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2009 DIGILAW 904 (CAL)

UNION OF INDIA v. Ruma Maji

2009-12-15

MRINAL KANTI SINHA, PRATAP KUMAR RAY

body2009
Judgment : RAY, J. (1.) Heard the learned Advocates appearing for the parties. (2.) Affidavit-in-opposition and affidavit-in-reply filed in Court today be kept on record. 3. Assailing the order dated 29th March, 2007 passed in O.A. 921 of 2006 and the order passed in review application being R.A. 25 of 2007 which was passed on 17th April, 2008, this writ application has been filed. The impugned orders read such : "29.03.2007 Heard learned Counsel for the applicant and learned Counsel for the respondents. 2. The applicant having been aggrieved for non-settlement and non-payment of arrear ex-gratia amount and family pension on account of death of her husband, who was a Railway employee has filed this application. 3. Learned Counsel for the respondents on instruction submits that the relevant form would be sent to the applicant shortly which she would submit to the concerned authority after filling up the same for taking further necessary action. 4. In view of such submission, the respondent No. 2 is directed to send the requisite form, to the applicant which be submitted by the applicant to the authority concerned after properly filling up the same. The respondents are directed to complete the entire process of finalization and payment of ex-gratia and family pension to the applicant within three months from receipt of this order. The applicant is at liberty to come to this Tribunal for redress, if he is still aggrieved. The O.A. is accordingly disposed of. No order as to cost..." "17.04.2008 Ms. S. Banerjee, learned Counsel for the applicants in the R.A. (respondents in O.A.) submits that the original applicant is not entitled to get ex-gratia and family pension simultaneously. (3.) Perused the order sought to be reviewed. No error is apparent on the fact of the record. If by wrong appreciation of law or the facts order has been passed, that can be assailed before the appropriate higher Forum. This application does not fall within any of the provisions under Order 47 Rule 1 of Code of Civil Procedure Warranting review of the order. Accordingly the R.A. is dismissed. Consequently the M.A stands dismissed. If by wrong appreciation of law or the facts order has been passed, that can be assailed before the appropriate higher Forum. This application does not fall within any of the provisions under Order 47 Rule 1 of Code of Civil Procedure Warranting review of the order. Accordingly the R.A. is dismissed. Consequently the M.A stands dismissed. No order as to cost..." (4.) It is the contention of the writ petitioner that initially the husband of the original applicant, who is respondent No. 1 herein, moved the Central Administrative Tribunal, Calcutta Bench in O.A. 50 of 1996 seeking relief for grant of pensionary benefits under the pension scheme by converting the same from Contributory Provident Fund Scheme which was opted by him, unsuccessfully. It was rejected on the ground that the employee did not opt for family pension scheme and pensionary benefits by changing his earlier option of Contributory Provident Fund Scheme and the employee concerned received all benefits under Contributory Provident Fund Scheme. Tribunal by order dated 4th October, 2002 rejected the prayer of the deceased husband of the respondent No. 1. It is contended that after death of the husband applicant had no legal right to claim family pension as the deceased husband never opted family pension scheme and his prayer for conversion to family pension scheme was rejected by the Tribunal earlier. It is submitted that the aforesaid contentions were not considered at all by the learned Tribunal below while disposing of the O.A. 921 of 2006 by directing the Railway authorities to consider grant of family pension. In view of such state of affairs, review application was filed by the present writ petitioner referring said order of the Tribunal, earlier passed in the original application filed by the deceased husband of the respondent No. 1 herein. But the Tribunal rejected the review application as well as the application filed under Section 5 of the Limitation Act on the technical ground that there was no error apparent on the face of the record. This order is under challenge before this Court. But the Tribunal rejected the review application as well as the application filed under Section 5 of the Limitation Act on the technical ground that there was no error apparent on the face of the record. This order is under challenge before this Court. Learned Advocate for the respondent No. 1 submits by opposing this application that the deceased husband of the respondent was not legally entitled to enjoy the pensionary benefits in view of the order against him as