Case: Union of India Vs. Rekha Majhi

2. It is not disputed that the husband of the respondent was a railway employee and he died in harness. It is also not disputed that the family pension as well as gratuity, provident fund and all other retirement benefits which were admissible to the husband of the respondent were given to her. In addition to that, the railways gave compassionate appointment to the respondent. The respondent continued to draw salary as a railway employee as well as family pension till 25th January, 1994 when it was discovered that the respondent was not entitled to draw two dearness reliefs i.e. one on the salary and the other on the family pension. Consequently, the appellantsthe family pension of the respondent after deducting dearness reliefs and issued orders for recovery of dearness relief paid to her on family pension. Aggrieved by this order the respondent filed an O.A. before the Central Administrative Tribunal, Calcutta. The Tribunal was of the view that since the respondent was notas contemplated under rule 21(ii) of the Rules, she was entitled to draw dearness relief on the salary as well as on the family pension. Consequently, the O.A. was allowed. It is against this order the appellants are in appeal before this Court.

Reasoning: The ratio of the decision in the case of Union of India & others (supra) is, that a pensioner cannot draw two dearness reliefsone on the salary and the other on pension. Once it is accepted that the respondent is a pensioner it is immaterial whether such employment of the pensioner is first, regular or temporary appointment orIn view of such a legal position, the case of the respondent would fall within the four corners of clause (ii) of Rule 21 of the said Rules. The respondent being a widow of an employee, who died in harness, was given an employment in the railways on compassionate grounds. Technically the respondent has come in employment in substitution of her husband. Simultaneously, the railways have given her family pension and as such she is a pensioner. Therefore, in such circumstances Rule 21 would be attracted and the case of the respondent being a pensioner would be governed by the said Rules. Consequently, the respondent was legally not entitled to draw two dearness reliefsone on the salary and the other on family pension paid to her. We are, therefore, of the opinion that the appellants are legally justified in denying the respondent dearness reliefs on her familycounsel for the appellants has not drawn to our notice any circular or rule prior to 1993. Rule 21 finds place in the Rules which was published in 1993. It, therefore, appears that the dearness relief on the pension paid to the respondent was voluntarily and after a conscious decision taken in respect thereof. And it was only after the Rules 1993 were promulgated and orders forher pension and recovery of excess amount on family pension paid to her were issued. Moreover, it is stated that the respondent who is a widow is the lone bread earner of the family and her financial condition is not such as to pay back the excess amount she has already drawn. Under such circumstances, we are of the view that the recovery of excess pension paid to the respondent is not justified on legal and equitable grounds.