Nishita Mhatre, A.C.J.
1. The respondent employee was working as a Passenger Guard with the Railways since 1974. He met with an accident arising out of and in the course of duty on 25th November, 2005. The Medical Board on 23rd June, 2006 declared that the employee had suffered 90% disablement. As a result, the employee was declared medically unfit for further service with the Railways. An application was submitted by the employee to the Railways for payment of compensation in view of the disability suffered by him. An Enquiry committee was instituted which found that the employee had indeed suffered a disablement due to an accident arising out of and in the course of employment. As compensation was not paid to the employee under the Workmen’s Compensation Act, 1923 he preferred an application under the Act before the Commissioner. He was granted compensation of Rs.3,37,975/- by an Order dated 30th April, 2007 passed by the Commissioner for Workmen’s Compensation.
2. As the employee was declared medically unfit he was granted invalid pension under the Central Civil Service (Pension Rules) (hereinafter referred to as the CCS (Pension) Rules instead of normal pension. The employee is drawing Rs.7,546/- as invalid pension.
3. The employee then applied for disability pension on the basis of the Railway Board’s Circular RBE 39/2000 dated 8th March, 2000. The employee contended that in view of the recommendations made by the Vth Pay Commission, he was entitled to disability pension @ 30% of his basic pay.
4. The employee’s claim for disability pension was negated by the Railways on the ground that he was not entitled to any further amount than that which was paid to him as compensation under the Workmen’s Compensation Act and invalid pension and other service benefits.
5. Being aggrieved by the decision of the Railways not to grant him benefits under the RBE 39/2000, the employee preferred OA No. 704 of 2011 before the Central Administrative Tribunal, Calcutta Bench. The application filed by the employee was allowed by the Tribunal. The Railways were directed to pay 30% of his Basic Pay as disability pension in addition to the invalid pension and gratuity admissible under the CCS (Pension) Rules, 1972, apart from the compensation which he had received under the Workmen’s Compensation Act. The payment under RBE 39/2000 was directed to be made with arrears within 3 months of the order. Aggrieved by the decision of the Tribunal, the Railways have preferred the present petition. Mr. Basu, learned Counsel appearing for the Railways argued that no additional benefits could be granted to the employee since he had already been paid compensation under the Workmen’s Compensation Act and was being paid invalid pension under the CCS Pension Rules. He submitted that once invalid pension was paid to the employee on account of his disability, the question of granting any disability pension under the Railway Service (Extra Ordinary Pension) Rules, 1993 (hereinafter referred to as Extraordinary Pension Rules) did not arise. According to the learned Counsel, the employee had opted to avail of the compensation payable under the Workmen’s Compensation Act and therefore he could not seek any relief under the Extraordinary Pension Rules. A further submission was made that in view of Rule 2 of the Extraordinary Pension Rules which restricts the applicability, the employee was not governed by the Extraordinary Pension Rules.
6. The learned Counsel has relied on the judgments in the case of National Insurance Co. Ltd. Vs. Mastan and Anr. reported in (2006) 2 SCC 641, Oriental Insurance Company Limited Vs. Dyamavva and Ors. reported in (2013) 9 SCC 406, A. Trehan Vs. M/s. Associated Electrical Agencies and Anr. reported in AIR 1996 SC 1990, Western India Plywood Limited Vs. P. Ashokan reported in AIR 1997 SC 3883 in support of his submission that the employee must elect whether to apply under the Workmen’s Compensation Act or under the Extraordinary Pension Rules or under the RBE 39/2000.
7. Per contra, Mr. Chakraborty, the learned Counsel appearing for the employee submitted that the employee was never asked to exercise his option as to whether he would claim benefit under the Workmen’s Compensation Act or under the Extraordinary Pension Rules. He submits that compensation paid under the Workmen’s Compensation Act was deposited with the Commissioner for Workmen’s Compensation Act does not in any manner affect the employee’s right to additional benefits for the disability suffered by him. The learned Counsel then pointed out that the claim of the employee for additional benefits is based on RBE 39/2000 which grants special benefits in cases of death and disability on the basis of the recommendations made by the Vth Central Pay Commission. According to the learned Counsel, the claim of the employee was not based on the Extraordinary Pension Rules and therefore, the question of electing one or the other remedy did not arise. The learned Counsel has relied on the judgments in the case of Bhagwan Dass and Anr. Vs. Punjab State Electricity Board reported in (2008) 1 SCC (L&S) 242. The learned Counsel has also drawn our attention to the fact that the employee was entitled to employment, although he had suffered disablement in view of the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1985. He has relied on certain judgments in support of this contention. However, it was not the contention of the employee before the Tribunal that his service ought not to have been terminated and that he was entitled to the benefit of Section 47 of The Persons with Disabilities Act, 1985. Therefore it is unnecessary for us to consider this contention.
