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Allahabad High Court · body

2010 DIGILAW 1785 (ALL)

Abdul Samad Khan v. State of U. P. and others

2010-05-26

RAJIV SHARMA

body2010
Rajiv Sharma, J.: - None responds for the petitioner. However, Mr. Piyush Shukla, learned standing counsel is present. 2. When the sincere efforts made by the petitioner, who retired from Government service as Sub-Inspector on 31.12.2007, went in vain and the petitioner could not get even a single penny towards the post-retiral dues including pension, the petitioner filed a Civil Misc. Writ Petition No. 22155 of 2009 for issuing a direction to the opposite parties to pay the post-retiral dues as he had completed all necessary formalities in this regard. This writ petition was disposed of vide judgment and order dated 27.4.2009 with the direction to the petitioner to move a representation for ventilation of his grievances to the authority concerned, who shall decide the same within a period of four months. 3. In deference of the order dated 27.4.2009, passed by this Court, Deputy Inspector General of Police, Allahabad rejected the representation of the petitioner on the ground that in the service record, name of Fatima Begum is entered as his wife, but he never appeared alongwith Fatima Begum for preparation of pension papers and submission of joint photograph. Later it came to the notice that the petitioner married another lady and he never requested for deleting the name of the first wife from the service record during his service tenure. In the impugned order, it is also mentioned that the petitioner has again been directed to get prepared the pension papers alongwith the nominee mentioned in the service record. 4. From the averments made in the writ petition, it comes out that the petitioner had divorced his first wife on 11.8.1982 as per Muslim Rites and Custom which was reduced in writing in presence of two witnesses. After the lawful divorce, the petitioner remarried with one Monish Begum. Thereafter, the petitioner moved an application on 5.6.1983 to the Senior Superintendent of Police, Kanpur Nagar, where he was posted at the relevant time, informing therein that the divorce in accordance with Mohammedan Law had taken place and after divorce, he has married one Smt. Monish Begum as per Muslim Rites and Customs. In the application, he has requested for deleting the name of first wife from the service record. 5. In the application, he has requested for deleting the name of first wife from the service record. 5. In paragraph 8 of the writ petition, the petitioner has averred that he is living with Smt. Monish Begum (second wife) for the last more than 25 years and out of the wedlock, eight children were born. In this regard, the petitioner has also submitted an affidavit before the Senior Superintendent of Police, Allahabad declaring the aforesaid fact. 6. In the writ petition, the petitioner has alleged that he was being paid provisional pension for quite some time, but it has also been abruptly stopped and on account of non-payment of post-retiral dues and regular pension, the petitioner is not able to maintain the family in these hard days. Apart from above, the study of the children is also adversely affected. 7. Learned standing counsel, on the basis of the averments made in the counter-affidavit, has stated that the petitioner was required to submit joint photograph alongwith Fatima Begum, whose name was entered into service record for preparation of pension papers, but the petitioner failed to submit the required information and as such, the pension papers could not be prepared. He further submits that the petitioner has suppressed the material facts and did not inform the second marriage. 8. Be that as it may, one thing is apparent from the record that the petitioner re-married in the year 1982, Le., more than 28 years hence and the first wife had never made any complaint to the department that the petitioner married second lady without any divorce and she is still the legally wedded wife of the petitioner. On the contrary, in the writ petition, it has been averred that Smt. Fatima Begum, the first wife of the petitioner had re­married one Mohd. Naim, s/o Abad Ali on 6.11.1986. It is surprising that this averment has been denied in the counter-affidavit without any verification. The deponent of the counter-affidavit is answerable as to how he denied the factum of marriage of Fatima Begum with Mohd. Naim. 9. At the outset, it is necessary to point out that the nomination only indicates the hand which is to receive the amount for which nomination has been made, in the event of death. Mere nomination does not have the effect of conferring the nominee any beneficial interest in the amount payable. Naim. 9. At the outset, it is necessary to point out that the nomination only indicates the hand which is to receive the amount for which nomination has been made, in the event of death. Mere nomination does not have the effect of conferring the nominee any beneficial interest in the amount payable. The amount, however, can be claimed by the heirs, in accordance with law of succession. 