Gauhati High Court
Page No.# 1/7 vs Jyotsna Kakati And 4 Ors on 25 September, 2023
Page No.# 1/7
GAHC010106612023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./105/2023
KHOKA MOHAN SARKAR AND 3 ORS.
S/O LT. JATU RAM SARKAR VILL- SONDUBA P.O. SONDUBA P.S.
BHURAGAON DIST. MORIGAON, ASSAM.
2: SMTI. DULALI BALA SARKAR
D/O LT. JATU RAM SARKAR W/O SHRI SUMESH CH. SARKAR VILL-
SONDUBA P.O. SONDUBA P.S. BHURAGAON DIST. MORIGAON
ASSAM.
3: SRI MILAN SARKAR
D/O LT. JATU RAM SARKAR W/O SHRI MOHAN CH. SARKAR VILL-
SANKAR DEV NAGAR MORIGAON TOWN
P.O. and P.S. MORIGAON
ASSAM.
4: SMTI. MINA SARKAR
W/O LT. INDRA MOHAN SARKAR VILL- SONDUBA P.S. BHURAGAON DIST.
MORIGAON
ASSAM
VERSUS
JYOTSNA KAKATI AND 4 ORS.
W/O LT. NIRMAL CHANDRA KAKATI R/O VILL- ANNADAPALLY NORTH
LUMDING, P.O. and P.S. LUMDING DIST. NAGAON, ASSAM, PIN - 782447.
2:THE NORTHEAST FRONTIER RAILWAY
REPRESENTED BY THE GENERAL MANAGER
NF RAILWAY
MALIGAON
GUWAHATI 781011
3:THE DIVISIONAL RAILWAY MANAGER P
N.F. RAILWAY
Page No.# 2/7
LUMDING DIST.NAGAON
ASSAM
PIN - 782447.
4:THE CHIEF MEDICAL SUPERINTENDENT N.F.
RAILWAY
LUMDING
DIST. NAGAON
ASSAM. PIN - 782447.
5:THE FINANCIAL ADVISOR and CHIEF ACCOUNTS
OFFICER ADMINISTRATION
N.F. RAILWAY MALIGAON
GUWAHATI-11
Advocate for the Petitioner : MR. B CHAKRABORTY
Advocate for the Respondent : DY.S.G.I.
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 25-09-2023
[Soumitra Saikia, J]
Heard Mr. B. Chakraborty, learned counsel for the review petitioners. Also heard
Mr. K. Gogoi, learned CGC appearing for the respondent nos. 2 to 8.
2. This Review Petition is directed against the judgment and order dated
22.12.2021, passed in W.P(C) No. 3604/2015 where the review petitioners were
the respondents no. 5 to 8 in the said writ petition. The opposite
party/respondent no. 1 filed an application being Original Application (O.A.)
No.040/00189/2014 before the Central Administrative Tribunal (CAT), Guwahati
claiming all retirement dues and pensionary benefits of one late Utpal Chandra
Sarkar, who was working as a Chief Pharmacist under the AMCS/Store, NF
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Railway, Lumding. Late Utpal Chandra Sarkar was unmarried and was residing
at North Lumding. It was contended by the respondent no.1 before the CAT,
Guwahati that she was treated by the late Utpal Chandra Sarkar as his younger
widowed sister.
3. Learned counsel for the review petitioners submits that the late Utpal
Chandra Sarkar joined in the N.F. railways on 06.05.1981 and was to
superannuate from service in the year 2019. However, he died while in service
on 22.03.2013 at the age of about 53 years. Late Utpal Chandra Sarkar made a
family declaration on 03.02.2005 before the Railway Authorities where the
opposite party/respondent No. 1, her daughter and sons were shown as family
members of the deceased employee.
4. The further case before the CAT, Guwahati was that the opposite
party/respondent no. 1 looked after the said Utpal Chandra Sarkar and in his
health card made on 01.07.2013 and Life Insurance of India Policy, he had
mentioned the opposite party/respondent no.1 as his widowed sister. After his
demise, the opposite party/respondent No. 1 filed an application on 29.04.2013
before the Railway Authorities enclosing the death certificate praying for release
of all death benefits admissible to the deceased employee. The Railway
authorities rejected the application of the opposite party/respondent No. 1 on
the ground that the opposite party/respondent No. 1 was not a blood relation of
the deceased employee and as per the Railway Services (Pension) Rules, 1993
the opposite party/respondent No. 1 was not entitled to the benefits as claimed.
5. The present review petitioners, who are the siblings and the relatives of
the said Utpal Chandra Sarkar also contested the claim of the opposite
party/respondent No. 1 disputing her claim. They had approached the District
Judge, Morigaon for issuance of a Succession Certificate being the siblings of
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late Utpal Chandra Sarkar for claiming the pensionary and other benefits of the
deceased employee. The District Judge, Morigaon, vide order dated 22.10.2014
granted a Succession Certificate to the review petitioners as they are Class II
legal heirs of late Utpal Chandra Sarkar. The CAT, Guwahati upon consideration
of the entire matter rejected the claim of the opposite party/respondent no.1 by
order dated 07.04.2015 and directed the respondent authorities to release the
Death-cum-Retirement Gratuity (DCRG) and other retirement dues of the
deceased employee to the private respondents by complying with the proviso to
Rule 73 of the Railway Services (Pension) Rules, 1993 within a period of three
months from the date of receipt of the order.
