IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21/02/2006
CORAM
THE HON'BLE MR. JUSTICE P.K. MISRA
AND
THE HON'BLE MR. JUSTICE R. SUDHAKAR
WP.No.18193 OF 2001
Mrs.D. Widrose .. Petitioner
-Vs-
1. Central Administrative Tribunal,
represented by its Registrar,
High Court Buildings,
Chennai 104.
2. Union of India,
rep. by the Commissioner &
Secretary,
Ministry of Railways,
Railway Board, Rail Bhavan,
New Delhi 110 001.
3. The General Manager,
Southern Railway,
Park Town, Chennai 600 003.
4. The Chief Engineer,
Integral Coach Factory,
Chennai 600 038. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of writ of certiorarified mandamus to call for the records of the
first respondent relating to order dated 25.7.2000 in Dy.No.2 172 of 2000 and
quash the same and direct the 2nd to 4th respondents to accord family pension
and compassionate allowance to the petitioner with effect from 20.11.1990, the
date of death of the petitioners late husband.
!For Petitioner : Mr.V. Prakash
Senior Advocate for
Mr. Dhiravya Raj
^For Respondent-1 : Tribunal
Respondent-2 : Served. No Appearance
Respondents 3&4 : Mr.M. Sekar
:O R D E R
(Order of the Court was made by P.K. MISRA, J)
Heard the learned counsels appearing for the parties.
2. Petitioner is the widow of one Mr.P.A. Widrose, who was
working under the fourth respondent. A disciplinary proceeding was initiated
against the husband of the petitioner in the year 1982 on the allegation that
he had remained unauthorisedly absent for 84 days without any sanction of
leave. Such disciplinary proceeding was conducted ex-parte and ultimately, by
order dated 12.8.1983, the husband of the petitioner was removed from service.
Appeal filed by such employee was dismissed on 31.7.1984. Thereafter, in the
further appeal filed in August, 1984, by the employee, no orders were passed.
In the meantime, unfortunately, the husband of the petitioner died on
20.11.1990. Thereafter, the petitioner made several representations to
various authorities claiming payment of family pension or compassionate
allowance by invoking Rule 65 of the Railway Services (Pension) Rules, 1993
(hereinafter referred to as the Rules). However, by communication dated
25.7.1996, the claim of the widow was rejected. Thereafter, the Welfare
Officer issued a further order stating that the petitioner was not eligible
for grant of family pension or compassionate allowance or any other
assistance. After a few more representations, the petitioner filed Original
Application in Diary No.2172 of 2000 before the Central Administrative
Tribunal, which has been dismissed by the Tribunal only on the ground of
limitation as, according to the Tribunal, the issue related to 1983, the year
in which the husband of the petitioner was removed from service and,
therefore, such matter cannot be agitated after a long lapse of time. The
present writ petition is filed for quashing such order of the Tribunal and for
issuing a direction to respondents 2 to 4 to accord family pension and
compassionate allowance with effect from 20.11.1990, the date on which the
husband of the petitioner died.
3. A counter affidavit has been filed on behalf of
Respondents 3 and 4, wherein, it has been indicated that family pension is
payable only if pension was payable to the husband. In the present case, the
husband having been removed from service and being not entitled for pension,
the widow cannot claim pension. The respondents have also taken the stand
that the provisions contained in Rule 107 giving power to relax the rules in
case of undue hardship, are also not applicable to the facts of the present
case.
4. Learned counsel appearing for respondents 3 & 4 has
vehemently contended that the Rules do not permit payment of family pension or
compassionate allowance.
5. So far as the question of limitation is concerned, we find
that the Tribunal has taken a highly technical view of the matter. It is no
doubt true that the husband of the petitioner was removed from service in
1983, however, his appeal was pending and subsequently he died in the year
1990. By that date, the appeal of the petitioners husband had not been
disposed of. Subsequently, the petitioner had filed several representations
and ultimately, on 8.12.1999, the Welfare Officer communicated stating that
pension is not payable as the husband of the petitioner had been removed from
service as a disciplinary measure. Therefore, it can be said that cause of
action had ultimately arisen on 8.12.1999. Since the Original Application was
filed in the year 2000, it cannot be said that the Original Application was
barred by limitation. Even assuming that the Original Application was barred
by limitation, the Tribunal had ample power to condone the delay in the facts
and circumstances of the case, particularly when the petitioner, the widow,
was diligently pursuing the matter.
6. Once the aforesaid conclusion is reached, in normal
course, the matter would have been remanded to the Tribunal for disposal on
merit. However, we desist from doing so on account of several circumstances,
more particularly, considering the age of the present petitioner, who is aged
about 78 years. Moreover, from 1992 onwards, she is representing to various
authorities claiming certain amount and in these circumstances if the matter
is remitted for fresh consideration, the agony of the petitioner would be
compounded further. Since all the materials have been placed before us,
including the chart relating to payment of compassionate allowance, we feel
interest of justice would be served in disposing finally the matter on merit
so that the litigation would come to an end.
