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4. The employee's claim for disability pension was negated by the Railways on the ground that he was not entitled to any further amount than that which was paid to him as compensation under the Workmen's Compensation Act and invalid pension and other service benefits.

5. Being aggrieved by the decision of the Railways not to grant him benefits under the RBE 39/2000, the employee preferred OA No. 704 of 2011 before the Central Administrative Tribunal, Calcutta Bench. The application filed by the employee was allowed by the Tribunal. The Railways were directed to pay 30% of his Basic Pay as disability pension in addition to the invalid pension and gratuity admissible under the CCS (Pension) Rules, 1972, apart from the compensation which he had received under the Workmen's Compensation Act. The payment under RBE 39/2000 was directed to be made with arrears within 3 months of the order. Aggrieved by the decision of the Tribunal, the Railways have preferred the present petition. Mr. Basu, learned Counsel appearing for the Railways argued that no additional benefits could be granted to the employee since he had already been paid compensation under the Workmen's Compensation Act and was being paid invalid pension under the CCS Pension Rules. He submitted that once invalid pension was paid to the employee on account of his disability, the question of granting any disability pension under the Railway Service (Extra Ordinary Pension) Rules, 1993 (hereinafter referred to as Extraordinary Pension Rules) did not arise. According to the learned Counsel, the employee had opted to avail of the compensation payable under the Workmen's Compensation Act and therefore he could not seek any relief under the Extraordinary Pension Rules. A further submission was made that in view of Rule 2 of the Extraordinary Pension Rules which restricts the applicability, the employee was not governed by the Extraordinary Pension Rules.

6. The learned Counsel has relied on the judgments in the case of National Insurance Co. Ltd. Vs. Mastan and Anr. reported in (2006) 2 SCC 641, Oriental Insurance Company Limited Vs. Dyamavva and Ors. reported in (2013) 9 SCC 406, A. Trehan Vs. M/s. Associated Electrical Agencies and Anr. reported in AIR 1996 SC 1990, Western India Plywood Limited Vs. P. Ashokan reported in AIR 1997 SC 3883 in support of his submission that the employee must elect whether to apply under the Workmen's Compensation Act or under the Extraordinary Pension Rules or under the RBE 39/2000.

7. Per contra, Mr. Chakraborty, the learned Counsel appearing for the employee submitted that the employee was never asked to exercise his option as to whether he would claim benefit under the Workmen's Compensation Act or under the Extraordinary Pension Rules. He submits that compensation paid under the Workmen's Compensation Act was deposited with the Commissioner for Workmen's Compensation Act does not in any manner affect the employee's right to additional benefits for the disability suffered by him. The learned Counsel then pointed out that the claim of the employee for additional benefits is based on RBE 39/2000 which grants special benefits in cases of death and disability on the basis of the recommendations made by the Vth Central Pay Commission. According to the learned Counsel, the claim of the employee was not based on the Extraordinary Pension Rules and therefore, the question of electing one or the other remedy did not arise. The learned Counsel has relied on the judgments in the case of Bhagwan Dass and Anr. Vs. Punjab State Electricity Board reported in (2008) 1 SCC (L&S) 242. The learned Counsel has also drawn our attention to the fact that the employee was entitled to employment, although he had suffered disablement in view of the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1985. He has relied on certain judgments in support of this contention. However, it was not the contention of the employee before the Tribunal that his service ought not to have been terminated and that he was entitled to the benefit of Section 47 of The Persons with Disabilities Act, 1985. Therefore it is unnecessary for us to consider this contention.

8. Thus, the short question which arises for consideration before us is whether the employee is entitled to additional or special benefits granted under the RBE 39/2000, although he has availed of the compensation under the Workmen's Compensation Act. Indisputably, invalid pension is being paid to the employee under the CCS (Pension) Rules. There is no payment being made to him under the Extraordinary Pension Rules nor has the employee sought relief under the aforesaid Rules. Therefore, we need not consider as to whether the employee ought to have elected to prefer an application under the Workmen's Compensation Act, 1923 or under the Railway Services Extraordinary Pension Rules. The common thread running through the judgments cited by Mr. Basu is that when an employee meets with an accident arising out of and in the course of an employment, he must elect whether to claim compensation under the Motor Vehicles Act, 1988 or the Workmen's Compensation Act,1923 as Section 167 of the Motor Vehicles Act specifically debars a party from claiming compensation under both Acts. A party would have to elect for one or the other remedy. Similarly, in A. Trehan (supra) and Western India Plywood Limited (supra), the Supreme Court held that since Section 53 of the Employee's State Insurance Act (ESI Act) barred an employee from claiming compensation under any other Act, the employee would not be entitled to claim compensation under both the ESI Act as well as the Workmen's Compensation Act, 1923 or filing a suit for damages. As stated earlier, these judgments are of no avail to the Railways.