Central Administrative Tribunal - Mumbai
Jamal Fathima vs M/O Railways on 1 October, 2024
1 OA No.781/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, CAMP AT NAGPUR.
ORIGINAL APPLICATION No.781/2019
Date of Decision: 01st October, 2024.
CORAM: HON'BLE MR. SHRI KRISHNA, MEMBER (A)
Jamal Fathima
Age about 62 years,
Widow of late A.S.Shaikh
Mohd. C/o. Mr. Jamal KOD Chawl,
Room No. 5, Indira Nagar, Dharavi,
Mumbai 400 017. ...Applicant
(By Advocates Mr. F.A. Khan a/w Mr. S. A. Siddiqui)
VERSUS
1. Union of India, Through
General Manager, Central Railway,
Head Quarter Office,
Mumbai CSMT Pin- 400 001.
2. Divisional Railway Manager,
Mumbai Division, Central Railway,
CSMT, Mumbai 400 001
3. Senior Divisional Electrical Engineer,
(Traction Ralling Shock 'Operation'),
Central Railway, Mumbai Division,
Kurla Car Shed, Kurla (West),
Mumbai 400 070
...Respondents
(By Advocate Mr. D. A. Dube)
Page 1 of 12
2 OA No.781/2019
(ORAL) ORDER
The applicant has claimed payment of settlement dues and family pension for herself and companionate appointment to her son stating that late shri. A.S.Shaikh was appointed on 04.04.1972 and went missing from 12.02.1983. It has been submitted that inspector of Dharavi Police station, Mumbai has issued the certificate dated 28.03.2006 that the applicant's son Shri. Sahul Hameed has submitted an affidavit to this effect and on that basis, it was kept on record with the police station vide S.D.E. No. 43/96 in 1996. Earlier to this, there was no record available at the police station nor any such complaint is made by the applicant. Thus, the missing information was first time given to the police station in 1996 after 13 years of missing of the deceased employee.
2. It has been claimed by the applicant that the late Shri. Shaikh Mohammed was employed at Bombay Division as Khalasi with effect from 04.04.1972 and he went missing from 12.02.1983. His son Mr. Sahul Hameed applied for compassionate appointment on 02.10.1995 even before information about missing of late Shri. Shaikh Mohammed was given to police station.
Page 2 of 12 3 OA No.781/2019 2.1 The applicant submitted letter dated 02.10.1995 of the BRM Central Railway of Bombay stating that late Shaikh Mohammed was missing from last 12 years from 1983 and she is having six children and her elder son Shri Shaikh Mohammad is staying away from her and not at all bothered about her and remaining 5 children's for the last 10 years and therefore, requested for compassionate appointment of Sahul Hameed who was 22 years of age in October, 1995. She had sent one letter to Railway Ministry and other authorities on 02.03.2017 reiterating that late shri Shaikh Mohammed was missing from 12.02.1983 and he has lodged a complaint with Dharavi Police Station in 1996. Therefore, she has filed this OA on 25.10.2019 to seek settlement of dues and family pension for herself and appointment of her son Sahul Ahmed on companionate ground vide representation dated 02.03.2017 and 25.09.2017.
3. On notice, the respondents have filed their reply and contested the OA. It has been submitted that the OA is barred by law of limitation due to delay and latches as the applicant's husband went missing from February, 1983 and present OA has been filed in October, 2019 that is about after 36 years. It has been submitted that as admitted by the applicant, her husband was alive Page 3 of 12 4 OA No.781/2019 and was finally found in his native place. Therefore, this is not a case of missing employee. In absence of the official records, respondents are not in position to point out whether any disciplinary action for unauthorized absence from duty was taken against the husband of applicant or not.
4. It has been further submitted that as per rule, employee is required to complete minimum 10 years of qualifying service for pension. The applicant requires to establish that her husband has completed minimum 10 years of qualifying service for grant of pension. As no pension was sanctioned to the husband of applicant, she is not eligible for family pension. It has been further submitted that as provided under Rule 75(2)(c) of The Railway Services (Pension) rule wife is eligible for family pension, if her husband was in receipt of pension. Admittedly in present case no pension was sanctioned to the husband of the applicant, hence she is not eligible for family pension.
