Madhu & Anr. vs Northern Railway & Ors. on 17 January, 2018

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 17.01.2018
+ LPA 640/2017
MADHU ANR. ….. Appellants
Through: Ms. Siza Nair Pal, Advocate with
Appellant No.2 in person.

Versus

NORTHERN RAILWAY ORS. ….. Respondents
Through: Mr. Jagjit Singh with Mr. Preet
Singh, Advocates.

CORAM:
HON’BLE MR. JUSTICE S. RAVINDRA BHAT
HON’BLE MR. JUSTICE SANJEEV SACHDEVA
S.RAVINDRA BHAT, J.

1. The appellants challenge an order by the Single Judge dismissing their
writ petition. They sought directions to include their names in the
medical card and privilege passes of Om Prakash Gorawara (hereafter,
“Gorawara”) and to issue them separate cards. The appellants were
Gorawara‟s wife and daughter; neither are employed, and the first
appellant, wife (hereafter “Madhu”) is suffering from various chronic
ailments. The present proceedings were preceded by a series of litigation
between the appellants and second respondent. One of these resulted in
applications of maintenance under Section 125 of the Code of Criminal
Procedure, 1973. The other cases include proceedings alleging
commission of offences under Sections 498A and 406 of the Indian

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Penal Code, 1860 (
IPC). At the end of these litigations, the second
respondent started paying maintenance to the appellants.

2. Gorawar is a former employee of Indian Railways, the third respondent.

The Indian Railways Medical Manual and the Railway Servant Pass
Rules allows for the issue of a REHLS card and establishes the “wife”
and “unmarried daughter” as “family” for the purposes of extending
medical card and privilege pass facilities to them. The families of current
and former railway servants and officers are thus entitled to avail of
medical services from railway hospitals so long as they are carrying the
REHLS card. Before 2010 the appellants were listed as
family/dependents on the medical card of the second respondent. In 2010
the appellants applied for and were denied separate medical cards by the
first respondent, Northern Railways (referred to hereafter by name).
Before his retirement in 2012, Gorawara removed the appellants‟ names
from his medical card, disentitling them to free medical services that are
otherwise available to the dependents of railway employees.

3. A writ petition, W.P.(C)No.6535/ 2015, against the decision of Northern
Railways taken in 2010 to deny the Appellants the medical card was filed
before this court. The court directed the General Manager, Northern
Railways to decide the matter expeditiously. On 23.11.2015 the General
Manager, Northern Railways issued the speaking order denying the
appellants the medical cards and privilege passes, and consequently the
use of the free medical facilities. It is against this order of Northern
Railways that a writ petition was filed before this court, resulting in the
impugned judgment. The Learned Single Judge, rejected the appellants‟
writ petition, holding that the issue involved a personal dispute and in the

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absence of nomination of the appellants as family members, by Gorwara,
they could not claim the medical and pass benefits.

4. The Appellants argue that Gorwara had initially declared them as eligible
to secure medical facilities from the railways and nominated them as
such, but subsequently removed their names. This was done by allegedly
applying for a duplicate medical card and omitting the appellants‟ name
in the „dependants‟ column of the new medical card. The appellants urge
that there is no separation of marital ties between Gorwara and his wife,
and thus he cannot disown the Appellants. The Appellants bring to the
Court‟s notice that the Appellants have filed a Criminal Revision Petition
to enhance the amount of maintenance. Considering these facts the
Appellants contend that the speaking order of 23.11.2015 is arbitrary,
discriminatory, and hence unconstitutional.

5. The Appellants also allege a violation of Section 602(2) of the Indian
Railway Establishment Code Volume, which states, “Medical attendance
and treatment facilities shall be available, free of charge, to all „Railway
employees‟ and their „family members and dependent relatives,
irrespective of whether they are in Group A, Group B, Group C, Group
D, whether they are permanent or temporary, in accordance with the
detailed rules as given in Section „C‟ of this Chapter.” Thus, the
Appellants claim that they are entitled to free medical services as the
„family‟ of Respondent No.2, a retired railway employee.

