CIVIL WRIT JURISDICTION CASE No.5943 OF 2002 ( In the matter of an application under Articles 226 & 227 of the Constitution of India) ****** 1. Union of India, through General Manager, Eastern Railways, 17 Netaji Subhash Road, Calcutta-1. 2. The Divisional Railway Manager, Eastern Railway, Danapur, P.S. Khagaul, Dist. Patna. 3. Senior Divisional Personnel Officer, Eastern Railway, Danapur, P.S.Khagaul, Dist. Patna. 4. Senior Divisional Accounts Officer, Eastern Railways, Danapur, P.S. Khagaul, Dist. Patna. -----Petitioners. Versus 1. The Central Administrative Tribunal, Patna Bench, through its Registrar. 2. Surti Devi wife of Late Kailash, Ex-Gangman under Permanent Way Inspector, Eastern Railways, Danapur, presently residing at village Nausa Nawada, P.O. Mubarakpur, Via- Phulwarisharif, Dist. Patna. ------Respondents ****** For the Petitioners : Mr. Shabbir Ahmad,Advocate. For the Respondents : M.P. Dixit, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ****** S.K.Katriar, J., This writ petition is directed against the order dated 07.12. 2001 (Annexure-1), passed by the Central Administrative Tribunal, Patna Bench, in O.A.No. 167 of 2000 ( Soorti Devi Vs. Union of India and Others), whereby the original application filed by respondent no.2 herein has been allowed and the authorities have been directed to give to respondent no.2, the benefit of the Railway Servants Family Pension Scheme 1964. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. Respondent no.2 herein is the widow of late Kailash, who had joined the services of the 2 Indian Railways on 01.10.1949. He died while still in harness and was a gang-man. According to the writ petitioners, he died on 13.11.1961, whereas, according to respondent no.2 herein, he had died on 26.01.1965. Respondent no.2, in the capacity of the widow of the late employee, was given all the benefits under the Provident Fund Scheme 1957, which was replaced by the liberalized pension scheme promulgated by order dated 16.11.1957, and was enforced with effect from 01.04.1957. It appears that respondent no.2 had subsequently submitted a representation for benefits under the Railway Servants Family Pension Scheme 1964, which was enforced with effect from 01.01.1964. The same was rejected by the respondent authorities by order dated 13.07.1999, leading to the present O.A. No. 167 of 2000. The same has been allowed by the Tribunal, and it has been held that respondent no.2 is entitled to the benefits under 1964 Scheme because of the Note appended to Rule 75, giving it retrospective operation. 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that an employee of the category of late Kailash was initially covered by the Railway Provident Fund Scheme. It appears that the Indian Railways replaced the same by a liberalized pension scheme, promulgated by notification dated 16.11.1957, and made retrospectively applicable with effect from 01.04.1957. It appears to us from the scrutiny of the materials placed before us that the employee had really died on 13.11.1961, 3 respondent no.2 was paid her entire dues and continues to be paid under the Railway Contributory Provident Fund Scheme read with the liberalized pension scheme, 1957. 4. It further appears that the Indian Railways introduced the family pension scheme for Railway servants 1964, which was incorporated in Railway Services (Pension Rules) 1993. Rules 75 of the 1993 rules is reproduced herein below for the facility of the quick reference: “75. Family Pension Scheme for railway Servants, 1964-(1) The provisions of this rule shall apply:- (a) to a railway servant entering service in a pensionable establishment on or after the 1st January, 1964; and (b) to a railway servant who was in service on the 31st December, 1963 and came to be governed by the provisions of the Family Pension Scheme for Railway Employees, 1964, contained in Railway Board’s letter No. F(P)63 PN-1/40, dated the 2nd January, 1964 as in force immediately before the commencement of these rules. Note.