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2008 DIGILAW 166 (JK)

Maha Lakshmi Tikoo v. State Bank Of India

2008-05-06

NIRMAL SINGH

body2008
1. The short question which arises for consideration in this petition is whether the `mother who falls in the category of Class (I) legal heir under the Jammu & Kashmir Hindu Succession Act, 1956 (hereinafter called the Act), can be denied the family pension. 2. The brief facts for the disposal of this petition are that son of the petitioner late Virender Kumar Tikoo, who was working as Senior Manager in the respondent Bank and remained un-married during his life time, died on 28th of Dec02. Petitioner being the sole legal heir was dependent upon him. The further fact is that the respondent Bank in exercise of power under Section 50 of the State Bank of India Act (23 of 1955), framed Regulations for establishment and maintenance of Pension Fund under the State Bank of India Pension Fund Rules, which prescribed for the payment of family pension in case of death of an employee of the Bank to his/her legal heirs. 3. After the death of son of the petitioner, who had become a qualified member for the purpose of pension on the date of his death, the petitioner being the sole dependent upon her son, applied for grant of the benefit of family pension to respondent No.3 vide representation dt. 18th of Nov03. The claim of the petitioner was rejected on the ground that under the rules, only a widow/widower or the surviving children of the deceased employee is entitled to this benefit. Petitioner represented before the Chairman of the Bank also but vide impugned order dt. 11th of Feb04, the representation of the petitioner has been rejected. It is this order, which is the subject matter of challenge in the present petition. 4. The grievance projected by the petitioner is that in terms of the Pension Scheme adopted by the respondent Bank, the son of the petitioner had become a qualified member for the purpose of pension and after his death the petitioner who is the sole legal heir and dependent upon her son cannot be denied the family pension. 4. The grievance projected by the petitioner is that in terms of the Pension Scheme adopted by the respondent Bank, the son of the petitioner had become a qualified member for the purpose of pension and after his death the petitioner who is the sole legal heir and dependent upon her son cannot be denied the family pension. It is stated that for the purposes of succession, the petitioner is governed by the provisions of the Act and so far as maintenance is concerned, she is governed by the provisions of Hindu Adoptions & Maintenance Act, 1960 and in terms of Section 20 and 21 of the said Act, she being the dependant could claim maintenance from her son during his life time and after his death, she is entitled to family pension from the amount which has become due to his deceased son being a qualified member of the respondent Bank for the purpose of pension. It is thus stated that claim of the petitioner should not have been rejected by the respondent Bank. 5. Respondents in their counter have pleaded that the Bank has introduced the Scheme of family pension w.e.f. 1st of Jan87 by way of framing Rule 23(5) in the State Bank of India Employees Pension Fund Rules. It is stated that in terms of the said Rules, the mother of a deceased employee is not entitled to claim the benefit of family pension. It is further stated that the deceased Virender Kumar Tikoo had not even nominated the petitioner for grant of terminal benefits like Provident Fund and gratuity. It is thus stated that the petitioner is not entitled to family pension. 6. I have heard learned counsel for the parties and perused the record. 7. Under Section 6 of the Act, the property of a male Hindu who has died intestate is to devolve according to the provisions of Chapter II firstly upon the heirs, being the relatives specified in Class I of the Schedule attached to the Act, and in case, there is no heir of Class I, then upon the heirs being the relatives as specified .in Class II of the Schedule. Class I of the Schedule is relevant and is being reproduced below:- "Class I" "Son;daughter;widow;mother;son of pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a predeceased son of a pre-deceased son; widow of a pre-deceased son." 8. A perusal of the above schedule shows that `mother has been kept on the same footing as that of son, daughter, widow and other relatives shown above in the schedule. 9. Under sub Clause (3) of Section 20 of the Hindu Adoptions and Maintenance Act, 1960, there is an obligation on the part of a person to maintain his aged or infirm parents or a daughter. This provision is also relevant and reads as under: - "20. Maintenance of children and aged parents "1........ 2......... 3. The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. Explanation-In this section "parent" includes a childless step mother." 10. Under Section 21 of the said Act, the dependants have been defined. This Section in so far as relevant is also being reproduced below: - "21. Dependants defined For the purposes of this Chapter "dependants" means the following relatives of the deceased: - (i) his or her father: (ii) his or her mother:.................................." 11. Even under Section 488 of the Criminal Procedure Code, Svt. 1989, the parents are entitled to maintenance from their children in case they are unable to maintain themselves. 12. Thus, under the above provisions, a male Hindu has to maintain his/her parents and in case a Hindu dies intestate, then his property will be inherited by his/her legal heirs as per the provisions of the Act and Schedule attached thereto noticed above. 13. 12. Thus, under the above provisions, a male Hindu has to maintain his/her parents and in case a Hindu dies intestate, then his property will be inherited by his/her legal heirs as per the provisions of the Act and Schedule attached thereto noticed above. 13. The contention of the learned counsel for the respondent Bank is that no doubt, the property of a Hindu who has died intestate can devolve as per the provisions of the Act but the pension is not covered by the term property, and as such, in case, the mother who has been shown to be one of the legal heir as per the Act, but not included as such in the rules governing the field, cannot seek the benefit of family pension. It is contended that the family pension is in the nature of a welfare scheme adopted by the Bank and is to be granted in favour a legal heir of the deceased employee only as per the terms and conditions of the Rules formulated in this regard. It is stated that if the pension is held to be a property, then the employee has a right to transfer that property in favour of anyone by executing an instrument. 14. I have given my thoughtful consideration to the submission made by the learned counsel for the respondent Bank but find the same without any substance. 