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2021 DIGILAW 2176 (RAJ)

Union of India v. Hemlata Sharma

2021-11-18

MANINDRA MOHAN SHRIVASTAVA, VINOD KUMAR BHARWANI

body2021
JUDGMENT 1. This writ petition under Article 227 of the Constitution of India is directed against the order dated 14.08.2019 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur (herein after referred to as 'the Tribunal') by which the original application filed by the respondent No.1 has been allowed. 2. The facts necessary for adjudication of the controversy involved in the present petition are that father of Smt. Hemlata Sharma, namely; Shri Bhanwar Lal Sharma, who was a retired railway employee and while being a pensioner died on 04.04.1992. His widow (mother of the applicant Hemlata Sharma) started getting family pension. On 08.05.2007, employee's widow also died. Original applicant Smt. Hemlata Sharma, who was admittedly leading a married life at the time of death of her father and mother both, had strained marital relationship with her husband and it was her case that by an agreement, she and her husband agreed to divorce. She applied for grant of family pension on 07.09.2007, but it was not granted. 3. Original applicant, thereafter, obtained a decree of divorce from a court of competent jurisdiction on 04.05.2009 and again approached the authorities claiming pension. This time, the claim was accepted and an order was passed on 19.04.2010 granting her family pension. After about four years, a circular/clarification came to be issued on 18.09.2014 according to which, a widowed/divorced daughter, who was leading a married life at the time of death of her father/mother, whoever died later, was ineligible for family pension. Further direction issued was that in order to maintain equality before law, family pension payable to such daughters be discontinued, but no recovery shall be made of the amount which has already been paid to them earlier. This led to passing of the impugned order against the original applicant on 18.10.2014, giving rise to original application before the Tribunal. The main contention of the original applicant raised before the Tribunal, which found favour also, was that the benefit of family pension was granted to the original applicant on the basis of the then existing rules and instructions, which did permit the grant of family pension even to a widowed/divorced daughter, who was leading a married life at the time of death of her father/mother, whoever died later. Such a policy being in vogue and existence, those who were granted family pension were entitled to continue and the same could not be withdrawn as the policy decision would always be prospective in nature and could not apply retrospectively. 4. According to the petitioners/non-applicants in the original application, no such policy ever existed, but under misconstruction & misinterpretation of earlier clarifications issued from time to time, which related to other aspects of eligibility, family pension was granted to the original applicant. This was because the earlier policy had not made it clear and vide office memorandum dated 18.09.2014, only a clarification was given and it is not a case that earlier such benefit was admissible under the rules or the circular and later on, it was sought to be withdrawn. 5. The learned Tribunal, however, took the view that under the rules and subsequent circulars issued from time to time until 18.09.2014, such benefit was admissible to divorced/widowed daughters, who were leading married life at the time of death of their father/mother, whoever died later. The Tribunal was also of the view that principles of natural justice were also not followed. The order was, therefore, set aside. The employer is, therefore, before us in this petition. 6. Learned counsel for the petitioner, referring to the provisions of the Railway Services (Pension) Rules, 1993 (hereinafter referred to as 'the Rules of 1993'), as amended from time to time as also all the circulars, which have been referred to in impugned OM dated 18.09.2014 and other circulars, would submit that neither the rules nor earlier instructions issued ever made admissible benefit of family pension to a daughter, who was leading a married life at the time of death of her father/mother, whoever died later. The language deployed in earlier circulars were being misinterpreted in various quarters and the benefit was being granted even to those daughters, who at the time of death of their father or mother were leading married life, but at subsequent point of time, either became widow or divorced. The language deployed in earlier circulars were being misinterpreted in various quarters and the benefit was being granted even to those daughters, who at the time of death of their father or mother were leading married life, but at subsequent point of time, either became widow or divorced. He would submit that the scheme of family pension is founded on the principle/policy as an attribute of public employment, where state is the employer that upon death of an employee/pensioner, those who are actually dependent on him would be given family pension and it cannot be extended to any category or to any person, who at a later point of time acquire the status, which it was not enjoying at the time of death. 7. Learned counsel appearing for respondent would submit that the office memorandum dated 18.09.2014, issued in the garb of clarification, essentially seeks to discontinue the earlier scheme which was promulgated under various circulars and implemented also in large number of cases including the case of the original applicant. He would submit that it is not the language but the substance of the order which is required to be examined and that was done by the Tribunal when the Tribunal found that it was not a clarification, but discontinuance of an already existing clear policy of granting family pension to the widowed/divorced daughter irrespective of whether or not she was leading married life on the date of death of her father/mother, whoever died later. For this purpose, he heavily relied upon the office memorandum dated 25.08.2004 as also 20.08.2008, which have been annexed as Annexure-A/6 and Annexure-A/10 respectively (attached with the original application). Not only this, he would also refer to the pleadings to say that even from the pleadings of the respondent, it is clear that office memorandum dated 18.09.2014 sought to supersede earlier circulars, which allowed family pension in those cases where the daughter was leading married life on the date of death, but later on suffered widowhood or divorced. 8. Not only this, he would also refer to the pleadings to say that even from the pleadings of the respondent, it is clear that office memorandum dated 18.09.2014 sought to supersede earlier circulars, which allowed family pension in those cases where the daughter was leading married life on the date of death, but later on suffered widowhood or divorced. 8. He would also submit that in addition to the aforesaid consideration, the Tribunal has also found the impugned order bad in law because the order was in violation of principles of natural justice and it being an admitted position that before withdrawing the benefit, no notice of opportunity of hearing was afforded, view from any angle, the impugned order withdrawing the benefit was rightly held to be unsustainable in law. 9. We have heard learned counsel for the parties and given anxious consideration to various submissions, which have been made before us and perused the record, relevant rules and various circulars/office memoranda, which have been placed on record as also what has been referred to by the learned Tribunal. 10. Indisputedly, the father of the original applicant died on 04.04.1992 when he was drawing pension after his retirement. Family pension scheme was made applicable in case of railway servants, initially under a scheme, known as Family Pension Scheme For Railway Servants, 1964. This held the field until rules were framed known as Railway Services (Pension) Rules, 1993 framed by the President of India in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. 11. Under Rule 75 of the Rules of 1993, the Family Pension Scheme For Railway Servants, 1964 was verbatim incorporated. Clause (c) of Sub-Rule (2) of Rule 75 of the Rules of 1993 provided that where a railway servant dies after retirement from service and was, on the date of death, in receipt of pension or compassionate allowance, referred to in other parts of the rules, the family of the deceased shall be entitled to family pension. 12. Word 'family' was not defined in the rules of 1993, but Rule 4 thereof provided that words and expressions used therein and not defined but defined in the Code shall have meaning respectively assigned to them in the Code (Court by virtue of definition in Sub- clause (iv) Clause (3) of the Indian Railway Establishment Code as amended from time to time). 13. In the entire records or any where in the pleadings of the parties, it is not known as to whether, a widowed/divorced daughter was included as part of the family, for the purposes of family pension. However, provisions contained in Rule 75, Sub- Rule (6) indicated that a widow or widower, as the case may be, a son until he attains the age of 25 years and an unmarried daughter until she attains the age of 25 years or until she gets married, whichever is earlier, were entitled to family pension. This position, however, continued until an amendment was carried out in the Rules of 1993 and family in relation to railways servants was defined to include a widowed/divorced daughter, amongst others. This amendment was carried out in the year 1997 as would be clear from perusal of circular dated 25/30/08/2004 Annexure-A/6 (attached with the original application). 14. Therefore, on the date when the retired railway servant/father of the original applicant died, the definition of family did not include a widowed or divorced daughter. In the present case, the original applicant was a married daughter on the date when her father died on 04.04.1992. 15. Undusputedly, on 08.05.2007, original applicant's mother died. It was she who was getting family pension as widow/deceased retired railway's employee. As far as circular dated 25/30/08/2004 Annexure-A/6 (attached with the original application) is concerned, a plain reading of the same would reflect that this was a circular intended to clarify that a widowed/divorced daughter shall be eligible for grant of family pension even after attaining 25 years of age subject to other conditions prescribed. It also clarified that such daughter would not be required to come back to her parental house as stipulated in earlier circular dated 25.07.2001. This circular no way states so as to include Class of those widowed/divorced daughters, who were not living as such being dependent on their father, the retired servant on the date of his death. The circular did seek to include any such class. 16. Another circular dated 16.03.2005 has been placed on record as Annexure-A/7 (attached with the original application), which also seeks to clarify some of the aspects relating to eligibility of divorced/widowed daughter. The circular did seek to include any such class. 16. Another circular dated 16.03.2005 has been placed on record as Annexure-A/7 (attached with the original application), which also seeks to clarify some of the aspects relating to eligibility of divorced/widowed daughter. Under this circular the clarification issued was to the effect that a divorced/widowed daughter shall be eligible for sanction of family pension provided the divorce with or death of her husband took place before her attaining age of 25 years. Again this circular did not seek to include class of those widowed/divorced daughters, who were not suffering that status on the date of death of their father, who died as a pensioner. 17. Much emphasis has been laid on circular dated 20.08.2008 Annexure-A/10 (attached with the original application) to convince the court that this clearly introduced a policy that even in a case, daughter was leading married life on the date of death of her father or widowed mother getting pension, after cessation of such family pension, even after a gap, if the daughter suffers widowhood or is divorced, she would become entitled to family pension. Upon close scrutiny of what has been stated in circular dated 20.08.2008, particularly what has been stated under clause (ii), we find ourselves unable to accept the submission of learned counsel for respondent/original applicant. The relevant clause being pivotal to the decision of the present case is extended herein below:- S.No. Issue Raised Clarification 1. ???..x???..x???..x??...x?. ???x??.x??..x??.x?.. 2. Whether the divorced/widowed daughter is eligible for pension even after the cessation of pension/family pension to the employee/widow/ dependents (when all the members of the family cease to draw family pension and there is a gap of one or more years. Yes; Divorced/widowed daughter will be eligible for family pension after the cessation of pension/family pension to the employee/widow. The orders shall, however, apply prospectively as and when such a contingency happens. 18. The clarification sought was whether the widowed/divorced daughter is eligible for family pension even after the cessation of pension/family pension to the employee/widow/dependents (when all the members of the family cease to draw family pension and there is a gap of one or more years). The answer to this was that divorced/widowed daughters will be eligible for family pension after the cessation of pension/family pension to the employee/widow. The answer to this was that divorced/widowed daughters will be eligible for family pension after the cessation of pension/family pension to the employee/widow. The clarification was that the order shall, however, apply prospectively as and when such a contingency happens. 19. On rational, logical and fair interpretation of this clause, all that it seeks to clarify is that even when the employee or his widow or other dependents, who were getting family pension stopped getting for any reason, and there is gap of one or more years, a widowed/divorced daughter would be entitled to family pension. But this clause has to be read in the light of the existing provisions contained in the rules and various circulars issued from time to time and not de hors the same. Where the rule does not include a daughter, who was leading a married life on the date of death of the employee or other dependent, but suffers widowhood or divorced subsequently, was never included in the category of family for the purposes of family pension. 20. We are at a complete loss as to how such category could be included for the purposes of family pension by way of clarification under circular dated 20.08.2008. This appears to be only to give benefit to those divorced/widowed daughters, who were under sufferance as such on the date of death of the employee, widow or dependent, but could not apply and there was some gap. 21. The rule which has been framed is the basis for claim of family pension. The circulars or clarifications which are issued from time to time can only supplement the rules & cannot supplant. This being a settled legal position adumbrated in plethora of decisions and we need not burden our decision with those decisions, which have been rendered from time to time by the Hon'ble Appex Court and various High Courts. 22. By administrative circulars, a new class or category which otherwise was not included for the purposes of grant of family pension, could not be included as that would amount to supplanting the rules. The purpose & object of issuing administrative circular is to make more workable the existing rules and not to create a new class or category of beneficiaries, not contemplated under the rules framed by the rule making authority. 23. The purpose & object of issuing administrative circular is to make more workable the existing rules and not to create a new class or category of beneficiaries, not contemplated under the rules framed by the rule making authority. 23. None of the provisions contained in Rule 75 of the Rules of 1993 indicate that the rule ever sought to include a divorced/widowed daughter, who was otherwise leading a married life on the date of death of her father, the retired employee or even on the date of death of her widowed mother, who was getting family pension. 24. If that be so, none of the circulars, which have been issued by the authorities after the promulgation of the rules could ever include such a category. It appears, however, that various circulars which were issued from time to time, were being misconstrued and misinterpreted by authorities in different quarters and even those daughters, who became widow or divorced long after the death of their father or mother started claiming family pension and were being granted, as is the case of the respondent-original applicant. 25. The circular dated 18.09.2014 only sought to clarify the position with reference to the rules and remove the cloud which was created because of the language, which was deployed in various rules, though, it was never meant, nor could ever confer any such right on widowed or divorced daughter of the category, who were, though leading married life at the time of death of the employee/widow, but became widow/divorced long thereafter. 26. That could have never been the intention of the rule making authority. The purpose of grant of family pension is to provide financial benefits to those, who on the death of the employee were actually dependent on him. To relate back a notional dependency by fiction to a daughter, who was divorced long after death of her father and mother, would amount to include, for the purposes of family pension, the relatives who were actually not dependent on the deceased employee/widow on the date of their death. 27. We find that one of the grounds on which the learned Tribunal has set aside the impugned order is that the original applicant was not afforded any opportunity of hearing. 28. 27. We find that one of the grounds on which the learned Tribunal has set aside the impugned order is that the original applicant was not afforded any opportunity of hearing. 28. The normal rule is that before an adverse order is passed against a person which entail civil consequences, affected person is required to be afforded an opportunity of hearing in consonance with principles of Audi alteram partem. However, as the law has developed, this rule is also not without any exception. One of the exception to this general rule is that where it is a case of empty formality or in other words, a forgone conclusion, the action of the authority would not be interfered with only on the ground of violation of principles of natural justice. This aspect was examined by the Supreme Court in the case of Aligarh Muslim University and Others Versus Mansoor Ali Khan, (2000) Vol.7 Supreme Court Cases 529. Their Lordships in the Supreme Court carved out exception to the general rule and held as below:- 22. In M. C. Mehta it was pointed out that at one time, it was held in Ridge vs. Baldwin that breach of principles of natural justice was in itself treated as prejudice and that no other 'defacto' prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor Vs. Jagmohan Chinnappa Reddy, J. followed Ridge vs. Baldwin and set aside the order of supercession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer. 23. Chinnappa Reddy, J. in S. L. Kapoor's case, laid two exceptions (at SCC p.395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception. 24. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception. 24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K. L. Tripathi Vs. State Bank of India Sabyasachi Mukherji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., PP. 472-75), as follows: (SCC. p.58, para 31) "[I]t is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent. ...There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth". Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala Vs. S.K. Sharma. In that case, the principle of 'prejudice' has been further elaborated. The same principle has been reiterated again in Rajendra Singh Vs. State of M.P.. 25. The 'useless formality' theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M. C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, De Smith, Wade, D.H. Clark etc. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, De Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via-media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case. 26. It will be sufficient, for the purpose of the case of Mr. Mansoor Ali Khan to show that his case will fall within the exceptions stated by Chinnappa Reddy, J. in S. L. Kapoor Vs. Jagmohan, namely, that on the admitted or indisputable facts, only one view is possible. In that event no prejudice can be said to have been caused to Mr. Mansoor Ali Khan though notice has not been issued.' 29. The aforesaid legal position has been affirmed and re- affirmed subsequently also. In our considered opinion, preset is a case of forgone conclusion. We have not gone into the factual details with regard to any date of marriage or date on which death took place or the date on which decree of divorce was passed. On admitted facts, the provisions contained in the rules have been taken into consideration which leads to no other conclusion than what has been drawn by us. Therefore, in our opinion, present is the case of forgone conclusion and, thus, a case of exception. 30. In the result, we are of the opinion that the learned Tribunal committed illegality in deciding the case without taking into consideration the provisions contained in the rules and the spirit thereof, as far as grant of family pension under the relevant rules is concerned. The order, therefore, cannot be sustained in law & has to be set aside and is accordingly set aside. Petition is accordingly allowed. Original application filed by the applicant- respondent is also dismissed. 31. The order, therefore, cannot be sustained in law & has to be set aside and is accordingly set aside. Petition is accordingly allowed. Original application filed by the applicant- respondent is also dismissed. 31. Before parting with the case, we must hasten to add that even under circular dated 18.09.2014, whatever has already been paid, shall not be recovered from the respondent.