7. Rule 65 of the Railway Services (Pension) Rules, 1993 is
as follows :-
65. Compassionate allowance.- (1) A railway servant who is dismissed
or removed from service shall forfeit his pension and gratuity:
Provided that the authority competent to dismiss or remove him from
service may, if the case is deserving of special consideration, sanction a
compassionate allowance not exceeding two-thirds of pension or gratuity or
both which would have been admissible to him if he had retired on compensation
pension.
(2) A compassionate allowance sanctioned under the proviso to
subrule(1) shall not less than three hundred seventy five rupees per mensem.
8. This rule, obviously, gives discretion to the authority
competent to dismiss or remove an employee from service if the case is
deserving special consideration, to sanction compassionate allowance not
exceeding two-third of the pension or gratuity or both which would have been
admissible to him if the person would have retired on compensation pension.
9. In the present case, such discretion was available to be
exercised by the competent authority, namely, the disciplinary authority to
sanction compassionate allowance as contemplated under the proviso to Rule 65.
It is no doubt true that the further appeal filed by the petitioners husband
was pending. Unfortunately such matter was not disposed of till the death of
the husband. If such a matter would have been taken up before the death of
the husband, it would have been open to the competent authority to extend the
benefit contemplated under the proviso to Rule 65.
10. Apart from Rule 65, the provisions contained in Rule 107
of the Railway Services (Pension) Rules, 1993, being relevant, are extracted
hereunder :-
107. Power to relax.- Where the pension sanctioning authority is
satisfied that the operation of any of these rules causes undue hardship in
any particular case, that authority, may for reasons to be recorded in
writing, approach the Ministry of Railways (Railways Board) for dispensing
with or relaxing the requirements of that rule to such extent and subject to
such exceptions and conditions as it may consider necessary for dealing with
the case in a just and equitable manner. The ministry of Railways (Railway
Board) shall examine such case and arrange to communicate the sanction of the
President to the proposed dispensation or relaxation as it may consider
necessary keeping in view the merits of each case and keeping in view of any
other statutory provisions :
Provided that no such order shall be made without concurrence of the
Department of Pensioners; Welfare, in the Ministry of Personnel, Public
Grievances and Pensions, Government of India.
11. This Rule gives ample power to the competent authority to
relax the Rules if satisfied that the operation of any of these rules causes
undue hardship and to deal with the case in a just and equitable manner. In
normal course, the matter should be remitted to the concerned authority for
applying the provision of Rule 107 read with Rule 6 5. However, for the very
reasons for which we have thought it fit to dispose of the writ petition
finally, we intend to dispose of the matter finally to avoid any further
litigation and to avoid further hardship to the widow.
12. For considering the above aspect, the ground for removal
is obviously to be taken into account. The disciplinary authority, which
conducted the enquiry, found that the person was unauthorisedly absent. The
materials on record indicate that the employee was undergoing some psychiatric
treatment for sometime during 1981 and obviously the absence must have been on
account of such psychiatric disability. It is not disputed that there was no
allegation of any serious misconduct like misappropriation or dereliction of
duty or wilful disobedience. It is no doubt true that the petitioners
husband had remained unauthorisedly absent for 84 days. However, there is
some reason for such absence. We have come across many cases where even in
case of unauthorised absence the Courts have interfered and have advised for
imposition of lesser punishment. Even though in the present case such
question does not arise, the fact remains that removal was on account of
unauthorised absence and not on serious misconduct involving moral turpitude.
13. On going through the orders passed by various officers,
we found that most of the representations were rejected on the ground that
Rule 65 does not permit such payment. However, the authorities never
considered the question of applicability of Rule 107.
14. Keeping in view the exceptional facts of the present case
and keeping in view the fact that the employee had worked under the Railways
for about 26 years and there was no complaint against him on earlier occasion
and the helpless ripe old widow is unable to maintain herself as she has no
source of independent income, we feel interest of justice would be served by
directing the respondents to grant pension as per the calculation furnished by
the learned counsel appearing for the respondents. Having regard to all these
aspects, we feel that the amount would be payable from the date on which the
application was made before the Tribunal. This direction may be complied with
within a period of eight weeks from the date of receipt of a copy of this
order. The amount payable till the end of February, 2006 amounting to
Rs.1,37,031/- shall be paid within the aforesaid period. The amount payable
from the month of March, 2006 shall be payable as and when such amount falls
due. Keeping in view the fact that the order has been passed on peculiar
facts and circumstances of the case, this would not be a precedent in other
cases.
15. With the above directions, the writ petition is allowed
in part. No costs.
dpk
To
1. Central Administrative Tribunal,
represented by its Registrar,
High Court Buildings,
Chennai 104.
2. Union of India,
rep. by the Commissioner &
Secretary,
Ministry of Railways,
Railway Board, Rail Bhavan,
New Delhi 110 001.
3. The General Manager,
Southern Railway,
Park Town, Chennai 600 003.
4. The Chief Engineer,
Integral Coach Factory,