15. In Deoki Nandan Prasad v. State of Bihar, AIR 1971 SC 1409, the Apex Court has held that pension is a right to property and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension follows to the officer not because of any such order by virtue of the rules. 16. In D.S. Nakara and others v. Union of India, AIR 1983 SC 130, the Apex Court has observed as under- "31. 16. In D.S. Nakara and others v. Union of India, AIR 1983 SC 130, the Apex Court has observed as under- "31. From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and Clause (5) of the Article 148 of the Constitution, (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch....." 17. From the legal position above noticed, it can be said that the pension is not a bounty payable on the sweet will and wishes of the employer but it is just like a property to be governed under the pension rules. In the present case, the deceased admittedly had a qualifying service for the purpose of pension and in case he would have been married, his widow or children as mentioned in the rules would have been entitled to the family pension but he being unmarried during his life time, at the time of his death left behind the petitioner being the sole surviving legal heir as per the Schedule I of the Act noticed above. The respondent Bank, however, in their rules for family pension have, excluded the mother from getting this benefit. The policy adopted in this regard excluding the mother from the list of legal heirs so far as grant of pensionary benefits are concerned has been thrown to challenge by the petitioner being violative of Article 14 of the Constitution. When any Statute/Policy/Rule is challenged, then it is necessary for the court to ascertain the reasonableness of the said Policy/Rule and the object intended to be achieved. When any Statute/Policy/Rule is challenged, then it is necessary for the court to ascertain the reasonableness of the said Policy/Rule and the object intended to be achieved. The court is also to see as to whether the classification is rational and based upon intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the group and whether the basis of differentiation has any rational nexus or relation with its avowed policy and object. In the instant case, there is no ground to make a reasonable classification between the Class I legal heirs. The Policy in question has been framed keeping in view the social welfare aspects and also to see that an employee after retirement is able to meet the living expenses and the purpose of family pension is to see that the legal heirs and the dependents of the employee may not starve after his/her death. Keeping in view this fact, admittedly, all the nationalised Banks of the country have formulated a Pension Scheme and have made the rules for the purpose of granting family pension in which, the mother has been included as one of the legal heir. The respondent Bank herein which is also a nationalised Bank has framed this policy for grant of family pension excluding the mother from the list of legal heirs. When it was pointed out to the learned counsel for the respondent Bank that why the Policy famed by the Bank herein is not in line with the policy framed by other nationalised Banks, he failed to reply in this regard. In my view, there is no rational in excluding the mother from the said list and denying her the benefit of family pension when she is Class I legal heir under the Act. Thus, the rule framed by the respondent Bank in this regard is held to be discriminatory and violative of Article 14 of the Constitution and the provisions of the Act and Schedule attached thereto. 18. The further contention raised by the learned counsel for the respondent Bank, as noticed above, is that the petitioner has not been nominated by the deceased employee even for receiving Provident Fund and gratuity and instead he has nominated his niece for getting said benefits, and therefore, the petitioner has no right to claim the family pension. 19. 18. The further contention raised by the learned counsel for the respondent Bank, as noticed above, is that the petitioner has not been nominated by the deceased employee even for receiving Provident Fund and gratuity and instead he has nominated his niece for getting said benefits, and therefore, the petitioner has no right to claim the family pension. 19. In this regard, it be seen that the nomination of the niece by the deceased employee would not affect the right of the petitioner so far as getting the family pension is concerned because a nominee is only authorised to receive the amount for which he/she has been, nominated. What has been observed in this regard by the Apex Court in the case of Sarbati Devi v. Usha Devi, AIR 1984 SC 346, be noticed as under: - "A mere nomination made under Section 39 does not have the effect of conferring on the nominee any beneficial interests in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them." 20. For the reasons mentioned above, this petition is disposed of with the following directions: - 1. That the rules framed by the respondent Bank under the Family Pension Scheme, so far as these relate to non inclusion of `mother in the list of legal heirs for the purpose of family pension are held to be violative of Article 14 of the Constitution as also the provisions of Act and Schedule attached thereto and are struck down. 2. The mother shall be included in the rules as one of the legal heir for the purpose of family pension. 3. The petitioner being the mother and sole surviving heir and dependent on the deceased employee shall be entitled to family pension and other retrial benefits which shall be released in her favour within a period of two months from the date, a copy of this order is made available to the respondent Bank by the petitioner. 4. 3. The petitioner being the mother and sole surviving heir and dependent on the deceased employee shall be entitled to family pension and other retrial benefits which shall be released in her favour within a period of two months from the date, a copy of this order is made available to the respondent Bank by the petitioner. 4. That the petitioner shall also be entitled to the arrears of family pension along with interest at the rate which is being paid by the respondent Bank on fixed deposits under the five year Interest payable Scheme. The same rate of interest shall be payable on the amount of gratuity and other retrial benefits. 5. That in case the family pension and other retrial benefits along with interest as mentioned above are not released in favour of the petitioner within the stipulated period aforestated, then the petitioner shall be entitled to interest on the amount due to her at the rate of 18% per annum and this enhanced interest shall be payable by the person on whose account the delay occurs. 21. Disposed of accordingly along with connected CMPs, if any.