IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 WP(C).No. 8051 of 2009(S) ------------------------- OA.424/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O. CHANNAI -3. 2. THE SENIOR DIVISIONAL PERSONNEL OFFICE, SOUTHERN RAILWAY , PALGHAT DIVISION, PALGHAT. 3. THE SECRETARY, RAILWAY BOARD, RAIL BHAVAN, NEW DELHI. 4. THE DIVISIONAL FINANCE MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. BY ADV. SRI.M.C. CHERIAN, SR.SC., RAILWAYS RESPONDENT(S): --------------- V. SAMPOORNAM, W/O. LATE P. ARUMUGHAM, RESIDING AT DOOR NO. 74/1 STREET, SASTRI NAGAR, SADAYAMPALAYM ROAD, ERODE-2. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 8051 of 2009 S - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of March, 2009 JUDGMENT Balakrishnan Nair, J. The respondents in O.A.No. 424 of 2007 before the Central Administrative Tribunal, Ernakulam Bench, are the writ petitioners. The respondent herein was the applicant before the Tribunal. 2. The applicant is the widow of a Railway servant, P. Arumugham. He was a Driver (Special) at Erode Railway Station of Palghat Division of the Southern Railway. He died in an accident, while on duty, on 11.2.1981. The applicant was sanctioned family pension at the normal rates. Later, as per the Railway Board's order dt. 8.3.2000, a widow like the applicant became entitled to get family pension at the enhanced rate of 60% of the basic pay, subject to a minimum of Rs.2,500/- plus relief with effect from 1.1.1996. On coming to know of the order enhancing the family pension, she submitted a representation in W.P.(C).No. 8051 of 2009 2 2004, claiming family pension at the enhanced rate. It was followed by another representation in 2005. When those representations did not evoke any response, the Original Application was filed seeking appropriate directions to the respondents. 3. The claim of the applicant was for revised family pension under the Railway Services (Extraordinary Pension) Rules, 1993, (for short 'the Rules') a copy of which is produced as Ext.P3. 4. The respondents resisted the application, contending that the above pension Rules are applicable only to Railway servants, who are not covered by the provisions of the Workmen's Compensation Act. According to the respondents, the applicant's husband was a workman covered by the aforementioned Act. The applicant has been paid compensation for the death of her husband under the said Act. Therefore, the provisions of the aforementioned Rules are inapplicable to her or her husband. Therefore, she is entitled to get the family pension only at the ordinary rates and not at the enhanced rate, as provided under the Rules. W.P.(C).No. 8051 of 2009 3 5. The Tribunal, after hearing both sides and after perusing the documents, found that at the relevant time, having regard to the salary drawn by the husband of the applicant, he was not covered by the provisions of the Workmen's Compensation Act. It has been found that she has not been paid compensation under the said Act. He was ineligible to get compensation under the Act. But, she was paid an ex gratia amount, which was an amount she would have received, had the worker been covered by the Act. On finding that the applicant's husband was not a workman and he has not been paid compensation under the Workmen's Compensation Act, the Tribunal allowed the claim of the applicant and ordered to grant her family pension, as provided under the Railway Services (Extraordinary Pension) Rules, 1993. Challenging the said order of the Tribunal, a copy of which is produced as Ext.P7, this Writ Petition is filed. 6. Ext.P4 is the copy of the Original Application. Ext.P5 is the reply statement and Ext.P6 is the copy of the additional affidavit. Going by the pleadings, the only ground taken by the writ petitioners before the Tribunal, to resist the prayers in the Original Application W.P.(C).No. 8051 of 2009 4 was that the applicant's husband was a workman covered by the provisions of the Workmen's Compensation Act and therefore not covered by the Railway Services (Extraordinary Pension) Rules. Now, in this writ petition, certain new grounds are raised to impugn Ext.P7 order of the Central Administrative Tribunal. 7. Relying on Ext.P3, which is a copy of the above Rules, it is submitted that the extraordinary pension or family pension can be granted only on the basis of the order passed by the Railway Board in this regard. Therefore, the direction of the Tribunal is unsustainable. We notice that this is a new ground taken before this Court, which was never urged before the Tribunal. So, we are not justified in finding fault with the Tribunal's order, on the basis of the new ground urged before us. In an adversary litigation, the Court or the Tribunal decides the issue, based on the pleadings and materials placed before it. So, while exercising the power of judicial review, we are not justified in considering the validity of Ext.P7, based on certain new arguments, which the Tribunal did not have the occasion to consider. In view of the above position, we feel that the remedy, if any, of the petitioners is W.P.(C).No. 8051 of 2009 5 to move a review petition before the Central Administrative Tribunal. No relief could be granted in this Writ Petition, based on the new grounds urged before us. 8. In the result, this Writ Petition is dismissed, without prejudice to the rights, if any, of the petitioners, to move the Central Administrative Tribunal in review. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm