1. This is an application filed by the widow of the deceased Railway Goods Driver seeking directions to respondents to consider sanction of compassionate allowance to her from the date of removal of her husband from service.
The applicant's husband, late Syed Ghouse served the Railways as Goods Driver for a period of more than 32 years. On 27.8.1978 while he was driving the Goods Train there was a derailment of 16 goods wagons on arrival to KRA Railway Station. Disciplinary inquiry was initiated against the husband of the applicant, and a criminal case was also registered by Railway Police and filed charge sheet before XII Metropolitan Magistrate for Railways, Secunderabad as CC 155/1981. Disciplinary proceedings were concluded and the applicant's husband was found guilty of the charge framed against him and was dismissed from service on 22.2.80. Thereafter, the applicant's husband was acquitted on 28.6.84 by the Criminal Court holding that there was no evidence to prove the alleged negligent driving on the part of the applicant's husband. Subsequently, on 4.9.85, the applicant's husband submitted representation (Annexure A-4) to the Divisional Railway Manager, South Central Railway (R-2) stating that though he handed over copy of the judgment in C.C. 155/1981 and requested for reinstatement, he has not been reinstated even after a lapse of one year and three months and instead he was asked to vacate Railway Quarters and as such reinstatement orders may please be issued as early as possible and save him and his family from starvation. According to the applicant, the said representation was not disposed of and the applicant's husband was waiting for reinstatement and while so on 1.6.1987, the applicant's husband died of heart attack. Thereafter, on 9.4.88, the applicant submitted a mercy appeal to the General Manager, South Central Railway (R-1) stating that though her husband was exonerated by the Criminal Court, and though a copy of the judgement was submitted by her husband with his mercy appeal dated 3.12.84, to review the dismissal orders, no orders have been passed and in such a pathetic condition her husband died on 1.6.87 due to heart attack leaving her and her five children and that though separate appeals were sent by her to DRM in October 1987 and March 1988 for settlement of PF, CCS & DCRG, no settlement has been made and that herself and her children are starving and that their life has become miserable and that she may be granted permission to seek interview in person to express her humble grievances. She renewed her request on 1.6.88 to R-1 (Annexure A-7). As there was no response, the applicant submitted a representation (Annexure A-8) to the President, S.C. Rly. Women Organisation. Thereafter, on 16.8.94, R-2 wrote a letter to the applicant enclosing G.P. 46 forms for filling up for release of provident fund. (Annexure A-9).
3. On 1.10.96, the applicant submitted a representation (Annexure A-11) to R-2 seeking payment of terminal benefits stating that for the past one decade, she has been struggling and making request for payment of terminal benefits of her late husband who died in utter penury and disappointment as he was not taken back to duty even after Court Order dated 27.6.84 wherein he was acquitted and that her husband knocked at every door but unfortunately all the appeals of her husband went unheard and finally her husband passed away in miserable condition on 1.6.87 and that after her husband's death, she applied for terminal benefits and it was also kept pending asking some reply or the other and that she is having five children and she is struggling all these years hoping that at least terminal benefits would be paid but unfortunately till date terminal benefits have not been paid even after 9 years after the death of her husband.
4. On 15.12.97, the applicant submitted a representation to Pension Adalat (Annexure A-12) seeking grant of family pension and other benefits on par with other Railway employees and also for compassionate appointment to her son. As there was no response from the respondents, the applicant submitted a representation to Hon'ble President of India, on 28.2.2000 (Annexure A-13) stating that her family is in utter penury and they are actually starving most of the time and not able to even help her five grown-up children who are also not employed and requesting the President to have compassion and sanction any of the pensions to enable her to live a decent life.
5. As there was no response, on 1.10.2004, the applicant submitted another representation (Annexure A-14) to the General Manager, South Central Railway (R-1) pleading that though the Criminal Court held that the accident was not due to negligent act on the part of the driver, her husband was not reinstated and not even paid terminal benefits though he served for 30 years in the Railways and that she is a mother of 5 children, out of which 2 are daughters and all of them are unemployed and the family is facing financial hardships and that she may be sanctioned at least compassionate allowance in terms of Rule 65 of Railway Service (Pension) Rules 1993 and considering the letter of CPO/SC Lr. No. P ( R) 500/XVI dated 1.12.95 (Annexure A-17). As there was no response, she approached this Tribunal by filing OA 621/2005.
When the matter came up before this Tribunal on 11.10.2005, none was present on behalf of the respondents and no reply had been filed despite time given on the three previous occasions, i.e. on 28.7.2005, 25.8.2005 and 19.9.2005 and though an ultimatum was given on 19.9.2005, reply was not filed. Under those circumstances, this Tribunal observed that it is regrettable to see that neither the learned Counsel for the respondents is present nor any reply is forthcoming. With such an observation, this Tribunal disposed of the application with the following orders: In the interest of justice, it is ordered that the respondents shall consider the sanction of compassionate allowance to the widow of the deceased husband from the date of removal from service in terms of Rule 65 of the Railway Service (Pension) Rules 1993 read with CPO/SC letter No. P ( R) 500/XVI dated 1.12.95 SL Circular No. 145/1995 and the same shall be finalized within a period of one month from the date of receipt of copy of this order. Compliance report shall be filed within two weeks thereafter.
