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Judgment
The respondent employee was working as a Passenger Guard with the
Railways since 1974. He met with an accident arising out of and in the course of duty on 25th November, 2005. The Medical Board on 23rd June,
2006 declared that the employee had suffered 90% disablement. As a result,
the employee was declared medically unfit for further service with the
Railways. An application was submitted by the employee to the Railways for
payment of compensation in view of the disability suffered by him. An
Enquiry committee was instituted which found that the employee had
indeed suffered a disablement due to an accident arising out of and in the
course of employment. As compensation was not paid to the employee under
the Workmen''s Compensation Act, 1923 he preferred an application under
the Act before the Commissioner. He was granted compensation of
Rs 3,37,975/- by an Order dated 30th April, 2007 passed by the Commissioner
for Workmen''s Compensation.
As the employee was declared medically unfit he was granted invalid
pension under the Central Civil Service (Pension Rules) (hereinafter referred
to as the CCS (Pension) Rules instead of normal pension. The employee is
drawing Rs 7,546/- as invalid pension.
The employee then applied for disability pension on the basis of the
Railway Board''s Circular RBE 39/2000 dated 8th March, 2000. The
employee contended that in view of the recommendations made by the Vth
Pay Commission, he was entitled to disability pension @ 30% of his basic
pay.
The employee''s claim for disability pension was negated by the
Railways on the ground that he was not entitled to any further amount than that which was paid to him as compensation under the Workmen''s
Compensation Act and invalid pension and other service benefits.
Being aggrieved by the decision of the Railways not to grant him
benefits under the RBE 39/2000, the employee preferred OA No. 704 of
2011 before the Central Administrative Tribunal, Calcutta Bench. The
application filed by the employee was allowed by the Tribunal. The Railways
were directed to pay 30% of his Basic Pay as disability pension in addition to
the invalid pension and gratuity admissible under the CCS (Pension) Rules,
1972, apart from the compensation which he had received under the
Workmen''s Compensation Act . The payment under RBE 39/2000 was
directed to be made with arrears within 3 months of the order. Aggrieved by
the decision of the Tribunal, the Railways have preferred the present
petition. Mr. Basu, learned Counsel appearing for the Railways argued that
no additional benefits could be granted to the employee since he had already
been paid compensation under the Workmen''s Compensation Act and was
being paid invalid pension under the CCS Pension Rules. He submitted that
once invalid pension was paid to the employee on account of his disability,
the question of granting any disability pension under the Railway Service
(Extra Ordinary Pension) Rules, 1993 (hereinafter referred to as
Extraordinary Pension Rules) did not arise. According to the learned
Counsel, the employee had opted to avail of the compensation payable under
the Workmen''s Compensation Act and therefore he could not seek any relief
under the Extraordinary Pension Rules. A further submission was made
that in view of Rule 2 of the Extraordinary Pension Rules which restricts the applicability, the employee was not governed by the Extraordinary Pension
Rules.
The learned Counsel has relied on the judgments in the case of
National Insurance Co. Ltd. Vs. Mastan and Anr. reported in (2006) 2
SCC 641, Oriental Insurance Company Limited Vs. Dyamavva and Ors.
reported in (2013) 9 SCC 406, A. Trehan Vs. M/s. Associated Electrical
Agencies and Anr. reported in AIR 1996 SC 1990, Western India
Plywood Limited Vs. P. Ashokan reported in AIR 1997 SC 3883 in
support of his submission that the employee must elect whether to apply
under the Workmen''s Compensation Act or under the Extraordinary Pension
Rules or under the RBE 39/2000.
Per contra, Mr. Chakraborty, the learned Counsel appearing for the
employee submitted that the employee was never asked to exercise his
option as to whether he would claim benefit under the Workmen''s
Compensation Act or under the Extraordinary Pension Rules. He submits
that compensation paid under the Workmen''s Compensation Act was
deposited with the Commissioner for Workmen''s Compensation Act does not
in any manner affect the employee''s right to additional benefits for the
disability suffered by him. The learned Counsel then pointed out that the
claim of the employee for additional benefits is based on RBE 39/2000
which grants special benefits in cases of death and disability on the basis of
the recommendations made by the Vth Central Pay Commission. According
to the learned Counsel, the claim of the employee was not based on the
Extraordinary Pension Rules and therefore, the question of electing one or the other remedy did not arise. The learned Counsel has relied on the
judgments in the case of Bhagwan Dass and Anr. Vs. Punjab State
Electricity Board reported in (2008) 1 SCC (L&S) 242. The learned
Counsel has also drawn our attention to the fact that the employee was
entitled to employment, although he had suffered disablement in view of the
provisions of The Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1985. He has relied on certain
judgments in support of this contention. However, it was not the contention
of the employee before the Tribunal that his service ought not to have been
terminated and that he was entitled to the benefit of Section 47 of The
Persons with Disabilities Act, 1985. Therefore it is unnecessary for us to
consider this contention.
