Supreme Court of India

Union Of India And Ors vs Rekha Majhl on 6 April, 2000

Equivalent citations: AIR 2000 SUPREME COURT 1562, 2000 (10) SCC 659, 2000 AIR SCW 1295, 2000 LAB. I. C. 1468, 2000 (3) SERVLJ 289 SC, 2000 (2) LRI 406, 2000 (2) UPLBEC 1739, 2000 (3) SCALE 203, (2000) 3 SERVLJ 289, 2000 (5) SRJ 160, (2000) 4 JT 379 (SC), 2000 (2) ALL CJ 923, (2000) 2 LABLJ 449, (2000) 2 CURLR 257, (2000) 3 ANDH LT 32, 2001 SCC (L&S) 744, (2000) 96 FJR 595, (2000) 85 FACLR 699, (2000) 3 LAB LN 484, (2000) 2 SCT 676, (2000) 2 SERVLR 642, (2000) 2 UPLBEC 1739, (2000) 3 SUPREME 299, (2000) 3 SCALE 203, (2000) 2 ESC 1104

Author:
V.N. Khare

Bench:
V.N. Khare

CASE NO.:
Appeal (civil) 679 of 1997

PETITIONER:
UNION OF INDIA AND ORS.

RESPONDENT:
REKHA MAJHl

DATE OF JUDGMENT: 06/04/2000

BENCH:
V.N. KHARE & Y.K. SABHARWAL

JUDGMENT:

JUDGMENT

2000 (2) SCR 1058

The following Order of the Court was delivered :

The sole question that arises in this case is whether the respondent herein
is entitled to dearness relief on the family pension admissble to her even
after getting appointment on compassionate ground in the railways. It is
not disputed that the husband of the respondent was a railaway employee and
he died in harness. It is 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 appellants re-fixed the
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 not re-employed as 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.

Rule 21 of the Railways Services (Pension) Rules, 1993 reads thus : "Rule

21. Dearness relief on pension or family pension

(i) ................

(ii) If a pensioner is re-employed under the Central or a State Government
or a Corporation, Company, Body or Bank under such Government in India or
abroad including permanent absorption in such Corporation, Company, Body or
Bank he shall not be eligible to draw dearness relief on pension or family
pension during the period of such re-employment."

On the strength of the said rule it is contended by the counsel for the
appellants that the respondent having become employee of the railways, she
was not entitled to draw dearness relief on the family pension given to
her. Whereas the contention of the respondent's counsel is that it is not a
case of re-employment but is a case of first regular employment in the
railways and, therefore, Rule 21 has no application in the present case and
she is entitled to draw dearness relief on the salary received by her as
well as on the family pension given to her.

It is well-known that dearness relief or allowance is being paid to
compensate the employees against rise in the price index. The question that
arises is, whether such an employee is entitled to draw two dearness
reliefs - one on the salary and the other on the family pension paid to
him.

We have heard learned counsel for the parties. A perusal of Rule 21(ii)
shows that the object behind framing the Rule is that a pension cannot
enjoy two dearness reliefs simultaneously, one on his pension and the other
on his salary if he takes up re-employement, and, therefore, in such a
situation to deny dearness relief on the pension. It is not disputed that
the respondent is getting family pension and, therefore, she is a
pensioner. That being the object of the Rule, we have to give wider meaning
to the expression "re-employed" which finds place in Rule 21(ii) of the
Rules. The expression "re-employed", if construed in the light of the
object behind the Rule and facts of this case, would also include first
regular appointment in the service.

In a case titled
Union of India and Others v. G. Vasudevan Pillay and
Others
, [1995] 2 SCC 32, wherein this Court held :

"In some of the cases, we are concerned with the denial of dearness relief
on family pension on employment of dependants like widows of the ex-
servicemen. This decision has to be sustained in view of what has been
stated above regarding denial of DR on pension on re-employment inasmuch as
the official documents referred on that point also mention above denial of
DR on family pension on employment. The rationale of this decision is
getting of dearness allowance by the dependants on their pay, which is
drawn following employment, because of which dearness relief on family
pension can justify be denied, as has been done."

The ratio of the decision in the case of
Union of India & Others
(supra)
is, that a pensioner cannot draw two dearness reliefs - one 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 or re-appointment In 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
reliefs - one 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 clearness reliefs on her family pension.

Learned counsel for the respondent then urged that in any case the
appellants are not entitled to recover the dearness reliefs on the family
pension paid to the respondent between 26.1.87 to 25.1.94. Learned counsel
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 was promulgated and orders
for re-fixing her 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.

For the aforesaid reasons, the judgment and order under appeal is set
aside. The appeal is allowed. There shall be no order as to costs.