Central Administrative Tribunal - Mumbai
Usha Ghanshyam Pandey vs M/O Railways on 10 December, 2024
1 OA No.50/2020
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.50/2020
Dated this Tuesday the 10th December, 2024
CORAM: HON'BLE MR. SHRI KRISHNA, MEMBER (A)
Usha Ghanshyam Pandey
Widow of Late Shri Ghanshyam Gangaprasad
Pandey, date of birth : 01.01.1974, age : 45 years
11 months, Housewife and residing at 002
Vakratund Apartment, Gandhi Chowk, Virar (East),
Post-Virar (West), Phulpada Road, Taluka:Vasai,
District : Palghar, State : Maharashtra - Pin Code:
104 305. - Applicant
(By Advocate Shri Sai Kumar Ramamurthy )
Versus
1. Union of India,
Through : The General Manager,
Western Railway, Headquarters' Office,
M.K. Road, Churchgate, Mumbai - 400 020.
2. DRM (Divisional Railway Manager)
DRM's Office, Western Railway,
Mumbai Division, Mumbai Central,
Mumbai - 400 008.
3. Chief Personnel Officer,
Western Railway, Headquarters' Office,
M.K. Road, Churchgate, Mumbai - 400 020. - Respondents
(By Advocate Dr. V.S. Masurkar )
Page 1 of 20
2 OA No.50/2020
Order reserved on : 12.11.2024
Order pronounced on : 10.12.2024
ORDER
The applicant - widow of deceased Railway employee has filed this OA for seeking declaration for grant of ex-gratia payment of Rs.25 lakhs under Workman's Compensation Act, 1923 or ex-gratia payment under the extent rules with 18% interest from the date of death of her husband.
2. Brief facts of the case are that the deceased husband of the applicant - Shri Ghanshyam Gangaprasad Pandey was working on the post of Senior Pointsman which is a safety category post. He got fatally hit by block of bricks which caused grievous hurt and injury to him. He was hospitalized in Jagjivan Ram Hospital, Central Railway Hospital from 03.06.2017 to 04.07.2017. He was discharged on 04.07.2017. After 14 days of discharge from the Railway Hospital, he had Page 2 of 20 3 OA No.50/2020 cardiovascular arrest secondary to myocardial infarction and expired on 18.07.2017 in a Rural Hospital in Virar, District Palghar. It is claim of the applicant that when an employee dies on duty or due to the injury suffered by him while on duty, his family is entitled to ex-gratia payment of Rs.25 lakhs which has been denied to the applicant on the ground that it is not a fit case to be considered under Workman's Compensation Act, 1923. 2.1 It has been submitted that denying the grant of ex-gratia payment of Rs.25 lakhs is a abuse and misuse of the powers of the authorities As per the note/memorandum dated 01.11.2017 prepared by the DRM Office, Western Railway, the applicant's husband death was because of injury on duty and, therefore, the impugned order dated 10.01.2018 passed by the Assistant Personnel Officer(Traffic) in the office of DRM Page 3 of 20 4 OA No.50/2020 (Establishment) Mumbai is bad in law and prayed to quash and set aside the impugned order.
3. The applicant has filed MA No.18/2020 seeking condonation of delay alongwith OA.
4. After filing the OA, the applicant carried out amendment and submitted that the Railway Board has issued circular on the subject of payment of ex-gratia compensation to families of Railway servant who die in performance of their Bonafide official duties dated 05.11.1999, 08.02.2006, 01.05.2007, circular dated 30.09.2008, DoPT OM dated 11.09.1998, Railway Board circular dated 10.01.2011 and further circular dated 13.10.2011 and subsequent circular issued by the Railway Board being RBE No.139/2016 dated 25.11.2016 in light of the implementation of the recommendations of the Central 7th CPC.
4.1 It has been contended that RBE No.139/2016 dated 25.11.2016 was issued with the approval of Page 4 of 20 5 OA No.50/2020 President of India and the amount of ex-gratia lump sum compensation was modified by the Ministry of Railways and the amount of ex-gratia compensation was enhanced to Rs.25 lakhs by the said Railway Board order. The above said Railway Board order was in force on the date of accident which had occurred on 03.06.2017 and, therefore, the applicant was entitled for the ex-gratia amount of Rs.25 lakhs. It has been contended that the medical certificate given by the Senior Divisional Medical Officer Western Railway Health Unit Mumbai states that the deceased employee would be disabled and the disablement is likely to continue for 45 days i.e. upto 20.07.2017 but he died prior to that date on 18.07.2017.
4.2 It has been contended that the accident report and the medical memorandum given on 03.07.2017 by the Railway authorities would show that the accident and injuries caused to the Page 5 of 20 6 OA No.50/2020 applicant's husband occurred during and in the course of employment. It has been further contended that the death of the applicant's husband is directly linked to the accident or injuries sustained by him in the course of his employment. Therefore, it would be a case of the applicant's husband dying on account of an accident or injury caused during the course of employment which would entitle the applicant to claim ex-gratia lumpsum compensation.
5. After issuance of notice, the respondents have filed their reply and contested the OA. 5.1 It has been contended that the Employees Compensation Act, 1923 has its own remedy for seeking reliefs and hence this Tribunal has no jurisdiction to try and entertain this OA. 5.2 It has been submitted that ex-railway employee had expired on 18.07.2017 and the representation was filed on 02.11.2017 which was Page 6 of 20 7 OA No.50/2020 rejected vide order dated 10.01.2018 and hence the OA filed on 19.12.2019 is not within the limitation prescribed under Section 21 of the Administrative Tribunals Act, 1985 and, therefore, the OA is liable to be dismissed for lack of jurisdiction as well as on the ground of delay.
5.3 It has been submitted that deceased employee was injured on duty on 03.06.2017 while performing duty between 8.00 to 20.00 hours at BCT yard, Shunting Coach No.RA-47 at Saloon siding near loop line, hurt by paver block, sustained serious injuries. Accident report prepared by SS/BCT dated 03.10.2017. He was admitted in the Western Railways, Jagjivan Hospital, Bombay Central for treatment on 03.06.2017 and discharged from the hospital on 04.07.2017. He expired on 18.07.2017 in Rural Hospital, Virar. The postmortem report of Rural Hospital, Virar shows the cause of death is "due to cardio vascular arrest, secondly to Page 7 of 20 8 OA No.50/2020 myocardial infection". The then Chief Medical Superintendent had given remarks on subject file No.E/T/1216/1/BCT dated 21.05.2018 as "employee died because of complication as result of multiple fractures injuries of long bones and pelvic bones and serious abdominal injuries".
5.4 It has been submitted that he was not expired while on duty as amply clear from the aforesaid facts and report. The applicant's application dated 02.11.2017 was examined keeping in mind the rules of Workman's Compensation Act/Ex- gratia policy. The representation was rejected and duly informed to the applicant. The action of the respondents is well within the law and the OA is devoid of merit and liable to be dismissed. 5.5 It has been further submitted that the applicant is making serious allegations against the Jagjivan Ram Hospital, however, the Jagjivan Ram Hospital is not impleaded as party respondent Page 8 of 20 9 OA No.50/2020 and hence, the OA suffers from non-joinder of parties.
5.6 It has been submitted that the deceased Railway employee expired after 45 days after his injury during his sick period on 18.07.2017. Therefore, under the Railway policy, his legal heir is not entitled for ex-gratia benefits.
6. The applicant has filed rejoinder to the reply filed by the respondents. It has been submitted that the objection taken by the respondents that the definition of "employee" under section 2(dd) excludes a Railway servant who is permanently employed in the Railways is not correct as the said statutory provision would knock out the very basis for the reply filed and the defence taken by the respondents therein. 6.1 It has been submitted that the applicant has filed OA alongwith application for condonation of delay and, therefore, the ground of delay taken Page 9 of 20 10 OA No.50/2020 by the respondents is not correct. It has been submitted that the contention of the Chief Medical Superintendent of the Railways to treat the death not while on duty was not correct as the discharge report of the deceased employee from the Jagjivan Ram Hospital on 04.07.2017 shows that he was asked to do alternate day dressing since the wounds were not healed on the date of discharge and the applicant's late husband was asked to follow up after 25 days in Surgical OPD shows that his injury is continued even after discharge which culminated into his death on 18.07.2017.
6.2 It has been submitted that the respondents are taking hyper technical objection which is required to be rejected as the applicant's late husband had never recovered from the said injury and ultimately expired. It has been submitted that the death of the applicant's husband had occurred within 14 days of discharge from the Railway Page 10 of 20 11 OA No.50/2020 Hospital and the treatment for the injuries were still going on. The nature of injuries were grave and serious and the railway doctors have not stated that the applicant's husband was fit for discharge or that he was fully recovered on discharge. In any case, the period was never treated as off duty by Railways and it is a death in harness. 6.3 It has been submitted that the Railway Board's letter dated 06.11.1999 followed by order dated 08.02.2006 provides that the Railway Board was at that time the competent authority to sanction ex-gratia which was relaxed and decentralized with the General Manager of Zonal Railways being made the competent authority to sanction ex-gratia compensation under letter dated 01.05.2007. The Railway Board had issued further order dated 30.09.2008 regarding the amount payable followed by enhancement of the compensation made under letter dated 10.01.2011 Page 11 of 20 12 OA No.50/2020 followed by further orders passed on 13.01.2011 and subsequent orders dated 25.11.2016 enhancing the limit of compensation to Rs.25 lakhs in case of death occurring due to accident in the course of performance of duty. The case of the applicant's late husband is fully covered by the said order and, therefore, the applicant is entitled to the benefits thereof.
7. The respondents have filed additional affidavit in reply to rejoinder of the applicant reiterating the earlier reply that the ex-employee was not expired while on duty and, therefore, his wife is not entitled for ex-gratia payment. It has been further submitted that one case of identical nature decided by the Commissioner for Employees Compensation & Judge, Labour Court was filed by legal heirs of deceased employee of Railway titled as "Kamu Valia Vadhane & 5 Others Vs. Union of India, through the General Manager & Representing Western Railway, Mumbai" Cond. Of Page 12 of 20 13 OA No.50/2020 Delay Misc. Appln (WCA)No.269/I-84/2017 CNR No.MHLC04-000712- 2017 decided on 27.02.2020 which makes it clear that the objection taken about the jurisdiction is correct and justified in law and the OA requires to be dismissed for lack of jurisdiction and another case of Dhanvanti Murli @ Murlidhar Motwani vs. Union of India through General Manager, Western Railway, Mumbai Central, Mumbai, decided by the Commissioner for Employees' Compensation & Judge, First Labour Court Thane, Application (ECA) No.294/B-90 of 2021 CNR No.MHLC040007872021 delivered on 19.11.2022.
8. I have considered the rival submissions and perused the pleadings and documents filed on record. There is no dispute that there was accident on 03.06.2017 in which applicant's husband was injured while he was on duty. However, the respondents contend that cause of death was not the accident as he was discharged from the hospital on 04.07.2017 and he expired on 18.07.2017 in Rural Page 13 of 20 14 OA No.50/2020 Hospital, Virar and Postmortam report shows that the cause of death is due to cardio vascular arrest, secondly to myocardial infection.
9. Regarding the contention of the respondents that the jurisdiction over the claim would lie in the Court of Commissioner for Employees' Compensation & Judge, First Labour Court, Thane in application (ECA) No.294/B-90 of 2021 in the case of Dhanvanti Murli @Murlidhar Motwani (supra) wherein the application was filed by the applicant therein under Section 22 of the Employees' Compensation Act, 1923 for compensation by way of penalty from the opponent Western Railway. In that case, it was contended that the death of deceased was not occurred out of an accident arising out of and in the course of his employment with opponent Railway Company. Hence, the opponent Railway was not liable to pay any compensation to applicant under the provisions of Page 14 of 20 15 OA No.50/2020 the Employees' Compensation Act, 1923. It was held that there was no nexus or any causal relationship between his death and employment. His death was caused while brining that medical fitness certificate from concerned hospital and this act was not the part of his employment. It was further held that till the production of that certificate, it cannot be said that he had resumed his duty, he will be considered as 'absent' for that day. Thus, his death has no any connection with his employment by any angle.
