RSA No.1826 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1826 of 2009 Date of Decision: 22.07.2010 Sarbati Devi and others .……Appellants Versus Union of India and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.Y.P. Singh, Advocate for the appellants. Mr. Nitin Kumar, Advocate for the respondents. L. N. MITTAL, J (ORAL) Plaintiffs, who are successful in the trial Court, but have been non-suited by the lower appellate Court, have filed the instant second appeal. Nathu Ram Bawlia was Railway employee under the defendants/respondents. He retired on 31.05.2000 and died on 03.07.2000. Plaintiffs being his widow and two sons are his legal heirs. They filed suit to claim retiral benefits of the deceased employee including commuted value of pension, along with interest. Defendants raised various preliminary objections and pleaded that all retiral benefits have been paid to the widow and family of the deceased employee whereas commutation of pension cannot be permitted to the family of any employee when the employee expired without filing up requisite form for commutation of pension before his death. Since Nathu Ram Bawlia died without applying for commutation of pension in prescribed form, the plaintiffs are not entitled to commuted value of pension. It was also pleaded RSA No.1826 of 2009 -2- that Nathu Ram Bawlia had retired on 31.05.2000, pursuant to voluntary retirement sought by him. It is not in dispute that the other retiral benefits have already been released and the only dispute is regarding commutation of pension. Learned Civil Judge (Junior Division), Hissar vide judgment and decree dated 19.08.2006 decreed the plaintiffs' suit directing the defendants to release benefit of commuted pension to the plaintiffs with interest at the rate of 6% per annum from the date of retirement of Nathu Ram Bawlia. However, first appeal preferred by the defendants has been allowed by learned Additional District Judge, Hissar vide judgment and decree dated 13.06.2007 and thereby suit filed by the plaintiffs stands dismissed. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Lower Appellate Court relied on Rule 14 of the Railway Services (Pension) Rules, 1993 (in short, Pension Rules) which was applicable to the deceased employee. Said Rule 14 as reproduced in the judgment of the lower Appellate Court is also reproduced hereunder:- “Application for commutation of pension: 1) an applicant, who is in receipt of any pension referred to in Rule 13 desires to commute a fraction of that pension any time after the date following the date of his retirement from service but before the expiry of one year from the date of retirement, shall :- (a) apply to the Head of Office in Form-I after the date of RSA No.1826 of 2009 -3- his retirement; (b) ensure that the application in Form-1 duly completed, is delivered to the Head of Office as early as possible, but not later than one year of the date of his retirement. Provided that in the case of an applicant:- (a) xxxxx (b) xxxxx 2) An applicant who applies for commutation of pension within one year of the date of his retirement but his application in Form-1 is received by the Head of Office after one year of the date of his retirement, shall not be eligible to get his pension commuted, without medical examination. Such an applicant, if he desires to commute a fraction of his pension, shall apply afresh in Form 2 in accordance with the procedure laid down in Chapter IV. 3) A railway servant who is due to retire on superannuation and desires payment of the commuted value of pension being authorized at the time of issue of the pension payment order, shall be eligible to apply for commutation of a fraction of pension alongwith pension papers prior to the date of retirement provided that (a) the railway servant retires on superannuation pension only; (b) the application is submitted to the Head of Office in Form-2, so as to reach the Head of Office not later than three months before the date of superannuation. (c) No such application shall be entertained if the period is less than three months from the date of superannuation of the railway servant; and (d) The railway shall have not liability for the payment of the commuted value of pension if the Railway servant dies before the date of superannuation or forfeit claim to pension before such retirement” Lower appellate Court held that admittedly Nathu Ram RSA No.1826 of 2009 -4- Bawlia had not applied for commutation of pension after retirement and before his death and, therefore, in view of Rule 14 of the Pension Rules, benefit of commutation of pension cannot be granted. Same contention has been raised by learned counsel for the respondents before me. However, learned counsel for the appellants contended that according to Rule 14 of the Pension Rules, an employee is entitled to apply for commutation of pension upto one year after retirement and since Nathu Ram Bawlia the retired employee died just a month after his retirement, he could not apply for commutation of pension, although he had right to do so till expiry of one year after his retirement and, therefore, benefit of commutation of pension should not be denied to the plaintiffs being legal heirs of the deceased employee. I have carefully considered the rival contentions. Rule 14 of the Pension Rules clearly stipulates that application in prescribed form could be made by the retired employee till one year after his retirement. In this case, Nathu Ram Bawlia retired on 31.05.2000 and died on 03.07.2000. He thus died before the expiry of one year after his retirement, during which period he had right to apply for commutation of pension. Consequently, if the deceased employee could not apply for commutation of pension on account of his death, the said benefit cannot be denied to the plaintiffs. In this view, I am supported by judgment of this Court in the case of Veer Bhan versus State of Haryana and others, 2009 (4) SCT 444. In that case, the employee retired on 31.07.2006 having sought voluntary retirement and she died on 09.05.2007. Her husband sought commutation of pension. The employer State of Haryana denied the RSA No.1826 of 2009 -5- said relief on the ground that the deceased did not apply for commutation of pension. However, this plea of the State was negatived and it was held that husband of the retired employee was entitled to benefit of commuted value of pension. In that case, the retired employee had died more than 9 months after her retirement whereas in the instant case, the retired employee died less than 5 weeks after his retirement and, therefore, in the instant case, retired employee had no sufficient opportunity to submit requisite application in prescribed form for commutation of pension. Consequently, the plaintiffs cannot be denied the said benefit. Learned counsel for the respondents next contended that jurisdiction of Civil Court to decide the suit is barred by Section28 of the Administrative Tribunals Act, 1985 (in short, the Act). Learned counsel for the appellants, however, contended that no such objection was raised by the defendants in their written statement nor any issue was framed thereon nor any such plea was raised before both the Courts below. I have carefully considered the rival contentions. It is correct that the defendants in their written statement did not raise any objection of bar of jurisdiction of the Civil Court by Section 28 of the Act nor any issue to this effect was framed nor this contention was raised before both the Courts below. However, it is equally true that such purely legal contention can be raised even in second appeal. At the same time, in the instant case, I am of the considered view that it would be futile to start another round of litigation by directing the appellants to approach the Central Administrative Tribunal under the Act to get benefit of commutation of pension of the deceased RSA No.1826 of 2009 -6- retired employee. The retired employe died on 03.07.2000 i.e 10 years ago and the appellants have not yet received the aforesaid benefit. If they are forced to resort to another round of litigation, it may take another 5 to 10 years. No useful purpose would be served by directing the plaintiffs-appellants to approach Central Administrative Tribunal and thereby starting another round of litigation de novo and prolonging the agony of the appellants and depriving the appellants of their right to get commuted value of pension of the retired employee. This would also be opposed to the National Litigation Policy framed recently by the Government of India to avoid futile and unnecessary litigation. Accordingly, the contention regarding bar of jurisdiction of the Civil Court is repelled in the peculiar facts and circumstances of the case. From the aforesaid discussion, I find that following substantial question of law arises for determination in the instant second appeal:- “ Whether the lower appellate Court committed illegality in denying the benefit of commutation of pension of the deceased retired employee to the plaintiffs merely on the ground that the deceased retired employee had not applied for commutation of pension?” For the reasons already recorded hereinabove, the substantial question of law is answered in the affirmative i.e in favour of the appellants and they are held entitled to benefit of commutation of pension of the retired employee. As a necessary upshot of the aforesaid discussion, the instant second appeal is allowed and judgment and decree dated RSA No.1826 of 2009 -7- 13.06.2007 passed by the lower appellate Court are set aside. Judgment and decree dated 19.08.2006 passed by the trial Court decreeing the plaintiffs' suit are restored. 22.07.2010 ( L. N. MITTAL ) A. Kaundal JUDGE