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Judgment
O R D E R
By Hon’ble Mr. Varun Sindhu Kul Kaumudi, Member (A)
By way of the present O.A. filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant seeks the following relief:-
“a. To set-aside annexure no.1 issued by respondent no.4 vide its order dated 01.04.2021 by which the application of the applicant for grant of family pension being the dependent of deceased employee is dismissed.
b. To direct the respondent no.4 to grant the family pension to the applicant from the date of death mother of the applicant i.e. 27.06.2018 along with arrears.
c. Any other relief which the court deemed fit and proper in the circumstances of the case.”
The facts of the case, in a nutshell, as stated by the applicant, are as follows:-
i.That the father of the applicant namely Late Prem Singh was appointed in the respondents’ department on 19.04.1967 and discharged on 10.06.2006 as Head Constable and granted service pension vide PPO No.0106080397.
ii.That the father of the applicant died on 10.06.2009.
iii.That the mother of the applicant was granted family pension being the legally wedded wife of Late Prem Singh and continued to get the family pension till her death on 27.06.2018.
iv.That the applicant, after the death of his mother, approached the respondents authority for grant of family pension being the disabled dependent having disability of 70% for the disability of Long Tredinal Deformity Left side of the body.
v.That the applicant submitted his representation along with his educational documents and permanent resident certificate and also the disability certificate.
vi.That the respondents kept mum to the grievances of the applicant and the applicant again approached the respondents vide his letter, dated 10.01.2019.
As per rules, according to the applicant, he was entitled to family pension on the death of his mother, who was the recipient of the family pension after the death of his father.
The stand of the respondents, as per the reply filed in the matter, is that the order passed by Respondent No. 4, on 01.04.2021, is in order and in accordance with the rules as per the Ministry of Personnel, Public Grievances and Department of Pension and Pensioners’ Welfare Office Memorandum No. 1/17/2019-P&PW(E) dated 08.02.2021. It has been mentioned at Point No. 3 of the OM that if a child, suffering from physical disability is unable to earn livelihood, then he will be eligible for the pension.
In the present case, a medical board was formed at the Div. Hospital, NR, Moradabad, on 05.09.2019. Medical examination of the applicant was conducted, in which CMS/MB issued the certificate that the applicant is able to earn his livelihood. This is mentioned at Point No. 3 of Letter No. 54-MED/Disability payment/MB/19, dated 17.03.2021. Respondents have relied on the letter, dated 17.03.2021, wherein it is mentioned that the applicant is able to earn for his livelihood and rejected his claim to family pension. They have argued that since the grant of family pension to the applicant has been rejected as per rules and regulation in force, there is no merit in the O.A. and it is fit to be dismissed.
Heard both the sides and perused the records.
It is found that the applicant had approached the respondents’ authority for grant of family pension being a disabled dependent having 70% disability. On the death of his mother on 27.06.2018, after his initial representation dated 30.07.2018, did not evoke any response from the Respondents, he reminded them through his letter, dated 10.01.2019. The matter was referred by the Divisional Security Commissioner, RPF, Northern Railways, Haridwar (Respondent No. 5) to the Chief Medical Officer, Muradabad, Northern Railways, for ascertaining the percentage of disability. A Medical Board for the applicant was constituted on 05.09.2019, at the Divisional Hospital, NR, Muradabad. Thereafter, the Divisional Security Commissioner, RPF, Northern Railways, Muradabad (Respondent No. 4), rejected the case of the applicant, stating that the Medical Board had opined that he was capable of earning his livelihood.
The applicant has contended that such rejection is contrary to Rule 75 (6)(b) of the Railway Services (Pension) Rules, 1993. The opinion of the Medical Board does not dispute that he is physically handicapped. According to the handicap certificate, dated 05.09.2011, under the Ministry of Social Justice and Empowerment Notification, by the CMO, Champawat, Uttarakhand, the applicant suffers from Long Tradinal Deformity Left side of the body amounting to 70% disability which was not likely to improve. The referral letter, dated 06.03.2019, issued by the Addl. Security Commissioner, RPF, to the CMO, Northern Railways, Muradabad, requested him to intimate the actual percentage of disability.
In response, the CMO, Northern Railways, Muradabad, in his report, dated 17.03.2021, has given the following findings in respect of the Applicant:-
“i.Disability is since birth.
ii.Disability is permanent in nature.
iii.He is capable of earning his livelihood.”
We notice that the CMO has not actually intimated the percentage of disability, which had actually been sought by the referring Authority/RPF.
There is similarity in the original disability certificate furnished by the applicant while seeking family pension as well as the findings given by the CMO, Northern Railways, and that is regarding the permanent nature of disability which was not likely to improve. This point has not been contradicted during arguments by the learned counsel for the respondents nor there is anything contrary to it on record.