This order is dated 11.10.2005. On 18.4.2006, the Senior Divisional Personnel Officer (R-2) passed the impugned order stating that CPO/SC's lettter dated 1.12.95 issued in reference to the grant of compassionate allowance only stipulate a procedure for the purpose of grant of compassionate allowance by the disciplinary authority including appeal/revisionary authority while communicating its order of removal/dismissal and as per the said letter the authority shall also send a letter along with the removal order to the employee informing him that he can submit written representation in the specified format for grant of compassionate allowance whereupon the concerned authority has to further process the case and the said procedure is effective from the date of issue of the circular, i.e. 1.12.95 and that the said circular does not provide for automatic grant of compassionate allowance but only formulated a procedural scheme to be followed. It is further stated in the orders that the said scheme came into operation only from 1.12.95. It would not cover the case of Shri Syed Ghouse (the husband of the applicant) who was removed from service from 22.2.80 and died on 1.6.87. It is further stated in the impugned orders that the rules governing the sanction of compassionate allowance provide that it is the discretionary power vested in the disciplinary authority for considering the sanction of compassionate allowance only in deserving cases and that the applicant's husband was not sanctioned with compassionate allowance during his life time. Therefore, the question of grant of family pension to the applicant at this distant point of time and also in the absence of specific representation from the deceased employee during his life time does not arise. Ultimately, the second respondent observed that as the competent authority did not sanction compassionate allowance at the time of passing orders of removal/dismissal or immediately thereafter, cannot be re-opened, for revision on the basis of the representation received from the removed/dismissed employees or members of their families at a later date, and therefore, in the absence of specific sanction of compassionate allowance to the deceased husband, the applicant is not entitled for any family pension.
6. Aggrieved by the said order, the applicant filed the present OA seeking to set aside the said orders of rejection and to give a direction to the respondents to consider for sanction of compassionate allowance to the applicant from the date of removal from service of her husband. In the application, the applicant submitted that there is a provision under Rule 65 of Railway Service (Pension) Rules 1993 that a Railway servant who is dismissed or removed from service, the widow of the deceased can claim the compassionate allowance and the applicant cited a Larger Bench decision of the Central Administrative Tribunal, Calcutta Bench in the case of Mrs. Chandrakala Pradhan v. UOI reported in ATJ 2002 (1) CAT/Cal P.25 and annexed its copy as Annexure A-18 wherein it is held that the Tribunal has jurisdiction to entertain an application filed by legal heirs after the death of Govt. servant. The applicant further relied on a Circular No. 82/95 dated 6.7.95 (Annexure A-19) wherein it is stated that if the charges in the departmental proceedings are exactly identical to those in the criminal case and the employee is exonerated/acquitted in the criminal case on merit (without benefit of doubt or on technical grounds), then the departmental case may be reviewed if the employee concerned makes a representation in this regard. The applicant submitted that the deceased husband of the applicant made representation on 4.9.85 after he was acquitted by Criminal Court on merits and in spite of this, her husband was not reinstated. The applicant in her application referred to a decision of this Tribunal in A.K. Veraraghavan v. UOI reported in ATC 1989 (9) CAT/HYD P-61 wherein it is held that denial of salary or pension give rise to recurring cause of action from month to month. The applicant further relied on a decision of Hon'ble High Court of Punjab in Loka Ram v. HSEB and Anr. reported in SLR 1995 (5) HC of Punjab & Haryana, page 566 wherein it is held that denial of pension is a continuous cause of action and claim for pension cannot be defeated by mere lapse of time.
