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2010 DIGILAW 794 (MP)

Shanti Devi v. State of M. P.

2010-08-06

PIYUSH MATHUR

body2010
ORDER 1. This petition has been preferred against inaction on the part of the respondents in not disbursing family pension to the petitioner, who happenes to be a widow of Constable Hawaldar) Jagat Singh, who was working in National Securirt Force (NSF). 2. Shri Pawan Dwivedi, learned counsel appearing for petitioner submits that husband of the petitioner had retired from service and was getting pension uptil year 2004 when he died on date 6.4.2004 but in spite of approaching the respondents on several occasions the family pension has yet not been paid to the petitioner/wife. 3. Ms. Nidhi Patankar, Learned Deputy Government Advocate appearing for respondent/State submits that this petition has been filed quite late and this Court has also got no territorial jurisdiction in the matter, inasmuch as, the husband of the petitioner was posted at Indore at the time when he retired and since at the time of examination of the claim of the present petitioner (wife of the deceased employee), it was found that the record of the employee is not available with the department therefore, intimation was sent to the petitioner on date 29.8.2008 that for want of relevant record, family pension could not be granted to the petitioner. Ms. Patankar prays for dismissal of the writ petition on all aforesaid grounds. 4. I have heard Shri Pawan Dwivedi, learned counsel and Ms. Nidhi Patankar, Learned Deputy Government Advocate and perused the record of case. 5. A perusal of documents annexed with the writ petition and the reply of respondents reveal that Jagat Singh was employed as a Constable (Hawaldar) of the establishment of National Security Force (NSF) and he was granted retrenchment pension w.e.f. date 16.1.1951 through Treasury Officer, Gwalior. It is also evident from the record that the Special Armed Force (SAF) being successor of National Security Force (NSF) had decided to disburse pension to late Jagat Singh through his Bank Account of State Bank of India at Morar, Gwalior uptil his death on date 6.4.2004 and soon after the death of the husband, the petitioner had approached the respondents at Gwalior for disbursement of family pension to her by an application (Annexure P/4). It is also clear from the record that on account of non-availability of service record of late Jagat Singh, inability to process the application for the grant of family pension was expressed by Commandant, 2nd Bn. Special Armed Force. It is also clear from the record that on account of non-availability of service record of late Jagat Singh, inability to process the application for the grant of family pension was expressed by Commandant, 2nd Bn. Special Armed Force. Gwalior vide its letter dated 29.8.2008 which was communicated at petitioner's residential address, situated at Village Bada Gaon, Morar, Gwalior. Therefore, it is crystal clear from all these facts that the petitioner's husband was getting pension at Gwalior and he was receiving pension in his Bank account situated at Gwalior and even the petitioner resides within the territorial jurisdiction of Gwalior Bench, to whom the respondents have addressed a letter dated 29.8.2008 describing their inability to process her claim. Therefore, it is evident that not only on account of residence of the petitioner but also on account of accrual of cause of action to the petitioner at Gwalior, this petition is maintainable before this Court and as such the objections raised on behalf of the respondents have no merit. Similarly, the objection regarding delay has also got no merit inasmuch as the petitioner has approached this Court well within time from date 29.8.2008, when the Department had expressed its inability to process her claim for grant of family pension. 6. While considering the plea of delay in approaching the Court by a widow, for grant of family pension, the Supreme Court has observed in the case of S.K. Mastan Bee v. G.M. South Central Rly. (2003) 1 SCC 184 in the following terms: - "6. We notice that the appellant's husband was working as a Gangman who died 'while in service. It is on record that the appellant is an illiterate who at that time did not know of her legal right and had no access to any information as to her right to family pension and to enforce her such right. On the death of the husband of the appellant, it was obligatory for her husband's employer viz. the Railways, in this case to have computed the family pension payable to the appellant and offered the same to her without her having to make a claim or without driving her to a litigation. On the death of the husband of the appellant, it was obligatory for her husband's employer viz. the Railways, in this case to have computed the family pension payable to the appellant and offered the same to her without her having to make a claim or without driving her to a litigation. The very denial of her right to family pension as held by the learned Single Judge as well as the Division, Bench is an erroneous decision on the part of the Railways and in fact amounting to a violation of the guarantee assured to the appellant under Article 21 of the Constitution. The factum of the appellant's lack of resources to approach the legal forum timely is not disputed by the Railways. The question then arises on facts and circumstances of this case, was the appellate Bench justified III restricting the past arrears of pension to a period much subsequent to the death of the appellant's husband on which date she had legally become entitled to the grant of pension? In this case as noticed by us hereinabove, the learned Single Judge had rejected the contention of delay put fOt1h by the Railways and taking note of the appellant's right to pension and the denial of the same by the Railways illegally considered it appropriate to grant the pension with retrospective effect from the date on which it became due to her. The Division Bench also while agreeing with the learned Single Judge observed that the delay in approaching the Railways by the appellant for the grant of family pension was not fatal, inspite of the same it restricted the payment of family pension from a date on which the appellant issued a legal notice to the Railways i.e. on 1.4.1992. The Division Bench also while agreeing with the learned Single Judge observed that the delay in approaching the Railways by the appellant for the grant of family pension was not fatal, inspite of the same it restricted the payment of family pension from a date on which the appellant issued a legal notice to the Railways i.e. on 1.4.1992. We think on the facts of this case inasmuch as it was an obligation of the Railways to have computed the family pension and offered the same to the widow of its employee as soon as it became due to her and also in view of the fact that her husband was only a Gangman in the Railways who might not have left behind sufficient resources for the appellant to agitate her rights and also in view of the fact that the appellant is an illiterate, the learned Single Judge, in our opinion, was justified in granting the relief to the appellant from the date from which it became due to her, that is the date of the death of her husband. Consequently, we are of the considered opinion that the division Bench fell in error in restricting that period to a date subsequent to 1.4.1992. 