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2012 DIGILAW 822 (JHR)

Bimla Devi v. State of Jharkhand

2012-06-18

D.N.PATEL

body2012
JUDGMENT Per D.N.Patel, J. - Learned counsel for the petitioner submitted that the husband of the petitioner, who was serving with the respondents, has expired on 20th June, 2011 and since then the petitioner is not paid the death-cum-retiral benefits, although the names of the present petitioner and her daughter reflect in the service record of her deceased husband. Necessary documents have also been annexed as Annexure 1 to the memo of petition and at paragraph no.19 of the writ petition, which is part and parcel of Annexure 1, the names of petitioner as well as her daughter have been mentioned and there is no third name as a legal heir of the deceased employee. 2. Moreover, it has further been submitted by the learned counsel for the petitioner that similarly in the General Provident Fund Nomination Form also the name of the petitioner has been mentioned. The said submission is at paragraph no.8 of the writ petition, supported by Annexure 2 to the memo of petition. In Annexure 2 at page 2 of the writ petition, the name of the petitioner is reflecting as the legal heir of the deceased employee and no other name has been mentioned in the said document. Thus, for general provident fund amount as well as that of other retirement benefits, the petitioner is entitled to get the same, because of the deceased of her husband. The name of the husband of the present petitioner is Pandu Brijiya. Despite these documents, which are available with the respondents, the authorities of the respondent-State are not paying the amount of general provident fund nor they are paying other retirement benefits including family pension to the petitioner, only on the ground that one more lady, namely, Shilo Devi, has written one cryptic letter, which is annexed with the counter affidavit as Annexure B. Neither the respondents are knowing nor the petitioner is knowing who is this lady. Unlike the petitioner, there is no basis of the claim by the so called another lady. 3. Unlike the petitioner, there is no basis of the claim by the so called another lady. 3. Learned counsel for the petitioner has relied upon a decision, rendered by this Court in the case of Sri Narayan Pandey v. State of Jharkhand & ors., as reported in 2009(4) J.C.R. 522(Jhr.) and has submitted that once the name of the petitioner is already reflected in the nomination form for provident fund amount and in the service book, the petitioner must be paid retirement benefits. Learned counsel for the petitioner has also relied upon a decision, rendered by Hon'ble Supreme Court in the case of Rameshwari Devi v. State of Bihar & ors., as reported in (2000)2 SCC 431 , especially paragraph no.13 thereof and submitted that if nobody's name is mentioned in the nomination form, then the claim of other person can be inquired into by the State, but, in the facts and circumstances of the present case, name of the present petitioner as well as her daughter has been mentioned as a nominee in the service book and the name of the petitioner is already mentioned as the legal heir of the deceased employee in the general provident fund nomination form and, therefore, the amount towards death-cum-retiral benefit may be ordered to be paid to the petitioner. 4. Learned counsel for the respondent-State submitted that there is claim, made by another lady, namely, Shilo Devi, who has given application at Annexure B to th counter affidavit and, therefore, let the claim be decided by the concerned trial court where Shilo Devi has already preferred succession application. Moreover, learned counsel for the respondent-State has relied upon Appendix 5 to Jharkhand Pension Rules, 2000 and submitted that as per Clause 12(iii) of the Rules, it is the responsibility of the petitioner to satisfy the Head of the Department that she is the widow and prove her identity by producing the relevant documents. Where no record is available the claimant can be asked to produce of the following documents: (i) Succession certificate of the court; or (ii) Declaration with affidavit filed by a (iii) Magistrate or/Affidavit on plain paper by the claimantalong with two documents, which would beacceptable to the pension sanctioning Authority. Where no record is available the claimant can be asked to produce of the following documents: (i) Succession certificate of the court; or (ii) Declaration with affidavit filed by a (iii) Magistrate or/Affidavit on plain paper by the claimantalong with two documents, which would beacceptable to the pension sanctioning Authority. On the basis of the aforesaid provisions, the respondent-State is seeking succession certificate of the competent court and, therefore, the claim, as made by the petitioner, may not be allowed by this Court, at this stage. 