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2009 DIGILAW 290 (GAU)

Nandita Shil v. State of Tripura

2009-05-04

UTPALENDU BIKAS SAHA

body2009
JUDGMENT U.B. Saha, J. 1. The instant writ petition is filed under Article 226 of the Constitution of India seeking a direction from this Court for granting proportionate retrial benefits including the pension in favour of the petitioners modifying the impugned orders dated 30.7.2008 (Annexure-P 4) and dated 30.7.2008 (Annexure-P5) respectively. 2. The petitioners, namely, Smt. Nandita Shil and Sri Nayanmoni Shil, the minor daughter and son respectively, are represented by their natural guardian, mother, Smt. Jamuna Datta (Shil), the 2nd wife of the said deceased employee, Nani Gopal Shil, who, while serving as Head Forest Guard under the Divisional Forest Officer, Sadar, died on 5.2.2005. The respondent No. 4, herein, Smt. Hasu Rani Shil is the 1st wife of the deceased employee Nani Gopal Shil who subsequently married Smt. Jamuna Datta (Shil), the 2nd wife, and had been living with her. The petitioners were born out of the wedlock between Nani Gopal Shil and Smt. Jamuna Datta (Shil), the 2nd wife. 3. After the death of Nani Gopal Shil, the mother of the petitioners filed an application under Section 10 of the Guardians and Wards Act, before the Additional District Judge, West Tripura, Agartala for appointing her as guardian of her minor children to draw their share in the family pension on account of death of their father Nani Gopal Shil as he was working as a Forest Guard under the Forest Department, Government of Tripura. The said application was registered as Misc. (GC) 44 of 2006. Notice was served upon the 1st wife, Smt. Hasu Rani Shil. In response, by filing a petition, she admitted that Smt. Jamuna Dutta (Shil) is the second wife of Late Nani Gopal Shil and she had no objection if the court declared the petitioner Smt. Jamuna Dutta (Shil), the 2nd wife, as the legal guardian of her minor children, the petitioners herein. After hearing the parties on both sides, learned Additional District Judge disposed of the said petition by an order dated 7.5.2007, with observation that, having regard to the facts and circumstances of the case, I am of the view that there is no legal bar to appoint the petitioner Smt. Jamuna Dutta (Shil) as guardian of her minor children, namely, Kumari Nandita Rani Shil and Sri Nayanmani Shil to receive pensionary benefits left by their deceased father, namely, Nani Gopal Shil, for and on behalf of them'. 4. 4. A Survival Certificate dated 19.8.2006, was issued by the Sub-Divisional Magistrate, Bishalgarh that Nani Gopal Shil, beside the respondent No. 4, the 1st wife, left behind the petitioners herein. The respondent No. 4, made an application before the learned Civil Judge, Senior Division, West Tripura, Agartala under Section 372 of the Indian Succession Act, praying for issuance of Succession Certificate in her favour with respect to the debts and securities to the properties left behind by Nani Gopal Shil which was registered as Misc. (Succ) No. 35 of 2007, and the learned Civil Judge after hearing the parties by an order dated 1.10.2007, directed to issue Succession Certificate with the observation that issue Succession Certificate immediately so as to entitle the petitioner Smt. Hasurani Shil and the two petitioners (Nos. 2 and 3), namely, Kumari Nandita Shil and Nayan Mani Shil, who are minors and being represented by Opposite Party No. 1 Smt. Jamuna Dutta (Shil) to draw the debts and securities along with interest as left behind by deceased Nani Gopal Shil, if proper requisites are filed. As such, Succession Certificate was issued in favour of the respondent No. 4, and the petitioners herein with respect to the debts of Rs.1,12,100, being the money deposited in life insurance policy No. 491395955, in the name of Nani Gopal Shil so that they may collect/realize/withdraw the amount of debts and securities with up to date interest, if any in equal share. However, provisional gratuity payment order and the pension payment order were made on 30.7.2008, to make payment of Rs.1,30,680, as DCRG and Rs.2640, respectively in favour of the respondent No. 4. 5. According to the petitioners, they are entitled to one-third share of the amount, which were not granted to them. Being aggrieved by the said action, they are now before this Court for an appropriate order. 6. Mr. S. Deb, learned senior Counsel for the petitioners submits that the respondent No. 3, the Accountant General, Tripura by an order made the authority in respect of the DCRG and the monthly pension in favour of the respondent No. 4, the first wife, as per proposal of the respondent No. 2. 