Central Administrative Tribunal - ChandigarhUnknown vs The Chairman & Managing Director on 20 October, 2010CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH


ORIGINAL APPLICATION NO.732-PB  of 2009
 Chandigarh, this the  20th  day of  October, 2010


CORAM:HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J)
                 HONBLE SMT. PROMILLA ISSAR MEMBER(A)


Harjinder Pal Kaur widow of No.9506282, Late Hav Pargat Singh Hothi, aged 57 years, resident K-159 A, Majithia Enclave, Patiala.

APPLICANT
BY ADVOCATE: SHRI R.K.SHARMA

VERSUS

1. The Chairman & Managing Director, Bharat Sanchar Nigam Limited (BSNL), Harish Chandra Mathur Lane, Connaught Place, New Delhi.

2. The Chief General Manager Telecom, Punjab Telecom Circle, Bharat Sanchar Nigam Limited, SCO 101-103, Sector 34, Chandigarh.

3. General manager Telecom, Bharat Sanchar Nigam Limited, Patiala.

4. Communication Accounts Officer (Pension), office of Controller of Communication Accounts, Punjab Teleocm Circle, Madhya Marg, Sector 18-A, Chandigarh

5. Senior Record Officer, Army Education Corp. Records Panchmarhi (M.P. Pin 908777 C/o 56 APO

RESPONDENTS

BY ADVOCATE:  SHRI K.K.THAKUR  For Respondents 1 to 3
SHRI RAKESH VERMA  For Respondent No.4
SHRI DEEPAK AGNIHOTRI  For Respondent No.5


