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2017 DIGILAW 1698 (GUJ)

Thakore Rajusinh Joraji v. Senior Division Commercial Manager (Mandal Prabandhak (WA)

2017-09-28

N.V.ANJARIA

body2017
JUDGMENT : N.V. Anjaria, J. 1. In a benevolent welfare policy of the State, with a view to ensure and achieve its underlying object, can 'a son' be construed as including 'a grandson'. This question arises in the context of simple facts where the petitioner herein seeks a relief to direct the railway authority to transfer the buckle to act as a Porter on the railway station in his name. 2. By invoking jurisdiction of this Court under Article 226 of the Constitution, the petitioner has therefore prayed to quash order dated 13th October, 2015 of respondent No. 1 - Senior Division Commercial Manager, Western Railway, Ahmedabad, whereby the claim of the petitioner required to be considered by the authorities in light of order passed by this Court in the previous petition, came to be was negatived. 2.1 Extracting the precise ground on which the petitioner was denied for his request, "The Commercial Circular No. 62/2009 dated 29.10.2009 on the subject also permit to transfer of license in favor of son/adopted son, daughter/adopted daughter, wife/husband (as the case may be) or near relative that includes brother/brother's son or wife's brother only. The policy does not include the grandson for eligibility as a transferee." 3. Hailing from the poor strata of the society, the grandfather of the petitioner Kacharaji Chaturji Thakore was Porter at Railway Station, Mehsana, providing such services. The railway authorities had authorised him by issuing a Badge No. 163. Said Kacharaji died on 23rd August, 1989. The elder son of Kacharaji named Joraji, father of the present petitioner, passed away on 01st February, 2012. 3.1 The petitioner, 28 years old, is 10th standard failed. His grandmother applied before respondent No. 1 for issuing Coolie Badge No. 163 in favour of the petitioner which was earlier held by grandfather Kacharaji. The railway authorities have evolved a policy whereby the dependent member of the deceased Porter could be allowed to hold Badge and Buckle by getting it transferred in his name. It was under such policy that the petitioner requested for transferring the Badge so that he can labour out at the railway station and earn his bread. Another son of deceased Kacharaji named Bachuji - uncle of the petitioner conveyed no-objection for issuing the Buckle is issued to the petitioner. It was under such policy that the petitioner requested for transferring the Badge so that he can labour out at the railway station and earn his bread. Another son of deceased Kacharaji named Bachuji - uncle of the petitioner conveyed no-objection for issuing the Buckle is issued to the petitioner. 3.2 Previously, the same request of the petitioner was rejected by letter dated 21st August, 2013 which compelled the petitioner to file Special Civil Application No. 17646 of 2014 before this Court. This Court while disposing of the said petition by judgment dated 30th June, 2015 noticed the policy and observed as under. Mentioning that none of the eligible relatives had any objection to the Buckle being transferred in favour of the petitioner. "6. It is not in dispute that the present petitioner happens to be the grandson of deceased Kacharaji and son of deceased Joraji, who could legitimately lodge his case to be considered under the above policy for transfer of buckle in his favour. Near relatives who could claim similar right under the policy, have submitted no objection for transferring the buckle in favour of the petitioner. Copies of consent agreements inter se executed in this regard are reproduced on record. Further as noted above, all six near relatives have given separate letter of consent dated 26.06.2015 executed on stamp paper, copy thereof were produced and are kept on record." 3.3 At that time, transfer of Buckle was denied to the petitioner on the ground that at Mehsana Railway Station, the record of the Registers was available from 1994 only and since there was no record traceable for the past years, transfer of Buckle under the policy was not allowed. This Court virtually disapproved the said reason to observed that the authority had not furnished any reason whatsoever, much less a substantive reason for rejecting the claim of the petitioner. In the said judgment it was a finding unequivocally arrived at that "it could not be gainsaid that the petitioner is not eligible as a near relative, his grandson". The impugned order resulted after the aforesaid observations and order of this Court. 4. Heard learned advocate Mr. F. B. Brahmbhatt for the petitioner and learned advocate Ms. Archana Amin for the respondent - railway authorities. 5. The impugned order resulted after the aforesaid observations and order of this Court. 4. Heard learned advocate Mr. F. B. Brahmbhatt for the petitioner and learned advocate Ms. Archana Amin for the respondent - railway authorities. 5. The Ministry of Railways, Government of India, has formulated policy regarding transfer of Badge of licenced Porters at the railway stations to his son or near relative. Policy reflected in communication dated 09th December, 1988, relevant part of which reads as under. "Board have reviewed the instructions contained in the letters quoted above regarding transfer of licensed porter's badge to his son/near relative. It has now been decided that the porter's license may be transferred to his son or, if he has no son or his son is not alive, to his near relative in the event of his death or when he becomes very old, infirm or very sick and is not able to carry out his duties properly. The son will include the adopted son. Near relatives will include brother or brother's son or wife's brother. The licensed porter who claims to be old, infirm or incapable of performing his duty as a licensed porter due to serious diseases, should be medically examined by a railway doctor with a view to determine whether he is physically not fit. The medical certificate from a railway doctor alone should be taken as proof. Before allowing such transfer of licence, it should be ascertained that the porter has the sole earning member of the family. An affidavit produced by the licensed porter under the seal of a Magistrate may be taken as adequate proof of the dependence of the family on licensed porter and the nature of relationship of the nominee. The person in whose favour the license is transferred should be physically fit to perform the duty of licensed porter. This should also be certified by a railway doctor. Action to transfer the licence of a porter should be taken only when the above factors have been established to the entire satisfaction of the Railway." 5.1 The policy permits son and near relatives of the Porter who becomes infirm or who has died, to transfer his Badge. The badge is to be transferred in favour of his son, if the Porter has no son or son is not alive, badge can be transferred to his near relative. The badge is to be transferred in favour of his son, if the Porter has no son or son is not alive, badge can be transferred to his near relative. The later part of the paragraph 2 of the policy says that son would include adopted son and near relative would include brother and even brother's son or wife's brother. The said policy was clarified by Commercial Circular No. 62/2009 dated 29th October, 2009 and it has been decided that transfer of badge of deceased/medically unfit licensed Porter in favour of son/adopted son, daughter/adopted daughter, wife/husband, as the case may be, or near relative which would include brother/brother's son or wife's brother only. 5.2 The policy is in the form of administrative instructions and the basic purpose as is disclosed by the Ministry of Railways in its communication dated 10th May, 2016 addressed to the petitioner, is to allow solace to the family who has lost sole earning member by transferring badge to the other eligible member. It was stated that the decision is taken by the Railways on case-to-case basis keeping in mind the spirit and object of the policy for transfer of badge. The benevolent policy framed by the railway authorities clearly intends to help out the deceased or medically unfit Porters by allowing their badge to be transferred 5.3 The petitioner is grandson who wants the badge of his grandfather to be transferred in his name. His father as died. The authorities says that in terms of policy circular, petitioner does not satisfy the eligibility criteria as he is grandson and that the word "grandson" is not mentioned in the policy. 6. A pedantic approach is arbitrariness in disguise. 6.1 The application of any law or any rule has to be destined to doing real and substantial justice. More particularly, in interpreting and applying benevolent schemes and welfare oriented policy resolutions, the purposive approach is advocated. The function of purposive application of any rule or law is to iron out technicalities in granting benefit of the provision or policy. The entitlement of the petitioner was not in dispute. The claim of the petitioner - grandson under the policy to be entitled to get the buckle/badge transferred has to be necessarily viewed with such standpoint. The function of purposive application of any rule or law is to iron out technicalities in granting benefit of the provision or policy. The entitlement of the petitioner was not in dispute. The claim of the petitioner - grandson under the policy to be entitled to get the buckle/badge transferred has to be necessarily viewed with such standpoint. 6.2 In Hindustan Lever Limited v. Ashok Vishnu Kate [ (1995) 6 SCC 326 ], the Supreme Court quoted the rule of purposive construction from Francis Bennion's Statutory Interpretation (2nd Edition) and explained the role of purposive interpretation of a statute or rule as against literal interpretation. It was stated that, "A purposive construction of an enactment is one which gives effect to the legislative purpose by- (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)." (emphasis supplied) 6.3 The purposive interpretation is contrasted in juxtaposition to literal interpretation. The Supreme Court quoted from the above-mentioned book of the author that the court should not be reluctant to adopt a purposive construction in the cases where applying the literal meaning of the legislative language used, would lead to results which would clearly defeat the purpose of the Act; the task which the court of justice is engaged, remains one of construction, even where this involves reading into the Act words which are not expressly included in it. 6.4 The Apex Court has applied purposive interpretation in different context and in different ways, keeping in view the object of the provision or the rule. For instance, in U.P. Bhhodan Yagna Samiti v. Braj Kishor [ (1988) 4 SCC 274 ], the words "landless person" were held to mean "landless peasant". The object of the U.P. Bhhodan Act was to give land to the landless farmers. 6.5 In the Mimansa form of interpretation, the purposive interpretation is based on the principle called 'Sarthakeya'. Thereby the purpose is made to prevail over the outward expression which becomes subordinate. The object of the U.P. Bhhodan Act was to give land to the landless farmers. 6.5 In the Mimansa form of interpretation, the purposive interpretation is based on the principle called 'Sarthakeya'. Thereby the purpose is made to prevail over the outward expression which becomes subordinate. If the statutory rule is often subjected to a purposive interpretation to bring out its true intend and a meaningful application, then the executive instructions and policy must be viewed and applied by the courts so as to achieve their purpose. There is no gainsaying that when the question is of application of any welfare scheme, the purposive construction should deservedly must be further informed by liberal approach in interpretation and application of the provisions. 6.6 The aim of the policy is to provide relief to the family of the Porter who has become infirm or who has died, by permitting transfer of his Badge or Buckle in favour of near relatives. The near relatives under the policy include son/adopted son and also brother/brother's son and even wife's brother. Then, it cannot be gainsaid that grandson would not fall in the category of near relatives, if purpose of the policy is to be achieved in a given case like one on hand. The denial to the petitioner grandson to transfer the Buckle in his name is arbitrary on the face of it. Grandson has to be treated as inclusive and to be covered under the term 'son' for the purpose of policy application, more particularly when the son has died and transferring the Buckle in the name of the petitioner would be a substantive service done to the object of the policy. Denial to the petitioner who happens to be grandson would amount to pedantic and wooden approach self-defeating to the policy and the object of the policy. 7. For the foregoing reasons and discussion, the petition is allowed. The decision reflected in communication dated 13th October, 2015 by the respondent No. 1 - Senior Division Commercial Manager, Western Railway, Ahmedabad, and the reasons supplied therein is hereby set aside. It is held and declared that the petitioner is entitled to the benefit of the policy and is further entitled to be transferred the Buckle No. 163 of his grandfather Kacharaji Chaturji Thakor. It is held and declared that the petitioner is entitled to the benefit of the policy and is further entitled to be transferred the Buckle No. 163 of his grandfather Kacharaji Chaturji Thakor. The respondents are directed to transfer the said Buckle No. 163 in the name of the petitioner as he is held to be covered under the policy. The respondents are directed to give benefit to the petitioner of the policy by transferring Buckle No. 163 in his name. Rule is made absolute FURTHER ORDER At this stage, learned advocate Ms. Archana Amin requests that the present order may be stayed for some time. The request cannot be accepted and hence, rejected.