6. Mr. S. Deb, learned senior Counsel for the petitioners submits that the respondent No. 3, the Accountant General, Tripura by an order made the authority in respect of the DCRG and the monthly pension in favour of the respondent No. 4, the first wife, as per proposal of the respondent No. 2. He also submits that as per the pension rules, pension of the deceased employee is payable to a single person, generally, to the widow or widower of the deceased employee, who after the receipt of the family pension in every month maintains all other family members of the deceased employee, in other words, on the pension money of the deceased employee, all the family members have the equal right and entitled to have all benefit of the said pension amount. The widow or the widower being the recipient of the monthly pension is liable to distribute the said amount among the dependent family members of the deceased employee so that other family members do not face any trouble to enjoy the fruits left behind by the deceased employee. In the instant, case, it is an admitted position that the respondent No. 4 is the first wife and the petitioners are the children of the second marriage of the deceased employee who are entitled to the family pension. 7. He further argues that though at present the respondent No. 4 is drawing the family pension, it is none but the petitioners who are the legal heirs and dependent family members will be drawing the family pension after the respondent No. 4, and the respondent No. 3, had made that authority for the petitioners in pension payment order. Therefore, they are entitled to get the benefit of the family pension along with the respondent No. 4. 8. Learned senior Counsel further contends that the respondent No. 4, is a deserted wife though not officially, which is admitted by the respondent 4 herself in her counter-affidavit at para 6 and the deceased employee was living permanently with the 2nd wife and the petitioners till his death. 8. Learned senior Counsel further contends that the respondent No. 4, is a deserted wife though not officially, which is admitted by the respondent 4 herself in her counter-affidavit at para 6 and the deceased employee was living permanently with the 2nd wife and the petitioners till his death. After the death of Nani Gopal Shil, she came forward and claimed to be the wife of the deceased employee and submitted the pension paper which was ultimately accepted and finalized in her favour after inclusion of the name of the petitioners treating them the legitimate son and daughters of the deceased employee to which the respondent No. 4, had no objection also. Now the respondent No. 4, is legally bound to pay the share of the petitioners. 9. Learned senior Counsel also contends that the Government provide the family pension for the welfare of the family members of the deceased employee and all the family members of the deceased employee are treated as an individual and one family led by the widow wife or widower and accordingly authority to draw the family pension is given to the widow wife or widower who in turn look after all dependent family members. But in the instant case, the respondent 4 though drawing the family pension for and on behalf of the petitioners, she does not like to pay for the petitioners and as such, the petitioners are deprived of getting the benefit of family pension from the respondent. No. 4, which she cannot legally deny for them. 10. Mr. Deb, drawing attention to the court to paras 8 and 9 of the counter-affidavit of the respondent No. 4, also submits that to deprive the petitioners, respondent No. 4, has taken a plea that the mother of the petitioners did not spend the money received by her for the benefit of the petitioners, meaning thereby that the respondent No. 4, has been hesitating to pay the share of the petitioners to the mother of the petitioners who has been declared as guardian of the petitioners and given authority to draw the share of the petitioners in the family pension payable on account of death of their father Nani Gopal Shil and to spend the same amount for the welfare of the petitioners vide order dated 7.5.2007, passed in Misc. (GC) No. 44 of 2006, by the learned Additional District Judge, West Tripura. (GC) No. 44 of 2006, by the learned Additional District Judge, West Tripura. So, regarding entitlement of the petitioners, there is no dispute between the parties, but under the circumstances, this Court is to decide as regards disbursement of the family pension amongst the family members. 