground that she produced only a Xerox copy of an unsigned legal heirship certificate after many reminders. It was also mentioned that her name was not included as wife in the family composition certificate given by the employee from 1998 to 2004 and that she deserted her husband and lived with another person. The applicant moved MA No.501/2011 producing a copy of the letter of Tehsildar certifying the genuiness of the legal heirship certificate issued to him. This was in response to Annexure R-7 letter of the Sr. Divisional Personnel Officer, addressed to the Tehsildar requesting him to verify the genuiness of the legal heirship certificate. Resultantly, the applicant could not produce Annexure A-12 legal heirship certificate signed by the Tehsildar in her favour and Annexure A-13 certificate from Tehsildar showing that she had not contracted a second marriage. The Respondents have admitted the receipt of these certificates. According to the Applicant the marriage between the deceased and the applicant was not legally dissolved nor there is any case pending for divorce which would prohibit her claim to family pension. The respondents have conceded that her name appeared as wife in the family composition certificate till 1994.
Since she had not remarried she is still legally wedded wife and widow of the late employee. Therefore, she is the legally wedded wife and widow of the deceased who is entitled to claim family pension. This Tribunal while disposing of the earlier OA No.406/2010 have held that If the applicant is the legally wedded wife of Sri Rathnam, she is entitled for family pension. There is no other claimant for the family pension other than the applicant.
In such circumstances her claim is just and legal leaving aside the ethical and moral issues of her deserting her husband for many years. The proof sought by the Respondents and submitted by the applicant will also establish that she is the legal heir and widow of the deceased.
7. In this view of the matter, the OA succeeds. I, therefore, declare that the applicant shall be entitled for family pension on demise of her husband on 30.05.2009. The respondents are directed to pay family pension from 31.05.2009 within four months from the date of receipt of a copy of this order. No costs.
9. Respondents have filed their reply stating that as per the instructions contained in para 75(15) of Pension Manual, Shri Sita Ram, Ex.PWN/KDZ was required to submit the request for alteration/addition of family members in the settlement papers but he did not do so in his life time. Therefore, the claim of the Applicant at the later stage for grant of family pension cannot be accepted.
10. We have heard the learned counsel for the Applicant Shri G.D. Bhandari and the learned counsel for the Respondents Shri Sat Pal Singh and Shri Shailendra Tiwari. The Family Pension Scheme for Railway Servants, 1964 has been incorporated as Rule 75 in the Railway Services (Pension) Rules, 1993. Sub-Rule 19(b) of the said Rule defines family for the purpose of Family Pension as under:-
(b) family, in relation to railway servant, means -
(i) wife in the case of a male railway servant or husband in the case of a female railway servant;
(ii) a judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was not held guilty of committing adultery;
(iii) son who has not attained the age of twenty-five years and unmarried or widowed or divorced daughter, including such son and daughter adopted legally. Sub-Rule (6) of the said Rules state the order in which the family members may draw the family pension which is as under:-
(6) The period for which family pension is payable shall be as follows:-
(i) in the case of a widow or widower, up to the date of death or re-marriage, whichever is earlier;
(ii) in the case of an son, until he attains the age of twenty-five years; and
(iii) in the case of an unmarried or widowed or divorced daughter, until she gets married whichever is earlier.
Sub-Rule 15 of the said Rules state that the Railway Servant is required to submit the details of the family in Form 6 and to update it from time to time. The said rule also speaks about the safe custody of the said Forms. It reads as under:-
(15) (i) As soon as a railway servant enters railway service, he shall furnish details of his family in Form 6 to the Head of Office and if the railway servant has no family, he shall furnish the details in Form 6 as soon as he acquires a family.
(ii) It shall be the duty of the railway servant to communicate forthwith to the Head of Office any subsequent change in the size of his family including the fact of marriage of his or her child.
(iii) (a) In the case of a non-gazetted railway servant the Head of Office shall keep the form 6 in safe custody and make necessary additions and alterations in the form on the basis of subsequent information furnished by the railway servant and all the communications which a railway servant may address to the Head of Office in this behalf, shall be acknowledged by the Head of Office.
(b) In the case of a gazetted railway servant, the Head of Office shall pass on the details of family members as also any additions and, alterations thereto, to the Accounts Officer for keeping the same in safe custody. It shall be the duty of the Accounts Officer to keep these particulars upto date and to acknowledge the receipt of these communications.
11. According to the said Rule, the right of receiving family pension by the widow or widower of the Railway Servant cannot be disputed. If the Railway Servant, during his life time has furnished the prescribed Form 6 and Head of Office/Accounts Officer has kept in safe custody, there will be no dispute with regard to entitlement of the family pension. But if the Railway Servant has not submitted the Form 6 during his service period or the said Form submitted by him is not available with the Head of Office/Accounts Officer, the claimants of the family pension do not automatically get precluded from getting it. It the pension granting authority is satisfied on the basis of documents produced by the claimants, the said authority may sanction the family pension to such claimants. In the present case, the deceased railway employee did not submit the family details in the prescribed form or the form submitted by him is not available with the Respondents at the time of his retirement. Therefore, without making any proper verification of the details of the family of the deceased, the concerned Inspector of Respondent-Railway who prepared the pension papers of the deceased recorded in the Pension Payment Order a vague manner family pension not due is being alone.
