Union Of India Represented By ... vs Smt. Raj Beti
2013 Latest Caselaw 243 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision : January 16, 2013

+                            W.P.(C) 133/2013

       UNION OF INDIA REPRESENTED BY
       GENERAL MANAGER, RAILWAYS & ORS.              ...Petitioners
                Represented by: Mr.V.S.R.Krishna, Advocate with
                Mr.Abhishek Yadav, Advocate.

                    versus

       SMT. RAJ BETI                                 ...Respondent
                 Represented by: Ms.Jyoti Singh, Sr.Advocate instructed
                 by Mr.Manjeet Singh Reen, Advocate and
                 Ms.Saahila Lamba, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE VEENA BIRBAL

PRADEEP NANDRAJOG, J.

CM No.269/2013 Allowed; subject to just exceptions.

WP(C) No.133/2013

1. The undisputed facts are that late Shri Ram Singh, the husband of the respondent, after screening, was regularly appointed as a Gangman by the Indian Railways on May 02, 1981. While on duty, and probably checking the railway line, on December 24, 1987 he was hit by train No.4681, Ludhiana Express. In spite of prolonged medical treatment he could not recover and being declared medically unfit for further service was relieved from service on September 22, 1989. He could not survive the injuries and died a slow and painful death on November 29, 1992.

2. We have recorded aforesaid facts as not being in dispute notwithstanding an attempt made by learned counsel for the petitioners to

urge that there is no evidence that late Shri Ram Singh was on duty when he was hit by train No.4681, Ludhiana Express, for the reason in the counter-reply filed by the petitioners before the Central Administrative Tribunal to OA No.3570/2011 filed by the respondent, in para (X) the petitioner has admitted as under:-

"Therefore, he was retired on medical grounds from the date of his medically unfitness w.e.f. 22.09.89 in terms of para 1303 (i) of IREM. In view of the fact that the deceased met with an accident while on duty and was declared medically unfit for all categories and retired on medical grounds, his widow, the application herein, was provided appointment in Railways on compassionate grounds as is evidence from DPO/NDLS‟s Letter No.APP./CG/1078/S.Cell/P dated 31.05.1994, in which it is clearly mentioned against column no.4 that ex- employee was retired on medical grounds."

3. Unfortunately for Ram Singh and his wife, the respondent, the Indian Railways did not have any Rules akin to the CCS (Extraordinary Pension) Rules 1972 as per which if a Government servant is incapacitated while on duty due to an accident he is sanctioned an extraordinary pension and if he dies a family pension is sanctioned.

4. It was only in the year 1993 that the Railway Services (Extraordinary Pension) Rules 1993 were promulgated and as per the Rules as promulgated the same applied to Railway servants appointed on or before the 31st day of December 1993 and after April 01, 1937, but were amended on December 30, 2003 to make the Rules applicable to Railway servants after April 01, 1937 but before December 31, 2003, which amendment does not affect the right of the respondent which we are going to decide.

5. Rule 2 of the Railway Services (Extraordinary Pension) Rules, 1993 reads as under:-

"2. Application These rules shall apply to all Railway servants,

appointed on or before the 31st day of December, 2003 other than those to whom the Workmen‟s Compensation Act, 1923 (8 of 1923), applies, whether their appointment is permanent or temporary, on time-scale of pay or fixed pay or piece-work rates who are under the rule making control of the President, and Who entered or enter railway service on or after st the 1 April, 1937, or Who having entered such service before the 1 st April, 1937, did not hold a lien or a suspended lien on a permanent post on that date.

Note: No award shall be made under these rules in respect of a railway servant who is deputed on foreign service under United Nations‟ bodies on or after 1st January, 1958 and who is allowed to join the United Nations‟ Joint Staff Pension Fund as an „Associate Member‟.

6. Suffice would it be to state that the Rule would apply to all railway servants appointed permanently or temporarily on or before December 31, 2003 but after April 01, 1937 as per the amendment made in the year 2003.

7. Sub-Rule (i) of Rule 3 defines an accident to mean : (i) a sudden and unavoidable mishap or (ii) a mishap due to an act of devotion to duty in an emergency arising otherwise than by violence out of and in the course of service. Sub-Rule (ii) of Rule 3 defines the date of injury to mean the actual date on which the injury is suffered. Sub-Rule (3) of Rule 3 defines injuries to mean all those which are listed in Schedule I and needless to state encompass all kinds of injuries to the human body.