11. Finally Mr. Deb, learned senior Counsel submits that as per the decision of the Apex Court in the case of Rameshwari Devi v. State of Bihar and Ors. (2000) 2 SCC 431 , which was subsequently followed by the Apex Court in the case of Vidhyadhari and Ors. v. Sukhrana Bai and Ors. (2008) 2 SCC 238 , the petitioners are entitled to the family pension of the deceased employee. But the petitioners are deprived of getting the share of the family pension they are entitled to due to the action of the respondents 2 and 3. Therefore, a direction is necessary from this Court for modification of the impugned order vide Annexures 4 and 5, to the writ petition. He also submits that the decision of this Court in the case of Smt. Nanda Sinha and Ors. v. Union of India and Ors. WP(C) No. 316 of 2003 is not a good law as the said decision is contrary to the decisions of the Apex Court in the case of Rameshwari Devi and in the case of Vidhyadhari (supra). 12. Mr. T.D. Majumder, learned Additional Government Advocate appearing for the State respondents although conceded to the entitlement of the petitioners to the family pension, yet submitted that the family pension is not admissible to the children either legitimate or illegitimate during the continuance of payment of pension to the widow of the deceased employee. Hence, the petitioners are not entitled to family pension in equal share with the respondent No. 4, the 1st wife of the deceased employee. After receipt of the pension proposal as per provision, the same was sent to A.G. Tripura, the respondent No. 3, herein and the A.G. Tripura has sanctioned the final pension and DCRG in favour of the respondent No. 4, the 1st wife and the respondent No. 3, did not grant one third pension to the petitioners. Learned Addl. Government Advocate further submits that there is no provision in the CCS (Pensions) Rules, 1972 as adopted in the State of Tripura to grant pension to both widow and children at the same time. Learned Addl. Government Advocate further submits that there is no provision in the CCS (Pensions) Rules, 1972 as adopted in the State of Tripura to grant pension to both widow and children at the same time. Hence, the petitioners are not entitled to family pension at present. 13. In her reply, the respondent No. 4, has stated that the petitioners may be the illegitimate daughter and son of late Nani Gopal Shil because her husband was living together with Smt. Jamuna Datta (Shil) for some years prior to his death after deserting her and the order dated 7.5.2007, passed in Misc. (GC) No. 44 of 2006, was only authorizing Smt. Jamuna Datta (Shil) to draw the share of the minor petitioners in the family pension payable on account of death of their father Nani Gopal Shil, on behalf of them and to spend the said amount for the welfare of the minors. But the said order is incomplete as no direction was given to submit periodical report to the court as to whether the said amount was spent to the welfare of the minors or not. According to her, the amount which was received by Smt. Jamuna Datta (Shil) was not spent for the welfare of the petitioners. Unless the said order is modified, the interest of the minors (the petitioners) would not be protected. 14. Mr. S. Saha, Learned Counsel for the respondent No. 4, submits that it is the settled law that family pension of the deceased employee would be paid to the wife as well as his minor children and the whole payment is to be made to the wife only and none else. Thereafter, wife will spend the share of the minors for their benefit. In the instant case, this rule has been followed. And according to him, there is no illegality in the orders enclosed as Annexure P4 and Annexure P5 to the writ petition, which are required to be interfered with by this Court. While confronted by this Court, Mr. Thereafter, wife will spend the share of the minors for their benefit. In the instant case, this rule has been followed. And according to him, there is no illegality in the orders enclosed as Annexure P4 and Annexure P5 to the writ petition, which are required to be interfered with by this Court. While confronted by this Court, Mr. Saha concedes that although the minor children are not entitled to receive pension, but they deserve to be maintained through the 1st wife, the respondent No. 4, as she received the family pension, the authority of which was granted to the 1st wife after recording the name of the children from 2nd wife in Part-II of both halves of PPOs as the authorization of family pension in favour of the children does not arise as long as the legally wedded wife is the recipients of the same. 15. Mr. P.K. Biswas, learned Assistant SG appearing for the respondent No. 3, submits that as per Government of India's decision 18 below Rule 54 of CCS (Pension) Rules, 1972, ('the Rules'), family pension is admissible to children from the void or violable marriage. He also submits that Government of India's decision 18(4) provides that the right of such children require to be protected and will accrue accordingly. And the pensionary benefits will be granted to the children of a deceased Government servant/pensioner from such type of void marriages when their turn comes in accordance with Rule 54(8) of the Central Civil Services (Pension) Rules, 1972, and they will have no claim whatsoever to receive family pension as long as the legally wedded wife is the recipient of the same. For better appreciation, Rule 54(8) is quoted hereunder: 54. (8)(i) Except as provided in Sub-rule (7) the family pension shall not be payable to more than one member of the family at the same time. (ii) If a deceased Government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child. (iii) If sons and unmarried daughters are alive, unmarried daughters shall not be eligible for family pension unless the sons attain the age of eighteen years and thereby become ineligible for the grant of family pension. 