6. The Appellants also rely upon the Railway Board Letter No.2004/H/28/1
RELHS/Card (dated 22.03.2005) wherein provisions were made for
eligible family members to procure a RELHS card. The letter notes, “For
Long Term Duration: the original medical card may be deposited with

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the issuing authority who may issue split medical card to the
beneficiaries as requested by them”. Thus, the Appellants contend that it
is within Northern Railway‟s power to issue to the Appellants a separate
medical card. It is submitted that the understanding of the Single Judge,
in the impugned order that the dispute related to personal issues, is
incorrect; it is rather the Railway authorities‟ omission in ignoring
material circumstances and denying them what legitimately ought to be
given to them.

7. It is argued besides, that the first appellants‟ age and medical ailments
render her vulnerable because in the absence of any medical card, health
and medical facilities would become so expensive as to become
inaccessible. Counsel submitted that the official respondents‟ inability to
consider these – as well as the fact that over two decades the appellants
are recipients of the medical benefits and railway passes provided by the
Railways rules and orders and further ignoring that the behaviour of
Gorwara has resulted in direction of competent courts to pay them
maintenance, renders the refusal to give them (the appellants) such
benefits arbitrary; it also violates their right to life under
Article 21 of the
Constitution. It is underlined that the status of the appellants as wife and
daughter of Gorwara could not have been ignored by the official
respondents; therefore, the latter‟s order was made without application of
mind.

8. The primary contention of the Northern Railways is that the facilities of
the Medical Card and Privilege Passes are for the use of the railway
officers/servants, and have been extended to the family of the railway
officer/servant only on their declaration. Northern Railways argues that

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there is no provision in the existing policy that allows for separate
medical cards and passes to be provided to the mother and daughter, as
these documents cannot be individually requested. Thus, absent a
declaration by Gorwara, no medical card can be issued to the Appellants.

9. The contesting private respondent, Gorwara alleges that he is living
separately from the Appellants and has no semblance of a family life
with them. It is also alleged that the duplicate medical card was issued
because the original medical card was lost by him. Gorwara claims that
he has completely disowned the Appellants and does not wish for them
to secure the free medical services based on his medical card.

Analysis and Reasoning:

10. Before analyzing the rival submissions of the parties, it is necessary to
extract the relevant provisions of the Railway servants‟ manual. It reads
as follows:

“603. Section ‘C -Scope of medical attendance and treatment

Sub-section I: General

Medical attendance and treatment. – The Railway employees,
their family members and dependent relatives are entitled free of
charge medical attendance and treatment;

Family includes:-

i. spouse of a railway servant whether earning or not;
ii. son or sons who have not attained the age of 21 years and are
wholly dependent on the railway servant;

iii. son or sons of the age of 21 and above who are;
a. bonafide students of any recognized educational Institution;
b. engaged in any research work and do not get any
scholarship/stipend;

LPA-640/2017 Page 5 of 17

c. working as an articled clerk under the Chartered Accountant;
d. invalid, on appropriate certificate from Railway Doctor;
iv. unmarried daughters of any age whether earning or not:
v. widowed daughters provided they are dependent on the railway
servant;

vi. legally divorced daughter who is dependent on the railway
servant;”

11. The speaking order, issued pursuant to the order of this court, in the
previous writ proceeding, brought by the appellants, reads as follows:

“A personal hearing was given by me to Ms Madhu and Shri O P
Gorawara on 30.10.2015. I have gone through the facts of the
case as well as personally heard the grievance of both the affected
parties.

The Indian Railways Medical Manual Vol-I (third edition 2000)
for the reason of RELHS and the Railway Servant Pass Rules
establish the ‘wife’ and the ‘unmarried daughter’ as ‘Family’ for
the purpose of extending the medical and pass facilities to them,
irrespective of their earning status/ age. However, these facilities
are primarily provided to the Railway servant/ officer and by
virtue of his being employed under the Ministry of Railways.
These facilities have further been extended to the family of the
Railway servant on his declaration only. There is no provision in
the existing frame of policy for providing separate medical card or
pass facility to the mother and daughter since the benefit is
extended to ‘family’ of Railway servant/ retired servant and cannot
be given individually as requested. Hence this request of the
petitioner/ applicant cannot be acceded to.”

