Jayasree M.R. v. Union of India and Others

O.P.(CAT) No.218 of 2020 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** **OP (CAT).No.218 OF 2020** **AGAINST ORDER DT.29.11.2018 IN O.A.No.41/2018 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.** ## **PETITIONER/PETITIONER:** **JAYASREE M.R. AGED 43,W/O. SAJIKUMAR, RESIDING AT SHOBHANALAYAM, PULIYOOR P.O. CHENGANNOOR, ALAPPUZHA DISTRICT.** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENTS/RESPONDENTS:** **1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF RAILWAY, NEW DELHI 110 001. 2 THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PERSONNEL BRANCH, PARK TOWN CHENNAI 600003. 3 THE SENIOR DIVISIONAL PERSONNEL OFFICER, DIVISIONAL OFFICE, PERSONNEL BRANCH, SOUTHERN RAILWAY, THYCAUD, THIRUVANANTHAPURAM 14. 4 THE DIVISIONAL MANAGER, DIVISIONAL MANGERS OFFICE, SOUTHERN RAILWAY, THYCAUD, THIRUVANANTHAPURAM 14. 5 THE PAY AND ACCOUNTS OFFICER, RAILWAY BOARD, NEW DELHI 110 001.** O.P.(CAT) No.218 of 2020 2 - **6 DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, DIVISIONAL OFFICE, CONFIDENTIAL SECTION, THIRUVANANTHAPURAM 14.** - **7 SREEKUMARI.M.R, W/O. OMANAKUTTAN NAIR, PUTHUPARAMBIL HOUSE, THELLIYOOR P.O. VENIKULAM, PATHANAMTHITTA DISTRICT 689 544.** - **8 JAYAKUMARI M.R., W/O. G.K. PRASAD, THUNDUKAATTIL HOUSE, NARANGANAM, ALUNKAL P.O. PATHANAMTHITTA DISTRICT 689 642.** **R1-6 BY SRI.A.DINESH RAO, SC, RAILWAYS** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 22-02-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:** O.P.(CAT) No.218 of 2020 3 ## **ALEXANDER THOMAS & T.R. RAVI, JJ. -----------------------------------------------O.P.(CAT) No.218 of 2020** [ _Arising out of order dated 29.11.2018 in O.A.No.41/2018 of CAT, Ekm.]_ ## **Dated this the 8[th] day of April, 2021** ## **JUDGMENT** ## **T.R. RAVI, J.** The applicant in O.A.No. 41 of 2018 before the Central Administrative Tribunal, Ernakulam Bench (hereinafter referred to as the Tribunal) has filed this original petition challenging the order dated 29.11.2018, whereby the claim of the petitioner for appointment under the dying-in- harness scheme was declined. 2. Heard Sri V. Philip Mathews on behalf of the petitioner and Sri Dinesh Rao.A., Standing Counsel for the respondents 2 to 6. 3. Sri P.V.Sankara Pillai (hereinafter referred to as Mr.Pillai), who was working as a Point Man in Southern Railway went missing from 12.5.1998 onwards. Mr.Pillai had not married. The petitioner claims to be the daughter of Mr.Pillai's sister and further claims that Mr.Pillai was residing with the petitioner and her mother. The petitioner claims to have made enquiries at the Railway Station and got information that Mr.Pillai had not reported for duty for a few months. According to the O.P.(CAT) No.218 of 2020 4 petitioner, her mother had submitted a representation before the Perumpatty Police Station regarding her missing brother. It was further stated that during 2001, some of the officers under the 4[th] respondent had gone over to the house of the petitioner's mother and informed her that the date of superannuation of Mr.Pillai falls on 30.6.2001 and that the name of the petitioner's mother was included as nominee in the service records and the service benefits can be released to the mother, if they produce a Certificate from the concerned Police station to the effect that Mr.Pillai is missing and he is not traceable. 4. The petitioner's mother is stated to have submitted a representation on 2.7.2001 before the Circle Inspector of Police, Mallappally requesting for a certificate that her brother is missing and has not been traced out. A crime was thereafter registered as Crime No. 102 of 2001 by the Perumpatty Police Station as man missing case. The Sub Inspector of Police issued a certificate on 9.8.2001 stating that Mr.Pillai is missing from 12.5.1998 and he is not yet traced out. The petitioner's mother expired on 12.5.2007. The petitioner claims to have been approaching the Railway authorities for disbursal of the service benefits of Mr.Pillai. It is stated that the petitioner and the 7[th] respondent have filed O.S.No.134 of 2000 before the Munsiff Court, Thiruvalla, praying for a declaration that Mr.Pillai is dead (civil death). O.P.(CAT) No.218 of 2020 5 O.S.No.134 of 2010 was decreed by the civil Court on 30.8.2010. The petitioner along with the 7[th] respondent has thereafter filed O.P. (Succession) No.15 of 2010 before the Munsiff Court, Thiruvalla for issuance of a succession certificate regarding the properties of Mr.Pillai and a certificate is stated to have been issued on 11.3.2013, and the same is said to have been produced before the 3[rd] respondent. A certificate from the Thahsildar, Mallappally, stating that the petitioner and respondents 7 and 8 are the legal heirs of Mr.Pillai is also said to have been produced. The petitioner submits that thereafter on 23.4.2013, she submitted a representation before respondents 2 and 4 requesting for an employment in the Southern Railway under the dying-in-harness, as a dependant of deceased Mr.Pillai. She has thereafter filed O.A.No.904 of 2015 before the Tribunal seeking for a direction to the respondents to disburse the settlement benefits of the petitioner's uncle and to grant compassionate appointment to the petitioner. By Ext.P4 order dated 12.8.2016, the said original application was disposed of by the Tribunal, directing the respondents to disburse the settlement amounts to the petitioner and respondents 7 and 8 on submission of proper application. There was a further direction to consider the request of the petitioner for compassionate appointment. The petitioner states that the settlement dues of the petitioner's uncle has already been paid. However, her O.P.(CAT) No.218 of 2020 6 application for compassionate appointment was rejected, stating that the F.I.R regarding the missing of the petitioner's uncle was lodged only on 2.7.2001, after the date of normal superannuation and that, the petitioner was married and was not dependent of late Mr.Pillai. The rejection of the request was challenged by the petitioner by filing O.A.No.41 of 2018 before the Tribunal. The petitioner claims that since she belongs to the Hindu community, she is a legal heir of Mr.Pillai, falling under class II heirs and in the absence of class I heirs, she is entitled to get compassionate appointment. 5. The Tribunal by order dated 29.11.2018, dismissed the original application finding that the reasons stated for rejecting the application cannot be found to be wrong and it is not possible for the Tribunal to arrive at a finding that the case of the petitioner deserves any consideration. In para.14, the Tribunal has held that it is unnatural that a true dependent would have waited for more than three years to approach the Police and get an FIR lodged regarding a missing person. The Tribunal also found that, the fact that she was married is also a major factor that will stand against her claim for compassionate appointment. 6. The counsel for the petitioner reiterated the arguments advanced before the Tribunal and contended that the petitioner is still in O.P.(CAT) No.218 of 2020 7 penury, and as a dependant, she is entitled to get employment under the dying-in-harness scheme. The counsel for the respondents contended that the petitioner cannot be termed to be a dependant of Mr.Pillai who has been declared to have been dead by the civil court. Apart from that, it is submitted that the representation seeking compassionate appointment itself was filed only on 23.04.2013, 15 years after Mr.Pillai went missing and 12 years after his date of normal superannuation. He submits that even if it is to be assumed that Mr.Pillai is dead, such a presumption was possible in law only after seven years after he was found missing. 7. Section 108 of the Evidence Act enables the courts, under certain circumstances, to draw a statutory presumption that the man is not alive unless the contrary is proved. But, Section 108 cannot be called in aid to establish the exact date of death of the person, which has to be proved in the same manner as any other fact is proved. (See **Eliamma Simon v. Seven Seas Transportation Ltd.** AIR 2002 Kerala 219). The Hon'ble Supreme Court has held that the presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not, by applying any logic or reasoning, be permitted to be raised on expiry of six years and 364 days or at any time short of it. (See **LIC of India v. Anuradha** AIR 2004 SC 2070). O.P.(CAT) No.218 of 2020 8 8. In the light of the settled legal position, Mr.Pillai could have been presumed to be dead only after seven years from 12.05.1998. Mr.Pillai could not have been presumed to be dead on the date of his normal superannuation on 30.06.2001. The fact being so, a request for appointment under the dying-in-harness scheme can never be entertained prior to the date of Mr.Pillai's superannuation, since he has to be presumed to be alive on that day. For that reason also, the request submitted by the petitioner after 15 years of Mr.Pillai's disappearance cannot be entertained. 9. The very purpose of compassionate appointment is to enable the family to get over the financial crisis which it faces at the time of death of the bread-winner. There is nothing to show that Sri Pillai was the bread-winner of the petitioner's family. Normally, it is only the immediate family, like the spouse and children, who are entitled to lay a claim for compassionate appointment. The scheme of the respondents, it is submitted by the Standing Counsel, actually considers claims from near relatives also in certain circumstances. The counsel for the respondents has placed before us the Rules which govern compassionate appointment. The relevant portion is extracted below; _“_ _**Persons eligible to be appointed on compassionate grounds** :_ _Son/daughter/widow/widower of the employees are eligible to be appointed on compassionate grounds in the circumstances in which such appointments are permissible. Where the widow cannot_ O.P.(CAT) No.218 of 2020 9 _take up employment and the sons/daughters arc minor, the case may be kept pending till the first son/daughter becomes a major i.e. attains the age of 18 years, subject to time limits as provided under Para (V) of the Circular. The benefit of compassionate appointments may also be extended to a “near relative/adopted son/daughter”. The eligibility of a near relative/adopted son/daughter to such appointments will be subject to the following conditions:_ _**(a) Near relative:**_ _(i) Such appointment is not permissible where the railway employee who has died in harness has left behind only the widow, with no son/daughter to be supported by her. (ii) The son or daughter of the employee or ex-employee is a minor one and the widow cannot take up employment. (iii) A clear certificate should be forthcoming from the widow that the “near relative” will act as the bread-winner of the family. (iv) If the family certifies at a later date that the “near relative”, who was appointed on compassionate grounds, refuses to support the family, the services of that employee are liable to be terminated (v) Once a “near relative” is appointed on compassionate grounds, no further appointment shall be given later to a son, or daughter or the widow of the employee, on compassionate grounds. (vi) The appointment of the “near relative” shall not be considered, if a son or daughter, or the widow herself is already working and is earning. A blood relation who is considered to be a bread-winner of the family can be considered as “near relative” for the purpose of appointment on compassionate grounds."_ 10. It can be seen from the above provision that appointment on compassionate grounds is usually available to son/daughter/widow/ widower of the employees. The only circumstance that a near relative or an adopted son or daughter can be extended the benefit is when the widow certifies that the near relative will act as the bread-winner of the family. The intention behind the above proviso is to ensure that the dependents, who are not able to accept the appointment for some reason or other, should not be led to depravity and penury and if there is a near O.P.(CAT) No.218 of 2020 10 relative, who undertakes to look after the dependent, such relative can be considered for appointment. The case of the petitioner does not fall into the above category, since she is claiming as a dependent herself. In our opinion, the petitioner cannot be considered for appointment under the scheme, either as a dependent or as a near relative. 11. In the above circumstances, we do not find any reason to interfere with the order dated 29.11.2018 of the Central Administrative Tribunal, Ernakulam Bench in O.A.No. 41 of 2018. The original petition fails and the same is dismissed. In the circumstances of the case, there will be no order as to costs. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn O.P.(CAT) No.218 of 2020 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 COPY OF AFFIDAVIT DT. 6.1.2010 GIVEN BY 7TH RESPONDENT.** - **EXHIBIT P2 COPY OF AFFIDAVIT DT. 19.12.2009 GIVEN BY 8TH RESPONDENT.** - **EXHIBIT P3 COPY OF CERTIFICATE DT. 26.10.2009 GIVEN BY SECRETARY OF NSS KARAYOGAM, EZHUMATTOOR SOUTH.** - **EXHIBIT P4 COPY OF ORDER DATED 12.8.2016 PASSED BY THE TRIBUNAL IN OA/180/00904/2015.** - **EXHIBIT P5 COPY OF ORDER NO. V/Z735/PVS/2016 DATED 13.12.2016 PASSED BY THE 6TH RESPONDENT.** - **EXHIBIT P6 COPY OF O.A. NO. 41/18 ON THE FILE OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** - **ANNEXURE A1 IN COPY OF ORDER NO. V/Z735/PVS/2019 DATED EXHIBIT P6 13.12.2016 PASSED BY THE 6TH RESPONDENT.** - **ANNEXURE A2 IN COPY OF REPRESENTATION DATED 2.7.2001 EXHIBIT P6 SUBMITTED BY PETITIONER'S MOTHER BEFORE THE CIRCLE INSPECTOR OF POLICE, MALLAPPALLY.** **ANNEXURE A2A IN ENGLISH TRANSLATION OF ANNEXURE A2. EXHIBIT P6** - **ANNEXURE A3 A IN EXHIBIT P6** - **COPY OF F.I.R. NO. 02/01 REGISTERED BY PERUMPETTY POLICE STATION MALLAPPALLY.** **ANNEXURE A3 (A) IN ENGLISH TRANSLATION OF ANNEXURE A3. EXHIBI P6** **ANNEXURE A4 IN COPY OF CERTIFICATE DAD 9.8.2001 ISSUED BY EXHIBIT P6 THE SUB INSPECTOR OF POLICE, PERUMPETTY.** **ANNEXURE A5 IN EXHIBIT P6** **COPY OF UN REPROT FILED BY THE SUB INSPECTOR OF POLICE,PERUMPETTY.** **ANNEXURE A5 (A) IN EXHIBIT P6** **ENGLISH TRANSLATION OF ANNEXURE A5.** O.P.(CAT) No.218 of 2020 12 **ANNEXURE A6 IN COPY OF COMMUNICATION NO. V/P.626/MISC. EXHIBIT P6 DATED 8.4.2009 ISSUED BY THE 2ND RESPONDENT.** **ANNEXURE A7 IN COPY OF COVERING LETTER SUBMITTED BY EXHIBIT P6 PETITIONER BEFORE THE 2ND RESPONDENT. ANNEXURE A8 IN COPY OF REPRESENTATION DATED 29.3.2009 EXHIBIT P6 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** **ANNEXURE A9 IN COPY OF JUDGMENT DATED 30.8.2010 PASSED BY EXHIBIT P6 THE MUNSIFF COURT, THIRUVALLA IN O.S. NO. 134/2010.** **ANNEXURE A10 IN COPY OF COMMUNICATION DATED 5.2.2010 EXHIBIT P6 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A11 IN COPY OF COMMUNICATION DATED 8.3.2010 EXHIBIT P6 ISSUED BY THE 3RD RESPONDENT. ANNEXURE A12 IN COPY OF SUCCESSION CERTIFICATE DATED EXHIBIT P6 11.3.2013 ISSUED BY THE MUNSIFF COURT, THIRUVALLA.** **ANNEXURE A13 IN COPY OF CERTIFICATE DATED 18.3.2011 ISSUED EXHIBIT P6 BY THE TAHSILDAR MALLAPPALLY. ANNEXURE A13A IN ENGLISH TRANSLATION OF ANNEXURE A13. EXHIBIT P6 ANNEXURE A14 IN COPY OF REPRESENTATION DATED 23.4.2013 EXHIBIT P6 SUBMITTED BY THE PETITIONER. ANNEXURE A15 IN COPY OF ORDER DATED 12.8.2016 PASSED BY EXHIBIT P6 THE TRIBUNAL IN OA/180/00904/2015. ANNEXURE A16 IN COPY OF POSTAL COVER IN WHICH THE EXHIBIT P6 PETITIONER RECEIVED ANNEXURE A1 ORDER. EXHIBIT P7 COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS 1 TO 6 IN THE O.A. (EXHIBIT P6) EXHIBIT P8 COPY OF ORDER DATED 29.11.2018 IN O.A. NO. 41/2018 ON THE FILE OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.**