7. In the said view of the matter, we allow this appeal, set aside the impugned order of the Division Bench to the extent that it restricts the right of the appellant to receive family pension only from 1.4.1992 and restore that right of the appellant as conferred on her by the learned Single Judge, that is from the date 21.11.1969. The Railways will take steps forthwith to compute the arrears of pension payable to the appellant w.e.f. 21.11.1969 and pay the entire arrears within three months from the date of the receipt of this order and continue to pay her future pension." Therefore, it could be safely observed that even if there exists some delay in approaching this Court, the same would not come in the way of widow petitioner, who is claiming family pension. 7. The claim of the petitioner for grant and disbursement of family pension I has not been disputed by the respondents on either of the grounds that the petitioner is not a legally wedded wife of her husband Jagat Singh or Jagat Singh was not getting pension from respondents. 7. The claim of the petitioner for grant and disbursement of family pension I has not been disputed by the respondents on either of the grounds that the petitioner is not a legally wedded wife of her husband Jagat Singh or Jagat Singh was not getting pension from respondents. Similarly letter of the Commandant, SAF dated 29.8.2008 is completely silent on this count that the petitioner is not legally wedded wife of deceased employee Jagat Singh but on the contrary, the letter clarifies that the department has recognized Smt. Shanti Devi as the wife/ widow of Late Jagat Singh and the respondents have also not refused to disburse family pension to petitioner, on the ground that a widow of a Constable, getting retrenchment pension would not be entitled for family pension, where after it is not required to be examined by this Court as to whether the petitioner is entitled for family pension or not and the only issue which requires examination or scrutiny by this Court is the action of the respondents in not making disbursement/payment of family pension to the petitioner. It is apparent from the entire record that deceased employee Jagat Singh was getting pension uptil his death on date 6.4.2004, therefore this Court reaches an irresistible conclusion that petitioner Smt. Shanti Devi would be fully competent and eligible to obtain the benefit of disbursement of family pension. 8. The issue regarding right of widows and dependents of deceased employees had been examined by the Supreme Court and it has been observed in the case of Poonamal v. Union of India, (1985) 3 SCC 345 in the following terms;- "7. It is not necessary to examine the concept of pension. As already held by this Court in numerous judgments pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules, and anyone entitled to the pension under the rules can claim is as a matter of right. (Deoki Nandan Prasad v. State of Bihar. State of Punjab v. Iqbal Singh -- and D.S. Nakara v. Union of India). Where the Government servant rendered service, to compensate which a family pension scheme is devised, the widow and the dependent minors would equally be entitled to family penion as a matter of right. (Deoki Nandan Prasad v. State of Bihar. State of Punjab v. Iqbal Singh -- and D.S. Nakara v. Union of India). Where the Government servant rendered service, to compensate which a family pension scheme is devised, the widow and the dependent minors would equally be entitled to family penion as a matter of right. In fact we look upon pension not merely as a statutory right but as the fulfilment of a constitutional promise inasmuch as it partakes the character of public assistance in case of unemployment, old-age, disablement or similar other case of undeserved want. Relevant rules merely make effective the constitutional mandate. That is how pension has been looked upon in D. S. Nakara judgment. At the hearing of this group of matters we pointed out that since the family pension scheme has become non-contributory effective from September 22, 1997 any attempt at denying its benefits to widow and dependents of Government servants who had not taken advantage of the 1964 Liberalisation Scheme by making or agreeing to make necessary contribution would be denial of equality to persons similarly situated and hence violative of Article 14. If widows and dependents of deceased Government servants since after September 22, 1977 would be entitled to benefit of family pension scheme without the obligation of making contribution, those widows who were denied the benefits on the ground that the Government servants having not agreed to make the contribution, could not be differently treated because that would be introducing an invidious classification among those who would be entitled to similar treatment. When this glaring dissimilar treatment emerged in the course of hearing in the Court Mr. B. Dutta learned counsel appearing for the Union of India requested for a short adjournment to take further instructions." 9. Therefore, in view of aforesaid analysis of the matter, the writ petitions is allowed and respondents are directed to grant/issue family pension to the petitioner within a period of 30 days from the date of receipt of a certified copy of this order. It is also directed that the petitioner shall be entitled for family pension from the date of the death of her husband i.e. from date 6.4.2004 and shall also be entitled for payment of entire arrears of family pension. With the aforesaid observation, the writ petition is allowed and finally disposed of. There shall be no order as to costs.