16. Relying on the aforesaid provisions of the Rule 54(8), Mr. (iii) If sons and unmarried daughters are alive, unmarried daughters shall not be eligible for family pension unless the sons attain the age of eighteen years and thereby become ineligible for the grant of family pension. 16. Relying on the aforesaid provisions of the Rule 54(8), Mr. Biswas further submits that on receipt of the proposal of the family pension of the deceased from the Department of the State Government, particularly the respondent No. 2, on the basis of the prayer of Smt. Hasu Rani Shil, 1st wife of the deceased employee, the authority for family pension @ Rs.2,640, per month was issued in favour of her vide impugned order dated 30.7.2008, (Annexure-5 to the writ petition) after recording the name of the present petitioners in Part-II of both halves of the PPOs. He also contends that the instant case is fully covered by the decision of this Court in the case of Smt. Nanda Sinha and Ors. (supra). He further submits that while dismissing the aforesaid case, this Court also considered the decision in the case of Rameshwari Devi (supra) and held that no ratio has been laid down by the Apex Court in that case for universal application and further held that the respondents have not committed anything wrong in taking the impugned decision to grant family pension only to the respondent No. 6, the first wife to the exclusion of the petitioners, the 2nd wife and the children born from the second marriage as the said decision was taken by the authority directly in terms of the provisions of the pension rules. He finally referred to the office memorandum dated 2.12.1996, issued by the Government of India clarifying the Rule 54(8) of the CCS (Pension) Rules, wherein, inter alia, it has been stated that the pensionary benefits will be granted to the children of the deceased Government servant/pensioner from such type of void marriage when their turn will come in accordance with the Rule 54(8) and as per the said decision, they will have no claim whatsoever to receive family pension as long as the legally wedded wife is the recipient of the same. 17. 17. In the case of Rampyari Bai v. Municipal Corporation (1987) (Supp) SCC 263, the Apex Court upheld the decision of the first appellate court inter alia that the factum as well as validity of the plaintiff's marriage with Mannulal has not been proved and therefore, there could not be any valid nomination made by the deceased employee in favour of the 2nd wife. While the first wife is alive, then the said nomination cannot be treated as valid nomination of the deceased employee for payment of the family pension. In the case of G.L. Bhatia v. Union of India and Anr. (1999) 5 SCC 237 , the question came up for decision as to whether the appellant therein who happens to be the husband of the deceased Government servant is entitled to family pension under the provisions of the CCS (Pension) rules, notwithstanding the fact that the deceased wife in her nomination did not include the husband. The Apex Court considering the Sub-rules (8) and (14) of Rule 54, of the rules set aside the order of the court below which had agreed with the views of the authorities, and held that there being no divorce between the husband and wife even though they might be staying separately, the appellant husband would be entitled to the family pension in terms of the rules as noted aforesaid and the authorities, therefore, committed error in not granting family pension to the appellant therein relying upon the nomination made by the deceased wife of the appellant. 