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2018 DIGILAW 1538 (ALL)

PANKAJ KUMAR v. UNION OF INDIA

2018-07-12

RAJNISH KUMAR

body2018
JUDGMENT Hon'ble Rajnish Kumar, J.—Heard, Sri M.K. Srivastava, learned counsel for the appellant and Sri Ajai Kumar Singh, learned counsel for the respondent. 2. The present appeal has been preferred by the appellant under Section 23 of the Railway Claims Tribunal Act, 1987, challenging the order dated 23.5.2012 passed by learned Railway Claims Tribunal, Lucknow Bench, Lucknow in Case No. OA/II/U/522/2011, by which the claim petition has been dismissed on the ground of not having territorial jurisdiction to entertain the claim petition. 3. The claim petition was filed by the appellant before Railway Claims Tribunal, Lucknow Bench, Lucknow claiming compensation on account of injuries sustained by him and amputation of both legs on account of an untoward incident in which he fell down accidentally from the train at Devariya Railway Station. The appellant had disclosed that he is a permanent resident of Gorakhpur and he is presently residing and working as labour at Lucknow. The appellant had submitted a certificate issued by Village Pradhan, Gram Panchayat-Bhainsa Bazar, District-Gorakhpur indicating therein that he is a permanent resident of Gorakhpur. On preliminary objection being raised by the respondents regarding maintainability of the claim petition on account of his place of residence, the appellant had filed a rejoinder-affidavit annexing therewith a certificate issued by Mr. Ramu Pal, Parshad, Nagar Nigam, Lucknow. It has been mentioned by the Parshad in his certificate that Pankaj Kumar S/O Ram Sahay is a resident of Bahardurpur, P.S. - Gudumba, Kursi Road, Lucknow. 4. Considering the application, the learned Tribunal found that the applicant has not filed any copy of the ration card or pariwar register to establish that the applicant normally resides at the present place at Lucknow. Moreover, the certificate of the Parshad was produced after the preliminary objection raised by the respondent. Therefore the veracity of the certificate is doubtful and it cannot be considered at this point. Accordingly, the claim petition has been dismissed as not maintainable in view of Rule 8 of the Railway Claims Tribunal (Procedure) Rules, 1989. 5. Submission of learned counsel for the appellant is that the appellant is a permanent resident of Gorakhpur but he is normally residing at Lucknow where he is working as labour. He had disclosed in his application his local address-Village-Bahardurpur, P.S. - Gudumba, Lucknow. 5. Submission of learned counsel for the appellant is that the appellant is a permanent resident of Gorakhpur but he is normally residing at Lucknow where he is working as labour. He had disclosed in his application his local address-Village-Bahardurpur, P.S. - Gudumba, Lucknow. On a preliminary objection raised by the respondent, he had filed a certificate of the Sabhasad(Parshad), which could not have been doubted. The appellant is working as a labour in Lucknow. Accordingly, he could not have any other proof of address in support of his claim. On the basis of above, learned counsel for the appellant submitted that in absence of any contrary certificate or report, the learned Tribunal has wrongly and illegally rejected the claim of the appellant. In support of his submission, learned counsel for the appellant relied on a judgment of the Apex Court in the case of Morgina Begum v. Managing Director, Hanuma Plantation Limited ; AIR 2008 SC 199 . 6. Further it has been submitted that in any case, if the learned Tribunal was of the view that the claim petition is not maintainable at Lucknow for want of territorial jurisdiction as veracity of the certificate issued by Parshad was doubtful, then it ought to have returned the original application to present it before a Bench having territorial jurisdiction. He further submitted that in similar circumstances, the claim petition was returned by the Lucknow Bench on the ground of having no territorial jurisdiction but the limitation was not granted so this Court vide order dated 26.4.2018 passed in F.A.F.O. No. 189 of 2018;(Sri Vishnu Kumar Rana v. Union of India) has allowed the application and directed it to be presented within 30 days and in case the same is presented within the said period, it was to be considered within limitation. 7. On the other hand, learned counsel for the respondent submitted that the appellant is a permanent resident of Gorakhpur and he could not prove that normally the appellant resides at Lucknow and the veracity of certificate of the Sabhasad, filed after preliminary objection raised by the respondent, has rightly been doubted by the learned Tribunal. Accordingly, the learned Tribunal has rightly dismissed the claim petition. Accordingly, the learned Tribunal has rightly dismissed the claim petition. So far as the question of returning the claim petition is concerned,learned counsel for the respondent submitted that the appellant could not prove his place of residence and the appellant had also not made any request, accordingly the learned Tribunal has rightly not returned the claim petition and dismissed the same. 8. I have considered the submission of the parties and perused the record. 9. The appellant had filed the original Application No. OA/II/U/552/2011 claiming compensation for the injuries sustained by him and amputation of both legs on account of an untoward incident in which he fell down from the train at Devariya Station. The appellant had filed a certificate of Village Pradhan, Gram Panchyat, Bhainsa Bazar, District Gorakhpur indicating therein that he is a permanent resident of Gorakhpur. But on account of normal place of residence, the claim was filed at Lucknow. The respondents raised a preliminary objection regarding territorial jurisdiction so the appellant had filed a certificate of Parshad (Sabhasad)/Corporator) indicating therein that he is residing at Bahadurpur, P.S. Gudamba, Kursi Road, Lucknow, the address which was disclosed by him in his original application. 10. Rule 8 of the Railway Claims Tribunal (Procedure) Rules 1989 (hereinafter referred to as Rules 1989) provides,place for filing application, which is reproduced as under: "Place of filing application for compensation in accident or untoward incident claim—An application for compensation payable under Section 124 or 124A of the Railways Act, 1989 may be filed before the Bench having territorial jurisdiction over the place from which the passenger obtains or purchases his pass or ticket or where the accident or untoward incident occurs or where the place of destination station lies or where the claimant normally resides." 11. As per Rule 8, the application for compensation payable under Section 124 or 124A of the Railways Act, 1989 may be filed before the Bench having territorial jurisdiction over the place from which (1) the passenger obtains or purchases his pass or ticket or (2) where the untoward incident occurs or (3) where the place of destination station lies or (4) where the claimant normally resides. 12. 12. Considering the preliminary objections on the maintainability of the original application, the learned Tribunal found that according to the claim petition, the alleged journey commenced from Gorakhpur and the alleged incident took place at Devariya and the applicant is a permanent resident of Gorakhpur and the applicant has filed photocopy of the certificate issued by Village Pradhan, Gram Panchayat-Bhainsa Bazar, District-Gorakhpur. Subsequently on an objection being raised by the respondents, the applicant has filed a certificate issued by Parshad,Nagar Nigam, Lucknow, in which it has been mentioned that the applicant is a resident of Bahardurpur, P.S. - Gudumba, Kursi Road, Lucknow but the applicant has not filed any copy of the ration card or pariwar register to establish that the applicant normally resides at the present place at Lucknow and since certificate of Parshad was filed after preliminary objection was raised by the respondent,the learned Tribunal doubted the veracity of the certificate and held that it cannot be considered at this point and accordingly dismissed the original application. But the learned Tribunal failed to consider that the appellant had given the same local/normal address in his application. So only because the applicant had submitted the certificate of same address subsequently,it cannot be doubted in absence of any certificate or report contrary to it,merely because he has failed to produce copy of ration card or pariwar register. 13. The Apex Court has held in the case of Morgina Begum v. Managing Director, Hanuma Plantation Ltd., AIR 2008 SCC 199, that the statements of claimants regarding place of residence cannot be doubted to be false simply because they had not produced the documents to show that in fact they are residing at the said place. If the other party wanted to prove that they were deposing false, they should have been cross-examined. 14. In view of above, the order passed by the learned Railway Claims Tribunal, Lucknow Bench, Lucknow is not sustainable and liable to the set aside. 15. Now coming to the other question regarding return of plaint, Rule 3 of the Rules 1989 speaks about the territorial jurisdiction of Benches as under: "Terittorial jurisdiction of Benches: (1) The number of Benches, the Headquarters of each Bench and the territorial jurisdiction of every such Bench shall be as specified in Schedule I and Schedule I (A). 15. Now coming to the other question regarding return of plaint, Rule 3 of the Rules 1989 speaks about the territorial jurisdiction of Benches as under: "Terittorial jurisdiction of Benches: (1) The number of Benches, the Headquarters of each Bench and the territorial jurisdiction of every such Bench shall be as specified in Schedule I and Schedule I (A). (2) If an application is received by a Bench which does not have territorial jurisdiction to deal with the matter, the Registrar of the Bench shall return the application to the applicant. (3) Notwithstanding anything contained in sub-rule (2) the applicant may apply to the Chairman and the Chairman may thereupon for reasons recorded in writing direct a Bench other than the Bench before which an application has been filed to hear such application and issue such orders as may be necessary for the transfer of the application." 16. In Sub Rule (2) of Rule 3 it has been provided that if an application is received by a Bench which does not have territorial jurisdiction to deal with the matter, the Registrar of the Bench shall return the application to the applicant. 17. In view of above, on receipt of an application, if the Registrar finds that the Bench concerned is not having territorial jurisdiction, it shall return the application to the applicant under Rule 3 (2). In the present case, it seems that the Registrar had found that the claim petition has rightly been filed at the Lucknow Bench which has territorial jurisdiction in view of local address of the applicant given in the application. But since no certificate of address of Lucknow was filed and certificate of permanent address at Gorakhpur was filed,objection was raised by the respondent. In response to which the appellant filed reply annexing a certificate of residence issued by the Parshad (Sabhsad), veracity of which has been doubted by the learned Tribunal erroneously as held by me in earlier part of this judgment. In any case, if the learned Tribunal was of the view that the veracity of the certificate of Sabhasad is doubtful so the original application is not maintainable at Lucknow, the learned Tribunal ought to have returned the claim petition, in view of Rule 3(2) of the Rules 1989, to present it before a Bench having territorial jurisdiction, but it could not have been dismissed, accordingly the impugned order is without jurisdiction. 18. The appellant/applicant may also apply for transfer of appeal to the Chairman and the Chairman may direct to transfer the case to other Bench to hear the same under Rule 3(3) of the Rules 1989. 19. In view of above, the appeal is allowed. The order dated 23.5.2012 is set aside. The Railway Claims Tribunal, Lucknow Bench, Lucknow is directed to restore the original Application No. OA/II/U/552/2011 on its original number and hear and decide it on merit in accordance with law. Since it is an old case of 2011, it is provided that the application shall be considered and disposed of expeditiously, say within a period of six months from the date of production of certified copy of this order. The Lower Court Record shall be returned forthwith.