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2020 DIGILAW 242 (RAJ)

Hukmichand Menaria v. Union of India

2020-01-24

MANOJ KUMAR GARG, VIJAY BISHNOI

body2020
JUDGMENT : Vijay Bishnoi, J. 1. This writ petition has been filed on behalf of the petitioner challenging the validity of the order dated 10.9.2018 passed by the Central Administrative Tribunal, Jodhpur Bench (for short 'the CAT) whereby, the O.A. No. 489/2016 preferred by the petitioner has been disposed of with the following directions:- "On considering the submissions of both the sides, I find that the present claim of the applicant is grossly time barred but considering the merits of the case, I feel it appropriate that the respondents be directed to refer the case of the applicant before the Medical Board to consider his case as to whether the applicant who is having 60% physical disability is able to earn his livelihood and to give a reasoned finding on the same within a period of three months from the date of receipt of certified copy of this order." 2. Brief facts of the case are that the father of the petitioner namely Onkar Lal Menaria was working as Welder Grade-I under RPZ workshop with the respondent-Railways and he was retired from the said post on 30.4.1984. He expired on 30.3.2000 and by then, he was receiving pension from the Railways. 3. The petitioner moved an application before the respondents in August, 2010 with a request to grant him family pension as per the Rules, which was accompanied by a permanent disability certificate of the petitioner dated 23.1.2006 issued by the Maharana Bhupal Government Hospital, Udaipur. The said application of the petitioner was received by the Railways in September, 2010 and the same was forwarded to the Chief Medical Officer, North Western Railway Hospital, Ajmer with a request for conducting medical examination of the petitioner in respect of his disability. The Chief Medical Officer, North Western Railway Hospital, Ajmer vide letter dated 29.10.2010 informed the Deputy Chief Mechanical Engineer (Carriage) Workshop, North Western Railway, Ajmer that the petitioner was medically examined on 6.10.2010 by the Senior Divisional Medical Officer (Orthopedic Specialist - respondent No. 3), North Western Railway, Ajmer regarding his disability and as per his opinion, the petitioner is able to earn his livelihood, therefore, he is not entitled to get the benefit of family pension. On 24.12.2010, the petitioner was informed by the North Western Railway, Ajmer that in view of the medical opinion, since he is able to earn his livelihood, he is not entitled to get the benefit of family pension. 4. For the first time, the petitioner had challenged the action of the respondents of not granting family pension to him in the year 2013 by way of filing S.B. Civil Writ Petition No. 12775/2013 before this Court, which was dismissed as withdrawn by order dated 4.7.2016, which reads as under:- "Learned counsel for the petitioner states that as the relief is sought in the writ petition against the Railways, the proper remedy to the petitioner would be to approach the Central Administrative Tribunal by way of an original application. Accordingly, he seeks to withdraw the instant writ petition to enable the petitioner to approach the Central Administrative Tribunal for ventilating his grievances. Consequently, the instant writ petition is dismissed as withdrawn with the liberty as prayed for." 5. Thereafter, the petitioner had filed O.A. No. 489/2016 before the CAT. In response to the notice issued by the CAT, the respondent-Railways filed reply to the O.A. raising a preliminary objection that the original application filed by the petitioner is grossly time barred and, therefore, the same is liable to be dismissed. The claim of the petitioner for granting him family pension was also opposed by the respondent-Railways. The petitioner filed rejoinder to the reply filed by the respondent-Railways in the O.A., however, the CAT has disposed of the O.A. filed by the petitioner vide impugned order while observing as referred above. 6. Learned counsel for the petitioner has argued that the CAT has grossly erred in treating the O.A. filed by the petitioner as time barred. It is further argued that non grant of family pension to the petitioner by the respondents is a continuous cause and denial of family pension is effecting him every month. It is submitted that the petitioner has a continuous and recurring cause of action to receive monthly family pension for his whole life as he is not able to earn his livelihood. It is further submitted that the Hon'ble Supreme Court in the cases Asger Ibrahim Amin Vs. Life Insurance Corporation of India, reported in AIR 2015 SCW 6362 and S.K. Mastan Bee Vs. It is further submitted that the Hon'ble Supreme Court in the cases Asger Ibrahim Amin Vs. Life Insurance Corporation of India, reported in AIR 2015 SCW 6362 and S.K. Mastan Bee Vs. The General Manager, South Central Railway and Ors., reported in AIR 2002 SCW 4856 has clearly held that in case of continuous successive wrongs, delay, laches or limitation cannot be a ground to reject any claim as long as the same does not have any adverse repercussions on the third party rights. It is submitted that the petitioner is claiming family pension individually and grant of family pension to him would not affect any third party. 7. It is further submitted by learned counsel for the petitioner that the action of the respondent-authorities of rejecting the claim of the petitioner of granting him family pension on the ground that as per medical opinion he is able to earn his livelihood is bad in the eye of law. It is argued that since the Government Hospital has already issued a permanent disability certificate to the petitioner on 23.1.2006, there is no reason to deny him benefit of family pension on the ground of medical opinion that he is able to earn his livelihood. It is submitted that the medical officer has no authority to give such opinion. It is further submitted that the permanent disability certificate of the petitioner dated 23.1.2006 issued by the Maharana Bhupal Government Hospital, Udaipur clearly suggests that the petitioner is suffering from disability - post polio residual paralysis of both lower limbs and it is certified that he is 60% permanent disable and from this fact alone, it is clear that he cannot earn his livelihood. 8. Relying on Rule 75 of the Family Pension Scheme for Railway Servants, 1964 (for short 'the Scheme of 1964'), learned counsel for the petitioner has submitted that in case of a son or a daughter of a railway servant, who is suffering from any disorder or disability of mind or is physically crippled or any disability which renders son or daughter unable to earn livelihood, he or she is entitled for grant of family pension even after attaining the age of 25 years during his life time. In support of the above contention, learned counsel for the petitioner has placed reliance on the decision of Delhi High Court rendered in the case of Om Prakash Vs. In support of the above contention, learned counsel for the petitioner has placed reliance on the decision of Delhi High Court rendered in the case of Om Prakash Vs. The Ministry of Indian Railway & Anr., reported in (2008) 6 AD (Delhi) 295. It is, therefore, prayed that the impugned order passed by the CAT is liable to be set aside; the O.A. as well as the writ petition filed by the petitioner deserve to be allowed and the relief prayed for in the same be granted to him. 9. Per contra, learned counsel for the respondents has opposed the writ petition and argued that the CAT has not committed any illegality in holding the claim of the petitioner as time barred. It is further argued that as per Rule 75 of the Scheme of 1964, after the death of a retired railway employee, his son or daughter, who is suffering from any disability, mental or physical, is entitled for grant of family pension subject to the condition that he/she is not able to earn his/her livelihood. It is submitted that the above Rule requires a certificate of this effect that he or she is not able to earn their livelihood and the same is required to be issued by a medical officer not below the rank of a Divisional Medical Officer, however in the present case, a competent medical officer has opined that as the petitioner is competent to earn his livelihood, he is not entitled for grant of family pension. Learned counsel for the respondent-railways has argued that even otherwise, since the CAT has already issued directions to the respondent-railways to refer the case of the petitioner to the Medical Board to reconsider his case whether he is having 60% physical disability and is able to earn his livelihood or not and thereafter to give a reasoned finding on the same within the prescribed time, there is no occasion for the petitioner to agitate the issue further. 10. It is informed by learned counsel for the respondent-railways that pursuant to the directions given by the CAT, the Railways had already referred the matter to the new Medical Board constituted at the Divisional Railway Hospital, Jodhpur and the petitioner was requested to appear before it but he has refused to get himself examined by the Board. 10. It is informed by learned counsel for the respondent-railways that pursuant to the directions given by the CAT, the Railways had already referred the matter to the new Medical Board constituted at the Divisional Railway Hospital, Jodhpur and the petitioner was requested to appear before it but he has refused to get himself examined by the Board. Learned counsel has referred to the letters issued to the petitioner requesting him to appear before the medical board and the letter of refusal given by him to the respondent. The said letters are annexed with the reply to the writ petition. 11. Heard learned counsel for the parties and perused the material available on record. 12. The undisputed facts of the case are that the father of the petitioner was retired from service on 30.4.1984 and expired on 30.3.2000. For the first time, the petitioner applied for grant of family pension in August, 2010. The claim of the petitioner was rejected by the respondents in December, 2010 and for the first time, he had challenged the said order in the year 2013 by way of filing writ petition before this Court, which was dismissed as withdrawn by this Court in the year 2016 as learned counsel for the petitioner himself sought liberty for the petitioner to file O.A. before the CAT. It is noticed that in that writ petition, the respondents were not summoned. Thereafter, the petitioner had filed O.A. before the CAT in the year 2016. 13. From the above facts, it is clear that for the first time, the petitioner had applied for grant of family pension before the respondents after around ten years from the date of death of his father. Even, the petitioner had preferred a writ petition before this Court after three years from the date of rejection of his claim. 14. Taking into consideration the above fact situation, we are of the opinion that the CAT has not committed any illegality in rejecting the claim of the petitioner on the ground of delay. 15. It is true that the Hon'ble Supreme Court in the cases of Asger Ibrahim Amin and S.K. Mastan Bee (supra) has held that in case of recurring cause of action of successive wrongs, the delay would not come in the way but at the same time, the inordinate delay without any sufficient explanation in claiming the rights cannot be ignored. It is true that the Hon'ble Supreme Court in the cases of Asger Ibrahim Amin and S.K. Mastan Bee (supra) has held that in case of recurring cause of action of successive wrongs, the delay would not come in the way but at the same time, the inordinate delay without any sufficient explanation in claiming the rights cannot be ignored. So far as the judgment passed by the Delhi High Court in the case of Om Prakash (supra) is concerned, the claim of the petitioner of that case was rejected by the Railways on the ground that at the time of retirement of petitioner's father, he did not give the intimation of his disability in writing and, therefore, he is not entitled for grant of family pension. The action of the Railways was challenged by the petitioner before the Delhi High Court, however, the Railways came with an another explanation that as the petitioner did not submit a proper medical certificate mentioning that he is not able to earn his livelihood on account of his disability, he is not entitled for grant of family pension. The Delhi High Court while relying on a decision of the Hon'ble Supreme Court rendered in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, reported in AIR 1978 SC 851 has held that it is no more res integra that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons. By observing this, the Delhi High Court has rejected the ground taken by the Railways in that case. 16. In the present case, from the beginning, stand of the respondents is that as the Medical Officer has opined that since the petitioner is able to earn his livelihood, he is not entitled for grant of family pension. By observing this, the Delhi High Court has rejected the ground taken by the Railways in that case. 16. In the present case, from the beginning, stand of the respondents is that as the Medical Officer has opined that since the petitioner is able to earn his livelihood, he is not entitled for grant of family pension. However, as the Medical Officer has not given any finding in support of his opinion that the petitioner is not able to earn his livelihood, it is not clear that on what basis the Medical Officer has given the said opinion and taking into consideration the above fact, the CAT has already directed the Railways to refer the case of the petitioner before the Medical Board to reconsider his case regarding his physical disability and to give a reasoned finding whether he is able to earn his livelihood or not. 17. In the overall facts and circumstances of the case, we are of the considered opinion that the order passed by the CAT is not liable to be interfered with. 18. It is noticed that the petitioner had not appeared before the Medical Board constituted to examine his physical disability and his ability to earn his livelihood as per the directions given by the CAT due to pendency of this writ petition. In such circumstances, we deem it proper to direct the respondents to constitute a fresh Medical Board to reconsider the case of the petitioner regarding his disability so also his ability to earn his livelihood and to give a reasoned finding on that point. It is made clear that if, as per the opinion of the Medical Board, it is found that the petitioner is not able to earn his livelihood, then, his case for grant of family pension would be considered by the respondent railway-authorities afresh. It is directed that the said exercise shall be completed within a period of three months from the date of receipt of certified copy of this order. 19. With these observations, this writ petition is disposed of.