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1982 DIGILAW 11 (KER)

OUSEPH v. STATE OF KERALA

1982-01-11

K.BASKARAN

body1982
Judgment :- 1. The petitioner is the father of Mathai who, while in Government service as a P. W. D. (B. & R) N. M. R. employee, passed away on 19-4-1971 as disclosed by Ext. P-1 certificate. At the time of his death in harness, he had 14 years of service to his credit. The writ petition was filed for two reliefs: (I) for granting family pension to the members of the family of deceased Mathai who were dependent on him for their livelihood; and (2) for giving employment assistance to petitioner's son jolly Joseph. Both the reliefs having been denied by the respondents, the petitioner was constrained to bring this writ petition. 2. Para.2 of the counter affidavit shows that the said Mathai, now deceased, was in continuous service of the Government for 13 years, 2 months and 19 days. The application for employment assistance was submitted by jolly Joseph as early as on 16-12-1975 Ext. P-6 is the copy of the application submitted by him. 3. As far as the claim for family pension is concerned, the respondents declined to grant it on the ground that the petitioner being a retired Village Man having income in excess of Rs. 240/- per annum, be was not entitled to family pension by virtue of the provisions contained in R.81(3) (a) of the Kerala Service Rules, Part III. The question is whether, because the petitioner was having an income as retired Village Man, his unmarried daughters who had been depending on deceased Mathai also should be denied the benefit of family pension. R.80 of the K. S. R., Part III reads as follows: "Scheme of family pension applicable under the Kerala Service Rules (1959) shall hereinafter be known Non-contributory Family Pension. A non contributory family pension not exceeding the amount specified in R.82/82A shall be granted to the family of an employee who is not governed by the rules in S. VII, "Contributory Family Pension" and who dies, whether while in service or after retirement after completion of not less than 20 years' qualifying service, for a period of 10 years." 'Family' for the purpose of R.5 of the rules shall include unmarried and widowed or divorced sisters. It is, therefore, clear that if the unmarried sisters of the deceased are not barred by the income rules, they would be entitled to get family pension. It is, therefore, clear that if the unmarried sisters of the deceased are not barred by the income rules, they would be entitled to get family pension. According to the petitioner ever since the death of Mathai on 19-4-1971 the sisters were entitled to the pension. No doubt, these sisters who had been depending upon their brother have not come forward with the writ petition or with any other action possibly because of their backwardness and partly also because they were minors at the time when the said Mathai died. The petitioner having been the person who had been looking after the minor children who are now in his protection and care is a person interested in their welfare and as such he is entitled to move the court for appropriate directions I would, therefore, direct the Government to pay the unmarried daughters of the petitioner such family pension as is admissible as a result of the death is harness of the said Mathai while he was in Government service. This should be done as expeditiously as possible. 4. One other question is with reference to the right to get employment assistance so far as jolly Joseph is concerned. Government in the counter affidavit has taken the stand that step-brother or half-brother is not a person entitled to employment assistance in terms of the Government Order. It is not disputed that had it been the brother of the deceased Mathai, Jolly Joseph would have got the benefit of employment assistance. Ft has therefore to be considered whether because the said jolly Joseph, son of the petitioner, is a son born to the petitioner by a wife, who is not the mother of the deceased Mathai, that benefit should by forfeited to the petitioner's son jolly Joseph. The stand taken by the Government does not appear to be correct. No doubt, no mention is made that half-brother also would be entitled to the benefit of employment assistance. However, it has to be taken that when the word "brother" is mentioned, it means and includes not only direct brothers, but also half brothers or step-brothers. This view is supported by the decision of the Privy Council in Balraj Kumar v. Jetpal Singh (ILR. 26 (1904) Allahabad 393). The meaning given in Stroud's Judicial Dictionary also supports this view. I am. This view is supported by the decision of the Privy Council in Balraj Kumar v. Jetpal Singh (ILR. 26 (1904) Allahabad 393). The meaning given in Stroud's Judicial Dictionary also supports this view. I am. therefore, of the view that the petitioner's son jolly Joseph, the half-brother of deceased Mathai, would be entitled to the benefit of employment assistance to the dependants of Government employees who died is harness and also that the deceased Mathai's unmarried half-sisters, namely, Valsamma and Jencyamma, (subject to verification and proof) are entitled to the benefit of non-contributory family pension. For the foregoing reasons I allow the writ petition and direct the Government of Kerala, P. W. Department, to consider the case of the petitioner that his unmarried daughters Valsamma and Jancyamma are entitled to family pension on account of the death of their half-brother Mathai who died in harness while in Government service and also that his son jolly Joseph for the same reasoning, entitled to employment assistance. The Government after satisfying the relationship of the said Valsamma and Jencyamma and also their means of income would pass appropriate orders in regard to the claim for family pension as expeditiously as possible, at any rate within four months from the date of receipt of a copy of this judgment. So also in the case of jolly Joseph, son of the petitioner, orders regarding employment assistance would be issued as expeditiously as possible, at any rate within six months from the date of receipt of a copy of this judgment. The writ petition is disposed of with the above directions. There will be no order as to costs. Carbon copy of this judgment will be communicated to the 1st respondent (Government of Kerala, P. W Department, Trivandrum) forthwith for information and compliance. Issue carbon copy of the judgment to the Government Pleader free of charge and to the counsel for the petitioner on usual terms if applied for in that behalf. Allowed.