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2004 DIGILAW 127 (HP)

KAUSHLAYA DEVI v. UNION OF INDIA

2004-06-21

R.L.KHURANA

body2004
JUDGMENT R.L. Khurana, J.—The petitioner, Smt. Kaushalya Devi, is the widow of Prakash Chand. The said Prakash Chand was serving in the Indian Army. He retired from Army in the year 1977 and started receiving the regular service pension from the Army. In the year 1981, the said Prakash Chand took up employment in Maharashtra State Road Transport Corporation as a driver. He died in harness due to heart attack on 27.12.1987. During his service with the Maharashtra State Transport Corporation (for short : the Corporation) he was making contributions under the Family Pension Scheme, 1971 (for short: the Scheme) formulated by the Central Government under the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. Under this Scheme, the petitioner is entitled to receive family pension at the fixed rate of Rs. 450/- per month. 2. The petitioner till July, 1991 was being paid family pension under the Scheme as well as from the Army. On 8.8.1991 the petitioner received a communication from respondent No. 3 informing her that her Army family pension had been stopped. She was further called upon to pay back a sum of Rs. 21,648/- which amount she had received as family pension from the Army Authorities. The army family pension was stopped on the ground that she was in receipt of family pension under the Scheme and as such army family pension was not admissible since under the law/rules two family pensions were not admissible. A copy of such communication was also endorsed to Assistant Commissioner Provident Fund, Nasik informing him about the stoppage of army family pension, the Manager, State Bank of India, Hamirpur, was also directed to withhold the amount lying to the credit of the petitioner in her account. 3. Further case of the petitioner is that though the amount of family pension under the Scheme is being regularly sent by the Assistant Commissioner Provident Fund, Nasik, by remitting the same by cheques to the State Bank of India, Hamirpur, for crediting the same in her account, the said Bank is not releasing the same to her in pursuance of the communication received by it from respondent No.3. 4. 4. Though respondent No.4 has clarified to the respondents No.1 to 3 that the petitioner was entitled to receive both the family pensions, that is, under the Scheme and from the Army Authorities, the army family pension is not being released and paid to her. Rather she was called upon to exercise her option for receiving one of the two family pensions. Repeated representations made by the petitioner to various authorities yielded no result. Hence, the petitioner has approached this Court by way of the present writ petition under Articles 226/227 of the Constitution of India praying for the issuance of appropriate writ, order or direction to the respondents No. 1 to 3 release the family pension withheld with effect from August, 1991 to the petitioner alongwith interest at the rate of 18% per annum till the date of payment of the amount. 5. The petitioner has further sought the issuance of appropriate writ, order or direction to respondent No. 4 to pay the family pension payable to her under the Scheme from the time it has not been paid to her alongwith interest at the rate of 18% per annum till the date of payment of the entire arrears to her. And in case respondent No.4 is found to have released the amount of family pension in time and such amount is found to have been withheld under the orders of respondents No.1 to 3, then respondents No.1 to 3 be directed to pay the interest on such amount. 6. Respondents No. 1 to 3 vide their reply affidavit re-iterated their stand that under the relevant rules, that is, Pension Regulations for Army, 1961, the petitioner was not entitled to two family pensions. Reliance was placed on Regulation 219 which provides that a relative specified under Regulation 216 shall be eligible to grant of family pension provided he/she is not in receipt of another pension from the Government. 7. Respondent No. 4 has not disputed the entitlement of the petitioner to the two family pensions, that is, one from the Army and another under the Scheme. He admitted the issuance of the letter dated 12.1.1994 (Annexure P2) to the petitioner intimating her that there was no bar under the Scheme for payment of family pension if the person is in receipt of service family pension. 8. He admitted the issuance of the letter dated 12.1.1994 (Annexure P2) to the petitioner intimating her that there was no bar under the Scheme for payment of family pension if the person is in receipt of service family pension. 