9.1 It was further held that the deceased had not collected medical fitness certificate from the concerned hospital till his death and, therefore, said accident is not considered as arising out of and in the course of his employment within the meaning of Section 3 of the Employees' Compensation Act, 1923 and the Commissioner for Employees' Compensation & Judge, First Labour Court Thane Page 15 of 20 16 OA No.50/2020 concluded that the applicant has failed to show that the death of the deceased was out of the accident arose out of and in the course of his employment and, therefore, the application was rejected.
10. Learned counsel for the respondents has submitted a copy of letter dated 02.11.2017 submitted by the applicant to the DRM (E), BCT, Mumbai in which she stated that this was an injured on duty case (IOD) and requested to arrange to grant her ex-gratia amount under Workmen's Compensation Act as per rules. He submits that in view of her own admission that she was asked for ex-gratia amount under Workman's Compensation Act, therefore, the applicant should have approached the Commissioner for Employees' Compensation & Judge First Labour Court under Section 22 of the Employees' Compensation Act, 1923 and not to this Tribunal which does not have jurisdiction to decide Page 16 of 20 17 OA No.50/2020 the cases under the Workman's Compensation Act, 1923.
11. I find that the respondents have filed affidavit on 30.01.2024 stating that the jurisdiction for deciding the case under Workmen's Compensation Act lies with the Commissioner for Employees Compensation & Judge, Labour Court and submitted order from the First Labour Court, Thane in the case of Kamu Valia Vadhane & Ors. (supra) and in the case of Dhanvanti Murli @ Murlidhar Motwani (supra). This fact has not been disputed by the learned counsel for the applicant and he has not been able to make out the case that why the case of the applicant does not fall under the Workmen's Compensation Act, 1923.
12. I further find that the applicant herself vide her application dated 02.11.2017 addressed to the DRM(E)BCT, Mumbai has submitted an application in which the subject is mentioned "To pay Ex-Gratia Page 17 of 20 18 OA No.50/2020 amount under Workmen's Compensation Act as per rule" and after giving details of the accident and subsequent development of death of the employee has stated in the concluding paragraph as "As this was an injured on duty case (IOD), kindly arrange to grant me Ex-Gratia amount under Workmen's Compensation Act as per Rule."
13. I have gone through the Workmen's Compensation Act, 1923 which was enacted on 05.03.1923 to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident. In clause (b) of sub section 1 of Section 2 of the Act, in the Definitions, it is provided that the 'Commissioner' means a Commissioner for Workmen's Compensation appointed under Section 20. Clause 'n' of sub section 1 of Section 2 defines "workman" as under:
"(n) "workman" means any person {***} who is -Page 18 of 20 19 OA No.50/2020
(i) a railway servant as defined in [clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989)}, not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or".........
Section 3 provides for Employer's liability for compensation, in case a personal injury is caused to a workman by accident arising out of and in the course of his employment. Thus, it is clear from the above facts that Workmen's Compensation Act, 1923 is a special enactment and also applies to the Railway servants as defined in clause 34 of Section 2 of the Railways Act, 1989 (24 of 1989).
14. In view of the above facts, I find force in the argument of learned counsel for the respondents, Dr. V. S. Masurkar that the applicant's case will be covered by the Workmen's Compensation Act, 1923 for which there is a specified authority 'the Commissioner for Employees' Compensation" specified in the abovesaid Act.
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15. In view of the above facts, I am of the view that this Tribunal does not have jurisdiction for deciding the claim of the applicant under the Workmen's Compensation Act, 1923. Therefore, The Original Application is returned to the applicant with liberty to approach the appropriate forum. It is made clear that I have not expressed any views on the merits of the case. Pending MAs, if any, stand closed. No costs.
(Shri Krishna) Member (A) ma.
Digitally signed by Milan Jackson Alphanso
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