7. The respondents contested the application and filed reply statement stating that as per Rule 65 of Railway Services (Pension) Rules, 1993, a Railways servant who is dismissed or removed from service shall forfeit his pension and gratuity and therefore, the applicant's husband was not paid any gratuity and no pension was sanctioned. Of course, in deserving cases of removal or dismissal, disciplinary authority can sanction compassionate allowance not exceeding two-thirds of pension or gratuity or both which would have been admissible to him if he had retired on compassionate pension. In the instant case, the applicant's husband has not availed the benefit of the Rule 65 by submitting any application immediately after his dismissal or thereafter claiming compassionate allowance and hence the competent authority has not passed any order with regard to compassionate allowance. However, in pursuance of the order passed in OA 621/2005 dated 11.10.2005, the respondents examined the case of the applicant for sanction of compassionate allowance and found she is not eligible and therefore she was accordingly informed. On 18.4.2006, under the impugned orders, the respondents pleaded that the applicant's husband was dismissed from service on 22.2.1980 after following all the procedures prescribed under Railway Servants (Discipline and Appeal) Rules, 1968. By the date of the acquittal of the husband of the applicant by the Criminal Court, the disciplinary proceedings were concluded and the applicant's husband was dismissed from service on 22.2.1980 and that the acquittal by the Criminal Court was on the basis of benefit of doubt, the applicant's husband was not reinstated in service and the departmental case may be reviewed only if the employee is acquitted in the criminal case on merits without benefit of doubts or on technical grounds and as the husband of the applicant was not acquitted on merits, but acquitted giving benefit of doubts, the punishment order was not reviewed. It is further pleaded in the reply that as per Rule 65 of Railway Services (Pension) Rules, 1993, the dismissed employee is not entitled for pension or gratuity and therefore, the applicant's husband was not paid and that provident fund was paid to the applicant after calling from her G.P. 46 forms vide letter dated 16.8.94. The respondents asserted the very same reasons given in the impugned orders in support of their contentions that the applicant is not entitled for any compassionate allowance. It is further stated that the power to grant compassionate allowance under Rule 65 is a discretionary power and just because the widow of the deceased dismissed employee is having a large family without any source of income and facing financial hardship, it cannot be a ground for sanction of compassionate allowance automatically and the husband of the applicant never made any claim for the sanction of compassionate allowance during his life time. They reiterated that the letter of South Central Railway dated 1.12.95 referred to in the application is prospective with effect from 1.12.95 and it has not covered the case of the applicant as the husband of the applicant was removed from service with effect from 22.2.80 and died on 1.6.87. Since the deceased husband has never made any application for compassionate allowance, the applicant cannot be sanctioned with family pension under Rule 65 of Railway Services (Pension) Rules, 1993. The respondents further pleaded that this application is barred by limitation as the cause of action arose in the year 1980 when the applicant's husband was dismissed from Railway service. The ratio laid down by the Tribunal in A.K. Veraraghavan v. Union of India and by the Punjab and Haryana High Court in Lokaram v. HSEB that the widow of employee is entitled for family pension if her husband was in receipt of compassionate allowance on the date of his death and that as the applicant's husband in this case was not in receipt of compassionate allowance by the date of his death, the applicant is not entitled for family pension under Rule 65 of the Railway Services (Pension) Rules, 1993 and Sl. Circular No.145/1995 are not applicable to the facts of this case.
8. The applicant filed rejoinder reiterating the averments made in the application. Along with the rejoinder, the applicant filed orders of the Hon'ble High Court of A.P. in Writ Petition No. 24619/2002 dated 12.12.2002 wherein it is observed that Administration of South Central Railway, as reflected in its Circular No. 145/95 thought it appropriate to examine carefully the claims of the personnel who were removed and dismissed from service for award of compassionate allowance keeping in mind the welfare of the ex-Railway servants.
9. During the course of hearing, the learned Counsel for the applicant reiterated the contentions raised in the application and also in the rejoinder. The learned Counsel submitted a copy of the order of this Tribunal dated 8.9.2004 passed in OA 77/2004 wherein this Tribunal directed the respondents (Railways) in a similar case to exercise discretion in favour of the applicant who is the widow of the deceased dismissed Railway Goods Driver and sanction compassionate allowance. He also invited my attention to a decision of the Principal Bench of CAT, New Delhi in Shri Mohammad Inam v. Union of India and Ors. reported in 2006 (2) ATJ 604 wherein it is held that reasons have to be assigned for the rejection of a request made for compassionate allowance. They also invited my attention to a decision of Delhi High Court in Dayanand v. Union of India and Ors. reported in 2000 (1) ATJ 137 wherein the compassionate allowance was granted from the date of discharge of the dismissed employee along with arrears. On the other hand, the learned standing counsel for the respondents, reiterated the contentions raised in the reply statement. The learned standing counsel supported the impugned orders contending that as the employee was not in receipt of compassionate allowance, his family members cannot claim compassionate allowance or compassionate family pension after the death of the employee. The counsel submitted that the application is devoid of merits and is liable to dismissed.
(i) Whether the applicant is entitled for any benefit claimed by her in the application? This is a pathetic case of a widow of a deceased Railway servant who served the Railways for more than 30 years. She has been driven from pillar to post for the sustenance of herself and her family consisting of five children for more than two decades. After having failed to get any response from the Railway Administration to secure the retiral benefits of her husband, viz. pension, gratuity, etc. on par with the regularly retired employees, she pleaded compassion and prayed for some allowance for the sustenance of herself and her family, at least under Rule 65 of Railway Services (Pension) Rules 1993. Even that request was also not considered by the respondents taking all technical objections. Even after this Tribunal gave a direction that the respondents shall consider the sanction of compassionate allowance to the applicant from the date of removal of her husband from service, the respondents did not choose to sanction any allowance on some technicalities. As seen from the impugned order and also the reply statement, it is pleaded that only in deserving cases of removal or dismissal, disciplinary authority can sanction compassionate allowance not exceeding 2/3rds of pension or gratuity or both which would have been admissible to him if he had retired on compassionate pension. But, they have not stated as to how this is not a deserving case. The other technical ground taken by the respondents is that the applicant's husband has not availed the benefit of Rule 65 of Railway Services (Pension) Rules, 1993 by submitting any application immediately after this dismissal or thereafter claiming compassionate allowance and hence the competent authority has not passed any order with regard to compassionate allowance and that as the applicant's husband was not in receipt of compassionate allowance on the date of his death, the applicant is not entitled for compassionate family pension as provided under Rule 65 of Railway Services (Pension) Rules, 1993. In reply to the contention of the applicant that her husband ought to have been reinstated into service during his life time after the Criminal Court acquitted her husband on merits, on the representation submitted by the applicant's husband, the respondents pleaded in the reply that the departmental proceedings were already completed and the applicant's husband was dismissed by the date of the acquittal and that the departmental case will be reviewed only if the employee is acquitted in the criminal case on merits and that as the husband of the applicant was not acquitted on merits, the punishment order was not reviewed. But the respondents have not stated in the reply whether any orders passed on the representation dated 4.9.85 (Annexure A-4) made by the applicant's husband and communicated the same to the applicant's husband to enable the applicant's husband to challenge the same before the appropriate forum. For the first time in the reply filed herein, the respondents pleaded that as the acquittal of the applicant's husband in the criminal case was not on merits, the order of punishment imposed in the departmental proceedings is not reviewed. Even though the present applicant approached this Tribunal by filing OA 621/2005 pleading that her husband was unjustly not reinstated and not paid terminal benefits which resulted in his ultimate death, the respondents did not choose to give any reply though three adjournments were granted with an ultimatum to the effect that if the respondents fail to file reply, the matter would be decided ex parte.
