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Judgment
PER: RAJINDER SINGH DOGRA, JUDICIAL MEMBER:
This application has been preferred to seek the following relief:
“It is, therefore, prayed that this Hon'ble Tribunal may be pleased to admit this application, call for the entire records of the case, ask the respondents to show cause as to why a direction shall not be issued directing the respondent authorities to release the final service dues i.e. DCRG and other service benefits and to sanction family pension to the applicant as admissible under the Pension rules and Circulars relating to family pension and also to consider the case of the applicant for compassionate appointment as per the norms applicable and after perusing the causes shown, if any and hearing the parties, be pleased to direct the respondent authorities to release/grant the DCRG and other Service benefits as well family pension as admissible under the Pension rules and Circulars to the applicant and also to consider the case of the applicant for compassionate appointment as per the norms applicable and/or pass any order or orders as the Hon'ble Tribunal and deem fit and proper.”
During the course of hearing, it came to the notice of this Court that on 18.07.2024, this Tribunal had directed as under:
“Sri B. Choudhury, learned counsel for the applicant has fairly submitted that he does not want to press the prayer for compassionate appointment in this O.A. Therefore, he has prayed for leave to delete the said prayer with liberty to file a separate O.A. in this regard. 2. Prayer is allowed. 3. Applicant is directed to delete the prayer for compassionate appointment from the prayer portion of the O.A. with liberty to file separate petition, if so advised.”
In view of the same, the O.A will proceed with regard to other prayers only.
Facts of the case as enumerated are that, applicant is the adopted son of Late Arati Chakraborty, who was appointed on compassionate ground and worked as Ayah in the Divisional Railway Hospital, Lumding from 15.08.1974. Unfortunately she expired on 23.12.2010. The deceased employee had one biological daughter, who is now married. During her lifetime, she adopted the applicant Mr. Debashish Chakraborty through a registered "Deed of Adoption" dated 26.02.2001. During the time of adoption the applicant age was 3 years 10 months. Subsequent thereto, the applicant's mother informed the office of Respondent no 3 about adoption of the applicant, who upon making necessary inquiry as per procedure, passed an Order dated 13.08.2007 issued under memo no PC/AC wherein it was mentioned that the competent authority has given due approval to the adoption of the applicant by Late Arati Chakraborty and accordingly his name has been included as Family Member w.e.f. 07.08.2007 in the service record of Late Arati Chakraborty.
That, after the death of Arati Chakraborty, the applicant and the biological daughter of Late Arati Chakraborty submitted the necessary papers as per prescribed format before the Divisional Railway Manager (P), Lumding through the Welfare Inspector for final settlement of the dues of Late Arati Chakraborty. The applicant being a minor at that point of time also, as directed, by the authorities submitted an Order dated 28.11.11 of Addl District & Session Judge (FTC), Sankardev Nagar, Hojai, Nagaon, whereby Sri Tarun Chakraborty, maternal uncle of the applicant was appointed as legal guardian, till he attains the age of majority.
Thereafter, the Divisional Railway Manager (P), Lumding, released the Provident Fund and Insurance amount to the applicant through his legal guardian. But suddenly without any rhymes and reasons, the respondents stopped payment and release of DCRG and family pension.
Thereafter, the applicant's legal guardian moved from pillar to post requesting for release of the dues of Late Arati Chakraborty and to sanction the family pension. They received a letter dated 06.12.13 issued under memo no E/FS/Med from the office of the Respondent no 3 i.e. Divisional Railway Manager (P), Lumding, that the applicant has not submitted some documents i.e. Missing report/FIR, update Police Report and Birth Certificate of the applicant. Upon the inquiry by his legal guardian, they came to know that the authorities wanted to have a missing report/FIR of biological parent of the applicant and the update police report in this regard. On failing to find any information about the biological parent of the applicant, the legal guardian submitted an application received on 23/05/14 by the authorities, submitting the birth certificate of the applicant and further stating the genuine difficulty in tracing out the applicant's biological parents.
Meanwhile, the applicant also submitted an application dated 24.08.13 for consideration of the case of the applicant for Compassionate appointment on attaining the age of majority as per Railway policy.