8. Thus, the short question which arises for consideration before us is whether the employee is entitled to additional or special benefits granted under the RBE 39/2000, although he has availed of the compensation under the Workmen’s Compensation Act. Indisputably, invalid pension is being paid to the employee under the CCS (Pension) Rules. There is no payment being made to him under the Extraordinary Pension Rules nor has the employee sought relief under the aforesaid Rules. Therefore, we need not consider as to whether the employee ought to have elected to prefer an application under the Workmen’s Compensation Act, 1923 or under the Railway Services Extraordinary Pension Rules. The common thread running through the judgments cited by Mr. Basu is that when an employee meets with an accident arising out of and in the course of an employment, he must elect whether to claim compensation under the Motor Vehicles Act, 1988 or the Workmen’s Compensation Act,1923 as Section 167 of the Motor Vehicles Act specifically debars a party from claiming compensation under both Acts. A party would have to elect for one or the other remedy. Similarly, in A. Trehan (supra) and Western India Plywood Limited (supra), the Supreme Court held that since Section 53 of the Employee’s State Insurance Act (ESI Act) barred an employee from claiming compensation under any other Act, the employee would not be entitled to claim compensation under both the ESI Act as well as the Workmen’s Compensation Act, 1923 or filing a suit for damages. As stated earlier, these judgments are of no avail to the Railways.
9. The learned Counsel for the Railways has also relied on the judgment in Deepal Girishbhai Soni and Ors. Vs. United India Insurance Co. Ltd., Baroda reported in (2004) 5 SCC 385 to submit that though the RBE Circular may be beneficial and deserves a liberal consideration with a view to implementing the legislative intent, the Court should not travel beyond the same and extend the scope of the statute on the pretext of extending the statutory benefits to those who are not covered by the legislation.
10. The RBE 39/2000 indicates that it has been issued to grant special benefits in cases of death and disability in service in accordance with the recommendations of the Vth Central Pay Commission. Cases of death or disability under different circumstances have been broadly categorized in five different categories. Category A applies to death or disability due to natural causes not attributable to Government service. Category B is in respect of death or disability due to causes attributable and aggravated by Government Service. Category C applies to persons who die or are disabled due to accidents in performance of their duties. Category D consists of cases of death or disability attributable to acts of violence by terrorists, antisocial elements etc. whether during performance of their duties or otherwise. Category E speaks about cases of death or disability arising from an attack or during action against extremists, antisocial elements or enemy action in international war or border skirmishes.
11. The employee in this case falls within Category C as he has suffered a disablement due to an accident in the performance of his duties. The Vth Central Pay Commission has recommended relief packages for the aforesaid categories of cases. While cases covered under Category A would continue to be covered by the normally existing provisions of the CCS (Pension) Rules, different scales of pension had been recommended for Category B, C, D and E as family pension/disability pension. The employee, being alive, would be entitled to disability pension which is recommended under Clause III of RBE 39/2000 which reads as under:
'III. Disability Pension – for cases covered under categories ‘B’ & ‘C’
(1) Normal pension and gratuity admissible under the CCS (Pension) Rules, 1972 plus disability pension equal to 30% of basic pay, for 100% disability.
(2) For lower percentage of disability, the monthly disability pension shall be proportionately lower as at present, provided that where permanent disability is not less than 60%, the total pension (i.e., pension or service gratuity admissible under the ordinary pension rules plus disability pension as indicated at (1) above shall not be less than 60% of basic pay, subject to a minimum of Rs.2,500/-.'
12. Thus, the employee is entitled to norm
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al pension and gratuity admissible under the CCS (Pension Rules) besides the disability pension of 30% of his Basic Pay which has been assessed as 90% disability by the Medical Board. Unfortunately the Railways have ignored the provisions of RBE 39/2000 while paying the employees his pension on being incapacitated for work on account of an accident arising out and in the course of employment. 13. The Tribunal while deciding the original application filed by the employee has held that there was no justification on the part of the Railways in disallowing the disability pension equal to 30% of the Basic Pay as applicable for the disability suffered by the employee in addition to the normal pension and gratuity admissible to him under the CCS (Pension) Rules, 1972, apart from the compensation received by him under the Workmen’s Compensation Act. 14. We do not find any error or infirmity in the judgment of the Tribunal and therefore, dismiss the writ petition. 15. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.