12. In any case, after the death of the Railway Servant on 07.11.2004, the Applicant approached the Respondents and requested them to grant her the family pension informing them that she is his widow. She has also produced various documents which are proofs of her marriage with the deceased railway employee and her continued life with him as family with children. But the Respondents, for the reasons best known to them only, did not grant her the family pension. Finally, she produced Legal Heir Certificate (Succession Certificate) issued by the Competent Authority, i.e., SDM, Shimla. On receipt of the same, DRM sought legal opinion in the matter and he received the advice that the Legal Heir Certificate issued by SDM/SML is suffice to consider Smt. Janaki Devi as wife of the late Shri Sita Ram. Even then, the DRM, Ambala Division, vide his letter dated 23.10.2007, expressed his doubt and sought clarification from the General Manager, Northern Railway, New Delhi as to whether at the late stage, her name could be inserted as wife of the deceased employee. Surprisingly, the General Manager, Northern Railway did not find it necessary to clarify the position and as a result the Applicant has been deprived of her rightful claim for the family pension for the last over 10 years.
13. In our considered view, in the aforesaid facts and circumstances of the case, the denial of family pension to the Applicant was arbitrary, illegal and due to callous and indifferent attitude of the Respondents. As held by the Apex Court in its judgment in Smt. Poonamal Vs. Union of India and Others 1983 (3) SCC 345, right to receive family pension is a right like receiving pension. The relevant part of the said judgment is as under:-
Where the Government servant rendered service to compensate which a family pension scheme is devised the widow and the dependent minors would equally be entitled to family pension as a matter of right. In fact we look upon pension not merely as a statutory right but as the fulfilment of a constitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, old-age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate.
Again, in its judgment in the case of G.L. Bhatia Vs. Union of India 1999 (5) SCC 237, the Apex Court held that where rights of the parties are governed by statutory provisions, the individual nomination contrary to the statute will not operate. The relevant part of the said judgment is as under:-
2. The sole question that arises for consideration in this appeal is whether the appellant, who happens to be the husband of the deceased government servant, is entitled to family pension under the provisions of the Central Civil Services (Pension) Rules (for short "the rules") notwithstanding the fact that the deceased wife in her nomination did not include the husband. The forums below have taken the view agreeing with the authorities that since the nomination was not in favour of the husband and the husband was staying separate from the wife, the husband would not be entitled to family pension in question. This view cannot be sustained in view of the provisions contained in Rule 54 of the rules. It is too well settled that where rights of the parties are governed by statutory provisions, the individual nomination contrary to the statute will not operate.
3. Under Rule 54 sub-rule (14()(;) the expression "family" has been defined thus:
"54. (14(Z?)(i) Wife in the case of a male government servant, or husband in the case of a female government servant...."
4. Sub-Rule (8(r) of Rule 54 states that:
"54. (8(r) If a deceased government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child."
5. In the light of the aforesaid provisions and there being no divorce between the husband and wife even though they might be staying separately, the appellant husband would be entitled to the family pension in terms of the rules as noted aforesaid and the authorities, therefore, committed error in not granting family pension to the appellant relying upon the nomination made by the deceased wife of the appellant. The impugned order is, accordingly, set aside and this appeal stands allowed.
14. We have also seen that in spite of the fact that the Applicant has produced the Legal Heirs Certificate from the Competent Court, the Respondents did not grant the family pension to the Applicant. The said issue was considered by this Bench in its recent order in TA No.66/2013 Prabha Devi Vs. U.O.I. through the Chairman, Railway Board and Another decided on 18.07.2014. The relevant part of the said order reads as under:-
8. We agree with the learned counsel for the Applicant that the Applicants case is squarely covered by the judgment of the Bombay High Court in the case of Smt. Shashikala A. Kisan Awad (supra) wherein it has been held that when the court has issued the Succession Certificate, the Railway authorities were bound to comply with the same. The Accounts Officer has no business to question its validity. In its judgment in S. Nagaraj & Others Vs. State of Karnataka and Others 1993 Supp4 SCC 595, the Apex Court held: Nor there can be any conflict of opinion that if an order had been passed by a court which had jurisdiction to pass it then the error or mistake in the order can be got corrected by a higher court or by an application for clarification, modification or recall of the order and not by ignoring the order by any authority actively or passively or disobeying it expressly or impliedly. Even if the order has been improperly obtained the authorities cannot assume on themselves the role of substituting it or clarifying and modifying it as they consider proper.
9. In view of the above facts and circumstances of the case, we allow this OA and direct the Respondent No.2 to settle the Applicants claims for pension and all other terminal benefits on the basis of the Succession Certificate produced by her within a period of 2 months from the date of receipt of a copy of this order. For the avoidable delay caused by Respondent No.2, it is also liable to pay interest at the rate of 10% to the Applicant on all the dues from the date of issuance of the Succession Certificate, i.e., 08.02.2012. In the above facts and circumstances of the case, the Applicant is also entitled for a cost of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses which shall also be paid to her within the aforesaid period. Later, the Respondent No.2 may recover the said amount from the concerned officer(s) who is/are responsible for not making the payments to the Applicant despite the production of Succession Certificate.
15. In view of the above facts and circumstances of the case, we allow this OA and direct the Respondent No.2 to settle the Applicants claims for pension and all other terminal benefits w.e.f. 07.11.2004 within a period of 2 months from the date of receipt of a copy of this order. For the avoidable delay caused by Respondents, they are also liable to pay 10% interest to the Applicant on all the dues from the date of death of Shri Sita Ram on 07.11.2004 till the actual date of payment of the dues. The Applicant is also entitled for the cost of Rs.5,000/- (Rupees Five Thousand only) towards litigation expenses which shall be paid to her within the aforesaid period.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh