Union of India and others v M. Kamalam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 WP(C).No. 16086 of 2008(S) -------------------------OA.833/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: ------------ 1. UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3 2. THE SENIOR DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY,PALGHAT DIVISION, PALGHAT. 3. THE DIVISIONAL RAILWAY MANAGER SOUTHERN RAILWAY,PALGHAT DIVISION, PALGHAT. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENTS: ------------- M.KAMALAM, W/O. LATE K. MURUGESAN EX-SWEEPER-CUM-PORTER, SOUTHERN RAILWAY, PASUR, PALGHAT DIVISION, RESIDING AT GOUNDAMPALAYAM VILLAGEM THOKKAVADI P.O., THIRUCHENGODE TALUK, NAMAKKAL DISTRICT TAMIL NADU. BY ADV. SRI. T. C. GOVINDASWAMY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ** ============================== ## **W.P.(C)NO. 16086 OF 2008** ============================ ## **DATED THIS THE 23[rd] day of June 2008** ## **JUDGMENT** ## **Balakrishnan Nair,J.** The petitioners are the respondents in O.A.No.833/2006 on the file of the Central Administrative Tribunal, Ernakulam Bench. The applicant in the O.A. was the respondent herein. She is the widow of late K.Murugesan, who was a Sweeper-cum-Porter in Railways. Since he became medically unfit, he was terminated from service on 28-9-1998 by Annexure-A1 order produced along with Ext.P1 original application. He filed representations on 15-12-1998 and 10-4-1999 claiming disability pension. Before those representations were considered or decided, he passed away on 23-9-2004. Later his widow, the respondent herein filed a representation on 25-3-2005, a copy of which is produced as Annexure-A7 along with Ext.P1 O.A. She claimed family pension and also gratuity. When the said representation was pending, WPC.16086/2008 -2- she approached the Central Administrative Tribunal by filing O.A. No.833/2006. The application was resisted by the Railways taking all possible grounds, such as the delay in moving the Central Administrative Tribunal and the alleged non-receipt of Annexure-A7. But the C.A.T. overruled the contentions of the Railways and allowed the O.A.by Ext.P3 order dated 14-2-2008. Hence, this writ petition challenging Ext.P3. 2. It is common case that the scheme for extending the benefit of Section 47 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 (hereinafter referred to as ‘the Act’) to the railway employees was introduced on 29-4-1999. It is also common case that the same has been given retrospective effect from 7-2-1996, the date on which the Act came into force. The main dispute canvassed before us is that the applicant’s husband was a totally disabled person, who was terminated from service on 289-1998 itself and for the benefit of such persons, the scheme introduced on 29-4-1999 (Annexure-A5) as amended by the communication dated 31-5-2005, contains no provision. WPC.16086/2008 -3- According to the Railways, the employees, who were sent out between 7-2-1996 and 23-4-1999 can seek review of their case, provided they are not totally disabled. Since the applicant’s husband is a totally disabled person, he could not move for review after his termination, even if he was alive. 3. But the Tribunal relying on the decision of the Apex Court in Kunal Singh v. Union of India (2003 SCC (L&S)482 and also an order of the Ernakulam Bench in O.A.No.48/2001 upheld the claim of the applicant and the following directions were issued: - “For the reasons stated above, the O.A. is allowed to the extent as follows: - (a) the termination order of the applicant’s husband dated 15-10-1998 is quashed and set aside as illegal. - (b) Applicant’s husband will be deemed to have continued in service in the same pay scale upto the date of his death on 23-9-2004. However, as he has not actually discharged any duties, he shall not be entitled for any back wages. - (c) The applicant’s husband should be deemed to have died while in service and consequently the applicant should be given family pension and all other retiral benefits that are admissible in such cases. No costs.” WPC.16086/2008 -4- 4. The petitioners attack the above order of the C.A.T.on various grounds. The learned Standing counsel for the Railways brought to our notice the following paragraph contained in the letter dated 31-5-2005 concerning the retrospectivity of Annexure-A5 scheme. The said paragraph reads as follows: “The scheme so revised is being implemented in the Railways from the date of issue of the relevant instructions, viz. 29-4-1999. Representations have been received to the effect that since the Act came into force with effect from the date on which it was notified in the Government of India Gazette viz.7-21996, the benefit of revised scheme should be made available from 7-2-1996. The matter has been considered carefully by this Ministry. It has now been decided that the scheme contained in this Ministry’s - - letter of 29 4 1999 as modified may be made effective - - from 7 2 1996. Accordingly, in respect of cases in which the disabled/medically decategorised WPC.16086/2008 -5- employees on or after 7-2-1996 and upto 28-4-1999 were absorbed in alternative employment in accordance with the earlier scheme in grade(s)lower than the grade(s) held by them on regular basis at the time of disablement/medical decategorisation may be reviewed on representations received in this regard and decided at the level of the General Manager as per the revised scheme. In other type of cases wherein disabled/medically decategorised employees had opted to retire asking for appointment of eligible ward on compassionate ground, the question of review does not arise.” (emphasis added). 5. The learned counsel made special reference to the last sentence in the above quoted paragraph wherein it is clarified that disabled/medically decategorised employees who had opted to retire asking for appointment of eligible ward on compassionate ground, the question of review is not permissible. Relying on Annexures A3 and A4, the learned standing counsel submitted that the applicant’s husband will be covered by the WPC.16086/2008 -6- above provision. He opted for family pension and retirement benefits and also claimed employment for his son which was already granted. But we notice that by Annexure-A1 the applicant was terminated from service with effect from the afternoon of 28-9-1998. Annexures A3 and A4 are representations filed subsequently. So it cannot be canvassed that Annexure-A1 order was passed based on the request contained in Annexures A3 and A4. Further, we are of the view that going by the second proviso to Section 47(1) of the Act, the Railways were bound to retain the applicant’s husband in service till his death. The abovesaid provision reads as follows: “47. Non-discrimination in Government employment.- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service; Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a WPC.16086/2008 -7- supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” If the Railways acted in accordance with the second proviso, the applicant’s husband would have continued in service and by the time he died on 23-9-2004, he would have acquired the qualifying service making the applicant eligible for family pension. But the learned counsel for the Railways submitted that the second proviso will not apply to the persons, who are totally disabled and are terminated from service. But we do not find any other provision in the Act dealing with such persons. So it cannot be presumed that the Parliament intended not to grant any benefit for persons who were thrown out of employment due WPC.16086/2008 -8- to total disability and the Act was made only for persons who lost employment owing to partial disability. Such an interpretation will run counter to the aims and objects of the Act. We have no doubt in our mind that in view of the second proviso to Section 47(1) of the Act, the applicant’s husband was liable to be retained in service till he died in harness. If that be so, we find nothing wrong in the order of the Central Administrative Tribunal. The writ petition is, therefore, dismissed. ## **K. BALAKRISHNAN NAIR, JUDGE** **M.C. HARI RANI JUDGE** **ks.** WPC.16086/2008 -9- The petitioners are the resopibndents in O.a.No.833/2006 on the file of the Cental Administrative Tribunal, Ernakulam Bench. The applicant was the respondent herein. She is the widow of late K.Murugesan who was a sweeper=-cum-Porter in Railway. Since he became medically unfit, he was terminated from service on 23-9-1998 by Annexure-A1 order. Though he filed representations on 15-12-1998 and 10-4-1999 for disability pension, before those representations were considered or decided, he passed away on 23-9-2004. Later his widow, the respondent herein filed a epresenttion on 23-5-2005, a copy of which is produced as annexure-A7 along with Ext.P1 O.a. She claimed fmaily pension and also gratuity. When the said representation was pending, she approached the Central Administrative Tribunal by filing O.A. 833/2006. the application was resisted by the Railways taking all possible grounds from delay in moving the Central Administrative Tribunal, the nonreceipt of Annexure-A7 but the Central Administrative Tribunal over-ruled the contentions of the railways and allowed the O.a. By xt.P3 order dated 14-2-2008. Hence, this writ petition WPC.16086/2008 -10- challenging Ext.P2. It is common case that the scheme for extending the benefit of Section 47 of the Persons with Disabilities(Equal opportunities, protection of rights and full participation)Act,1995 (hereinafter referred to as the Act) as extended to the railway employees was introduced on 29-4- 1999. It is also common case tht the same has been given retrospective effect with effect from 17-6-.., the date on which the Act came into force. The dispute mainly canvassed before us is that the applicant's husband was a totally disabled person and was terminated from service on 29-5-1998 itself. For the benefit of such persons, the scheme introduced on 29-4-1999(Annexure5) as amended by communication dated 31-5-2000, no provision is available. According to the railways, the employees who are sending out between 17-6-1997 and 24-4-.. can review to move their case provided they are totally disabled since the applicant is a totally disabled persons he could not not have moved for review of his terminatkion, even if he was alive. But the Tribunal relying on the decions of the appex Court in ...2003 SCC Labour & Service 48 and also an order on the WPC.16086/2008 -11- Ernakulam Bench of the Tribunal in O.a.48/2001 upheld the claim of the plicant and the following directions were issued: The learned standing counsel for the railways made special reference to the following paragraph contained the letter dated 31-5-2005 concerning the retrospectivity of A5 scheme o the said paragraph which reads as follows: The learned counsel made special reference to the last sentence in the above quoted paragraph wherein it si clarified tht disabled mediclly decategorised employees who had opted for retire asking for retirement eligible on compassionate grounds, review is not permissible.