8. Rule 4 mandates that disablement shall be accepted as due to Railway service if the injury is attributable to railway service and so would death be attributable if it relates to an accident while on duty.

9. Sub-Rule (1) and sub-Rule (2) of Rule 10 of the Railway Services (Extraordinary Pension) Rules, 1993 read as under:-

10.(1) When disablement of a railway servant is

conceded as due to railway service in terms of Rule 4, he shall be awarded disability pension in terms of sub- rule (2) or (3) or lump sum compensation in terms of sub-rule (4) in accordance with the percentage of disability (suffered by him) as certified by the Medical Authority concerned.

(2) If the railway servant is boarded out of railway service on account of his disablement, the quantum of disability pension for cent per cent disability shall be as specified in Schedule III. The quantum of disability pension for lower percentage of disability shall be proportionately lower, the minima and the maxima given in Schedule III are applicable only for arriving at the monthly disability pension for cent per cent disability and are not applicable in respect of percentage of disability lower than cent per cent."

10. Rule 11 of the Railway Services (Extraordinary Pension) Rules, 1993 reads as under:-

"11. When death of a railway servant is conceded as due to railway service in terms of rule 4, his widow and children shall be awarded pensionary benefits in accordance with schedule IV.

NOTE: If a Railway servant dies leaving behind two or more widows, the pension admissible under this rule to the widow shall be divided equally among all the widows."

11. Now, being a beneficial legislation, the Rules have to be considered, insofar the language permits, to the benefit of the employee or his widow.

12. It was only in the year 2009 that the respondent learnt of a right to receive pension, but nobody guided her properly as to under which Rules she should stake a claim. Her counsel made representations relying upon IREM Volume-2 1989 Edition as per which a railway employee who died after rendering pensionable service entitled the family to a family pension. The counsel appears not to be aware of the Railway Services

(Extraordinary Pension) Rules 1993. Thus, the request for being paid a pension was not even considered compelling the respondent to file OA No.1776/2009 which was disposed of by the Tribunal with a direction that representations made by the respondent be decided. The Railway Authorities rejected the claim but without any reasons. CP No.73/2010 filed by the respondent was disposed of by the Tribunal holding that respondents remedy was to initiate substantive action, which she did when she filed OA No.3543/2010. It was disposed of by the Tribunal on May 20, 2011 directing respondents to properly consider her claim for being released pension. The claim being rejected once again vide order dated July 26, 2011 the respondent filed OA No.3570/2011 which was allowed by the Tribunal vide impugned order dated May 23, 2012 against which review sought by the petitioners as per RA No.281/2012 has failed when the Review Application was dismissed on September 24, 2012.

13. It is unfortunate that while granting relief the Tribunal has treated it to be a case as if Shri Ram Singh died in harness. The claim has been allowed with reference to the normal pension Rules ignoring the fact that as a consequence of the injuries suffered by him at the accident while on duty on December 24, 1987 and upon being declared medically unfit, Ram Singh was discharged from service on September 22, 1989 on medical grounds as per para No.1302 and 1303 of IREM Volume-2 1989 Edition. At that time he was not sanctioned any pension. He died pension less on November 29, 1992. The 1993 Rules had yet to come into being.

14. Now, had Ram Singh been alive in the year 1993, having entered Railway service after April 01, 1937 and being appointed prior to December 31, 1993, he would have been entitled to a Disability Pension or a lump-sum compensation as per sub-rule (ii) of Rule 10. It is not the case of the petitioners that any compensation was paid to Ram Singh. As per Rule 11 the widow and the children would be entitled to the disability

pension. Thus, the position would be that since Ram Singh had died prior to the 1993 Rules being promulgated, but since his discharge from service was on account of a disablement incurred by him at an accident while he was still on duty and the injury accelerated his death, the respondent would be entitled to be awarded the pension in accordance with Schedule -IV.

15. Ordered accordingly.

16. The writ petitioner shall compute the pension payable as per Schedule-IV and shall pay the same to the respondent. Arrears shall be paid within 12 weeks with simple interest @ 6% per annum from January 01, 1994 for the reason the 1993 Rules came into force on December 03, 1993. Future pension shall be paid each month.

17. No costs.

(PRADEEP NANDRAJOG) JUDGE

(VEENA BIRBAL) JUDGE JANUARY 16, 2013 rk