Thus, the short question which arises for consideration before us is
whether the employee is entitled to additional or special benefits granted
under the RBE 39/2000, although he has availed of the compensation
under the Workmen''s Compensation Act . Indisputably, invalid pension is
being paid to the employee under the CCS (Pension) Rules. There is no
payment being made to him under the Extraordinary Pension Rules nor has
the employee sought relief under the aforesaid Rules. Therefore, we need not
consider as to whether the employee ought to have elected to prefer an
application under the Workmen''s Compensation Act, 1923 or under the
Railway Services Extraordinary Pension Rules. The common thread running
through the judgments cited by Mr. Basu is that when an employee meets
with an accident arising out of and in the course of an employment, he must elect whether to claim compensation under the Motor Vehicles Act, 1988 or
the Workmen''s Compensation Act,1923 as Section 167 of the Motor Vehicles
Act specifically debars a party from claiming compensation under both Acts.
A party would have to elect for one or the other remedy. Similarly, in A.
Trehan (supra) and Western India Plywood Limited (supra), the
Supreme Court held that since Section 53 of the Employee''s State Insurance
Act (ESI Act) barred an employee from claiming compensation under any
other Act, the employee would not be entitled to claim compensation under
both the ESI Act as well as the Workmen''s Compensation Act, 1923 or filing
a suit for damages. As stated earlier, these judgments are of no avail to the
Railways.
The learned Counsel for the Railways has also relied on the judgment
in Deepal Girishbhai Soni and Ors. Vs. United India Insurance Co. Ltd.,
Baroda reported in (2004) 5 SCC 385 to submit that though the RBE
Circular may be beneficial and deserves a liberal consideration with a view
to implementing the legislative intent, the Court should not travel beyond
the same and extend the scope of the statute on the pretext of extending the
statutory benefits to those who are not covered by the legislation.
The RBE 39/2000 indicates that it has been issued to grant special
benefits in cases of death and disability in service in accordance with the
recommendations of the Vth Central Pay Commission. Cases of death or
disability under different circumstances have been broadly categorized in
five different categories. Category A applies to death or disability due to
natural causes not attributable to Government service. Category B is in respect of death or disability due to causes attributable and aggravated by
Government Service. Category C applies to persons who die or are disabled
due to accidents in performance of their duties. Category D consists of cases
of death or disability attributable to acts of violence by terrorists, antisocial
elements etc. whether during performance of their duties or otherwise.
Category E speaks about cases of death or disability arising from an attack
or during action against extremists, antisocial elements or enemy action in
international war or border skirmishes.
The employee in this case falls within Category C as he has suffered a
disablement due to an accident in the performance of his duties. The Vth
Central Pay Commission has recommended relief packages for the aforesaid
categories of cases. While cases covered under Category A would continue to
be covered by the normally existing provisions of the CCS (Pension) Rules,
different scales of pension had been recommended for Category B, C, D and
E as family pension/disability pension. The employee, being alive, would be
entitled to disability pension which is recommended under Clause III of RBE
39/2000 which reads as under:
"III. Disability Pension - for cases covered under categories ''B'' &
''C''
(1) Normal pension and gratuity admissible under the CCS (Pension)
Rules, 1972 plus disability pension equal to 30% of basic pay, for 100%
disability.
(2) For lower percentage of disability, the monthly disability pension
shall be proportionately lower as at present, provided that where permanent
disability is not less than 60%, the total pension (i.e., pension or service
gratuity admissible under the ordinary pension rules plus disability pension
as indicated at (1) above shall not be less than 60% of basic pay, subject to a
minimum of Rs.2,500/-."
Thus, the employee is entitled to normal pension and gratuity
admissible under the CCS (Pension Rules) besides the disability pension of
30% of his Basic Pay which has been assessed as 90% disability by the
Medical Board. Unfortunately the Railways have ignored the provisions of
RBE 39/2000 while paying the employees his pension on being
incapacitated for work on account of an accident arising out and in the
course of employment.
The Tribunal while deciding the original application filed by the
employee has held that there was no justification on the part of the Railways
in disallowing the disability pension equal to 30% of the Basic Pay as
applicable for the disability suffered by the employee in addition to the
normal pension and gratuity admissible to him under the CCS (Pension)
Rules, 1972, apart from the compensation received by him under the
Workmen''s Compensation Act .
We do not find any error or infirmity in the judgment of the Tribunal
and therefore, dismiss the writ petition.
Urgent certified photocopies of this judgment, if applied for, be given
to the learned Advocates for the parties upon compliance of all formalities.