12. A plain and textual reading of the provision (Para 603, quoted
previously) clearly shows that spouses and unmarried daughters,
dependent upon the income of the spouse/father, fall in the category of
“family”. The reasoning adopted by the Northern Railways, on the other
hand, in this case, is simple – that a declaration is necessary by the
railway officer/servant, and it is based on this declaration that the

LPA-640/2017 Page 6 of 17
dependents of the railway officer/servant will be given the benefit of free
medical servants. The Northern Railways‟ understanding, in the opinion
of this court, is utterly flawed. The provision which entitles the railway
servant and his dependents, i.e. family members, clearly says “Railway
employees, their family members and dependent relatives are entitled
free of charge medical attendance and treatment”. The corollary is that
those answering the description of “family members”, like the railway
servants, enjoy the benefits she or he is assured. The declaration to be
given, in the opinion of the court, by the railway servant, is a mere
intimation, and thus facilitative or procedural. No one can argue – and
mercifully the Railways is not arguing- that the status of the family
members depends on the declaration. To accept that submission would
be startling, because it would empower a spouse or father, upon caprice,
with the blink of an eyelid, without any rhyme or reason, to decide to
deprive what his family members would otherwise be entitled to. By way
of illustration, if a dependent, unmarried daughter suffering from a
chronic ailment such as tuberculosis or acute diabetes, for some reason
has a difference of opinion with her father, or a young college going
dependent son similarly has differences with his father, but needs urgent
surgery and in both cases, are estranged from their father, the father in
either case (if he is capricious) can cut off medical aid. Plainly, the
interpretation given by the railways, empowering the railway servant to
ignore existing status of his family members through unilateral
exclusionary declaration, is untenable.

13. This court is of the opinion that the structure of Para 603 is such that the
status of spouse, is recognized as long as the relationship of matrimony

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subsists. In the case of an unmarried and dependent daughter, there is no
question of changing the status; by its very nature it is unalterable. Thus,
the mere circumstance that one or the other party to a matrimonial bond,
is disgruntled or involved in litigation against the other, would not alter
the factum of relationship, which is per se a matter of status.

14. Madhu is suffering from various chronic ailments that have rendered her
unemployable. Her daughter has chosen not to secure employment in
order to care for her ailing mother. The Constitution of India establishes
a welfare state whose duties include the providing of medical care for its
citizens. This right is firmly protected within the right to live with dignity
under
Article 21. Additionally, as an employer, the government must
ensure (as Section 603 of the Railway Servants Manual clearly notes) the
health of its employees. This reasoning has been laid down by the
Supreme Court in State of Punjab v Ram Lubhaya Bagga (1998) 4 SCC
117, where the Court stated,

“Right of one person correlates to a duty upon another,
individual, employer, Government or authority. The right
of one is an obligation of another. Hence the right of a
citizen to live under
Article 21 casts an obligation on the
State. This obligation is further reinforced under
Article
47, it is for the State to secure health to its citizens as its
primary duty. No doubt Government is rendering this
obligation by opening Government hospitals and centres,
but in order to make it meaningful, it has to be within the
reach of its people, as far as possible, to reduce the queue
of waiting lists, and it has to provide all facilities for
which an employee looks at another hospital.

[…] The State can neither urge nor say it has no
obligation to provide medical facility. If that were so, it
would be ex facie violative of
Article 21.”

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15. Thus, by denying the medical facilities to Madhu, Northern Railways is
in effect, violating the mandate enshrined in
Article 21 of the
Constitution.