12. When the applicant relied on the Railway Board's letter dated 1.12.95, relating to sanction of compassionate grant/allowance, respondents again relied on technicalities stating that the said circular is prospective and it is not applicable to the present case as the applicant's husband was removed from service long prior to 1995 and also died prior to 1995, without taking note of the underlying spirit with which the Railway Board issued the said letter for guidance of the authorities concerned. Further, the respondents relied on another technical plea of limitation. So, it has to be seen as to how far these technical pleas taken by the respondents are tenable.
13. Firstly, it has to be seen whether the acquittal of applicant's husband in the criminal case was not on merits and was on mere technicalities as contended by the respondents. The certified copy of judgement in C.C. 155/1981 is filed as Annexure A-2 along with the application. As seen from the judgement, the Inspector of Railway Police, Secunderabad filed charge sheet against the applicant's husband alleging that he drove the goods train in a rash and negligent manner with more than the prescribed speed without observing the GR 78, 89 (6) while approaching railway station and caused derailment of 16 wagons as a result of which 10 persons died and 16 persons received injuries and thereby committed offence punishable under Section 304 A, 337 and 324 IPC read with 101 I.R. Act. To prove the said charges, the prosecution examined as many as 15 witnesses and exhibited eleven documents. The learned XIII Metropolitan Magistrate for Railways, Secunderabad discussed the evidence of all the witnesses including an eye witness and also the guard of the train. He also considered the evidence of Chief Engineer, who inquired into the accident and submitted his report. After considering the said evidence, the learned magistrate observed that it is very clear that there is a down gradient between Karepally Railway Station and Km 5/1 and several accidents also took place at the same place earlier and that the guard stated that the accused destroyed the vaccum and in spite of it, the train did not stop and that there is no reason to disbelieve the evidence and the guard also tried to stop the train by applying steam brake but the train did not stop and that the fire man also corroborated the contentions of the accused (applicant's husband) and that the driver was not given an opportunity to cross-examine the head train examiner and the fuel inspector who issued certificate estimating the vaccum pressure during the disciplinary inquiry and that the Chief Engineer could not say whether the head train examiner and fuel inspector were competent to examine the brake power. The learned Magistrate further observed in paras 11 and 12 as follows: 11. From all these facts, it is clear that the accused applied brakes and tried to stop the train and also informed guard of the train PW-5 who admitted in his evidence that he received signals given by the accused and that he also tried to stop the train and that the goods train did not stop. The evidence as adduced by the prosecution is more helpful to the accused in supporting his contention. Unfortunately, the records maintained by the guard regarding the speed was lost in the accident and thee is no material to show that the accident occurred solely due to the negligence or rashness of the accused in discharging his duties as the driver of the gods train.
12. Under these circumstances, it is a fit case where the benefit of doubt has to be given to the accused and I find that the prosecution failed in proving that the accident was the result of the negligent or rash act of the accused driver, as alleged by the prosecution.
With such observations, the learned Magistrate found the accused (applicant's husband) not guilty under Section 304-A, 338 IPC and 101 IR Act and acquitted him under Section 255 (i) Cr.P.C.14. From the above said judgement of the Criminal Court, it is crystal clear that the accused viz., the applicant's husband, was completely exonerated holding that the accident did not occur on account of negligence of the accused driver. On the other hand, the learned Magistrate accepted the contentions of the accused driver that the accident took place on account of failure of brakes in the down gradient. Merely because the learned Magistrate used the word benefit of doubt in the last paragraph, it cannot be said that the acquittal of the accused driver was not on merits and on mere technicalities giving benefit of doubt. I am of the considered view that the said acquittal is not on technicalities and it is an acquittal on merits.