5. The applicant filed rejoinder to the reply filed by the respondents. It has been submitted that it is the responsibility of the respondent to take necessary action as applicant has filed proper missing report of her husband with the Dharavi Police Station (Mumbai) and how the service record of applicant's Page 4 of 12 5 OA No.781/2019 husband is not available when he was in service and would have been in service as yet had he not died on 25.09.2010. The respondents have not explained as to how and who has lost his service record and what appropriate disciplinary action has been taken against the person responsible for maintaining the employee's service record and what further action has been taken to search/reconstruct the said service record. 5.1 It has been submitted that when the applicant could not succeed in getting her representation addressed she sought the information through RTI. However, no information has been given by the respondents in response to the RTI application. It has been submitted that applicant husband was appointed on 04.04.1972 and he was missing from 12.02.1983. Thus, he had more than 10 years of qualifying service and eligible for pension and he continued to be in service till his death. It has been submitted that the applicant is not governed by Rule 75 (2) (c) as stated by the respondents. On the contrary the applicant is governed by Rule 75 (1) (a) of the Railway services (Pension) Rule, 1993. Accordingly, applicant is entitled for family pension.
6. The applicant has filed additional documents by filing MA No. 749/2019 on 20.01.2023 including there with marriage Page 5 of 12 6 OA No.781/2019 certificate dated 22.12.2022 issued by president Malukkamaliar Jumma Pallivasal Muslim Sunnath Wal Jamath Pathamadai and Kesavasamudram Pathamadai in which he has stated that Nikah (marriage) of the applicant was solemnized in Tamil Nadu on 01.04.1970 with the deceased employee. However, no other evidence has been produced. The applicant has submitted a xerox copy of railway pass dated 03.11.1980 issued to Mr and Mrs. A.S. Shaikh Mohammad and 2 sons and a xerox copy of pay slip for part period of month of 18.03.1982. The applicant has also enclosed a xerox copy of application no. 1927594 in the form issued by Birhan Mumbai Mahanagarpalika (Municipal Corporation of Greater Mumbai) vide I/card serial no. GN/M/95/130/IN stating that he was staying at Indra Nagar, KOD Chawl, Dharavi, Mumbai-17 and the said slum was occupied by 2 persons.
7. In reply to additional affidavit the respondents have also filed affidavit in reply to rejoinder.
7.1. It has been submitted that the applicant failed to make out any case that she is only legal successor of late A.S. Shaikh. The applicant neither submitted the succession certificate obtained from competent authority providing that she is only legal heir of Page 6 of 12 7 OA No.781/2019 late A. S. Shaikh nor submitted any other documents like Ration Card, Voting Card or bank passbook or any other supporting documents. It has been further submitted that the applicant has filed the present OA after a long delay of 36 years. She cannot shift the burden on the respondents. The applicant cannot take benefit of her own wrong. The applicant failed to produce any documents to prove that the late A.S. Shaikh completed pensionable service and failed to further prove that no action was taken against him. It has been submitted that since the documents annexed are xerox copies therefore the applicant is required to produce original copies of same. The respondents further submitted that the applicant should also produce the joining letter and last salary slip of late A.S.Shaikh. It has been submitted that in view of the facts and the circumstance of the case, the applicant failed to make out any case to grant any relief to the applicant. Therefore, application required to be dismissed with cost.
8. The counsel for the applicant again submitted a reply on 14.03.2024 stating that the respondents have not explained as to how when the deceased employee (husband of the applicant) was in service, now his service records are not available, the Page 7 of 12 8 OA No.781/2019 respondents have to explain as to what further action has been taken to search/reconstruct the lost record. It has been submitted that record can be weeded out only when it is not current/live i.e. only 5 years after all dues and pension has been settled. The records of recruitment is to be preserved permanently and also personal files are to be preserved after issue of final pension/gratuity and before this the respondents cannot weed out the records. The respondents are therefore, obliged to produce record of recruitment and settlement of the applicant. The counsel for the applicant submitted written argument on 15.03.2024 stating that the applicant went missing on 12.02.1983. The necessary missing report was registered with Dharavi Police Station Mumbai dated 28.06.1996 and missing certificate was issued on 28.03.2006. Thereafter, the husband of the applicant was further traced to his native place Palhamadai District Trunelvelli (Tamil Nadu state) in the year 2010 and after a short while he expired on 25.09.2010. The applicant right from the year 1995 approached office of the respondents claiming P.F., settlement dues of her husband and family pension number of times.
