Tuesday, 23 June 2015

Whether ex gratia payment made to widow of person who died in accident can be deducted from compensation payable to her?

 In view of above, this issue is no longer res integra. We hold that the amount which is payable to the applicant under ex-gratia payment could not have been reduced by deducting the amount paid under Workmen s Compensation Act. Applicant is entitled to get the difference of the amount. Accordingly, respondents are directed to release the deducted amount of Rs. 1, 78, 940/- to the applicant within a period of 8 weeks from the date of receipt of a copy of this order. We are not inclined to grant any interest in this case because applicant has herself approached the court with some delay, therefore, she would not be entitled to get any interest.

Central Administrative Tribunal - Delhi
Smt. Beghmati vs The General Manager on 25 November, 2010

By Hon ble Mrs. Meera Chhibber, Member (J) :
The short issue which has arisen for consideration in this case is whether amount paid ex-gratia under a Scheme would be liable to be deducted from the money payable to an employee under the Workmen s Compensation Act (hereinafter referred to as WCA) or vice versa. This need not detain us for long as the matter has already been decided by the Hon ble High Court of Delhi in Writ Petition ( C) 4897/2007 in the case of Union of India and Others Vs. Smt. Hira Rani. In the said case also it was submitted by the counsel for Union of India that as per DOP&T Circular dated 11.9.1998 ex-gratia paid has to be adjusted from the amounts which may be payable under a statute. This contention was not accepted by the Hon ble High Court of Delhi by observing as follows:-
7. The Ministry of Finance, to whom the matter was referred, clarified that the OM dated 11.09.1998 does not justify reduction of the compensation paid under the Workmen s Compensation Act by adjusting the ex-gratia lump-sum payable.
8. Accordingly Smt. R. Vijaykumari was paid the entire compensation under the Workmen s Compensation Act and no deduction was made with reference to the ex-gratia payment made to her on account of the death of her husband, which we note took place at a railway accident.
9. We need not expound upon the circular in question for the reason it is not in dispute that the Ministry of Finance interpreted the circular in the case of Smt. R. Vijaykumari and directed that ex-gratia compensation paid to her be not adjusted from the compensation payable to her under the Workmen s Compensation Act and the said decision has been complied with in favour of Smt. R. Vijaykumari.
10. Petitioner would be entitled to parity.
11. The writ petition is dismissed .
2. From above, it is clear that the view taken by the Hon ble High Court, is since Ministry of Finance had already interpreted the Circular and directed that ex-gratia compensation should be paid to Smt. R. Vijaykumari without adjusting it from the compensation payable to her under the WCA, Smt. Hira Rani would also be entitled to the same benefit.
3. The brief facts, in the present case are that applicant s husband died on 26.3.1999 while on duty. She was granted an amount of Rs.1,78,490/- under WCA on 15.5.2001. The Vth Central Pay Commission had recommended grant of lump-sum compensation of Rs.5 Lakhs to the wards of Government servants who die while performing duty. This was accepted by the Government vide DOP&T OM dated 11.9.1998 and was held to be applicable to Railway servants also vide Railway Board s letter dated 5.11.1999. In view of above, applicant had claimed compensation, as according to her, she was entitled to the same under the Railway Board s Circular. At this stage she had filed OA No. 2547/2005 which was disposed of on 21.11.2005 with a direction to the respondents to treat the OA as a representation and decide the same by passing a reasoned order. The office of DRM held in its letter dated 20.3.2006 that family of Shri Balram is entitled to the benefits under RBE 285/99 and forwarded the same for necessary action to the competent authority, i.e., the General Manager. According to the applicant, even the General Manager had sanctioned the same but since she was not paid any amount, she filed CP No. 332/2006. When notices were issued, respondents released an amount of Rs.3, 21, 510/- only after deducting the amount of Rs.1, 78, 490/- which was paid to the applicant under the WCA. Applicant has in these circumstances filed the present OA seeking the following relief:-
That the Hon ble Tribunal may graciously be pleased to pass an order declaring to the effect that the whole action of the respondents not granting the full lump-sum-compensation of Rs.5 Lakhs to the applicant and deducting Rs, 1, 78, 490 (Workmen Compensation) is illegal, arbitrary, against the Government of India and Railway Board instructions and consequently to pass an order directing the respondents to grant the full lump-sum compensation of Rs.5 Lakhs, i.e., deducted/balance amount of Rs.1, 78, 490/- to the applicant with 18% interest .