5. Having heard learned counsel for both the sides and looking to the facts and circumstances of the present case: (I) It appears that the petitioner's husband, namely, Pandu Brijiya, has expired on 20th June, 2011, while in services of the respondents. (ii) Looking to the the averments, made in paragraph no.7, supported by Annexure 1, it appears that in the service book, names of the petitioner as well as her daughter have been mentioned as legal heirs at page no.19 of the writ petition, which is part and parcel of the service book, and thus, there is already a declaration, as required under Clause 12(iii) of Appendix 5 of Jharkhand Pension Rules. (iii) It further appears from the statements, made in paragraph no.8 of the writ petition that the petitioner's name has already mentioned as a nominee in the General Provident Fund Nomination Form. This statement, made in paragraph no.8 of the writ petition, is supported by the documents at page 32 and 24, which is part and parcel of Annexure 2. The name of the petitioner has been reflected by her deceased husband. (iv) It appears that despite the aforesaid evidence, the respondent-State is in search of succession certificate, which is running counter to the Jharkhand Pension Rules, 2000. (v) Learned counsel for the State is relying upon Clause 12(iii) of Appendix 5 of the Jharkhand Pension Rules, 2000 for not making payment of the death-cum-retiral dues and the family pension. For ready reference, sub-clause (iii) of Clause 12 of Appendix 5 of Jharkhand Pension Rules, 2000 is being reproduced hereunder: “12. In case of non-availability of pension records in respective Department/Head of Department/Office the following procedure would be adopted to finalize such cases. xx xx xx (iii) Determination of real claimant of family pension. For ready reference, sub-clause (iii) of Clause 12 of Appendix 5 of Jharkhand Pension Rules, 2000 is being reproduced hereunder: “12. In case of non-availability of pension records in respective Department/Head of Department/Office the following procedure would be adopted to finalize such cases. xx xx xx (iii) Determination of real claimant of family pension. It is the full responsibility of the petitioner to satisfy the Head of Department/Office that she/he is the widow/widower or eligible child of the concerned Govt. Servant and prove his identity by producing relevant records, i.e. P.P.O. of the deceased Govt. servant or any other available records. Where no records are available the claimant should be asked to produce any one of the following documents:- (i) Succession certificate of the court; or (ii) Declaration with affidavit filed by a (iii) Magistrate or/Affidavit on plain paper by the claimant along with two documents, which would be acceptable to the pension sanctioning Authority.” (Emphasis supplied) In view of the aforesaid provisions of Jharkhand Pension Rules, 2000, when there is relevant records available, then those records ought to have been seen by the respondent authorities, which, in the present case, have not been perused and appreciated at all by the respondent authorities. The respondents have turned deaf ear to the records, already available with them. The records which are available with the respondents have not been appreciated at all. What is in existence is ignored and what is not in existence, the respondents are searching. The documents, which are at Annexure 1 and 2 to the memo of petition are not the fabricated documents, because it is not the case of the respondents, looking to the counter affidavit. The service book reflects correctly the names of wife and daughter and no third name is referred in the service book like Shilo Devi etc. unnecessarily the respondents are denying the claim of the petitioner . (vi) Likewise, looking to the documents at Annexure 2, it appears that the name of the petitioner is reflected as the legal heir of the deceased husband of the petitioner. Nobody's name is reflected in these documents much less of Shilo Devi. unnecessarily the respondents are denying the claim of the petitioner . (vi) Likewise, looking to the documents at Annexure 2, it appears that the name of the petitioner is reflected as the legal heir of the deceased husband of the petitioner. Nobody's name is reflected in these documents much less of Shilo Devi. (vii) It appears that the provisions of Jharkhand Pension Rules, 2000, as referred to herein above, mention categorically that when no record is available, then the claimant should be asked to produce succession certificate or declaration with affidavit or affidavit before a Magistrate on a plain paper along with two documents, but, in the facts of the present case, there are evidences on record in favour of the present petitioner, which are at Annexure 1 and 2, which cannot be ignored by the respondent-State authorities. (viii) It appears that one Smt. Shilo Devi has given a letter to the respondents, which is at Annexure B to the counter affidavit, claiming the death-cum-retiral benefits of late Pandu Brijiya. The letter or the claim made by Smt. Shilo Devi is not supported by any of the documents. (xi) It is also contended by the learned counsel appearing on behalf of the State that Shilo Devi has also preferred a Succession Case before the learned Principle District Judge, Latehar being Succession Case No. 6 of 2011. (x) It appears that thereafter, Shilo Devi has never approached the respondents. The State is not knowing what has happened in the said succession case. But, the fact remains that the name of the present petitioner has been reflected in the service book as well as in the G.P.F. documents at Annexure 2. (xi) Looking to the provisions of sub-clause (iii) of Clause 12 of Appendix 5 of the Jharkhand Pension Rules, 2000, there is evidences in favour of the present petitioner. These documents have been unnecessarily ignored by the respondents for the purposes of calculating and deciding the amount of gratuity and other retirement benefits as also the family pension. (xii) It has been decided by this Court in the case of Sri Narayan Pandey v. State of Jharkhand & ors., as reported in 2009(4) J.C.R. 522 (Jhr.), especially at paragraph nos. 7 and 8, as under: “7. (xii) It has been decided by this Court in the case of Sri Narayan Pandey v. State of Jharkhand & ors., as reported in 2009(4) J.C.R. 522 (Jhr.), especially at paragraph nos. 7 and 8, as under: “7. Having heard the counsel for the parties and going through