10. As regards the nomination in G.P.F. passbook and other allied matters, a person is free to withdraw the nomination at any time and get entered the name of a person of his/her choice, which would be evident from the G.P.F. Rules referred hereinafter. 11. It is relevant to mention that the State Government has framed the General Provident Fund (Uttar Pradesh) Rules, 1985. These Rules deal with the constitution of fund, condition of eligibility, nomination, amount of subscription, condition of withdrawal from the fund and final payments of accumulations from the fund, etc. for adjudicating the controversy involved in the instant writ petition, it would be useful to reproduce Rules 2, 4, 5 and 20 of the General Provident Fund (Uttar Pradesh) Rules, 1985 which are as under: "2. Definitions. for adjudicating the controversy involved in the instant writ petition, it would be useful to reproduce Rules 2, 4, 5 and 20 of the General Provident Fund (Uttar Pradesh) Rules, 1985 which are as under: "2. Definitions. - (1) In these rules unless the context otherwise requires - (a) 'Accounts Officer' in relation to Group D (formally Class IV) employees whose accounts are kept by departmental authorities means the drawing and disbursing officer concerned and in respect of other employees means the officer to whom the duty to maintain the provident fund account of the subscriber has been assigned by the Comptroller and Auditor-General of India; (b) 'emoluments' shall save as otherwise expressly provided mean pay, leave salary or subsistence grant as defined in the Financial Hand Book Volume II, and includes dearness pay appropriate to pay leave salary or subsistence grant, if admissible and any remuneration of the nature of pay received in respect of foreign service; (c) 'family' means - (i) in the case of a male subscriber the wife or wives and children of a subscriber and the widow or widows and children of a deceased son of the subscriber : Provided that if a subscriber proves that wife has been judicially separated from him or has ceased under the customary law of the community to which she belongs, to be entitled to maintenance, she shall henceforth be deemed to be no longer a member of the subscriber's family in matters to which these rules relate unless the subscriber subsequently intimates in writing to the Account Officer that she shall continue to be so regard; (it) in the case of a female subscriber, the husband and children of a subscriber and the widow or widows and children of a deceased son of a subscriber : Provided that if a subscriber by notice in writing to the Account Officer expresses her desire to exclude her husband from her family the husband shall henceforth be deemed to be no longer a member of the subscriber's family in matters to which these rules relate unless the subscriber subsequently cancels such notice in writing. Note. - Child means a legitimate child and includes an adopted child, where adopted is recognized by the personal law governing the subscriber. Note. - Child means a legitimate child and includes an adopted child, where adopted is recognized by the personal law governing the subscriber. (d) 'Fund' means the General Provident Fund; (e) 'leave' means any kind of leave as provided for in the Financial Hand Book, Volume II, Parts II to IV; (f) 'Undertaking' means - (1) a statutory body incorporated by or under any Uttar Pradesh Act or Central Act; (ii) a Government company within the meaning of Section 617 of the Companies Act, 1956; (Hi) a Local Authority within the meaning of Clause (25) of Section 4 of the Uttar Pradesh General Clauses Act, 1904; (iv) a scientific organization registered under the Societies Registration Act, 1860, wholly or partly under the control of the Central Government or any State Government; and (v) 'year' means a financial year. (2) Any other expression used in these rules which is defined either in the Provident Fund Act, 1925 (Act No. 19 of 1925) or in the Financial Handbook, Volume II. Parts II to IV, is used in the sense defined therein. (3) Nothing in these rules shall be deemed to have the effect of terminating the existence of the General Provident Fund as heretoforce existing or of constituting any new Fund. 4. Conditions of eligibility. - All permanent Government servants and all temporary Government servants, other than those appointed on contract and re-employed pensioners, whose services are likely to continue for more than a year shall subscribe to the fund from the date of joining the service. Note. 1. - Apprentices and probationers shall be treated as temporary Government servants for the purpose of this rule. Note. 2. - Temporary Government servants (including apprentices and probationers) who have been appointed against regular or temporary vacancies and are likely to continue for