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2014 DIGILAW 869 (HP)

Rattani Devi v. State of H. P.

2014-07-09

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2014
JUDGMENT Mansoor Ahmad Mir, Chief Justice (Oral) This Letters Patent Appeal is directed against the judgment and order, dated 9th May, 2013, passed by the writ Court in CWP No. 4161 of 2012-G, titled as Rattani Devi versus State of Himachal Pradesh and others, whereby the writ petition filed by the writ petitioner-appellant came to be dismissed (hereinafter referred to as “the impugned judgment”). 2. The impugned judgment, on the face of it, is illegal and needs to be set aside for the following reasons: 3. The writ petitioner-appellant, being the widow, has filed the writ petition for grant of family pension alongwith all consequential benefits on the grounds taken in the writ petition. It is specifically averred in paras 6 and 7 of the writ petition that the writ petitioner-appellant and the respondent-department had made so many inter-se correspondences. Despite that, the respondent-department has not released family pension and other benefits in her favour. 4. The writ Court dismissed the writ petition only on the ground that the writ petitioner-appellant has been acquitted by the Apex Court on 4th February, 1993 and the writ petition was filed on 29th May, 2012, that too, without discussing the object of grant of family pension and the right of the writ petitioner-appellant to claim family pension. 5. The writ petition came to be dismissed only on account of delay, which is not in conformity with the law laid down by the Apex Court in S.K. Mastan Bee versus General Manager, South Central Railway and another, reported in (2003) 1 Supreme Court Cases 184. It is apt to reproduce paras 5 and 6 of the judgment herein : “5. In this appeal, the appellant questions the restriction on her right to claim family pension w.e.f. 21-11-1969, the date on which her husband died. It is submitted on behalf of the appellant that the Division Bench having agreed with the learned Single Judge on the legal right of the appellant to receive family pension ought not to have confined the said right to a date much subsequent to the death of her husband, merely because a demand for payment of family pension was made only in the year 1992. Learned counsel for the appellant pointed out from the judgment of the Division Bench itself that it had held that the denial of family pension to the appellant amounted to violation of her fundamental right to life guaranteed under Article 21 of the Constitution and that the Division Bench had also held that in the circumstances of this case the delay in approaching the railway authorities cannot be considered to be fatal for the maintainability of the writ petition. The learned counsel submitted, based on these findings, that the Division Bench could not have restricted the appellant's claim to a date much subsequent to the date of death of her husband. Per contra, the learned counsel for the Railways contended that the delay in approaching the court was so large that it was not a fit case for the exercise of the discretionary remedy under Article 226 of the Constitution and that the High Court was in fact very generous to the appellant in granting the relief from the year 1992. 6. We notice that the appellant's husband was working as a Gangman who died while in service. It is on record that the appellant is an illiterate who at that time did not know of her legal right and had no access to any information as to her right to family pension and to enforce her such right. On the death of the husband of the appellant, it was obligatory for her husband's employer viz. The Railways, in this case to have computed the family pension payable to the appellant and offered the same to her without her having to make a claim or without driving her to a litigation. The very denial of her right to family pension as held by the learned Single Judge as well as the Division Bench is an erroneous decision on the part of the Railways and in fact amounting to a violation of the guarantee assured to the appellant under Article 21 of the Constitution. The factum of the appellant's lack of resources to approach the legal forum timely is not disputed by the Railways. The question then arises on facts and circumstances of this case, was the Appellate Bench justified in restricting the past arrears of pension to a period much subsequent to the death of appellant's husband on which date she had legally become entitled to the grant of pension? The question then arises on facts and circumstances of this case, was the Appellate Bench justified in restricting the past arrears of pension to a period much subsequent to the death of appellant's husband on which date she had legally become entitled to the grant of pension? In this case as noticed by us hereinabove, the learned Single Judge had rejected the contention of delay put forth by the Railways and taking note of the appellant's right to pension and the denial of the same by the Railways illegally considered it appropriate to grant the pension with retrospective effect from the date on which it became due to her. The Division Bench also while agreeing with the learned Single Judge observed that the delay in approaching the Railways by the appellant for the grant of family pension was not fatal, in spite of the same it restricted the payment of family pension from a date on which the appellant issued a local notice to the Railways i.e. on 1-4-1992. We think on the facts of this case inasmuch as it was an obligation of the Railways to have computed the family pension and offered the same to the widow of its employee as soon as it became due to her and also in view of the fact that her husband was only a Gangman in the Railways who might not have left behind sufficient resources for the appellant to agitate her rights and also in view of the fact that the appellant is an illiterate, the learned Single Judge, in our opinion, was justified in granting the relief to the appellant from the date from which it became due to her, that is the date of the death of her husband. Consequently, we are of the considered opinion that the Division Bench fell in error in restricting that period to a date subsequent to 1-4-1992.” 6. Thus, on this ground only, the judgment needs to be set aside. 7. We have gone through the writ petition and the reply. The respondents have not specifically denied the averments contained in paras 6 and 7 of the writ petition. 8. In the given circumstances, we deem it proper to dispose of the writ petition with a direction to the respondents to consider the case of the writ petitioner-appellant for grant of family pension alongwith other service benefits. 9. The respondents have not specifically denied the averments contained in paras 6 and 7 of the writ petition. 8. In the given circumstances, we deem it proper to dispose of the writ petition with a direction to the respondents to consider the case of the writ petitioner-appellant for grant of family pension alongwith other service benefits. 9. Accordingly, the appeal is allowed, the impugned judgment is set aside and the writ petition is disposed of, as indicated hereinabove. Copy dasti.