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2001 DIGILAW 1081 (PAT)

Most. Vidya Devi v. State Of Bihar

2001-12-04

P.K.DEB

body2001
Judgment 1. This writ petition has been filed for a direction to the respondents to release death-cum-post retiral benefits of late husband of the petitioner, namely, Asarfi Prasad Saxena together with interest for delayed payment. 2. It is an admitted fact that Asarfi Prasad Saxena was posted as Technician, a Class-Ill post in the Sadar Hospital, Munger, under Civil Surgeon-cum-Chief Medical Officer, Munger. He died in harness on 28.11.87 and just before death he nominated the petitioner Vidya Devi and her son Sardar Jawahar Lal Saxena to receive the Group Insurance amount. It is also an admitted fact that for receipt of the G.P.F. amount the petitioner and her son were nominated by her late husband before his death. The petitioner happens to be as claimed to be the second wife of Asarfi Prasad Saxena. The petitioners husband was first married with one Smt. Shyama Kumari Sinha and in that wedlock he had two daughters, namely, Asha Lata Sinha and Kanchan Bala Sinha. During his life time the first daughter Asha Lata Sinha was married. According to the petitioner, with the consent of the first wife, Vidya Devi was married to Asarfi Prasad Saxena as he was not having any male child and in that second wedlock, according to the petitioner, two sons were born namely, Sardar Jawahar Lal Saxena and Hiralal Saxena. The petitioner claims for death-cum-retiral benefits of Asarfi Prasad Saxena and also with regard to appointment of Sardar Jawahar Lal Saxena on compassionate ground. 3. The Circle Officer, Sadar, Munger, vide Annexure-3 granted a Certificate that Asarfi Prasad Saxena died leaving two wives, namely, Shyama Kumari Sinha and Vidya Devi, two daughters, namely, Asha Lata Sinha and Kanchan Bala Sinha by first wife and two sons, namely, Sardar Jawahar Lal Saxena and Hiralal Saxena by second wife. 4. The petitioner filed a representation on 22.4.91 before the Civil Surgeon-cum- Chief Medical Officer, Munger, for payment of all retiral benefits in her favour. It could be mentioned here that admittedly on 5.4.91 the first wife Shyama Kumari Sinha died and on compassionate ground the daughter of Shyama Kumari Sinha i.e. Kanchan Bala Sinha had been appointed as Class- IV staff. Even after several representations being filed the petitioner had not been paid the retiral benefits and as such the present writ petition. 5. It could be mentioned here that admittedly on 5.4.91 the first wife Shyama Kumari Sinha died and on compassionate ground the daughter of Shyama Kumari Sinha i.e. Kanchan Bala Sinha had been appointed as Class- IV staff. Even after several representations being filed the petitioner had not been paid the retiral benefits and as such the present writ petition. 5. In the original writ petition the living daughters of Asarfi Prasad Saxena had not been made parties. But an intervention petition was filed by Kanchan Bala Sinha, the second daughter of Asarfi Prasad Saxena, refuting the claims of the petitioner Vidya Devi. According to the intervener, Vidya Devi is Marwari by caste and she was married to one Satya Narain Poddar and in that wedlock seven children were born including the two sons Hiralal Poddar and Jawaharlal Poddar and the petitioner used to work as maid servant in the house of Asarfi Prasad Saxena and taking advantage of that situation and having illicit relationship with Asarfi Prasad Saxena she managed to get the nomination in her favour and in favour of her son Jawahar Lal born in the second wedlock. 6. Respondent No. 3 Civil Surgeon- cum-Chief Medical Officer, Munger, has filed counter-affidavit stating that there are death-cum-retiral benefits of deceased Asarfi Prasad Saxena but the same could not be disbursed due to rival claims made by the petitioner and the intervenor and that both the parties have been asked to file Succession Certificate and till the same had not been filed, as such there was no scope for the Respondent No. 3 to disburse the death-cum-post retirement benefit of Asarfi Prasad Saxena. 7. Admitted position remains that the petitioner Vidya Devi is the second wife of Asarfi Prasad Saxena, although, such marriage has also been denied by the intervener Kanchan Bala Sinha. 8. It has already been decided by the Finance Department of the State of Bihar as per Notification No. PC-1-Misc. 41/92/ 10059 dated 6.9.96 that the second wife who has been married during the life time of the first wife is not entitled to the Family Pension. But regarding the Family Pension the offsprings of the second wife should be included. The admitted position is that the petitioner Vidya Devi being married as asserted from her side during the life time of the first wife is not entitled to Family Pension. But regarding the Family Pension the offsprings of the second wife should be included. The admitted position is that the petitioner Vidya Devi being married as asserted from her side during the life time of the first wife is not entitled to Family Pension. Only Smt. Shyama Kumari Sinha during her life time was entitled for Family Pension as her daughters have been married by that time and as the successor of Smt. Shyama Kumari Sinha naturally the. intervenor Kanchan Bala Sinha has got preferential right about the arrears of Family Pension to be paid to Smt. Shyama Kumari Sinha. It further appears that during her life time Smt. Shyama Kumari Sinha has also obtained Succession Certificate in respect of some T.D.Rs. of the Bank standing in the name of Asarfi Prasad Saxena and in payment of that the present petitioner had not raised any objection rather conceded to it. 9. Mr. Ram Balak Mahto, learned Senior counsel appearing for the petitioner has mainly hammered on the ground that when nomination is there in favour of the petitioner and her son, then retiral benefits including the Group Insurance of late Asarfi Prasad Saxena should be made available to the petitioner. This has been objected to by Mr. Shashi Sekhar Dwivedi learned Senior counsel for the Intervenor to the effect that nomination in respect of a person or persons out of the family members can not be entertained by the Department and even if in respect of the Insurance policy there is a nomination but by that nomination no right is given to the nominee over the amount itself. Reference has been made in a case reported in A.I.R. 1984, S.C. 346 (Smt. Sarbati Devi & another V/s. Smt. Usha Devi). 10. Thus, when factual aspects are disputed no direction can be given to the respondents-authorities i.e. Respondent No. 3 under extra-ordinary jurisdiction of this Court as per Article 226 of the Constitution of India to make payment in favour of either of the parties. 10. Thus, when factual aspects are disputed no direction can be given to the respondents-authorities i.e. Respondent No. 3 under extra-ordinary jurisdiction of this Court as per Article 226 of the Constitution of India to make payment in favour of either of the parties. Disputed factual aspect can only be set at rest in appropriate form and the stand taken by the Respondent No. 3 for production of Succession Certificate can not be said to be improper and in the circumstances appropriate stand has been taken by the Respondent No. 3 in asking both the parties to produce Succession Certificate for the purpose of disbursement of death-cum-retiral benefits of late Asarfi Prasad Saxena. 11. In that circumstances, the stand of the Respondent No. 3 being proper and justified I do not find any force in the writ petition and the same is dismissed with the same direction as given by the Respondent No. 3 to the petitioner and the intervenor to act in accordance with law for getting disbursement/payment of the death-cum-retiral benefit of late Asarfi Prasad Saxena.