8. Be it stated that a Division Bench of this Court on 10.4.2000 while admitting the writ petition for hearing, by an interim order had directed as under :— "In the facts and circumstances of this case and considering the hardship involved to the petitioner, we direct that the family pension which was being remitted to the petitioner till the month of August, 1991 and was then not released thereafter, be now released by remitting the arrears w.e.f. the date it was stopped till date. Thereafter, the same shall be remitted to her every month in accordance with the rules during the pendency of the writ petition. This order of interim relief shall, however, be subject to the final decision of the writ petition. In so far as the amount hitherto being received under the Employees Family Pension Scheme, 1971 is concerned, respondent No. 4 is directed through the learned counsel appearing on his behalf before us to continue to deposit the amount regularly in the State Bank of India, Hamirpur and the same shall be invested in fixed deposits by the said bank during the pendency of the writ petition. As regards the arrears lying in deposit with the bank under the Employees Insurance Scheme, 1971, the same are also directed to be invested in the fixed deposit alongwith the amount to be deposited in future for that purpose. This part of the order shall also be subject to the final decision of the writ petition." 9. The sole question for determination arising in the present case is whether the petitioner is entitled to family pension from the Army authorities if she is receiving the family pension under the Scheme? 10. As stated above, respondents No. 1 to 3 while stopping the army family pension has placed reliance on the provisions contained in the Pension Regulations for Army, 1961. 11. Regulations 216, 219 and 222 of the above Regulations of 1961, insofar as they are material for the purpose of the present case, read :— "216. 10. As stated above, respondents No. 1 to 3 while stopping the army family pension has placed reliance on the provisions contained in the Pension Regulations for Army, 1961. 11. Regulations 216, 219 and 222 of the above Regulations of 1961, insofar as they are material for the purpose of the present case, read :— "216. The following members of the family of the deceased individual shall be viewed as eligible for the grant of a family pension, provided that they are otherwise qualified:— (a) Widow lawfully married. (b) Father (c) Mother (d) Son, actual and legitimate. (e) daughter, actual and legitimate. 219. A relative specified in regulation 216 shall be eligible for grant of family pension, provided :— General (i) he or she is not in receipt of another pension from Government, (ii) ................................................................................................................ Widow (iii) a widow has not remarried. This condition shall not apply to a widow who remarried her deceased husbands brother and continue to live a communal life with and/ or contributes to the support of other living eligible heirs. Father (iv)................................................................................................................ Mother (v)................................................................................................................ Son (vi) ................................................................................................................ Daughter (vii)................................................................................................................ 222. Grant of family pension to an individual in receipt of another pension from Government or in Government employment. (a) A family pension will not normally be granted if and for so long as an individual is in Government employment or is in receipt of another pension from Government. If, however, the pay of the appointment or the pension is less favourable then the family pension admissible under these regulations, the following provisions shall apply:— (i) where the individual is in Government employment. (ii) where the individual is in receipt of a pension under the Armed Forces Regulations. (iii) where the individual is in receipt of a pension under the civil rules. (a) The amount of family pension admissible under these Regulations shall be abated by the amount of such pension. (b) where, however, the pecuniary circumstances of a claimant in receipt of another pension are such that the operation of clause (a) is likely to cause genuine distress, the case shall be submitted for orders of the Government. (c) The provisions of this Regulation shall also be applicable where recipient of a family pension is, subsequently, employed under Government or granted another pension from Government. (Emphasis supplied) 12. (c) The provisions of this Regulation shall also be applicable where recipient of a family pension is, subsequently, employed under Government or granted another pension from Government. (Emphasis supplied) 12. A bare perusal of the above regulations shows that before a person can be denied army family pension, he/she must be either in receipt of family pension from the Government or has been granted another pension from Government. 