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2019 DIGILAW 1028 (GAU)

Md. Jakir Hussain v. Union Of India

2019-09-11

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. K. Bhattacharjee, learned counsel for the appellants and Ms. U. Chakraborty, learned Special Senior Counsel for the respondent railways. 2. A claim was made by the appellants herein for compensation on the death of one Rokibul Islam, who died on 29.05.2011. The claim was initially heard by a Division Bench of the Railway Claims Tribunal comprising of Ms. Shyama Dogra, Member, Judicial and Mr. B.B Verma, Member, Technical. By the judgment dated 11.01.2013, the Member Judicial rejected the claim of the appellants whereas the Member Technical allowed a compensation of Rs.4,00,000/-(rupees four lacs) to the dependents of the person who had died. 3. As there was a variance in the opinion of the Division Bench, the matter was placed before the third Member, who also happened to be a Member Technical namely Mr. J.D Goswami. The Member Technical J.D Goswami on being referred as the third Member by his order dated 09.05.2013 had arrived at its decision that the claim requires a rejection. The Member Technical to whom it was referred as the third Member, in paragraph-16 of his order had held as follows:- "A close look at the original ticket, filed by the applicant as Ext.A/1, reveals that the part of the ticket where time of issue is indicated, has been mutilated, either deliberately or on account of its own design defect. The respondent could have verified this fact along with the actual time of issue of this ticket, but this was not done. Instead a stereotype WS has been filed, asking the applicant to prove his son's bonafides. I am inclined to believe that someone in the middle level management in the Railways, has deliberately avoided a ticket verification exercise at Kamakhya station, which is half a km away from the claims office, so that the applicant gets a definite advantage in this case. However, to my mind, it would be travesty of justice if any benefit of doubt is extended in this case to an applicant, who has not told a single truth till now, just because someone in the railways have decided to give him a helping hand, obviously for immoral reasons." 4. However, to my mind, it would be travesty of justice if any benefit of doubt is extended in this case to an applicant, who has not told a single truth till now, just because someone in the railways have decided to give him a helping hand, obviously for immoral reasons." 4. Again in paragraph-18, the Member Technical held that in the light of what had been recorded, it was proved beyond reasonable doubt that the appellant Jakir Hussain is lying through his teeth from the beginning till the end for the purpose of receiving undue financial benefit in the form of compensation from a Government department. 5. We are not happy with the language used by the Member Technical, who in our view while discharging a quasi judicial function is required to maintain the decorum in expressing the views in a judicially acceptable manner. Further, in paragraph-16 as indicated above, the Member Technical arrived at its own conclusion that as regards the date and time of the issuance of the Exhibit-A/1 ticket, the respondent railways could have verified the actual time of the issuance of the ticket, but it had not done so. It was further taken into account that instead the railway authorities had filed a stereotype written statement urging upon the applicant to prove the bona-fide of the ticket concerned. 6. To that extent, we are in agreement with the Member Technical. But, thereafter, the Member Technical took a view that he is inclined to believe that someone in the middle level management in the railways had deliberately avoided a ticket verification exercise at Kamakhya station, which is half kilometre away from the claims office, so that the applicant gets an advantage in the case. 7. We do not find any material on record as to from where the aforesaid presumption was arrived at by the Member Technical. But again it is stated that however to the mind of the Member Technical, it would be a travesty of justice if the benefit of doubt is given to the applicant. In other words, the presumption that the Member Technical arrived has now been converted to a finding of fact that somebody in the middle level management had manipulated. 8. We fail to understand how a presumption can be converted to be a finding without there being any material on record. In other words, the presumption that the Member Technical arrived has now been converted to a finding of fact that somebody in the middle level management had manipulated. 8. We fail to understand how a presumption can be converted to be a finding without there being any material on record. Anyway if the Member Technical was of the view that the respondent railways could have verified the actual time of issuing of the ticket and it was not done, best course of action could have been to require the railway authorities to get it verified from the records as to when the ticket was issued. The said conclusion based on materials on record, would have been conclusive to arrive at a finding either against or in favour of the applicant for the compensation. The Member further arrived at its own conclusion, again without any material on record that just because someone in the railways had decided to give a helping hand to the applicant for immoral reason, no such favourable order can be passed against the applicant. 9. Again, we are constrained to observe that the same is also without there being any material on record and it is based on the figment of imagination of the Member Technical. 10. In such view of the matter, we arrive at a conclusion that the order dated 09.05.2013 of the Member Technical, who took up the matter as the third Member is unsustainable and the same is set aside. As the said order is unsustainable, the further order dated 05.05.2017 of the earlier Division Bench accepting the judgment of the third Member Technical also stands interfered with. 11. The matter now stands remanded back to the Railway Claims Tribunal for the matter to be put up before a Third Member for a proper adjudication based on the materials on record by providing that if it is deemed appropriate that further materials are required for a proper adjudication and such materials are available on record, the learned Tribunal may call for and rely upon such further material. The appeal stands allowed to the extent indicated above. Send back the LCR immediately.