4. Respondents on the other hand have opposed this OA. They have stated that this OA is barred by limitation. They have stated as per Railway Board instructions dated 9.2.2000 compensation, if any paid under WCA, has to be reduced from the lump-sum amount payable under the scheme of ex-gratia. Since the rules have not yet been challenged, therefore, no relief can be granted to the applicant. In any case applicant has approached the court after a long delay, therefore, OA may be dismissed on this ground alone.
5. They have relied on the judgment of Hon ble Supreme in the case of Rattam Chandra Samanta Vs. U.O.I. reported in JT 1993 (3) SC 438 to say that the delay deprives a person of remedy also.
6. We have heard both the counsel and perused the pleadings also.
7. Respondents have taken objection of limitation but this is a case where applicant was entitled to get benefit under two different schemes and it has wrongly been deducted by the respondents. As held by the Hon ble High Court of Delhi, the matter has already been clarified by the Ministry of Finance and it was held that respondent in that case would be entitled to get both the compensations separately without deductions. The said order has been passed by the Hon ble High Court on 16.8.2010 while the OA was filed on 14.1.2010. It was still pending when the High Court has passed the above order. Moreover, Railway Board has agreed to the proposal that ex-gratia compensation is admissible in addition to the EOP Rules/Liberalised Pensionary Award and EOP Rules and WCA being parallel and exclusive as is evident from above note, therefore, question of limitation would not come against the applicant. In any case the amount was to be paid to the applicant as a result of beneficial legislation in view of the fact that her husband died while on duty, therefore, lenient view has to be taken in such matters. After all applicant has asked for difference of lump-sum ex-gratia payment, which has been deducted though she is entitled to get the full amount on account of death of her husband while on duty, therefore, we reject the objection taken by the respondents with regard to limitation.
8. On merits, it is relevant to mention that the DRM had specifically noted in his letter dated 20.3.2006 (page 9A) that late Shri Balram, Gangman was performing duty on 26.3.1999 when he was hit by the train and was injured. He was taken to the Civil Hospital but was declared brought dead. It was specially observed that there was no woeful disregard to safety rules by the said late Shri Balram. It was thus concluded as follows:-
The resultant hitting by train, injury and death is thus taken to be due to accident at the course of performance of duty and thus the provision of para 5 (a) of RBE 285/99 are attracted. As such, family of late Shri Balram is entitled to the benefits, as envisaged under RBE 285/99. The case was forwarded to the competent authority for sanction vide letter dated 22.3.2006 (page10) .
From above, it is clear that admittedly husband of the applicant had died while performing his duties due to accident and he was entitled to the benefits under the WCA as well as lump-sum ex-gratia amount as recommended by the Vth Central Pay Commission as accepted by the Railway Board. The respondents have sanctioned the ex-gratia amount also but have paid the applicant only Rs.3, 21, 510/- after deducting the amount which was paid to her under the WCA.
9. The question is whether it was open to the respondents to deduct the amount from ex-gratia amount. In the case of U.O.I. & Others Vs. Smt. Hira Rani the Hon ble High Court of Delhi has already noted that it was clarified by the Ministry of Finance that there is no justification to reduce the compensation paid under the WCA by adjusting the ex-gratia lump-sum payable. After the judgment of the Hon ble High Court of Delhi, the same issue again came up before the Tribunal in another case, namely, Smt. Binko Devi and Others Vs. Chairman, Railway Board and Others (OA No. 1917/2010). The said OA has also been allowed vide order dated 28.9.2010 in view of the judgment of Hon ble High Court of Delhi in UOI and Others Vs. Smt. Hira Rani. In the said case Tribunal was also pleased to direct the respondents to release the deducted amount with simple interest at the rate of 9%.
10. In view of above, this issue is no longer res integra. We hold that the amount which is payable to the applicant under ex-gratia payment could not have been reduced by deducting the amount paid under Workmen s Compensation Act. Applicant is entitled to get the difference of the amount. Accordingly, respondents are directed to release the deducted amount of Rs. 1, 78, 940/- to the applicant within a period of 8 weeks from the date of receipt of a copy of this order. We are not inclined to grant any interest in this case because applicant has herself approached the court with some delay, therefore, she would not be entitled to get any interest.
10. With the above directions, OA is partly allowed. No costs.
(Dr. Ramesh Chandra Panda)                           (Mrs. Meera Chhibber)
   Member (A)                                                             Member (J)

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