passed in O.A. 50 of 1996 but the widow got the legal right of family pension by Railway Boards circular and other Government Rules. (5.) So far as the Tribunal order is concerned rejecting the review application, it appears from the review application that all points were taken referring those issues that the deceased husband of applicant was not entitled for pensionary benefits under the pension scheme; as such, family pension could not be said legally. But the Tribunal did not consider that issue in the review application on the ground that there was no error apparent on the face of the record applying the principle of Order 47 Rule 1 of the Civil Procedure Code and the Tribunal held that there was no scope to review the earlier order as passed. (6.) Learned Tribunal below held that there was no error apparent on the face of the record. This finding of the Tribunal is not legally sustainable, having regard to the judgment passed by the Apex Court by answering the point, what would be the error apparent on the face of the record. In the case Tungabhadra Industries Ltd. v. Government of Andhra Pradesh reported in AIR 1964 SC 1372 , wherein the Court held "there is a real distinction between a mere erroneous decision and error apparent on the face of the record. Where error on a substantial point of law stares one in the face and there would reasonably be no two opinions, clear case of error apparent on the face of the record would be made out". Where error on a substantial point of law stares one in the face and there would reasonably be no two opinions, clear case of error apparent on the face of the record would be made out". (7.) In the instant case it appears that the earlier order rejecting the prayer of the applicants husband seeking conversion to Pensionary Benefit Scheme was rejected by the Tribunal, the order of which already quoted above, was not at all considered while passing the order in favour of the respondent granting family pension and, as such, there was an error apparent on the face of the record for not considering the legal issue about eligibility of the applicant to enjoy the family pension when admittedly husband was not optee of Pensionary Benefits Scheme, who breathed last subsequently. It is a settled legal proposition of law that when retention of error which will lead to the failure of justice, review application is maintainable. Reliance is placed to the judgment passed in the case Rajender Kumar v. Rambhai reported in AIR 2003 SC 2095 . It is a settled legal proposition of law that it is incumbent duty upon the Court of law to correct the error apparent on the face of the record. Reliance is placed to the judgment passed in the case M. M. Thomas v. State of Kerala reported in (2000)1 SCC 666 . The Apex Court also considered the point that non-consideration of the contention raised also a good ground of review to undo the miscarriage of justice. Reliance is placed to the judgment passed in the case Indian Charge Chrome Ltd. v. Union of India reported in (2005)4 SCC 67 . (8.) Having regard to the legal proposition in the field in question about the maintainability of the review application, we are of the view that the right of the applicant before the Tribunal below so far as grant of family pension was not at all dealt with and considered in the original order dated 29th March, 2007 on taking note of the fact that the deceased husband did not opt for Pension Benefit Scheme by converting his option from Contributory Provident Fund Scheme and he unsuccessfully raised the issue before the Tribunal O.A. 50 of 1996 and suffered an order on 4 October,2002. Since the basic issue was not dealt with so, there was a substantial question of eligibility to raise the issue again which goes to the root of foundational fact of the applicants case, was not dealt with and considered inspit of the original order which was in the file of the Tribunal as well as the order passed earlier the application of deceased husband as was brought to the notice of the learned Tribunal in the review application. (9.) Considering that aspect of the matter we are of the view that the orders of the Tribunal are not legally sustainable, namely, the order passed in the review application being the order dated 17th April, 2008 in the R.A. 25 of 2007 and the original order dated 29th March, 2007 passed in the O.A. 921 of 2006. Both orders accordingly stand set aside and quashed. The matter is remanded back before the Tribunal for consideration of the prayer of respondent in O.A. 50 of 1996 in accordance with law on hearing ail the parties and taking note of the order of the Tribunal dated 4th October, 2002 passed in O.A. 50 of 1996 by the Central Administrative Tribunal Calcutta Bench in the application filed by the deceased husband. (10.) The writ application is accordingly allowed. I agree.