more than a year shall subscribe to the fund from the date of joining the service. Note. 3. - Executive authorities should inform the Account Officer as soon as a Government servant becomes liable to subscribe to the fund. 5. Nomination. Note. 3. - Executive authorities should inform the Account Officer as soon as a Government servant becomes liable to subscribe to the fund. 5. Nomination. - (1) A subscriber shall at the time of joining the fund submit to the Head of Department/Head of Office a nomination conferring on one or more persons the right to receive the amount that may stand to his credit in the fund in the event of his death, before that amount has become payable or, having become payable, has not been paid : Provided that a subscriber who has a family at the time of making the nominations shall make such nomination only in favour of a member or members of his family : Provided further that the nominations made by the subscriber in respect of any other Provident Fund to which he was subscribing before joining the fund shall, if the amount to his credit in such other fund has been transferred to his credit in the fund, be deemed to be a nomination duly made under this rule until he makes a nomination in accordance with this rule. (2) If a subscriber nominates more than one person under sub-rule (1), he shall specify in the nomination the amount or share payable to each of the nomination in such a manner as to cover the whole of the amount that may stand to his credit in the Fund at any time. (3) Every nomination shall be in the form set forth in the First Schedule. The authority to whom the nomination is submitted shall ensure that it is according to the rules and its receipt will be acknowledged by him. In case, the nomination is found incomplete or defective, it will be returned to the subscriber for correction and re-submission. When the nomination has been accepted, the required entries in respect thereof will be made at the appropriate place in the G.P.F. passbook of the subscriber and duly signed by the drawing and disbursing officer. The nomination shall be kept securely with the subscriber's G.P.F. passbook and when he is transferred to another department or office, the nomination alongwith his G.P.F. passbook shall be transferred to the drawing and disbursing officer concerned after making an entry to this effect in the passbook and an acknowledgment for the same shall also obtained from that officer. The nomination shall be kept securely with the subscriber's G.P.F. passbook and when he is transferred to another department or office, the nomination alongwith his G.P.F. passbook shall be transferred to the drawing and disbursing officer concerned after making an entry to this effect in the passbook and an acknowledgment for the same shall also obtained from that officer. (4) A subscriber may, at any time, cancel a nomination by sending a notice in writing to the Head of the Department/Head of Office. The subscriber shall, alongwith such notice or separately, send a fresh nomination made in accordance with the provisions of this rule. (5) A subscriber may provide in a nomination as follows : (a) In the event of any specified nominee predeceasing the subscriber, the right conferred upon that nominee shall pass, to such other person or persons as may be specified in the nomination, provided that such other person or persons shall, if the subscriber has other members of his family, be such other member or members and where the subscriber confers such a right on more than one person under this clause, he shall specify the amount or share payable to each of such persons in such a manner as to cover the whole of the amount payable to the nominee. (b) The nomination shall become invalid in the event of the happening of a contingency specified therein : Provided that if at the time of making the nomination the subscriber has no family, he shall provide in the nomination that it shall become invalid in the event of his subsequently acquiring a family : Provided further that if at the time of making the nomination the subscriber has only one member of the family, he shall provide in the nomination that the right conferred upon the alternate nominee under Clause (a) of sub-rule (5) or on the occurrence of any event by reason of which the nomination becomes invalid in pursuance of Clause (d) or sub-rule (5) or the provision thereto, the subscriber shall send to the Head of Department/Head of Office a notice in writing cancelling the nomination, together with fresh nomination made in accordance with the provisions of this rule. (6) Every nomination made, and every notice of cancellation given, by a subscriber shall, to the extent that it is valid, take effect on the date on which it is received by the Head of Department/Head of Office. Note. - In this rule, unless the context otherwise requires, the term 'person' or 'persons' shall include a company or association or body of individuals, whether incorporated