16. This Court must also keep in mind that the Appellants, under the
Constitution, fall within a particular group, i.e. that of “women”. The
Constitution in Articles 15 and 16 recognises the principle that certain
groups have been historically disadvantaged and that post the enactment
of the Constitution, actions of the State that discriminate against women
(not falling within the exceptions of
Article 15(4) and Article 16(4) are
constitutionally untenable. Thus, while affirmative action to secure the
interests of women is allowed, the Constitution, irreproachably, does not
permit discrimination against women. This understanding has been
articulated by the Supreme Court in Jeeja Ghosh v Union of India (2016)
7 SCC 761 where the court stated,

“The principle of non-discrimination seeks to ensure that
all persons can equally enjoy and exercise all their rights
and freedoms. Discrimination occurs due to arbitrary
denial of opportunities for equal participation. For
example, when public facilities and services are set on
standards out of the reach of persons with disabilities, it
leads to exclusion and denial of rights. Equality not only
implies preventing discrimination (example, the
protection of individuals against unfavourable treatment
by introducing anti-discrimination laws), but goes beyond
in remedying discrimination against groups suffering
systematic discrimination in society.”

17. Since the actions of Northern Railways result in denial of benefits and
rights to this special class, it must be closely examined to see if the
actions, or their effect, are discriminatory. The Northern Railways
contends that the Appellants are not denied the medical card because

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they are women, but rather because their husband and father had not
made the requisite declaration. However, this explanation is not enough.
It is not sufficient to say that the reasoning of Northern Railways did not
intentionally discriminate against the Appellants because they were
women. Law does not operate in a vacuum and the reasoning and
consequent decision of Northern Railways must be examined in the
social context that it operates and the effects that it creates in the real
world. Even a facially neutral decision can have disproportionate impact
on a constitutionally protected class. This has been recognised by the
Supreme Court in Anuj Garg v Hotel Association of India (2008) 3 SCC
1 where the Court stated,

“Strict scrutiny test should be employed while assessing
the implications of this variety of legislations. Legislation
should not be only assessed on its proposed aims but
rather on the implications and the effects […] 51. No law
in its ultimate effect should end up perpetuating the
oppression of women.”

18. Similar observations were made by the Supreme Court in the landmark
case of R.C. Cooper v Union of India 1970 SCR (3) 530. The Court
stated,

“[…] To hold that the extent of, and the circumstances in
which, the guarantee of protection is available depends
upon the object of the State action, is to seriously erode
its effectiveness. Examining the problem not merely in
semantics but in the broader and more appropriate
context of the constitutional scheme which aims at
affording the Individual the fullest protection of his basic
rights and on that foundation to erect a structure of a
truly democratic polity, the conclusion, in our judgment,
is inevitable that the validity of the State action must be
adjudged in the light of its operation upon the rights of

LPA-640/2017 Page 10 of 17
the individual and groups of individuals in all their
dimensions.

[…] it is not the object of the authority making the law
impairing the right of a citizen, nor the form of action
that determines the protection he can claim: it is the
effect of the law and of the action upon the right which
attract the jurisdiction of the Court to grant relief. If this
be the true view, and we think it is, in determining the
impact of State action upon constitutional guarantees
which are fundamental, it follows that the extent of
protection against impairment of a fundamental right is
determined not by the object of the Legislature nor by the
form of the action, but by its direct operation upon the
individual’s rights.”

19. Thus, the touchstone of validity for State action is not the intention
behind the action, but rather the actual impact and effect on a citizen‟s
life. This is clearly seen by the observations by the Supreme Court in
Maneka Gandhi v Union of India 1978 SCR (2) 621 where the Court
noted,

“[…] In testing the validity of the state action with
reference to fundamental rights, what the Courts must
consider is the direct and inevitable consequence of the
State action.”

20. This Court itself has recognised that actions taken on a seemingly
innocent ground can in fact have discriminatory effects due to the
structural inequalities that exist between classes. When the CRPF denied
promotion to an officer on the ground that she did not take the requisite
course to secure promotion, because she was pregnant, the Delhi High
Court struck down the action as discriminatory. Such actions would
inherently affect women more than men. The Court in Inspector
(Mahila) Ravina v Union of India W.P.(C) 4525/2014 stated,

LPA-640/2017 Page 11 of 17
“A seemingly “neutral” reason such as inability of the
employee, or unwillingness, if not probed closely, would
act in a discriminatory manner, directly impacting her
service rights. That is exactly what has happened here:
though CRPF asserts that seniority benefit at par with the
petitioner‟s colleagues and batchmates (who were able to
clear course No. 85) cannot be given to her because she
did not attend that course, in truth, her “unwillingness”
stemmed from her inability due to her pregnancy.”

