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2006 DIGILAW 145 (GAU)

Jatindra Nath Gogoi v. Union of India and Ors.

2006-02-09

B.P.KATAKEY

body2006
1. By this writ petition, the petitioner has prayed for directing the respondents to release the family pension under the provision of rule 54 of CCS (Pension) Rules 1972 ('1972 Rules') to the petitioner for the death of his son Late Simanta Jatin Gogoi ; to appoint Sri Diganta Jatin Gogoi on compassionate ground and to pay a sum of Rs. 5 lakh for causing death of the petitioner's son' for negligence. 2. I have heard Mr. Das, the learned counsel for the petitioner and Mrs. Borah, the learned Central Govt. counsel for the respondents. 3. Mr. Das, learned counsel for the petitioner has submitted that under rule 54 of 1972 Rules the petitioner is entitled to receive family pension after the death of his son, who was working as Security Asstt. in SIB (Subsidiary Intelligence Bureau) under the Govt. of India but in spite of such entitlement and the repeated request made by the petitioner, the authority has not paid the family pension payable to him under the said provision of law. Mr. Das has further submitted that as his son Simanta Jatin Gogoi died in harness, under the policy of the Govt. of India his brother Diganta Jatin Gogoi, who applied for appointment on compassionate ground is also entitled to get appointment under the said scheme of the Government apart from compensation for the negligence of the authority is not extending appropriate medical treatment to the petitioner's son. The learned counsel therefore, submits that the necessary directions may be issued to the respondent authorities to pay the family pension, to appoint the brother of the deceased on the compassionate ground and to pay adequate compensation for the death of his son due to negligence. 4. Mrs. R. Borah, learned Central Govt. Counsel referring to the affidavit in opposition filed on behalf of the respondents has submitted that the petitioner is not entitled to family pension as he does not fulfill the income criteria laid down for the purpose of grant of family pension to the family of a deceased employee. It has further been contended by the learned Central Govt. counsel that the Members of the family of the deceased Simanta Jatin Gogoi has been paid death cum retirement gratuity payable under rule 50 of the 1972 Rules and there is nothing left to be paid to the family of the said deceased. It has further been contended by the learned Central Govt. counsel that the Members of the family of the deceased Simanta Jatin Gogoi has been paid death cum retirement gratuity payable under rule 50 of the 1972 Rules and there is nothing left to be paid to the family of the said deceased. Regarding the appointment on compassionate ground learned Central Govt. counsel has submitted that the authority has considered the application for appointment on compassionate ground as it was found that the case was not covered by the scheme formulated by the Central Government for appointment on compassionate ground, no appointment could be made to the brother of the deceased. Countering the argument of the learned counsel for the petitioner regarding claim for compensation for the death of Simanta Jatin Gogoi, the learned central Govt. counsel has submitted that before claiming any compensation the negligence on the part of the authority must be proved, which the petitioner having failed to do no compensation can be awarded. It has further been submitted that whether there was any negligence on the part of the authority which caused death of the son of the petitioner, is the question which can be decided only after detail examination of the relevant witness and for that matter the petitioner has to approach the appropriate civil court to prove negligence and in case the petitioner succeeds in proving negligence on the part of the authority, compensation can be awarded and not otherwise, 5. I have considered the submissions of the learned counsel for the parties. 6. The petitioner claims family pension under the provision of rule 54 of 1972 Rules. Clause (b) sub-rule 14 of rule 54 defines the "family" as under : "(b) "family" in relation to a Government servant means - (i) wife in the case of a male Government servant, or husband in the case of a female Government servant. (ii) a judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was riot held guilty of committing adultery. (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 adopted legally;" 7. In the instant case, it is an admitted position of fact that Sri Simanta Jatin Gogoi was unmarried. (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 adopted legally;" 7. In the instant case, it is an admitted position of fact that Sri Simanta Jatin Gogoi was unmarried. The definition of family as quoted above does not include the father or the brother of a deceased employee for the purpose of granting family pension under rule 54 of the 1972 Rules, therefore, the claim for family pension by the petitioner cannot be granted as the definition of family includes only the wife, son or unmarried daughter and does/not include the father or the brother. Hence the claim for family pension stands rejected. 8. Regarding the appointment on compassionate ground, though the petitioner, who is father of the deceased claims that an application for appointment of Diganta Jatin Gogoi, brother of the deceased on compassionate ground was filed no order has been passed till date, the authority in the affidavit-in-opposition was made a categorical statement that such application was considered and as found that the claim is not covered by the scheme formulated for that purpose, no appointment could be made. Moreover, the petitioner's son expired on 20.1.1999 and by the time more then 7(seven) years have elapsed. The object of appointment on compassionate ground being to tide over immediate financial crisis faced by the family of the deceased, no direction can also be issued to appoint Diganta Jatin Gogoi on compassionate ground after expiry of long seven years. That apart Diganta Jatin Gogoi has not come forward to claim appointment on compassionate ground. 9. The petitioner has also claim compensation for the death of son Simanta Jatin Gogoi alleging negligence on the part of the authority. The petitioner though in the writ petition has made a statement that there was negligence, no foundational fact in support of such negligence have been given in the writ petition to show that the authority was negligent in extending appropriate medical treatment for which the death was caused to the petitioner's son. In .the absence of such foundational fact it is not possible for the writ court to award any compensation. The petitioner for being entitled to compensation on the ground of negligence has to prove negligence. In .the absence of such foundational fact it is not possible for the writ court to award any compensation. The petitioner for being entitled to compensation on the ground of negligence has to prove negligence. For that purpose the necessary foundational facts are required to be pleaded, which is absent in the present case. Hence the prayer for compensation for the death of petitioner's son on the ground of negligence, also cannot be acceded to. 10. In view of the aforesaid discussions, I do not find any merit in the writ petition and hence the same is dismissed. No cost.