18. In the case of Rameshwari Devi (supra), the dispute was between two wives of the deceased employee regarding payment of family pension and death-cum-retirement gratuity wherein the appellant Rameshwari Devi being the first wife of the deceased employee Narain Lai had disputed the very factum of marriage of Yogmaya Devi with her husband. An enquiry was done by the ADM, Danapur Sub-Division, Danapur, Patna and it was found that the deceased employee Narain Lai had married twice, first time to Rameshwari Devi and second time to Yogmaya Devi and from the wedlock of the first marriage, he had one son and from the second marriage, he had four sons. The Government of Bihar sanctioned family pension and gratuity to the first wife Rameshwari Devi by an initial order that was challenged before the Patna High Court by filing a writ petition. The Government of Bihar sanctioned family pension and gratuity to the first wife Rameshwari Devi by an initial order that was challenged before the Patna High Court by filing a writ petition. The writ petition was allowed and the direction was issued to the State Government to issue fresh sanction order for payment of arrear of family pension and death cum retirement gratuity to the minor children born from the wedlock between Yogmaya Devi and Narain Lai till they attained majority, but nothing would be payable to the second wife Yogmaya Devi. The appeal preferred by the 1st wife Rameshwari Devi, against the said judgment was dismissed by the Division Bench of that High Court which was subsequently challenged before the Apex Court. The Apex Court did not interfere with the judgment of the Division Bench of the Patna High Court upholding the judgment of the learned Single Judge. 19. The aforesaid judgment in the case of Rameshwari Devi (supra) fell for consideration before the Apex Court in the case of Vidhyadhari (supra) wherein relying on the case of Rameshwari Devi (supra), the Apex Court held that even if a Government servant had contracted second marriage during the subsistence of his first marriage, children born out of such second marriage would still be legitimate though the second marriage itself would be void, and, therefore, went on to hold that such children would be entitled to the pension but not the second wife. Ultimately, the Apex Court held that "we must balance the equities as Sukhrana Bai is also one of the legal heirs and besides the four children she would have the equal share in Sheetaldeen's estate which would be 1/5th. To balance the equities, we would, therefore, choose to grant succession certificate to Vidhyadhari but with a rider that she would protect the 1/5th share of Sukhrana Bai in Sheetaldeen's properties and would hand over the same to her." 20. Neither in the case of Rameshwari Devi (supra) nor in the case of Vidhyadhari (supra), question came up before the Apex Court for examining the Rule 54 of the Rules. The decision of this Court in the case of Smt. Nanda Sinha and Ors. Neither in the case of Rameshwari Devi (supra) nor in the case of Vidhyadhari (supra), question came up before the Apex Court for examining the Rule 54 of the Rules. The decision of this Court in the case of Smt. Nanda Sinha and Ors. (supra) was al w regarding legality of the pension payment order issued by the Accountant General, Tripura in view of the proposal of the State respondents in favour of the first wife, but there was no opportunity to discuss regarding the case of Vidhyadhari (supra) as the same was not placed before the court. 21. From the aforesaid decision of the Apex Court, it can be held that family pension of the deceased employee is not guided on the basis of the nomination, but on the basis of the provisions of Rules and no authority can take any decision contrary to the provisions of Rules relating to the family pension. From the conjoint reading of Sub-rules (8) and (14) of Rule 54 of the Rules, it appears that the family pension is payable only to one of the members of the family of the deceased employee and the said member of the family is the trustee being the receiving authority of pensionable property of the deceased employee, but with the recipient, other family members are also entitled to the said pensionable amount as their share, meaning thereby the recipient has no over all entitlement on the family pension of the deceased employee being the same is provided for the benefit of all members of the family. The word 'family', in relation to pensionable property is defined in Clause (b) of Sub-rule (14) of Rule 54 of the Rules which is quoted hereunder: (b) "family" in relation to a Government servant means- (i) wife in the case of a male Government servant or husband in the case of a female Government servant, provided the marriage took place before the retirement of the Government servant; (ii) a judicially separated wife or husband such, separation not being granted on the ground of adultery provided the marriage took place before the retirement of the Government servant; (iii) son who has not attained the age of eighteen years and unmarried daughter who has not attained the age of twenty-one years, including such son and daughter, adopted legally before retirement but shall not include son or daughter born after retirement; 22. In the instant case, it is the admitted position that the respondent No. 4 is the first wife of the deceased employee, namely, Noni Gopal Shil, and the petitioners are the minor children