GAHC010016012015
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
WP(C) NO.3604 OF 2015
Smti. Jyotsna Kakati,
Wife of Late Nirmal Chandra Kakati,
Resident of Village: Annadapally, North
Lumding, PO & PS: Lumding, District:
Nagaon, Assam, PIN - 782447.
........Petitioner
-Versus-
1. The Northeast Frontier Railway,
represented by the General Manager,
N.F. Railway, Maligaon, Guwahati -
781011.
2. The Divisional Railway Manager (P)
N.F. Railway, Lumding, District:
Nagaon, Assam, PIN - 782447.
3. The Chief Medical Superintendent,
N.F. Railway, Lumding, District:
Nagaon, Assam, PIN - 782447.
4. The Financial Advisor & Chief
Accounts Officer (Administration), N.F.
Railway, Maligaon, Guwahati, PIN -
781011.
5. Sri Khoka Mohan Sarkar,
Son of Late Jatu Ram Sarkar,
Village: Sonduba, PO: Sonduba, PS:
Bhuragaon, District: Morigaon, Assam.
6. Smti. Dulali Bala Sarkar,
Daughter of Late Jatu Ram Sarkar,
Page 1 of 8
Wife of Shri Sumesh Chandra Sarkar,
Village: Sonduba, PO: Sonduba, PS:
Bhuragaon, District: Morigaon, Assam.
7. Smti. Milan Sarkar,
Daughter of Late Jatu Ram Sarkar,
Wife of Shri Mohan Chandra Sarkar,
Village: Sankar Dev Nagar, Morigaon
Town, PO & PS: Morigaon, Assam.
8. Smti. Mina Sarkar,
Wife of Late Indra Mohan Sarkar,
Village: Sonduba, PO: Sonduba, PS:
Bhuragaon, District: Morigaon, Assam.
........Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE SOUMITRA SAIKIA For the Petitioner : Mr. A. Ahmed, Advocate.
For the Respondent Nos.1 to 4 : Mr. B.K. Das, standing counsel, N.F. Railway.
For the Respondent Nos.5 to 8 : Mr. N.N. Upadhyaya, Advocate.
Date of Judgment & Order : 22nd December, 2021.
JUDGMENT & ORDER (ORAL) (Sudhanshu Dhulia, CJ) Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. B.K. Das, learned standing counsel, N.F. Railway, appearing for the respondent Nos.1 to 4 and Mr. N.N. Upadhyaya, learned counsel, appearing for the respondent Nos.5 to 8.
2. Late Utpal Chandra Sarkar was an employee in the Indian Railways and at the time when he died on 22.03.2013 at the age of 53 years, he was staying with the present petitioner. According to the petitioner, she is the sister of the deceased employee.
3. The petitioner is a widow and has two children. After the death of Utpal Chandra Sarkar, the petitioner moved an application before the Railway Authorities for grant of pension and all other retiral benefits. In order to strengthen her claim, she also submitted a nomination certificate dated 03.02.2005, wherein Utpal Chandra Sarkar had called the petitioner as his sister and the children of the petitioner as his niece. The application filed by the petitioner was rejected by the Railway Authorities on 05.03.2014 on the ground that the petitioner is not blood relative of the deceased and, therefore, under the Railway Services (Pension) Rules, 1993 (hereinafter referred to as "1993 Rules"), she is not entitled for pension and other pensionary benefits.
4. Ultimately, the petitioner filed an original application before the Central Administrative Tribunal, Guwahati Bench, Guwahati, which was numbered as Original Application No.040/00189/2014.
5. The Central Administrative Tribunal during the course of hearing also directed the petitioner to implead the relatives of the deceased employee, who were impleaded as respondent Nos.5, 6, 7, 8, 9, 9(i) and 9(ii) in the original application. The private respondent Nos.5 to 9 before the Tribunal are the brothers and sisters of the deceased employee and admittedly all of them are married and the private respondent Nos.9(i) and 9(ii) are niece of the deceased employee. The Tribunal ultimately vide order dated 07.04.2015 decided that the petitioner is not a blood relative of the deceased and is not entitled to receive pension under the 1993 Rules. Aggrieved, the petitioner has filed the present writ petition before this Court.
6. The grant of pension is to be governed as per the Rules or the Scheme given in the 1993 Rules. Rule 70 of the 1993 Rules reads as under:-
"70. Retirement gratuity or death gratuity - (1)(a) In the case of a railway servant, who has completed five years, qualifying service and has become eligible for service gratuity or pension under rule 69, shall, on his retirement, be granted retirement gratuity equal to one-fourth of his emoluments for each completed six monthly period of qualifying service subject to a maximum of sixteen and one-half times the emoluments and there shall be no ceiling on reckonable emoluments for calculating the gratuity.
