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2007 DIGILAW 370 (CAL)

GOURI RANI DAS v. COMMISSIONER OF POLICE, KOLKATA

2007-05-15

GIRISH CHANDRA GUPTA, PRASENJIT MANDAL

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PRASENJIT MANDAL, J. ( 1 ) THIS writ application is directed against the judgment and order dated 17. 3. 2006 passed by the State Administrative Tribunal, West bengal in O. A. No. 39 of 2005 dismissing the application thereby. Being aggrieved by the said order of dismissal, the writ applicant has filed the writ case. ( 2 ) THE factual matrix of the case is that late Pipin Chandra Das @ bipin Chandra Das was a constable of the Kolkata Police and he died-in- harness on 1. 12. 2003. Then his wife Gouri Rani Das prayed for releasing the retiral benefits in her favour. The Respondent Authority did not release the same in her favour. Then she filed the O. A. case before the learned Tribunal which passed the impugned order of dismissal of the application. ( 3 ) HAVING considered the rival contentions of both the parties, we find that the late Pipin Chandra Das @ Bipin Chandra Das was a constable in the Kolkata Police and he died in harness on 1. 12. 2003. After the death of the deceased constable when rival claims surfaced, the Respondent Authority conducted an enquiry and came to know that the deceased constable contracted marriage twice during subsistence of the first marriage without obtaining dissolution of the earlier marriage and that the writ applicant is the third wife of the deceased constable. It also came to light that the mother of the deceased constable, Smt. Baisakhi Das is still alive. Smt. Tulu Bala Das @ Puspa Bala das was the first wife and she died on 10. 05. 1981 leaving her son, Ramani das, out of the said wedlock. In 1970, the deceased constable married, for the second time, one Ketani Das who was subsequently married to one Nagendra das in 1980 without obtaining any divorce from the deceased constable. The deceased constable married the writ applicant for third time on 14. 6. 1978. The second wife has no child by the deceased constable. Two daughters namely, shrabani Das @ Samanta and Chaitali Das were born out of the wedlock between the deceased constable and the writ applicant. The deceased constable married the writ applicant for third time on 14. 6. 1978. The second wife has no child by the deceased constable. Two daughters namely, shrabani Das @ Samanta and Chaitali Das were born out of the wedlock between the deceased constable and the writ applicant. ( 4 ) THUS, we find that the marriage of the writ applicant with the deceased constable having taken place during the lifetime of the first wife of the deceased constable, such marriage was void ab initio according to Section 11 of the Hindu Marriage Act, 1955. The learned Tribunal has rightly observed that the writ applicant has no legal status as the widow of late Pipin Chandra das @ Bipin Chandra Das. ( 5 ) IT is true that the deceased employee had made entry of the names of the writ applicant and her two daughters with the respondent Authority to have the benefits of service, such as, ration facility and that he made the writ applicant as his nominee to obtain the death gratuity and other retiral benefits. But so far as the death gratuity is concerned, according to Rule 100 (1) of the west Bengal Services (Death-cum-Retirement Benefit) Rules, 1971, the nomination of the employee shall not be in favour of any persons or persons other than the members of his family. The marriage of the writ applicant with the deceased constable being void ab initio, the entry of the name of the writ applicant as nominee tantamounts to the inclusion of the name of a stranger. Such fact came to light when rival claims were placed before the respondent authority to have the retiral benefits. The respondent Authority was, therefore, within its right in not accepting the claim of the writ applicant. ( 6 ) THE Rule 4 of the Payment of Arrears of Pension (Nomination) rules, 1986 lays down, inter alia, that any pensioner may nominate if he has a family as defined in Clause (a) of the Rule 3, one or more members of the family in accordance with the provisions of Rule 5, who shall receive after the death of the pensioner all moneys payable to the pensioner on account of such pension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . According to Rule 3 family includes : - 1) Wife 2) Husband 3) Sons 4) Unmarried and widowed daughters 5) Mother, and 6) Father. ( 7 ) THE nomination submitted by the deceased constable was not, therefore, proper. The deceased constable had suppressed the true facts regarding his family and he had nominated his third wife. This was not permissible as per Rule 4 of the aforesaid Rules. Therefore, the writ applicant having the status of a stranger to the family of the deceased constable could not be considered at all as the nominee of the deceased constable so far as the retiral benefits were concerned. ( 8 ) DURING argument the learned Advocate for the writ applicant has referred to the ruling in the case of Smt. Sarbati Devi and Anr. v Smt. Usha Devi reported in AIR 1984 SC 346 for the proposition that the nominee could be a person other than the members of the family. With due respect to the learned advocate for the writ applicant, we hold, that the above ruling relates to a nominee of the LIC policies and that the LIC has its own rules relating to the nomination. According to the said ruling if the insurer makes payment bona fide to the nominee already registered with him the insurer gets a valid discharge. On the death of the policy holder, the amount payable under the policy becomes part of his estate which is governed by the law of succession. Here in the instant case, before making any payment to the writ applicant the anomaly came to light. The said ruling nowhere states that the eligible heirs could not get the money rather the said ruling lays down that so far as the disbursement of the payment is concerned the law of succession will prevail. In consideration of the ratio of that ruling and the fact that the deceased employee was governed by the provisions of the West Bengal Services (Death- cum-Retirement Benefit) Rules, 1971, as controversy arose, the respondent authority did not make any payment to the nominee. This ruling is not applicable in the instant case. In consideration of the ratio of that ruling and the fact that the deceased employee was governed by the provisions of the West Bengal Services (Death- cum-Retirement Benefit) Rules, 1971, as controversy arose, the respondent authority did not make any payment to the nominee. This ruling is not applicable in the instant case. ( 9 ) ON the other hand, the ruling in the case of G. L. Bhatia v. Union of india and Anr. reported in (1999)5 SCC 237 , we hold, is very much important in the instant situation. This ruling has clearly stated that the nomination filed by the deceased contrary to the statute was held inoperative. It has been held in the said ruling that where the rights of the parties are governed by the statutory provisions, the individual nomination contrary to the statute will not operate. ( 10 ) IN view of the above facts and circumstances and the legal proposition, we are of the view that the Respondent Authority was within its right in not allowing the claim of the writ applicant. We are also of the view that only the eligible legal heirs of the deceased constable are entitled to the retiral benefits and not the writ applicant. ( 11 ) IN the light of the above observations, we are of the opinion that the relief in the nature of mandamus or certiorari as claimed by the writ applicant cannot be granted. The learned Tribunal has rightly dismissed the application. There is nothing to interfere with the said judgment and order. ( 12 ) ACCORDINGLY, the writ application is dismissed. Considering the circumstances, there will be no order as to costs.