15. It is not disputed that the applicant's husband who was the driver of the goods train on the fateful day was removed from service holding him responsible for the said accident and not on any other ground. The incident concerned in the departmental inquiry and the incident concerned in the criminal case are one and the same, viz., derailment of the wagons of goods train. In both departmental inquiry and also before the Criminal Court, the main allegation is that the said accident took place on account of rash and negligent driving of the goods train. As seen from the Serial Circular No. 82/95 dated 7.6.97 (Annexure A-19), the Railway Board considered the subject 'Review of decision taken in departmental proceedings on acquittal of a railway servant in a Criminal Court on the same charges' and clarified as follows: INDEX No. 1033: Discipline and Appeal Rules:- Departmental and criminal proceedings can be initiated simultaneously against the delinquent employee and the disciplinary proceedings can also be continued and concluded without waiting for the conclusion of criminal case against the employee on the same charges. However, if the facts, circumstances and the charges in the departmental proceedings are exactly identical to those in the criminal case and the employee is exonerated/acquitted in the criminal case on merit, then the departmental case may be reviewed if the employee concerned makes a representation in this regard.
Here, in the instant case, the departmental proceedings were initiated and also concluded without waiting for the decision of the Criminal Court in the crime registered by the Railway Police. Though the railway police registered the crime on the same day of accident, the respondents did not wait for the result of the investigation and the findings of the competent Criminal Court. Of course, the rules do not prohibit initiation and conclusion of departmental proceedings pending criminal case. But, however, in such cases, the orders passed in the departmental case pending the criminal trial have to be reviewed in case the employee gets honourable acquittal in the criminal court in respect of the very same charge, on the application of the employee concerned. Recently, the Apex Court in G.M. Tank v. State of Gujarat and Ors.
honourably acquitted in a criminal trial, finding to contrary recorded in departmental proceedings in such case, is unjust, unfair and oppressive. In the cited case also, departmental proceedings concluded and the applicant was removed from service on the ground that the employee acquired movable and immovable properties disproportionate to his known sources of income. Simultaneously, the departmental proceedings and also criminal proceedings had been initiated against the employee. Departmental proceedings were concluded earlier than the criminal case and the employee was found guilty and he was dismissed from service. The said dismissal order was challenged before the High Court by way of writ petition. The Single Bench dismissed the writ petition. Against the order of Single Bench, the employee preferred LPA and during the pendency of LPA, employee was acquitted in the criminal proceedings in respect of the same charge. When it was brought to the notice of the Division Bench, the Division Bench did not take the acquittal into consideration and dismissed the appeal filed by the employee. Thereafter, the employee, G.M. Tank approached the Apex court and the Apex Court held that the Division Bench erred in not considering the honorable acquittal of the employee by the Criminal Court in respect of the same charge and set aside the Division Bench Judgement and allowed the appeal of the employee and set aside the dismissal order as not sustainable. The learned Apex Court relied upon its earlier decision in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. wherein it is held that where the employee is acquitted by the judicial pronouncement with the finding that the 'raid and recovery' at the residence of the employee were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. In the instant case, it is not disputed that the charge in the departmental proceedings and in the criminal case are one and the same.
It is found supra that the acquittal of the applicant's husband is an honourable acquittal. Therefore, the said decisions of the Apex Court supports the claim of the applicant's husband for reinstatement on the ground of honourable acquittal. It is not disputed that the applicant's husband, late Syed Ghouse, submitted an application (Annexure A-4) to R-2 along with copy of the Criminal Court Judgement dated 27.6.84 seeking reinstatement on the ground that he was honourably acquitted by the Criminal Court in respect of the same charge on which he was removed from service. The said representation is dated 4.9.85. The respondents in their reply did not deny the receipt of such representation from late Syed Ghouse, the husband of the applicant, though the applicant specifically pleaded in her application that her husband during his life time submitted a representation dated 4.9.85 seeking reinstatement of service consequent upon the disposal of CC 155/1981 and also enclosed a copy of the said representation along with the application as Annexure A-4. On the other hand, it is pleaded that as the applicant's husband was not acquitted on merits, he was not reinstated. Therefore, it is clear that the applicant's husband did submit such representation on 4.9.85. The respondents did not state as to what orders have been passed on the said representation. The respondents were bound to consider the said representation and pass appropriate orders and communicate the same to the applicant's husband to enable him to take necessary steps in the appropriate forum to challenge the order, if any, passed against him. Obviously, no orders have been passed. According to the applicant, her husband waited for reinstatement and there was no response from the respondents and her husband died of heart attack as her husband was neither given reinstatement nor paid terminal benefits. The fact remains that the applicant's husband died on 1.6.87 and no orders were communicated to him on the representation made by him on 4.9.85 seeking reinstatement.