ORDER

HONBLE  MR. JUSTICE S.D. ANAND, MEMBER(J):-It would be appropriate to indicate the facts in the first instance,  in order to enable  appropriate appreciation of  the controversy.2.	Pargat Singh Hothi (hereinafter referred as the employee) joined Indian Army with effect from 23.1.1973.  He was discharged from the Army on 31.7.1987.  At the time of discharge, he was a member of Education Instruction Group A (Class-I).  Pension Payment Order (PPO) No.S/028369/89 (Army) came to be issued in his favour.3.	After discharge from Army, he joined re-employment on the civilian side.  He died in harness  on 22.8.2008, while he was posted as Sub Divisional Engineer, Mandi Gobindgarh, District Fatehgarh Sahib (Punjab).  At the time of death, he was in receipt of Army Pension at the rate of Rs.4,124/-.4.	Applicant Harjinder Kaur is wife of the employee.  She informed the Army authorities that she was desirous of drawing pension from the civil side.5.	Initially, the Senior Record Officer in Sena Shiksha Corps Abhilekh Karyalaya, Army Educational Corps Records informed her,  vide Annexure A-5 dated 12th October, 2008,  that her husband had exercised option to draw family pension from defence side. Accordingly, family pension in your favour has already been notified in  PC DA(P), Allahabad vide their Pension Payment Order dated 21.6.1989. and that if she was still desirous to exercise option for drawing of family pension from civil side, she could forward the application through her husbands second employer Pension Sanctioning Authority.6.	It is apparent from  letter Annexure A-5,  that a copy thereof was either forwarded to the Government of India (in the Ministry of Communication and I.T., Department of Telecommunications) or it was handed over in that office by the applicant.  In the context of that letter, the Controller of Communication Accounts, Punjab Telecom Circle,  informed the applicant that her request could not be granted in view of the fact that Late Ex. Hav Pargat Singh Hothi had exercised the option to draw family pension from defence side which was notified by PCDA(P), Allahabad vide their Pension order No.51028369/89 (Army) dated 21.6.1989.   .  However, as per Rule 54 sub Rule 13-A(b) the option once exercised shall be final.  In view of this no change in drawl of family pension can be permitted.7.	Insofar as Respondents 1 to 3 are concerned, they have taken a pure and simple stance that they have been incorrectly arrayed as parties and that the relief applied for has to be considered by Respondent No.4.8.	Respondent No.4 reiterated the stance adopted and drew sustenance,  in support thereof,  from the provisions  of sub-clause (ii)(b) of  Rule  (13-A) of the CCS (Pension) Rules.9.	Interestingly enough, both sides relied upon that very rule.  The applicant herein announced that the rule aforementioned warrants the grant of her request; while the contrary stance is indicated by the party opposite.  The relevant part of the rule is extracted hereunder:- (13-A) A military pensioner, who on retirement from military service, on retiring pension, service pension or invalid pension is governed for the grant of ordinary family pension by army Instructions 2/S/64 or corresponding Navy or Air Force Instructions and is re-employed in a civil service or civil post before attaining the age of superannuation, shall for the purpose of eligibility for the family pension admissible under this rule or the family pension already authorized under the aforesaid Army/ Navy/ Air Force Instruction, be governed as follows:-(i)If he dies while holding a civil post, his family shall be allowed family pension under these rules or the family pension authorized at the time of retirement or discharge from the military service, whichever is more advantageous to the family;(ii)If he has, on appointment to a civil service or post, opted to retain military pension for the past military service (a)and retires from the civil re-employment without earning any pension therefore, his family shall be entitled to family pension as authorized at the time of his retirement/ discharge from military service;(b)retires from civil re-employment after becoming eligible for pension therefore, he shall exercise an option at the time of applying for pension for civil service either to be governed by family pension under these rules or to avail of family pension benefits as authorized at the time of his retirement/ discharge from military service and the said option once exercised shall be final.(iii)	xxx			xxx			xxx .10.	The cue to the controversy is to be found in the portion underlined in the above-quoted rule.  It would be apparent therefrom that a defence pensioner shall have the opportunity to make the relevant option (i.e. whether he would like to draw pension from the defence side or the civil side) only after he retires from civil re-employment after becoming eligible for pension.11.	In the present case, it is beyond the pale of controversy that the employee joined re-employment on 19.12.1990.  The averment made by the applicant in the course of the O.A. to the effect that the employee was due to retire (from the civilian re-employment in the year 2011) has not been denied in the course of the written statement.  Even otherwise, there seems to be no controversy that the date of birth of the employee was 3.11.1951.  That averment appears in the course of Para 9 of the O.A.  It is in the course of that very para that there is a further averment that the employee would have remained in employment upto 2011 and would have become entitled to draw civil pension only thereafter.  Those two averments, which have a  relevant bearing on the disposal of the controversy in hand, have not been denied in the course of the written statement.12.	Thus, in view of the proved position that time really had not come for the employee to exercise option in the relevant behalf, it was illogical for the concerned authorities to hold that once the employee  (pensioner) exercised the option, no change thereof is permissible thereafter.  In view of the fact that the employee had not retired from civil employment, where after all was the opportunity for him to exercise the option ?	The question of exercise of   option would arise when both the facets of option were available to him.  Insofar as the option exercised by him at the time of his retirement from Army is concerned, he really had no locus or option to say that he would not draw pension from the defence side or he would like to draw it from the civil side.  The latter side was not in the picture at all till the time he superannuated from the Army.13.	We find that the concerned authority adopted a palpably wrong attitude and exhibited a depleted level of competence in denying  legitimate entitlement to a widow.  This is surely not the way the way the Army Authorities should be treating a hapless widow of a former Army Officer.14.	There are two facets of the system of dispensation of justice, judicial and administrative.  The former would pose no difficulty inasmuch as   there would always be two parties thereto who shall either assist the Court in person or through their counsel.  However, the same may not be true of the administrative justice wherein the authority charged with the responsibility of taking a decision may not necessarily have the affected employee before it.  A face-to-face debate may be a phenomenon foreign to the administrative justice.  It is only the documentation presented by the employee which is available before the competent authority.  In that view of things, it would be expected that the authorities acting on the administrative side are more agile and alive to the grievance canvassed. Though there has to be compulsive compliance of the rules, the authorities must not stick to the formatted approach and should endeavour to be innovative to be able to do practical justice to the employee.  While adhering to the rules, human compassion-related quotient cannot altogether be ignored.15.	The O.A. shall stand allowed.  The impugned order, Annexure A-1 dated 22.7.2009 shall stand invalidated.  The applicant herein shall be entitled to draw pension on the civil side.   The concerned authorities shall issue the relevant orders in a manner that the applicant is able to draw pension on the civil side in the month of November 2010.16.	In view, however, of the fact that the fate of the case turns on an interpretation of a statutory clause, there shall be no order as to the costs of the cause in the circumstances of the case.(PROMILLA ISSAR)                                    (JUSTICE S.D.ANAND)
       MEMBER(A)                                                     MEMBER(J)

Dated: October  20 , 2010
`bss8(O.A. No.732-PB/09)