Inspite of the efforts made by applicant to sanction DCRG and family pension, and assurance given by the respondents till date no positive result and the matter has been delayed. He also made a representation for the same on 22.08.15.
Sri B. Choudhury, learned counsel for the applicant argues that after the acceptance of adoption of the applicant by Late Arati Chakraborty by the Railway authorities through Order dated 13.08.2007, the applicant becomes a legal successor to the adoptive parent and he inherits the same right as a biological child. As a result, he becomes entitle to all the service benefits that accrues to Late Arati Chakraborty.
Respondents have stated that, the mother of the applicant Lt. Arati Chakraborty, EX. Ayah/LMG died in harness on 23.11.2010 and as per service records, the names of her deceased husband, her married daughter and the name of the present applicant i.e Debashish Chakraborty as the adopted son. During her lifetime, applicant submitted adoption deed vide Affidavit dated 5.03.2001 with the biological mother of the applicant. However, it was observed by the respondents that the adoption was done without the signature of the biological father of the applicant. However, adoption was accepted by the controlling officer i.e CMS/LMG and memorandum was issued vide DRM (P)/LMGs memorandum no. PC/AC dated 13.08.2007.
That, as per service record, PF & leave salary was paid to Debasish Chakraborty. As per Last Pay Certificate (LPC), Railway Quarter is not vacated. As such, DCRG was not released. As per Rule 16 sub rule 7 of Railway Services (Pension) Rules, 1993 a railway servant shall vacate the railway accommodation immediately after his retirement. As per Sub Rule 8 of Rule 16 of the said Pension Rule 1993 in case where a railway accommodation is not vacated after superannuation of the railway servant or after cessation of his services such as on voluntary retirement, compulsory retirement, medical invalidation, or death, then, the full amount of retirement gratuity, death gratuity or special contribution to provident fund, as the case may be, shall be withheld.
That, the case was forwarded to Accounts Dept. for sanction of Pension to Mr. Debasish Chakraborty, adopted son of Lt. Arati Chakraborty. However, the case was returned by Accounts Dept. with observation dated 04.03.2013 (Annexure-E) & 06.05.2013 (Annexure-F). As per Sr. DFM/letter, the following objections have been raised:-
a. It was stated that the father of the child was missing at the time of taking adoption, but in support of missing no any evidence/supporting document such as copy of FIR police report etc was found available.
b. As per laws of Hindu adoption and maintenance act Section 9 vide Para 5 and adoption procedure, court order is required for adoption of child but in this case no such court order is found available. Therefore, the case may be re-examined and opinion of GM (LAW) may be obtained.
Accordingly, letter was issued to the Tarun Chakraborty, guardian of Debasish Chakraborty for compliance of Sr. DFM/LMG's observation vide letter dated 06.12.2013 (Annexure-G), However, the observations have not yet been complied till date by the applicant.
Learned counsel for the applicant places reliance on Sub-Clause 17 of Clause 103 of Indian Railway Establishment Code Vol 1 wherein family has been defined as:
“(17)Family means a railway servant's wife/husband, legitimate children and stepchildren residing with and wholly dependent upon him/her. It also includes parents, sisters and minor brothers residing with and wholly dependent upon him/her. Provided further that for Rule 615 it includes only such of the dependent relatives as are eligible for passes under the Pass Rules.
Note 1. Not more than one wife is included in this term.
Note 2. -The term "legitimate children" includes those adopted under the law.
Furthermore, Rule 75(19)(b)(iii) of the Railway Services (Pension) Rules, 1993, also states that;
“75. Family Pension Scheme for railway servants, 1964
(iii)son who has not attained the age of twenty-five years and unmarried daughter who has not attained the age of twenty-five years, including such son and daughter born after retirement but shall not include a son or daughter adopted after retirement.
He argues that as per the said rules, son/ daughter adopted legally by the Railway servant shall be treated as family for the purpose of family pension.
Sri Choudhury further argues that it is settled law that if a statute/administrative instruction has conferred a power to do an act and has laid down the method/procedure in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. Thus, the action of the respondent authorities in discriminating and depriving the applicant from having the service dues i.e. DCRG and other benefits that has been accrued to Late Arati Chakraborty and the family pension is not fair just and equitable and demonstrates arbitrariness. Therefore, the action of the authorities is liable to be interfered with and the relief sought by the Applicant are liable to be allowed.
Heard the learned counsel for the parties and perused the records and considered the rival submissions.
It is admitted fact that the applicant is the adopted son of the deceased employee, late Arati Chakraborty, whom she adopted during her lifetime i.e in 2007 and she passed away while in harness in 2010. Applicant was adopted and Deed of Adoption was signed on 26.02.2001 by the Arati Chakraborty and the biological mother. It is also admitted fact that the signature of the biological father of the applicant was not there, which, as per the applicant was that, his whereabouts are not known since they could not contact the biological mother also thereafter. After the death of the ex-employee, the applicant has claimed for grant of family pension and other admissible dues and benefits. The respondents have not released on the grounds that, father of the child was missing at the time of taking adoption but in support of missing no any evidence/supporting document such as copy of FIR police report etc., was found available and also as per laws of Hindu adoption and maintenance act Section 9 vide Para 5 and adoption procedure, Court order is required for adoption of child but in this case no such court order is found available and seek re-examination of the case and to obtain the opinion of GM (LAW).
The competent authority accepted the adoption and Memo No. PC/AC dated 13.08.2007 was issued and the name of the applicant was included as Family in the service book of Arati Chakraborty, as her adopted son. It is shocking and surprising that once Deed of Adoption has been accepted by the respondents, out of nowhere they cannot take a U-turn stating that the signature of the biological father is missing or stating that Court’s order is required. In 2007 had not they accepted the adoption, definitely, the mother would have taken judicial course for fulfilling the requirements, instead they accepted and incorporated the name of the applicant in the service book. Now she is dead and can no longer take legal course for adoption and the applicant was adopted when he was 03 years old and the adopted mother is no more, so who would file a suit of adoption.
As per Sub-Clause 17 of Clause 103 of Indian Railway Establishment Code Vol 1 wherein family has been defined as (reproduced again for clarity):
“(17)Family means a railway servant's wife/husband, legitimate children and stepchildren residing with and wholly dependent upon him/her. It also includes parents, sisters and minor brothers residing with and wholly dependent upon him/her. Provided further that for Rule 615 it includes only such of the dependent relatives as are eligible for passes under the Pass Rules.
Note 1. Not more than one wife is included in this term.
Note 2. -The term "legitimate children" includes those adopted under the law.
Furthermore, Rule 75(19)(b)(iii) of the Railway Services (Pension) Rules, 1993, also states that;
“75. Family Pension Scheme for railway servants, 1964
(iii)son who has not attained the age of twenty-five years and unmarried daughter who has not attained the age of twenty-five years, including such son and daughter born after retirement but shall not include a son or daughter adopted after retirement.”
The record establishes that during the lifetime of the deceased employee, the respondent authorities had formally evaluated, recognized, and accepted the adoption of the applicant. Consequent to this valid administrative clearance, the respondents explicitly entered the name of the applicant as a regular Family Member in the employee's official service book. As per service jurisprudence and the Central Civil Services (Pension) Rules, a legally recognized adopted child holds an identical status to that of a natural-born child regarding entitlements to terminal and post-retirement benefits. Once the administrative machinery has verified the adoption documents, updated its records, and formalized the entry in the service book, the department is legally bound by its own actions. Therefore, I am of the view that the applicant is entitled to receive the family pension and all other terminal benefits of the deceased employee to ensure financial support during his minority. The action of the respondents in withholding these dues lacks legal basis and cannot be sustained.
In view of the above, O.A. is partly allowed. The Respondents are directed to grant the family pension to the applicant (the adopted son) as admissible under the Rules. The family pension shall be calculated and paid continuously from the date he became eligible following the demise/superannuation of the employee, until the date he attains the age of majority. The Respondents shall also calculate and disburse the Death-cum-Retirement Gratuity (DCRG), along with all other due terminal and settlement benefits, to the applicant. The entire exercise shall be completed, and the computed amounts credited, within a period of three months from the date of receipt of a certified copy of this order.
Pending M.A., if any, stands disposed of. No order as to costs.