16. In the very first letter addressed to the General Manager, dated 1.1.88 addressed by the applicant herein, it is stated that the Administration did not consider the Criminal Court's Judgement and no revised orders issued and that her husband continued in such pathetic condition till his death on 1.6.87 due to heart attack and that her husband died leaving behind the applicant and her 5 children and that even the retiral benefits, like PF, CCS and DCRG have not been paid to her late husband. Even to this representation, there was no reply from the respondents. Therefore, I find no reason to disbelieve the version of the applicant that her husband waited for a decision on his representation seeking reinstatement and died of heart attack as there was no response from the respondents for a long time and as no amounts, including PF, were not paid to him for his sustenance. As seen from the records, even the PF was not paid for a long time even after the present applicant made several representations after the death of her husband. As seen from Annexure A-9, only on 16.8.94, the second respondent addressed a letter to the present applicant requesting her to submit the enclosed G.P. 46 forms duly filled in. So, it is clear that though the applicant's husband was removed from service on 22.2.80, no steps were taken by the respondents to settle at least provident fund amount, either during the life time of the deceased employee or thereafter till 16.8.94. Even thereafter, the PF amount does not appear to have been paid immediately, as is evident from the letter dated 1.1.88 addressed to the General Manager wherein the applicant stated that even her PF amount was not settled. The respondents did not state in their reply as to when the PF amount was settled and paid to the applicant. Thus, it is clear that the respondents have not treated the deceased railway servant and his family in the manner in which the respondents ought to have treated them, though the deceased railway servant served the Railways for a period of more than 30 years. Several pathetic appeals made by the family of the deceased employee did not move the Administration to act in the manner in which they are expected to act. Unfortunately, the applicant who is an illiterate widow had no proper legal advice and she appears to have been not advised by anybody to approach this Tribunal seeking to set aside the orders of punishment imposed upon her husband on the ground that her husband obtained honourable acquittal in the criminal case and also submitted an application seeking reinstatement by way of review of the final orders passed in the departmental inquiry and in spite of such application, no orders have been passed by the respondents. Instead, it appears that she was advised to make representation to the respondents seeking settlement of terminal benefits. In the first application submitted by the applicant after the death of her husband to the 1st respondent under the original of Annexure A-6 she requested for settlement of PF, CCS, DCRG. As there was no response from the first respondent, the applicant approached the President, South Central Railway Women Organisation, Secunderabad with the representation dated 8.7.88 (Annexure A-8), but there was no response. As seen from Annexure A-11 letter dated 1.10.96 addressed to the second respondent, the applicant appeared to have made several applications dated 31.1.87, 6.11.87, 1.6.89 and 13.7.89 and in spite of it, no terminal benefits were paid to her. Under those circumstances, the applicant submitted the letter dated 1.10.96 to R-2 stating that though more than nine years passed after the death of her husband, there was no arrangement to pay the settlement dues and that she is struggling to maintain her family. As there was no response, she had to approach the Pension Adalat, Rail Nilayam, South Central Railway, Secunderabad by way of representation dated 15.12.97. In that letter, she pleaded for grant of family pension and other benefits on par with other Railway employees and also sought for compassionate appointment to her son on compassionate grounds. Thereafter, she submitted representation to the President of India on 28.2.2000 (Annexure A-13) with the following prayer 'Therefore, Honorable Sir, as the Head of our Nation, with the vast powers at your command, please have Compassion and sanction any of the above mentioned pensions, to enable her to live a decent life, these hard days and to save her from the same fate of her husband'. In that letter, she stated that her husband's efforts to get reinstatement or to get at least terminal benefits to feed the large family went unheard and finally in utter penury circumstances, her husband became a physical and mental wreck and died a broken man and she is actually starving most of the time and not able to help her five grown up children who are also not employed. But, nobody considered her several representations. Thereafter, the applicant appeared to have given up her claim for terminal benefits like regular pension and death-cum-retirement gratuity, as is evident from another representation dated 1.10.2004 (Annexure A-14) addressed to General Manager, R-1 wherein the applicant sought only for sanction of compassionate allowance/grant in terms of Rule 65 of Railway Services (Pension) Rules 1993 and as per Serial Circular No. 145/1995 dated 1.12.95.
17. As such applications were also not considered, she approached this Tribunal by way of filing OA 621/2005. No reply was filed in that OA by the respondents in spite of taking several adjournments for filing reply. This Tribunal disposed of the OA basing on the material available on record and directing the respondents to consider the sanction of compassionate allowance to the widow of the deceased husband from the date of removal from service in terms of Rule 65 of Railway Services (Pension) Rules 1993 read with Serial Circular No.145/1995. In spite of such an order, the respondents did not choose to grant any allowance and ultimately rejected her claim for compassionate pension on 18.4.2006 on technical grounds mentioned supra.
18. The first technical objection is that the applicant's husband did not make an application for compassionate allowance under Rule 65 of Railway Services (Pension) Rules 1993, either immediately after his removal from service or during his life time before his death on 1.6.87 and therefore, the present applicant is not entitled for either compassionate allowance or compassionate pension under Rule 65 of Railway Services (Pension) Rules 1993. Admittedly, by the date of removal from service of the applicant's husband, the criminal proceedings were pending. Therefore, it is obvious that the applicant's husband was confident of getting honourable acquittal in the criminal case and secure reinstatement with all consequential benefits. In fact, the applicant's husband obtained honourable acquittal in criminal case and filed an application seeking reinstatement with all consequential benefits. Under those circumstances, it cannot be said that the applicant's husband ought to have filed an application seeking compassionate allowance. No employee under such circumstances would file an application seeking compassionate allowance while the matter is pending before the Criminal Court as filing such an application would amount to accepting the guilt and also consequent removal from service.
