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2012 DIGILAW 854 (MP)

Dularibai v. Union of India

2012-09-04

AJIT SINGH, SANJAY YADAV

body2012
ORDER 1. Order dated 31.8.2005 passed by Central Administrative Tribunal, Jabalpur Bench, Jabalpur, is being assailed vide this writ petition. By impugned order, the Tribunal turned down the claim for family pension sought for by the petitioner vide O.A. No.330/2005 in lieu of death of Tularam Param. 2. Tulalram Param was employed as watchman, in Engineering Department in Jabalpur Division, West Central Railway. He retired on attaining the age of superannuation on 15.3.1993. That, before his retirement Tularam Param submitted an affidavit to his employer on 26.10.1992 requesting them to delete the name of Dulari (petitioner herein) from his service book as she having deserted has been living with some one else since 1976. The English version of the text is as under : “Notary Officer Sagar M.P., I, Tulalram, age 50 years, s/o Paramlal Saur Adiwasi, Resident of Bhagwanganj Ward Sagar give the following statement on oath : Affidavit 1. That, Dulari Joje Tularam was my wife but my wife Dulari fled away with some other person in the year 1976 and she has not returned till date. After that I did not marry again. I am living alone. 2. That, the name of my wife Dulari is recorded in my Service Book of Railway Department whereas Dulari is not living with me for 16 years. I could not get the name of Dulari struck out from my Service Book record out of ignorance, which I have to do now. 3. That, I have to take all kinds of amounts pertaining to my service from the Railway Department and I am the sole person entitled to receive the said amount for which the said affidavit is required. Sagar True/Thumb Impression Dated : 28.10.1992 Tularam Verification I, Tulalram the aforesaid deponent verify this today on this date that the contents of para 1 to 3 of the aforesaid affidavit are true and correct to my personal knowledge. Sagar True/Thumb Impression Dated : 28.10.1992 Tularam.” 3. Said Tularam Param expired on 6.7.1993. The death led to filing of representation by the petitioner for settlement of retiral dues and for family pension. The petitioner was, however, informed of the affidavit by Tularam and accordingly the claim was declined. Aggrieved, petitioner and her son Hariram filed an application under section 372, Succession Act for Succession Certificate. Said Tularam Param expired on 6.7.1993. The death led to filing of representation by the petitioner for settlement of retiral dues and for family pension. The petitioner was, however, informed of the affidavit by Tularam and accordingly the claim was declined. Aggrieved, petitioner and her son Hariram filed an application under section 372, Succession Act for Succession Certificate. The Succession Court vide order dated 15.7.2004 though issued succession certificate in favour of Hariram, however, declined the claim of the petitioner being the legal heir of Tularam. The order has been allowed to attain finality as the same has not been questioned by the petitioner. 4. That, in furtherance to the order dated 15.7.2004, the respondent Railways settled the Death-cum-Retirement Gratuity in favour of Hariram as also granted him the compassionate appointment.The claim of the petitioner for family pension was, however, declined as the petitioner failed to establish being widow and the legal heir of late Tularam. 5. Taking shelter of rule 75 of the Railway Services (Pension) Rules, 1993 petitioner assailed the action of the respondents vide Original Application No.330/2005. The Tribunal, by impugned order negatived the claim holding that : “6. After hearing the learned counsel for the parties and on careful perusal of the pleadings and records, I find that the civil Court has granted succession certificate only in favour of the son of the deceased Government servant, i.e., Shri Hariram vide order dated 15th July 2004. It was specifically mentioned in the said order that there is no reasonable ground to issue succession certificate in favour of the applicant. I also find that the applicant has not filed any appeal against this order of the civil Court. Thus, she has accepted this order which is passed by the civil Court and now this order has become final. I have also perused Annexure R-2 dated 6th July, 1992 in which the name of only Hariram is mentioned as son of the deceased Government servant. In this form the name of the applicant not mentioned. I have further perused the order passed by the Hyderabad Bench of the Tribunal referred to by the applicant and find that in this order the fact of issuance of succession certificate by the competent civil Court has not been mentioned. Hence, this order seems to be distinguishable and not applicable in the present case.” 6. I have further perused the order passed by the Hyderabad Bench of the Tribunal referred to by the applicant and find that in this order the fact of issuance of succession certificate by the competent civil Court has not been mentioned. Hence, this order seems to be distinguishable and not applicable in the present case.” 6. The issue which crops up for consideration is that having deserted and abode with someone else for over 16 years (since 1976) petitioner can be said to be covered by the provisions of sub-rule (6) of rule 75 of 1993 Rules. 7. Clause (I) sub-rule (6) of rule 75 of Rules, 1993 stipulates that the period for which family pension is payable shall be in the case of a widow or widower, up to the death or remarriage, whichever is earlier. 8. The expression ‘Family’ find its meaning in clause (b) of sub-rule (19) of rule 75 of Rules 1993 in the following terms : “(b) “family”, in relation to Railway servant, means -- (i) wife in the case of male Railway servant or husband in the case of a female Railway servant; (ii) a judicially separated wife or husband such separation not being granted on the ground of adultery and the person surviving was not held guilty of committing adultery; (iii) son who has not attained the age of twenty-five years and unmarried daughter who has not attained the age of twenty-five years, including such son and daughter born after retirement or adopted legally.” 9. In the case at hand late Tularam during his life time gave an affidavit of petitioner deserting him and living with someone else. This act of the petitioner was without seeking a judicial separation or a divorce and displayed the act of adultery, on her part, i.e., to leave the husband and live with someone. Pertinent it is to note that there is no specific denial of this fact. Even in the succession case petitioner could not succeed in getting a succession certificate. 10. In view whereof we perceive no error in the decision by the authority and the Tribunal declining the claim of the petitioner for grant of family pension, as would warrant an interference. 11. In the result petition fails and is hereby dismissed. However, no costs.