- The provisions of this rule have also been extended from 22nd September, 1977, to railway servants on pensionable establishments who retired or died before the 31st December, 1963 and also to those who were alive on that date but had opted out of the 1964 scheme. (2) Without prejudice to the provisions contained in sub-rule (3), where a railway servant dies- (a) after completion of one year of continuous service; or (b) before completion of one year of continuous service provided the deceased railway servant concerned immediately prior to his appointment to the service or post was examined by the appropriate medical authority and declared fit by that authority for railway service; ( c) after retirement from service and was on the date of death in receipt of pension, or compassionate allowance, referred to in Chapter V, other than the pension referred to in Rule 53; the family of the deceased shall be entitled to a family pension 1964 (hereinafter in this 4 rule referred to as family pension) the amount of which shall be determined in accordance with the Table below:-” Much after the affairs with respect to respondent no.2 had settled, she submitted a representation that she may be allowed the benefits under Rule 75 reproduced hereinabove. It appears to us that the authorities felt piqued by such a belated representation and sat over the matter. However, in view of political intervention on behalf of the respondent no.2, the authorities replied to her by communication dated 13.07.1999, rejecting the claim. Hence the original application. 5. It appears to us on a perusal of Rule 75, with particular emphasis on the Note incorporated therein, that the employee has to opt for the new scheme within the constraints of the rule. There is no material before us to show that respondent no.2 ever opted for the benefit under Rule 75. Furthermore such settled affairs cannot be permitted to be unsettled at such belated stage. We are mindful of the position that it is with respect to pensionary benefits. Respondent no.2 is a widow, and the authorities had communicated the rejection on 13.07.1999, notwithstanding which we would like to emphasis that it is difficult to intervene in such a situation when the affairs had fully settled. It appears from the materials on record that respondent no.2, under the old scheme, is being paid Rs. 605/-, being the monthly allowance, apart from the lump sum payment given to her soon after the demise of her husband. It is evident that respondent no.2 has not received illusory benefits. 5 6. Learned counsel for respondent no.2 commenced his submission by stating that respondent no.2 is a widow. Respondent no.2 is evidently a widow, and a liberal view if possible should inform our approach, but equitable considerations have their limitations, cannot be permitted to override the dominant considerations of law. One of us (S.K.Katriar, J.), considering senior had the occasion to collate the judgments on this issue in the decision of Ram Dhani Singh versus State of Bihar & Ors. 2007(4) PLJR 332. Paragraph nos. 16 to 19 is reproduced herein below: “16. Paragraphs 21 and 22 of the judgment in State Bank of India vs. Ramesh Dinkar Punde( Supra), are equally relevant in the present context and are set out hereinbelow for the facility of quick reference:- “21. Confronted with the facts and the position of law, learned counsel for the respondent submitted that leniency may be shown to the respondent having regard to long years of service rendered by the respondent to the Bank. We are unable to countenance such submission. As already said, the respondent being a bank officer, holds a position of trust where honesty and integrity are in- built requirements of functioning and it would not be proper to deal with the matter leniently. The respondent was a Manager of the Bank and it needs to be emphasized that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer so that the confidence of the public/depositors is not impaired. It is for this reason that when a bank officer commits misconduct, as in the present case, for his personal ends and against the interest of the bank and the depositors, he must be dealt with iron hands and he does not deserve to be dealt with leniently.” “22. In TNCS Corpn. Ltd. vs. K. Meerabai, (2006)2 SCC 255, such plea had been rejected by this court. It was pointed out at SCC p. 267, para 29 as under: “29. Mr. Francis also submitted that a sum of Rs. 33,436.85 being 5% of the total loss of 6 Rs. 6,88,737.12 is sought to be recovered from the respondent and that the present departmental proceedings is the only known allegation against the respondent and there was no such allegation earlier and, therefore, a lenient view should be taken by this Court, and relief prayed for by both the parties can be suitably moulded by this Court. We are unable to agree with the above submission which, in our opinion, has no force. The Scope of judicial review is very limited. Sympathy or generosity as a factor is impermissible. In our view, loss of confidence is the primary factor and not the amount of money misappropriated. In the instant case, the respondent employee is found guilty of misappropriating the Corporation funds. There is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefor with the quantum of punishment awarded by the disciplinary and Appellate Authority” (Emphasis added) 16.1) In other words, the Supreme Court observed that such cases of misconduct should be dealt with iron hands, the delinquent employee does not deserve to be dealt with leniently, and sympathy or generosity as a factor is impermissible in judicial review. There is no place for generosity or sympathy in judicial forums, and interference with the quantum of punishment awarded by the departmental authorities is impermissible. 