21. The principle that a facially neutral action by the State may
disproportionally affect a particular class is accepted across jurisdictions
in the world. In Europe for instance, the principle has received statutory
recognition. Council Directive 76/207 (9 February, 1976) states,

“the principle of equal treatment shall mean that there
shall be no discrimination whatsoever on grounds of sex,
either directly or indirectly by reference in particular to
marital or family status…”

22. Council Directive 2000/78/EC (27 February, 2000) defines the concept
of „indirect discrimination‟ as,

“indirect discrimination shall be taken to occur where an
apparently neutral provision, criterion or practice would
put persons of a racial or ethnic origin at a particular
disadvantage compared with other persons, unless that
provision, criterion or practice is objectively justified by
a legitimate aim and the means of achieving that aim are
appropriate and necessary.”

23. It is also worth paying attention to the case of Bilka-Kaufhaus GmbH v
Webber von Hartz (1986) ECR 1607. Bilka was a supermarket that paid
all employees who had worked full-time for more than 15 years a
pension. Mrs. Webber worked part-time at Bilka for over 15 years, but
was denied the pension because she was only a part-time employee. Mrs.

LPA-640/2017 Page 12 of 17
Webber alleged that the requirement to be a full-time employee before
securing the pension was discriminatory against women, since women
were far more likely than men to take up part-time work, so as to take
care of family and children. The Court noted,

Article 119 of the EEC Treaty is infringed by a
department store company which excludes part-time
employees from its occupational pension scheme, where
that exclusion affects a far greater number of women than
men, unless the undertaking shows that the exclusion is
based on objectively justified factors unrelated to any
discrimination on grounds of sex.”

24. The Canadian Supreme Court has also espoused an understanding of
“disparate impact”, where the touchstone to examine the validity of an
allegedly discriminatory action is whether or not the effect of the action
has a disproportionate impact on a class of citizens. The Court in
Andrews v Law Society of British Columbia [1989] 1 S.C.R. 143 noted,

“Discrimination is a distinction which, whether
intentional or not but based on grounds relating to
personal characteristics of the individual or group, has
an effect which imposes disadvantages not imposed upon
others or which withholds or limits access to advantages
available to other members of society. Distinctions based
on personal characteristics attributed to an individual
solely on the basis of association with a group will rarely
escape the charge of discrimination, while those based on
an individual’s merits and capacities will rarely be so
classed.

[…] The words “without discrimination” require more
than a mere finding of distinction between the treatment
of groups or individuals. These words are a form of
qualifier built into
s. 15 itself and limit those distinctions
which are forbidden by the section to those which involve
prejudice or disadvantage. The effect of the impugned

LPA-640/2017 Page 13 of 17
distinction or classification on the complainant must be
considered.

[…] I would say then that discrimination may be
described as a distinction, whether intentional or not but
based on grounds relating to personal characteristics of
the individual or group, which has the effect of imposing
burdens, obligations, or disadvantages on such individual
or group not imposed upon others, or which withholds or
limits access to opportunities, benefits, and advantages
available to other members of society.”

25. The Canadian Supreme Court had similar observations in Ontario
Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985]
2 S.C.R. 536 where the court noted that discrimination arises when:

“It arises where an employer […] adopts a rule or
standard […] which has a discriminatory effect upon a
prohibited ground on one employee or group of
employees in that it imposes, because of some special
characteristic of the employee or group, obligations,
penalties, or restrictive conditions not imposed on other
members of the work force.”