or not. 20. Final payments of accumulations in the Fund. - When a subscriber quits the service, the amount standing to his credit in the Fund shall become payable to him : Provided that a subscriber, who has been dismissed from the service and is subsequently reinstated shall, if required to do so by the Government repay any amount paid to him from the Fund in pursuance of this rule, in a lump sum or in instalments as may be determined. The amount so repaid shall be credited to his account: Provided further that where a subscriber after quitting the service takes up appointment, with or without any break, on a new post under the Central Government, another State Government or an undertaking the amount of his subscriptions together with interest thereon may, if he so desires, be transferred to his new Provident Fund account of the concerned Government or undertaking as the case may be, also agree to such a transfer. If, however, the subscriber does not opt for such transfer or the concerned Government or undertaking does not agree to it, the amount aforesaid shall be refunded to the subscriber. 12. From the perusal of definition clause, it is clear that the family includes wife or wives, widow or widows of a subscriber, apart from the children. As regards 'child', the note appended to definition clause clarifies that it means a legitimate child and adopted child too. 13. Rule 5 referred to above deals with the nomination and provides that a subscriber, at the time of joining the fund, submits a nomination conferring one or more persons the right to receive the amount, in the event of his death. It further provides that if there are more than one nomination, a duty is cast upon the subscriber to specify the share at the time of nomination which would be payable to such nominated person. It further provides that if there are more than one nomination, a duty is cast upon the subscriber to specify the share at the time of nomination which would be payable to such nominated person. That means that if the subscriber is alive, after retirement, then he alone will receive payment of G.P.F. and other terminal benefits and not the nominee. Clause (4) of Rule 5 gives liberty to the subscriber to cancel a nomination and may give a fresh nomination at any time. Rule 20 clearly provides that when a subscriber quits the service, the amount is payable to him alone. As per Rule 22, when on the death of the subscriber, he leaves a family, the amount payable would be paid to the person nominated by him and in the absence of any nomination, in favour of any member, the entire amount will be payable to the members of his family in equal shares. 14. In the instant case, the petitioner is a police officer and is well-acquainted with the laws. Being acquainted with law, it cannot be inferred that he remained in slumber and got all the papers prepared after retirement. As indicated above, the petitioner had cancelled the nomination made in favour of the first wife and after divorce, when he married Smt. Monish Begum he wrote to the competent authority for inserting her name. The said application was moved in the year 1986, where the petitioner was posted at the relevant time. 15. It is also relevant to add that under Rule 29 of the U. P. Government Servant Conduct Rules, 1956, a restriction has been imposed upon the Government servant to contract second marriage when he already has a legal wife, even if it is permissible under the personal law. The respondent cannot take the benefit of this Rule as it is a definite stand of the petitioner that he has divorced the first wife and after divorce, he had married Smt. Monish Begum. It may be mentioned that under Mohammedan Law, there is no need of any declaration from Court and the divorce is pronounced either by the husband or the wife as per the law prescribed by the Shariat. It is not the case of the respondents that during enquiry, it has come to their notice that the petitioner while keeping the first living wife had married second wife. It is not the case of the respondents that during enquiry, it has come to their notice that the petitioner while keeping the first living wife had married second wife. In other words, the petitioner is keeping two wives simultaneously. 16. In view of the above, the impugned order dated 18.6.2009, passed by the opposite party No. 2, contained in Annexure-6 to the writ petition, is not sustainable and is hereby quashed. The opposite parties are directed to complete the pension papers, treating Smt. Monish Begum as his legally wedded wife. The petitioner shall be paid regular pension after fixation of pay and its commutation. The post-retiral dues, i.e., gratuity, encashment, group insurance, and other benefits shall be paid to the petitioner, if not paid earlier, within a period of three months, as the petitioner has already suffered a lot on account of paucity of funds since 2007. 17. With the above observations and directions, the writ petition is allowed.