the documents annexed to the writ petition and to the counter affidavit, I find that admittedly, the petitioner herein has been acknowledged even by the respondent authorities as the husband of the deceased employee and also her nominee. If this is so, then there is no reason why the retiral benefits could not have been released to the nominee named by the deceased in her nomination form. Furthermore, I find that even though a rival claim has been advanced by the aforesaid P.K. Dutta and others, but the respondents appears to have given him an undue laxity, inasmuch as, though the rival claimants have not submitted any document in support of their purported claim of being legal heirs and successors of the deceased employee, but such period appears to have been arbitrarily extended by the respondents without taking a final decision on the petitioner's claim. 8. Considering the aforesaid facts and circumstances, I direct the concerned authorities of the respondents to release and pay the entire retiral benefits which has accrued in the account of the deceased employee, within one month from the date of this order. Such payment may be made after obtaining requisite indemnity bond from the petitioner.” (Emphasis supplied) In view of the aforesaid decision also, the claim of the present petitioner ought to have been appreciated in the light of Annexure 1 and 2 by the respondent authorities. (xiii) Similarly it has been decided by the Hon'ble Supreme Court in the case of Rameshwari Devi v. State of Bihar & ors., as reported in (2000)2 SCC 431 , especially at paragraph no.13, as under: “13. But then it is not necessary for us to consider if Narain Lal could have been charged of misconduct having contracted a second marriage when his first wife was living as no disciplinary proceedings were held against him during his life time. In the present case, we are concerned only with the question as to who is entitled to the family pension and death-cum-retirement gratuity on the death of Narain Lal. In the present case, we are concerned only with the question as to who is entitled to the family pension and death-cum-retirement gratuity on the death of Narain Lal. When there are two claimants to the pensionary benefits of a deceased employee and there is no nomination wherever required the State Government has to hold an inquiry as to the rightful claimant. Disbursement of pension cannot wait till a civil court pronounces upon the respective rights of the parties. That would certainly be a long-drawn affair. The doors of civil courts are always open to any party after and even before a decision is reached by the State Government as to who is entitled to pensionary benefits. Of course, inquiry conducted by the State Government cannot be a sham affair and it could also not be arbitrary. The decision has to be taken in a bona fide, reasonable and rational manner. In the present case an inquiry was held which cannot be termed as a sham. The result of the inquiry was that Yogmaya Devi and Narain Lal lived as husband and wife since 1963. A presumption does arise, therefore, that the marriage Yogmaya Devi with Narain Lal was in accordance with Hindu rites and all ceremonies connected with a valid Hindu marriage were performed. This presumption Rameshwari Devi has been unable to rebut. Nevertheless, that, however, does not make the marriage between Yogmaya Devi and Narain Lal as legal. Of course, when there is a charge of bigamy under Section 494 IPC strict proof of solemnization of the second marriage with due observance of rituals and ceremonies has been insisted upon.” In view of the aforesaid facts, when there is already a nomination, the person, who is nominated, is entitled to the benefits and in case of no nomination, the inquiry is to be conducted by the State as to who the person, entitled to the benefits of death-cum-retirement benefits, as stated herein above. (xiv) Looking to the averments and allegations levelled in paragraph no.7 supported by Annexure 1 and paragraph no.8, supported by Annexure 2, there is enough evidences in favour of the present petitioner. 6. (xiv) Looking to the averments and allegations levelled in paragraph no.7 supported by Annexure 1 and paragraph no.8, supported by Annexure 2, there is enough evidences in favour of the present petitioner. 6. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, I, therefore, direct respondent no.2 or such other authorized officer by respondent no.2, who is will conversant with the facts of the case and competent, to decide the claim of the present petitioner and calculate the same and send the necessary papers to the office of Accountant General, Ranchi, within a period of eight weeks from the date of receipt of a copy of the order of this Court, in the light of the aforesaid observations, keeping in mind that there are already documents in favour of the present petitioner at Annexure 1 and 2 and also keeping in mind the aforesaid two decisions, without any loss of time, within the aforesaid time schedule and if the decision is taken in favour of the petitioner, benefit of the same will be extended to the petitioner within a further period of one week thereafter. 7. I also direct the Accountant General to decide the claim of the present petitioner, in accordance with law, as expeditiously as possible and practicable, upon receipt of necessary papers from respondent no.2 and I further direct respondent no.2 or any such authorized officer to make payment in favour of the petitioner, if the decision is taken in favour of the present petitioner. 8. This writ petition is, accordingly, disposed of, in view of the aforesaid directions and observations.