26. Thus, the Court concluded there was no requirement to show that the
employer had the intention to discriminate against the complainants
because of a constitutional prohibited ground, merely that the effect on
the constitutionally protected class of people was adverse. The Court also
stated,

“The Code aims at the removal of discrimination. This is
to state the obvious. Its main approach, however, is not to
punish the discriminator, but rather to provide relief for
the victims of discrimination. It is the result or the effect
of the action complained of which is significant. If it does,
in fact, cause discrimination; if its effect is to impose on
one person or group of persons obligations, penalties, or

LPA-640/2017 Page 14 of 17
restrictive conditions not imposed on other members of
the community, it is discriminatory
[…] On the other hand, there is the concept of adverse
effect discrimination. It arises where an employer for
genuine business reasons adopts a rule or standard
which is on its face neutral, and which will apply equally
to all employees, but which has a discriminatory effect
upon a prohibited grounds on one employee or a group of
employees in that it imposes, because of some special
characteristic of the employee or group, obligations,
penalties, or restrictive conditions not imposed on other
members of the work force.

[…] An employment rule honestly made for sound
economic or business reasons, equally applicable to all
whom it is intended to apply may yet be discriminatory if
it affects a person or group of persons differently from
others to whom it may apply.”

27. The Supreme Court of South Africa made analogous observations
regarding discrimination. In The City Council of Pretoria v Walker Case
CCT 8/97 the Court noted,

“The concept of indirect discrimination, as I understand
it, was developed precisely to deal with situations where
discrimination lay disguised behind apparently neutral
criteria or where persons already adversely hit by
patterns of historic subordination had their disadvantage
entrenched or intensified by the impact of measures not
overtly intended to prejudice them.

In many cases, particularly those in which indirect
discrimination is alleged, the protective purpose would
be defeated if the persons complaining of discrimination
had to prove not only that they were unfairly
discriminated against but also that the unfair
discrimination was intentional. This problem would be
particularly acute in cases of indirect discrimination
where there is almost always some purpose other than a

LPA-640/2017 Page 15 of 17
discriminatory purpose involved in the conduct or action
to which objection is taken.”

28. The origin of the idea of “disparate impact” originated in the landmark
case of Griggs v Duke Power Co. 401 U.S. 424. The Court was faced
with the case of an employer who required employees to pass an aptitude
test as a condition of employment. The work in question was manual
work. Although the same test was applied to all candidates, the Court
noted that African-American applicants had long received sub-standard
education due to segregated schools. Thus, the employer‟s requirement
disproportionately affects African-America candidates. The Court held in
the context of the
Civil Rights Act,

The Act proscribes not only overt discrimination but
also practices that are fair in form, but discriminatory in
operation.”

29. The reason that the drafters of the Constitution included Article 15 and
16 was because women (inter alia) have been subjected to historic
discrimination that makes a classification which disproportionately
affects them as a class constitutionally untenable. The Northern
Railways‟ decision to not grant the Appellants medical cards clearly has
such a disproportionate effect. By leaving an essential benefit such as
medical services subject to a declaration by the railway officer/servant,
the dependents are subject to the whims and fancies of such employee.
The large majority of dependents are likely to be women and children,
and by insisting that the railway officer/servant makes a declaration, the
Railway authorities place these women and children at risk of being
denied medical services.

LPA-640/2017 Page 16 of 17

30. It is irrelevant that the Railways did not deny them the medical card
because the Appellants were women, or that it is potentially possible that
a male dependent may also be denied benefits under decision made by
the Railways. The ultimate effect of its decision has a disparate impact on
women by perpetuating the historic denial of agency that women have
faced in India, and deny them benefits as dependents.

31. In light of these facts and the observations made above, we are of the
conclusion that the speaking order passed by the Northern Railways on
23.11.2015 is arbitrary, discriminatory and made without application of
mind. This court hereby quashes the order dated 23.11.2015 and directs
the Northern Railways to include both the appellants‟ names on the
medical card of the second respondent and issue a separate medical card
and privilege pass to the Appellants. These directions shall be complied
with, within four weeks. The appeal, and consequently, the writ petition
is allowed in the above terms; there shall be no order on costs.

S. RAVINDRA BHAT
(JUDGE)

SANJEEV SACHDEVA
(JUDGE)
JANUARY 17, 2018

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