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Judgment
Mahesh Grover, J.—The petitioner has invoked the jurisdiction of this Court seeking issuance of an appropriate writ specially in the nature of Mandamus directing the respondents to immediately release the revised ex gratia grant of Rs. 2,88,000/- in favour of the petitioner. The petitioner''s husband Malkiat Singh who was employed as Lineman with the respondents died in harness on account of electrocution on 28.7.2004. The respondents gave the benefit of special family pension and ex gratia which was as per old instructions of 1998 amounting to Rs. 50,000/-.
The grievance of the petitioner is limited that on the date when her husband died instructions of 2001 were in force and according to it the ex gratia payment of Rs. 2,88,000/- ought to have been made to her.
The prayer has been opposed by the respondents by stating that the petitioner had approached the Commissioner, Workman Compensation and has been granted an amount of Rs. 3,42,773/- by way of compensation and therefore, in accordance with the circular the relevant clause of which is extracted herebelow, the petitioner is not entitled to both the benefits:-
VI The family of the deceased employee may give an undertaking to the Board for being governed under the special pensionary scheme or opt for the compensation under the Workmen''s Compensation Act, 1923. In case the family of the deceased opts for special pensionary benefits under the special pensionary scheme, this will amount to relinquishment of the families right on compensation under the Workmen''s Compensation Act, 1923.
The contention of the learned counsel for the petitioner is that such a clause introduced by the respondents to deny the claim of the petitioner is totally arbitrary and unsustainable and violative of Section 17 of the Workman Compensation Act. Respondents have justified their stand and have referred to the various benefits that have been paid to the petitioner on account of death of her husband and have contended that the circular clearly debars the claimant to avail his remedy under the Workman Compensation Act if he is to get the benefit of the pensionary/ex gratia scheme. Section 17 of the Act is reproduced herebelow:-
Section 17-Contracting out-Any contract or agreement whether made before or after the commencement of this Act, whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment, shall be null and void insofar as it purports to remove or reduce the liability of any person to pay compensation under this Act.
On due consideration of the matter, I am of the considered view that the petitioner cannot be denied the benefit of ex gratia scheme entitling her to compensation of Rs. 2,88,000/-, particularly when this scheme envisages such a benefit was in force when the death of husband of the petitioner took place. The provisions of Workman Compensation Act which entitled the workman or his dependent to seek compensation under the Act on account of any death or injury is an independent right vested by a statute whereas the ex gratia and other service benefits contained in the pensionary scheme are to be made applicable to the employees serving under the respondent-Corporation. Both these rights are independent of each other and the grant or admissibility of one cannot be made to depend upon the availability and exercise of the right under a statute.
The respondents have not disputed the liability to pay ex gratia and in fact they have paid an amount of Rs. 50,000/- as per old scheme but denying the benefit of the instant scheme on the ground of a circular issued by them. To the mind of this Court, once there is no dispute that petitioner is entitled to ex gratia and which benefit has been paid to the tune of Rs. 50,000/- as per the old instructions, the respondents cannot deny the benefit to the petitioner admissible to her as per the new instructions of 2001. The circular is obviously in conflict with Section 17 of the Workman Compensation Act and therefore, is held to be unsustainable apart from being in conflict with the provisions of Section 17 of the Act. The respondents cannot by issuing a circular over ride the statutory provisions of any other Act prevailing, more particularly, when a statutory right vests in favour of an employee. The writ petition is, therefore, accepted and the petitioners are held entitled to the ex gratia scheme and payment of Rs. 2,88,000/- out of which Rs. 50,000/- shall be deducted while satisfying the claim of the petitioner alongwith interest at the rate of 6% per annum from the date when it became due till the date it is actually paid.