6. Being aggrieved, WP(C) No.3604/2015 was filed by the opposite party
no.1 herein as the petitioner, assailing the order dated 07.04.2015 passed by
CAT, Guwahati. This Court by Judgment and Order dated 22.12.2021 in WP(C)
No.3604/2015 disposed of the Writ Petition holding that in terms of the Railway
Services (Pension) Rules, 1993, the petitioner (opposite party/respondent No. 1
herein) cannot be considered to be a member of the family of the deceased and
upheld the order of the CAT, Guwahati to that extent. The Division Bench further
held that the direction of the CAT, Guwahati to the Railways to release the
Death-cum-Retirement Gratuity (DCRG) and other retirement dues of the
deceased employee in favour of the respondents (review petitioners herein) also
could not have been given. It was held that as far as the claim of family pension
is concerned, these siblings, namely the review petitioners before this Court, are
already married and under the Rules, pension was to be given only to unmarried
sisters and brothers who are below the age of 18 years, which they are not.
However, in view of the Succession Certificate having stated to have been issued
to the said brothers and sisters of the deceased person, namely the review
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petitioners herein; the writ petition was disposed of with a direction that the
review petitioners will be entitled for Death-cum-Retirement Gratuity (DCRG)
alone and no other benefits.
7. The present Review Petition has been filed seeking a review of the said
Judgment and Order dated 22.12.2021 on the ground that under the Rule 73 of
the Railway Services (Pension) Amendment Rule, the review petitioners are
entitled to draw other dues like leave salary, GIS and other miscellaneous dues
as the review petitioners had obtained a Succession Certificate being the legal
heirs of the deceased. It is further submitted that under Clause 70 of the
Employees Provident Fund Scheme, 1952, it is provided that if the deceased
member or employee had not nominated anyone under the scheme then the
dues would be payable to family members. In the event, Clause-70 (i) & (ii) of
the Employees Provident Fund Scheme, 1952 are not applicable, then the
amount would be payable to the person legally entitled.
8. The learned counsel for the review petitioners submits that since they are
the only surviving legal heirs of the deceased and had also been granted the
Succession Certificate by order dated 22.10.2014 passed by Competent Court of
Civil Jurisdiction, they would be covered within the term " persons legally
entitled". It is further submitted that the Rules, 1993 or any other Rules cannot
exclude the benefits due to the review petitioners under the Employees
Provident Fund Scheme, 1952. Under such circumstances, the direction of the
writ Court that the review petitioners will be entitled only to Death-cum-
Retirement Gratuity (DCRG) alone and no other benefit, being contrary to the
scheme of the Employees Provident Fund Scheme, 1952, there is an error
apparent on the face of the record and therefore, the same is required to be
reviewed.
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9. Mr. K. Gogoi, learned CGC appearing for the respondents submits that
there is no error apparent in the Judgment and Order dated 22.12.2021 which
calls for a review. The writ Court had upheld the order of the CAT, Guwahati and
accordingly, the review petitioners were granted the benefit of availing DCRG.
He, however, submits that he has no instructions in respect of the applicability
of the Employees Provident Fund Scheme, 1952 and the rights of the review
petitioners there under, if any.
10. Having heard the learned counsels for the parties, we find that there is no
dispute at the Bar that the review petitioners have been granted a succession
certificate dated 22.10.2014 issued by the District Judge, Morigaon. On perusal
of the review petition, we however find that the relevant amendment of Rule 73
of the Railway Services (Pension) Amendment Rules and the Employees
Provident Fund Scheme, 1952 upon which reliance is placed by the review
petitioners are not extracted in the Review Petition nor are copies thereof
enclosed, save and except a reference thereof in the grounds that are urged in
this review petition. Instead of keeping the Review Petition pending, we
therefore propose to dispose of this review petition clarifying that the
observations of the writ Court in Paragraph-10 of the Judgment and Order dated
22.12.2021 that the respondents no. 5 to 8, namely the review petitioners
herein will only be entitled to DCRG and no other benefits , will not operate as a
bar for the Railway authorities to examine any claims due to the review
petitioners for the benefits like Provident fund, leave salary, GIS, miscellaneous
dues, in view of the fact that a Succession Certificate is stated to have been
issued in their favour by a Competent Court of Civil Jurisdiction, if there
otherwise found to be entitled to be so under the provisions of Employees
Provident Fund Scheme, 1952 and any other provision of law as may be
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applicable.
11. The Review Petition is disposed of in terms of the above clarificatory
order. The Railway authorities will examine the claims of the review petitioners
and pass appropriate orders within 30 (thirty) days from the date of receipt of a
certified copy of this order.
JUDGE CHIEF JUSTICE
Comparing Assistant