The applicant's husband rightly waited for the decision of the Criminal Court and applied for review of the final orders passed in the departmental inquiry. But no orders have been passed by the respondents on the said representation, though they are expected to dispose of the said representation and communicate the orders thereon to the employee.
For such inaction on the part of the respondents, the applicant's husband cannot be found fault with. While waiting for the response from the respondents regarding reinstatement, with all consequential benefits, unfortunately, the applicant's husband died. As seen from the decision of the Five Member Larger Bench of Central Administrative Tribunal, Calcutta Bench in Mrs. Chandra Kala Pradhan v. Union of India reported in ATJ 2002 (1) CAT, Calcutta, page 25, it is held that right to sue under service jurisprudence devolves upon the legal heirs after the death of the Government employee. Therefore, the applicant is entitled to make all the claims which her late husband was entitled to claim had he been alive. In the instant case as the applicant's husband had submitted representation seeking reinstatement with all consequential benefits, and as the said representation was not disposed of, he was entitled to file an application before this Tribunal seeking a direction to the respondents to reinstate him in service with all consequential benefits after setting aside the final orders passed in the disciplinary inquiry in view of the honorable acquittal by a Criminal Court in respect of identical charges. Further, as an alternative, the applicant's husband was entitled to claim compassionate allowance under Rule 65 of Railway Services (Pension) Rules 1993. Therefore, the present applicant, who is none other than the widow of the deceased Railway servant, is entitled to seek all the above said remedies. As already observed supra, for want of proper legal advice, the illiterate widow could not approach this Tribunal with a prayer for deemed reinstatement of her husband with all consequential benefits. However, the applicant filed application seeking compassionate allowance under Rule 65 of Railway Services (Pension) Rules 1993. For all purposes, the said application made before the respondents should have been treated as an application filed on behalf of applicant's husband by his legal heirs after his death.
Therefore, it cannot be said that the applicant is not entitled to file any representation before respondents seeking grant of compassionate allowance under Rule 65 of Railway Services (Pension) Rules 1993.
Hence, in my considered view, the technical objection taken by the respondents that the applicant is not entitled to file an application seeking compassionate allowance under Rule 65 of Railway Services (Pension) Rules 1993 is not tenable and it is liable to rejected.
19. Secondly, it has to be seen whether the contention of the respondents that the application is barred by time. Before the Division Bench of Madras High Court, similar contention was raised in M.Jayalakshmi v. Union of India and Ors. in writ petition No. 13579/2000 dated 12.9.2001 reported in 2002 (3) ATJ 374. In that case also, the widow of the Railway servant sought for compassionate allowance under Rule 65 of Pension Rules. As the department did not grant compassionate allowance, she filed an OA before the C.A.T., Madras Bench with hefty delay and the Tribunal rejected condonation of delay application.
Thereafter, the said writ petition was filed by the widow. The High Court set aside the order of the Tribunal and directed the Tribunal to proceed with the matter on merits. In that judgement, Madras High Court observed as follows: We find that this is a lady who was practically on the streets after the death of her husband. In the first place, she is an illiterate person having been married to a Railway servant who was serving as a skilled Grade II Fitter in the Integral Coach Factory, Chennai. It is an admitted fact that her husband has expired on 4.5.1991 and when he died, he was already removed from the service on account of his unexplained absence.
The learned Division Bench further observed that obvious difficulties faced by the lady owing to her illiteracy and poverty should have been viewed with a compassionate approach. In the instant case also, the applicant is an illiterate widow who married a Goods Driver. Similarly, the Division Bench of the Hon'ble A.P. High Court in Writ Petition No.24619/2002 also considered condonation of delay in filing application for compassionate allowance. In that case the applicant complained before this Tribunal that despite his representation dated 16.4.2002 to grant compassionate allowance in terms of Serial Circular No. 145/1995 dated 1.12.95, it was not considered by the respondents Railways. The said application was opposed by the Railways contending that the claim of the applicant is quite stale and belated. This Tribunal upheld the contentions of the Railways and dismissed the application on the ground of inordinate delay in approaching this Tribunal and also in making representation to the Railways. Aggrieved by the order of this Tribunal, the applicant therein approached the Hon'ble High Court with Writ Petition No. 24619/2002. The Division Bench of the Hon'ble High Court set aside the orders of this Tribunal and directed the respondents to consider the representation of the applicant therein in accordance with the law in terms of Serial Circular No. 145/1995 dated 1.12.95. The Hon'ble High Court observed that the Serial Circular No.145/1995 reflects the mind of the Administration of South Central Railway and the said Railways thought it appropriate to examine carefully the claims of the personnel who were removed and dismissed from service for award of compassionate allowance keeping in mind the welfare of the ex-Railway servants. In the instant case also, the applicant relied on the Serial Circular No. 145/1995 dated 1.12.95.
Further, the claim for compassionate allowance which is payable every month gives rise to a continuous cause of action and therefore, it cannot be said that it is barred by limitation. The underlying spirit with which the Railway Administration issued Serial Circular No.145/1995 is evident from the following averments in the said letter.