In such a case, the only conclusion to be drawn is that the applicant is suffering from permanent disability. The medical certificate of the Railways fails to describe the exact nature of disability or the percentage of disability.
After the conclusion of arguments, on 15.10.2024, learned counsel for the respondents has mentioned and submitted a copy of letter No. 54-Med/Misc/MB/24 dated 15.10.2024, before the Bench on 16.10.2024. The forwarding letter states that a copy of the documents sought with reference to orders of C.A.T. on 04.09.2024 is being sent. On perusal of the enclosure, it is found that it is Xeroxed copy of a hand written document, which is neither signed nor certified, though as mentioned above, a medical board had been constituted by the Railways to examine the applicant in respect of his disability. Needless to say such a document which is neither counter signed by the Members of the Board nor certified by the forwarding authority cannot be a reliable basis for drawing any influence. It is, therefore, not being considered in deciding the merits of the case.
Learned counsel for the applicant has relied upon the order, dated 03.03.2022, in O.A. No. 426/2020 of the coordinate Bench of this Tribunal at Cuttack in the matter of Chiti Babu Dora vs. Union of India & Ors. wherein the Tribunal has observed as follows:-
“16.It is not known on what yardstick the Medical Board authorities came to the conclusion that the applicant is capable of earning his livelihood. There was no document or material either before the medical board in question or before the competent authority of the respondent department that the applicant has got any educational or technical qualification or has undergone any vocational training in order to enable him to earn his livelihood. There is nothing on record to show that the applicant had any special skill like a singer, musician or any other technical skill in order to enable him to earn his livelihood or the respondents have taken any steps to impart any vocational skill to the applicant to earn his livelihood. In the absence of any such document relied upon by Competent Authority of the respondent department, this Tribunal finds that on the basis of surmises and conjectures, they have jumped to the conclusion that the applicant is able to earn livelihood. This Tribunal, therefore, find that the said approach taken by them is illogical, irrational and without basis. In the acknowledged facts and circumstances this Tribunal finds that the said decision made by them is arbitrary, discriminatory and illegal. The hyper technical approach taken by them without considering the ground realities of the applicant and that he is illiterate and not able to earn, livelihood which is supported by income certificate furnished by him vide Annexure A/9 ought not to have been ignored by the Competent Authority without assigning any reason. The opinion of the medical board that the applicant even though blind, is physically and mentally sound to earn his livelihood shocks the conscience of this Tribunal. The lack of empathy, sympathy and compassion and taking hyper-technical approach while evaluating a blind person aged 50 years, as is the case with the applicant, to be capable of earning livelihood is unreasonable, arbitrary and illegal.”
He further relied upon the order, dated 26.03.2008, in W.P.(C) No. 6604/2006 of the Hon’ble High Court of Delhi in the matter of Om Prakash vs. Ministry of Indian Railway wherein the Court has stated as follows:-
“18.If after the demise of the retired Railway servant who was entitled to pension, the pension continues to the widow upto the date of death on remarriage and if in case of a son after the death of a retired employee the pension continues to his son till he attains the age of 25 years, then by virtue of the proviso to Rule 75 (b) in case of a disable son who is unable to earn his livelihood, after the demise of the retired Railway servant, the pension shall continue during the lifetime of disabled son who is unable to earn his livelihood.”
He further relied upon the order, dated 10.02.2020, in O.A. No. 547/2018 of the coordinate Bench of this Tribunal at Chandigarh, in the matter of Rakesh Kumar vs. The Northern Railway & Ors. The relevant portion of the order is extracted below:-
“10.Sub-rule 6 of rule 75 of the 1993 Rules, as extracted above, provides that the physically disabled son or daughter will be entitled for family pension as specified in the second proviso with the conditions that if such physically disabled child is unable to earn his/her livelihood, then he/she may be allowed family pension for life and the conditions do not stipulate that the married son or daughter with physical disability or mental disorder will not be eligible if they are incapable of earning their livelihood as per the report of the medical board specified in the condition (d) of the second proviso of the rule 75(6). Explanation 1 of the sub-rule 6 of the rule 75 as extracted above, states "An unmarried son or an unmarried or widowed or divorced daughter, except a disabled son or daughter become ineligible for family pension under this sub-rule from the date he or she gets married of remarried." This means that general rule that the unmarried son and unmarried daughter will be eligible for family pension till he/she gets married, is subject to exception for a disabled son or daughter who will be eligible even after marriage.”
In the facts and circumstances of the case, we are inclined to accept the submissions on behalf of the applicant. The O.A. is accordingly allowed.
The Competent Authority shall issue appropriate order granting family pension to the applicant from the time of the death of his mother, within two months from the date of receipt of a certified copy of this Order. No order as to cost.