9. During the arguments on 15.04.2024, counsel for the applicant draw my attention to election card which was issued to Page 8 of 12 9 OA No.781/2019 the deceased employee by the Election Commission of India on 16.01.1996. Counsel for the applicant submitted a copy of application of late Shaikh Mohammad to issue the Photo Voter ID card No. MT/06/34/448206 issued by Election Commission of India on 16.01.1996. The counsel for the applicant was therefore asked that when the late Shaikh Mohammad was missing from 1983 to 2010, how this voter photo ID card was made in his name if he was missing. Furthermore, on perusal of page 18 of the OA it is seen that deceased employee has six children. However, the date of birth of all of them was not given. The counsel for the respondents was asked to explain about the issuance of the Photo Voter ID card dated 16.01.1996 and date of birth of six children along with supporting documents by way of an affidavit and case was adjourned and part heard.
10. Thereafter, the matter came up for hearing on 10.07.2024. The counsel for the applicant on that day submitted that he asked the applicant to send the information and he will be submitting the same as soon as he receives it and therefore hearing was adjourned on 17.09.2024.
10.1 On 17.09.2024, the counsel for the applicant submitted that he has not received the information from the applicant and Page 9 of 12 10 OA No.781/2019 he will be submitting the same as soon as he receives it. Later on, counsel for the respondents submitted that applicant does not have any further documents. He also submitted that he is not in a position to explain how the election ID/card was made in 1996 when the applicant was missing from 1983 to 2010 and that the applicant does not have information about date of birth of the children. The matter was listed for 01.10.2024.
11. The learned counsel for the respondents Mr. D. A. Dube submits that this OA is liable to be dismissed on the ground of concealment of material facts and misleading the court in view of the judgement of Hon'ble Supreme Court in the case of K. D. Sharma Vs Steel Authority of India Limited (2008) 12 SSC 481. He submits that the applicant has tried to mislead the court by submitting the election voter ID card of the deceased employee which was made in 1996, even though he is claimed to have been missing from 1983 to 2010.
12. Before adverting to the facts of the present case, it is relevant here to mention that for getting the pension the employee concern is required to show that under the pension rules, he has served the department for a minimum number of years as a qualifying service and his post was pensionable post. Page 10 of 12 11 OA No.781/2019 Further, for claiming the benefit of family pension, the family member is required to establish that such person is a family member of the pensioner. In the present case, the applicant is claiming family pension being the wife of the deceased person namely late Shri A.S.Sheikh and according to the applicant, he was serving with the railways. However, in reply, factum of service of said person and other averments are disputed by the respondents on the ground that they have no records. There is no document on record in respect of appointment of the said person as a railway employee, no nomination form in favour of the present applicant and any other documents which shows that the said person has completed qualifying service of ten years with the railways. Under these circumstances, the claim of the applicant for family pension in the peculiar facts and circumstances cannot be crystalized by this Tribunal. It is pertinent to mention that merely on the basis of Railway Pass that too in photocopy and one payment slip, it cannot be inferred that late Shri A.S.Sheikh was holding the pensionable post and completed requisite length of period with the railways to be entitled for pension and further on records the marriage certificate of the applicant with late Shri A.S.Sheikh was of year Page 11 of 12 12 OA No.781/2019 2022, whereas the marriage was shown to be solemnized in the year 1970. Merely on these documents it cannot be held that being the wife of the said person, applicant can be granted benefit of family pension. It is pertinent to observe that this Tribunal cannot create any right in favour of any employee but to crystalize the right of the parties based upon proper facts and relevant documents as per rules.
13. Thus, in view of the aforesaid discussion and reasons, the applicant is not entitled for any relief and accordingly, OA is liable to be dismissed. No costs.
(Shri Krishna) Member (A) /dr/ Page 12 of 12