of the deceased Government employee from his second marriage and they are legitimate children of the deceased employee and are also entitled to the pensionable property of their deceased father. Receivable payable and the entitlement are totally different and it has distinct meaning also. Entitlement of receiving of certain property by a person creates a right only to collect the amount and the entitlement of property creates a right over the said property. To appreciate the views as aforesaid, let us examine what means the word 'entitle' and what means the word 'receive'. As per the Law Lexicon, 2nd edn., by P. Ramanatha Aiyer, the word 'entitle', means to give a claim, right or title; to give a right to demand or receive. The word 'receive' means to get by transfer. In Black Law Dictionary, 6th edn., the word 'entitle' means to give a right or legal title and the word 'receive' means accept a custody; collect. In the instant case, even the respondent No. 4 also did not disown the right of the present petitioners, but she only stated that money which has already been received by the second wife of the deceased employee on behalf of the present petitioners was not disbursed for their welfare, meaning thereby that the respondent No. 4 also admitted regarding the entitlement of the present petitioners over the family pension of the deceased Government employee, i.e., the husband of the respondent No. 4 and the lather of the petitioners respectively. 23. When some body is entitled certain things/properties in accordance with law, then those entitlement cannot be denied by any authority including the first wife, the respondent No. 4. But at the same time, when there are certain rules framed by the Legislature prescribing certain procedure regarding payment of the family pension of the deceased Government employee, the court cannot direct the official respondents not to follow the prescribed procedure and also has no power to direct for modifying the order(s) issued in favour of a person like the respondent No. 4, when she is legally authorized/person to receive the said amount of pension. In the instant case, the petitioners also admittedly neither challenged the provisions of rule applicable for payment of family pension nor asked for any direction to the respondent No. 4, first wife for payment of their share in the family pension. Their challenge is only to the orders impugned (Annexure-4 and Annexure-5). Hence, the court can also not pass any order contrary to the said provisions of the Rules. At the same time the court being a court of justice and equity cannot also ignore the grievances raised by the minor petitioners claiming their share over the family pension in the instant writ petition. The prayer of the writ petitioners may be defective one, but when the grievances/disputes raised in the petition, the court has obviously the power to modify/extend the prayer for settling the dispute between the parties. Now the questions come up from which source they will get the said family pension, whether from the respondent No. 1, 2 and 3, or from the respondent No. 4. So far the respondent No. 1, 2 and 3, are concerned, this Court is not in a position to direct them to issue any order contrary to the provisions of Rule 54, as stated supra. Therefore, it is to be decided as to whether the court can direct the respondent No. 4, the first wife of the deceased employee, for protecting the share of the petitioners, the legitimate children of the deceased Government employee, as per their entitlement so that they can fulfill their basic needs till they attain majority as required under law or the court should leave the matter to the petitioners for approaching to the appropriate forum for getting their share as per their entitlement over the family pension of their deceased father. 24. According to this Court, such a direction can be issued considering the entitlement of the petitioners for protecting their interest being they are minor. In the result, the respondent No. 4, who collects the family pension, is required to protect the share of the petitioners as they are entitled to in accordance with law after receipt of the family pension of the deceased employee, her late husband and the father of the present petitioners. The petitioners may also approach the proper forum if so advised for getting their share in accordance with law. The petitioners may also approach the proper forum if so advised for getting their share in accordance with law. In the result, the impugned orders are not interfered with by this Court, as the impugned orders dated 30.7.2008 (Annexure-P4) and dated 30.7.2008 (Annexure-P 5) respectively were issued in accordance with the provisions of Rules as applicable. 25. For the foregoing reasons and discussion, the writ petition is disposed of. No order as to costs.