(b) If a railway servant dies while in service, the amount of death gratuity shall be paid to the family in the manner indicated in the Table below: -
TABLE Length of qualifying Rate of gratuity service
(i) Less than one year 2 times of emoluments
(ii) One year or more 6 times of emoluments but less than 5 years
(iii) 5 years or more but 12 times of emoluments less than 20 years
(iv) 20 years or more Half of emoluments for every completed six monthly period of qualifying service subject to maximum of thirty-three times emoluments provided that the amount of death gratuity shall in no case, exceed one lakh rupees.
Provided that the amount of retirement gratuity or death gratuity payable under this rule shall in no case, exceed rupees one lakh:
Provided further that the amount of retirement or death gratuity as finally calculated shall be rounded off to the next higher rupees. (2) If a railway servant, who has become eligible for a service gratuity or pension, dies within five years from the date of his retirement from service including compulsory retirement as a penalty and the sums actually received by him at the time of his death on account of such gratuity or pension including ad- hoc increase, if any, together with the retirement gratuity admissible under sub-rule (1) and the commuted value of any portion of pension commuted by him are less than the amount equal to twelve times of his emoluments, a residuary gratuity equal to the deficiency may be granted to his family in the manner indicated in sub-rule (1) of Rule 71.
(3) The emoluments for the purpose of gratuity admissible under this rule shall be reckoned in accordance with rule 49:
Provided that if the emoluments of a railway servant have been reduced during the last ten months of his service otherwise than as a penalty the average emoluments as referred to in the 50 shall be treated as emoluments.
(4) For the purpose of this rule, rules 71, 73, 74 "family", in relation to railway servant, means -
(i) wife or wives including judicially separated wife or wives in the case of a male railway servant;
(ii) husband including judicially separated husband in the case of a female railway servant;
(iii) sons including step-sons and adopted sons;
(iv) unmarried daughters including step daughters and adopted daughters;
(v) widowed daughters including step daughters and adopted daughters;
(vi) Father including adoptive parents in the case of individuals whose personal law permits adoption;
(vii) mother including adoptive parents in the case of individuals whose personal law permits adoption;
(viii) Including adoptive parents in the case of individuals whose personal law permits adoption;
(ix) brothers below the age of eighteen years including step brothers;
(x) unmarried sisters and widowed sisters including step sisters;
(xi) married daughters; and
(xii) children of predeceased son."
7. As per Rule 75 of the 1993 Rules, a deceased employee's family is entitled for family pension. Although what is meant by a "family" under Rule 70(4) of the 1993 Rules is confined to Rules 71, 73 and 74, which is regarding gratuity and nomination and family pension is governed under Rule 75, but nevertheless family pension is only payable to a member of the family. The petitioner under no definition of a family can be considered to be a member of the family of the deceased. Her only claim for the family pension is that the deceased employee, who used to stay with her and used to treat her as his sister. Even in the nomination letter of the employee, the names of the petitioner's elder sister and his daughter had been wrongly entered. Moreover, mention of the petitioner's name as a nominee would not entitled the petitioner for any pension. The pension would be given under the Scheme and under the Rules and under the Rules the petitioner is not entitled to pension and to that extent, we uphold the order of the Central Administrative Tribunal.
8. All the same as regarding the order of the Tribunal to release all the death cum retirement gratuity and other retirement dues of the deceased employee to the private respondents, who are respondent Nos.5, 6, 7, 8, 9, 9(i) and 9(ii), we are again of the view that even this direction could not have been given. This is because as far as the claim of family pension is concerned, they have no claim inasmuch as all the respondents are already married and pension was to be given only to unmarried brothers and sisters, which they are not.
9. Mr. N.N. Upadhyaya, learned counsel for the private respondent Nos.5 to 8 has relied then upon Section 73 of the 1993 Rules. Section 73 of the 1993 Rules reads as under:-
"73. Lapse of death-cum-retirement gratuity - Where a railway servant dies while in service; or after retirement without receiving the amount of gratuity and leaves behind no family, and -
(a) has made no nomination, or
(b) the nomination made by him does not subsist the amount of death-cum-retirement gratuity payable in respect of such railway servant under Rule 70 shall lapse to the Government;
Provided that the amount of death gratuity or retirement gratuity shall be payable to the person in whose favour a succession certificate in respect of the gratuity has been granted by a Court of law."
10. According to the aforesaid provision, when a Railway servant died while in service or after his retirement without receiving the amount of gratuity and has left behind no family, which is the case in hand, the death gratuity or retirement gratuity, as the case might be, can be given in favour of a person, who has a succession certificate. We have been told that there is already a succession certificate issued to the private respondents. If that be so, the private respondent Nos.5 to 8 will only be entitled for death-cum-retirement gratuity alone and no other benefit.
11. In terms of the above, the writ petition is disposed of.
JUDGE CHIEF JUSTICE Comparing Assistant