3. However, it has been brought to the notice of Headquarters that a good number removed/dismissed employees who deserve sanction of compassionate allowance could not avail themselves of this benefit due to ignorance of existence of these provisions. It has also been reported that especially families have been put to much hardship, when such railway servants expire leaving the families in dire distress.
4. The issue has been examined carefully. It is considered with accent on the welfare of the ex-railway servant deserving special consideration and their family members, that a system should be evolved which shall take care of the operation of Rule 65 of the current Pension Rules automatically.
20. Further, this Tribunal in almost a similar case in OA 77/2004 dated 8.9.2004 in Smt. Saleha Begum v. General Manager (Personnel), South Central Railway and Anr. rejected similar contentions raised in that case. In that case also, the applicant is the widow of a Railway Goods Driver, late Sarwaruddin. He too worked in the Railways for over 34 years in the Loco Running Shed and while he was working as driver, there was a derailment of Goods Train on 14.6.88 and the department after conducting inquiry, held him responsible for the accident and imposed penalty of removal from service and the same was confirmed by the appellate authority. He, later approached this Tribunal in OA 91/1992 and this Tribunal disposed of the application with a direction to the General Manager, to reconsider the final order dated 19.3.91 and suitably modify the penalty so as to meet the ends of justice. But the Railways did not consider modification of the penalty and confirmed the penalty of removal. Later, the husband of the applicant therein died on 14.2.99 leaving a big family consisting of 5 children and widow in a distress condition. The widow of the deceased Goods Driver made a representation dated 26.10.99 to the Chief Personnel Officer, South Central Railway for sanction of at least compassionate allowance, but the request of the widow was negatived. Then, the widow again approached this Tribunal in OA 1305/2001 for sanction of compassionate allowance and this Tribunal disposed of the said OA with liberty to the applicant to make a fresh representation to the General Manager.
Accordingly, the widow made a fresh representation on 27.9.2001 requesting for compassionate allowance as per rules in force. The said representation was also rejected on the ground that the widow had not approached the competent authority for sanction of compassionate allowance within a reasonable period after confirmation of the penalty.
The said rejection of the representation was challenged in OA 77/2004.
Similar contentions that are raised in the present OA 532/2006 have been raised in the said OA also. The Division Bench of this Tribunal vide orders dated 8.9.2004 rejected all the contentions including the contention regarding limitation. In that decision also, this Tribunal relied on the Division Bench decision of the Madras High Court in M.Jayalakshmi v. Union of India and Ors. cited supra. In that case also, the respondents Railways took the plea that as the deceased husband of the applicant was not in receipt of compassionate allowance, the applicant therein is not entitled for compassionate allowance/family pension under Rule 65 of Pension Rules. This Tribunal held that non-receipt of the compassionate allowance by the deceased husband of the applicant should not stand in the way of the Railway authorities taking a compassionate view in the matter seeing the indigent condition of the family that no ostensible source of livelihood. In that context, this Tribunal observed that the deceased husband of the applicant perhaps was not in know of the rule position with respect to grant of compassionate allowance and therefore he could not approach the disciplinary authority for grant of such allowance and it was because of such cases, the South Central Railway issued Serial Circular No.145/1995 dated 1.12.95. The facts of the present case are also similar to the facts of the cited case. In OA 77/2004, this Tribunal issued clear directions to respondents to exercise their discretion in favour of the applicant, at least now and sanction compassionate allowance as prayed for by the applicant within a period of one month from the date of receipt of a copy of that order. Further, this is not a case where the deceased railway servant misappropriated the public money and enriched himself and therefore such employee or his family do not desire pension/family pension or even compassionate allowance/compassionate family pension. The employee herein rendered unblemished service for more than thirty years and he was removed from service on account of unfortunate accident of derailment attributing negligent driving on the part of the employee. But the criminal court after considering the entire evidence adduced found that there was no negligence on the part of the employee driver and that the prosecution failed to prove that the accused (applicant's husband) was responsible for derailment. Under these circumstances, such a driver who rendered 30 years unblemished service and his family cannot be deprived of at least compassionate allowance/pension, especially when the family is in distress. Hence in my considered view, the applicant in the present case also deserves compassionate allowance prayed for and therefore similar directions as given in OA 77/2004 are required to be given to the respondents. The technical objections raised by the respondents are not at all tenable. The respondents are required to treat the application of the applicant as if it was filed by the applicant's husband during his life time before the disciplinary authority and grant compassionate allowance/compassionate family pension in accordance with the Rule 65 of the Pension Rules from the date of the order of removal passed against the deceased husband of the applicant, as the respondents unjustly failed to consider the review of final orders of punishment of removal from service, after the honourable acquittal of the deceased husband of the applicant by the Criminal Court. Thus, this point is found accordingly.
21. In the result, the application is allowed and the impugned orders are set aside and the respondents are directed to reconsider the grant of compassionate allowance in accordance with Rule 65 of Pension Rules in the light of the observations made supra and fix the quantum of compassionate family pension and pay the same with arrears from the date of removal of the applicant's husband till date and continue to pay the compassionate family pension in accordance with Rule 65 of Railway Services (Pension) Rules 1993. This order shall be complied within three months from the date of receipt of a copy of this order and report compliance. There shall be no order as to costs.