Bombay High Court
Union Of India Thr.G.M.Kolkatta & ... vs Smt.Kausal Vishnu Biranwar on 25 July, 2016
Bench: B.P. Dharmadhikari
1 250716 judg. wp 253.05.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.253 of 2005
1] Union of India
through General Manager,
South Eastern Railway,
Garden Reach, Kolkatta-43.
2] The Divisional Railway Manager,
South Eastern Railway, Nagpur-01. .... Petitioners.
Versus
Smt. Kaushal wd/o Vishnu Biranwar,
R/o.-Near Govt. Hospital,
Ambedkar Ward, P.O. Dewhadi (Tumsar Rd),
Dist. Bhandara, Maharashtra. .... Respondent.
Shri P.S. Lambat, Advocate for petitioners.
Shri A.M. Sudame, Advocate for respondent.
Coram : B.P. Dharmadhikari &
Kum. Indira Jain, JJ.
th
Dated : 25
July, 2016.
ORAL JUDGMENT [ Per B.P. Dharmadhikari, J.]
2 250716 judg. wp 253.05.odt
The petitioner no.1/Union of India has assailed the order
dated 27-09-2002 passed by the Administrative Member of the
Central Administrative Tribunal, Mumbai Bench at Nagpur
[hereinafter referred to as, "the CAT"] in Original Application No.
2227 of 2001. By the said order, the CAT has found that the
respondent/widow was entitled to the family pension. It also
directed fresh scrutiny of her claim for grant of compassionate
appointment. However, that aspect is not relevant for the
present purposes. Learned Advocate Shri Sudame for the
respondent informs and according to him, there was fresh
consideration and claim for compassionate ground is already
rejected.
2] The learned Counsel for the petitioners has pointed out
that Original Application No.2227 of 2001 was listed for the
first time before the CAT on 27-09-2002. Its standing Counsel
3 250716 judg. wp 253.05.odt
then present has been shown as heard. However, he was not
aware of the controversy involved or then about the facts of the
matter. Hence, without issuing notice and without extending
an opportunity of effectively defending the case, the Original
Application ought not to have been allowed. Learned Advocate
Shri Lambat for the petitioners, in this background, has invited
our attention to the judgment of the Hon'ble Apex Court in the
case of Union of India and others vs Rabia Bikaner etc.,
reported at AIR 1997 Supreme Court 2843 to urge that, as held
therein unless and until the employee after his scrutiny joins on
a regular post, his continuous service does not begin. Here as
the husband of the respondent expired after he was declared
medically fit in B-II category but before joining on any post, his
service did not constitute continuous service and his widow,
therefore, was not eligible for the family pension.
4 250716 judg. wp 253.05.odt
3] Learned Advocate Shri Sudame for the respondent, on
the other hand, submits that the Counsel for the petitioners
was heard by the CAT and after looking into the provisions of
Rule 75 of the Railway Service (Pension) Rules, 1993, the
decision has been reached. He submits that the judgment
relied upon by learned Advocate Shri Lambat for the petitioners
does not consider the cases falling under Rule 75(2)(b) of the
Pension Rules, 1993 and therefore does not constitute a
precedent in the present matter. He is relying upon the reasons
recorded by the learned CAT in its order.
4] Perusal of the order of the CAT shows that in first three
paragraphs it has only mentioned the contention of the parties.
In paragraph 5 it has proceeded to give relief to the applicant
widow before it. The only reason contained in paragraph 4 is
that the applicant widow was entitled to get family pension and
5 250716 judg. wp 253.05.odt
the same could not have been denied. We find that this is a
mere conclusion and it has been reached abruptly without
pointing out the relevant Rules or the facts at hand, satisfying
the requirements thereof. There is no mention to Rule 75 of
the Pension Rules, 1993 at all.
5] In this view of the matter, we find substance in the
contention of learned Advocate Shri Lambat for the petitioners
that at very first hearing without extending an opportunity of
effectively defending itself to the Union of India, the Original
Application came to be allowed by a cryptic order. We,
therefore, do not wish to comment upon the judgment of the
Hon'ble Apex Court mentioned supra.
6] Therefore, leaving all rival contentions open, only to
enable the parties to effectively assist the CAT in reaching a
6 250716 judg. wp 253.05.odt
right conclusion, we set aside the order dated 27-09-2002 and
restore Original Application No.2227 of 2001 back to its file.
The parties are directed to appear before the CAT on Tuesday
in concerned week in September, 2016, when the CAT is
scheduled to sit at Nagpur. The petitioners shall in the
meanwhile prepare their written statements and supply its copy
to the Counsel for the employee. The CAT shall within next
three months attempt to decide the Original Application finally
in accordance with law.
7] Writ Petition is, thus, partly allowed and disposed of. No
costs.
JUDGE JUDGE
Deshmukh
7 250716 judg. wp 253.05.odt
C E R T I F I C A T E
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
Uploaded by : Uploaded on :
(Deshmukh) 26/07/2016
P.A. to the Hon'ble Judge.