13. Admittedly, the deceased husband of the petitioner after retirement from Army got employment in the Corporation. Such service cannot be said to be a Government service nor the deceased could be said to be holding a civil post under the State Government of Maharashtra. Therefore, on the face of it the bar prescribed under Regulation 219 read with Regulation 222 (quoted above) would not be applicable since the petitioner is not in receipt of any pension from the Government whether Centre or State. 14. A similar question arose before the Kerala High Court in T.A. Prabhavathy v. Union of India and others [O.P. No. 6920 of 1989-W decided on 21.3.1994]. In the said case the husband of the petitioner therein after retirement from the Army Joined Cochin Refineries, a company registered under the Companies Act. He continued to work there till his death on 25.12.1982. The widow applied for family pension to the Army Authorities as well as Assistant Provident Commissioner, Cochin. The Army Authorities by treating the pension payable under the Scheme as Civil pension, denied army family pension under Regulation 219 read with Regulation 222 of the Pension Regulations for Army, 1961. The widow approached the High Court of Kerala by way of a writ petition assailing the refusal of Army family pension to her. 15. Repelling the contention of the respondents therein that the widow of the deceased was entitled to only one pension, a learned Single Judge of the High Court of Kerala held that she was entitled to both army family pension as well as the family pension under the Scheme. 16. The abovesaid ratio, to which I am in full agreement, applies to the facts of the present case on all fours. 17. 16. The abovesaid ratio, to which I am in full agreement, applies to the facts of the present case on all fours. 17. A contention was raised on behalf of respondents No.1 to 3 that the ratio laid down by the High Court of Kerala should not and cannot be followed in view of the fact that such judgment stands assailed by the respondents therein by way of Special Leave to Appeal before the Honble Supreme Court and its operation having been stayed. In support the learned counsel for the respondents has drawn the attention of this Court to Annexures R-2 and R-3 to the reply affidavit of respondents No.1 to3. 18. There is no merit in the contention of learned counsel for the respondents. There is nothing on record to show that any appeal has been filed by the respondents against the judgment dated 21.3.1994 of High Court of Kerala in T.A. Prabhavathys case (supra) or that its operation has been stayed by the Honble Supreme Court. 19. Annexure R-2 is a copy of the order dated 19.2.1999 of the Honble Supreme Court passed in SLP (Civil) No. CC 783/99. A perusal of the same shows that the appeal has been filed against the judgment/order dated 5.8.1998 of the High Court of Kerala in case No. WA 32/98 [K, Visalakshy v. Union of India and others]. Similarly Annexure R-3, which is a copy of the order dated 26.3.1999 of the Honble Supreme Court in SLP (Civil) No. CC 1004/99, which was filed against the judgment/order dated 9.9.1998 of the High Court of Kerala in case No. WA 563/98, [P. Jain and another v. Union of India and others], 20. Nothing has come on the record to show if the question involved in the present case is also involved in the two cases before the Honble Supreme Court referred to in Annexures R-2 and R-3. 21. In the absence of material to show that the judgment in T.A., Prabhavathys case (supra) has been stayed, the contention raised by the learned counsel for respondents No.1 to 3 that it should not and cannot be followed and relied upon, merits rejection and is rejected accordingly. 22. Following the ratio laid down in T.A. Prabhavathys case (supra), the petitioner is held entitled to both the family pensions, that is, the pension under Army Regulations and the pension under the Scheme. 23. 22. Following the ratio laid down in T.A. Prabhavathys case (supra), the petitioner is held entitled to both the family pensions, that is, the pension under Army Regulations and the pension under the Scheme. 23. Resultantly, the present writ petition is allowed and the respondents are directed to release and pay the two family pensions to the petitioner as admissible to her under the Army Regulations and under the Scheme, from the date the same was/were withheld and to continue to pay such pensions to her so long as she is eligible therefor under the Regulations/ Scheme. 24. The amount of family pension deposited by respondent No. 4 in fixed deposits in terms of the interim order dated 10.4.2000 (referred to above) shall be released and disbursed to the petitioner forthwith. 25. The petitioner would also be entitled to costs of the present proceedings which are quantified at Rs. 5,500/- to be paid by respondent Nos.1 to 3.