17. The Superme Court has dealt with this issue in its judgment in the case of Divisional Controller, NEKRTC vs. H. Amaresh, reported in 2006(3) PLJR (SC) 409. That was a case where the delinquent had been found guilty of grave misconduct and, after a departmental proceeding was dismissed from service. The Labour Court ordered for reinstatement despite holding the employee guilty of pilferage. The High Court affirmed the order of the Labour Court. The Supreme Court restored the order of dismissal passed by the disciplinary authority, and proceeded to observe that the orders of the Labour Court and the High Court were contrary to law, and there is no place for misplaced sympathy in judicial forums for interfering with the punishment. 18. Reference may also be made to the Constitution Bench judgment of the Supreme Court in Secretary, State of Karnataka vs. Uma Devi, 7 reported in (2006)4 SCC 1 [:2006(2) PLJR (SC) 363], which dealt with the question of regularization of back-door entrants in Government service. Their Lordships quoted with approval the observations of Farwell, L.J, in Latham vs. Ricahard Johnson & Nephew Ltd. (discussed in paragraph 19 hereinbelow). The same was also quoted with approval by the Supreme Court in its judgment in the case of Umarani vs. Registrar, Co- operative Societies, reported in (2004)7 SCC 112. Paragraph-36 of the judgment in Uma Devi (Supra) is setout hereinbelow for the facility of quick reference:- “36. This Court also quoted with approval ( at SCC p. 131, para 69) the observations of this Court in Teri Oat Estates (P) Ltd. vs. U.T., Chandigarh, to the effect: (SCC p.144, para 36) “36. We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution, this Court ordinarily would not pass an order which would be in contravention of a statutory provision.” This decision kept in mind the distinction between “regularization” and “permanency”, and laid down that regularization is not and cannot be the mode of recruitment by any State. It also held that regularization cannot give permanence to an employee whose services are ad hoc in nature.” 19. Reference may be made to the judgment of the Court of Appeal in England in the case of Latham vs. Johnson & Nephew, reported in 1911-13 All.E.R. 117. The defendants were the owners of a piece of unfenced waste ground, on which to their knowledge and with their permission children had been in the habit of playing. Early one morning a heap of stones was deposited on the land by the defendants’ servants, and soon after, while on the land alone, the plaintiff, a child under three years of age, was injured by one of the stones falling on her hand. In an action brought on behalf of the plaintiff for damages for his injury, it was held that the defendants were not liable. It was further held that “… we must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o’the wisp to take as a guide in the search for legal principles…” 8 We are mindful of the position that the facts and circumstances of Ramdhani’s case were fundamentally different, was really a case of disciplinary proceeding wherein a lenient approach was prayed for on behalf of the employee accompanied with the prayer for reduction in sentence. In that back ground, this court reminded itself of the leading judgments on this point. However, the same line of cases apply to the present case also, wherein it has been held that an unwarranted sympathy is unsafe guide in judicial proceedings. 7. In the facts and circumstances of this case, we disagree with the impugned order passed by the learned Tribunal. The same is hereby set aside. We are fully mindful of the situation that this writ petition has been allowed, notwithstanding which we direct the writ petitioners to pay a sum of Rs. 10,000/- (Ten thousand), to respondent no.2, by way of costs of this litigation as a measure of compassion which shall be paid to her along with the next instalment of her ex- gratia payment. (Kishore K.Mandal,J.) I agree. Patna High Court, Dated the 2nd April, 2010 Sym/AFR (S.K.Katriar,J) ( Kishore K. Mandal, J.)