Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 902 (GAU)

Nistin A. Kharmawphlang v. State of Meghalaya

2012-07-30

HRISHIKESH ROY

body2012
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. H.L. Shangreiso, the learned counsel appearing for the petitioner. The Meghalaya Government and its authorities are represented by Mr. N.O. Chullai, the learned senior Govt. Advocate. Mr. R. Debnath, the learned Central Govt. Counsel makes submission on behalf of the Accountant General (respondent No. 5). In the year 1990, the petitioner got married with Late Bording Kharpran, who was serving as a Home Guard with the Meghalaya Government. This was the second marriage for the deceased who was earlier married with one Smti Irose Sumer (hereinafter referred to as the first wife). Initially the name of the first wife was recorded as a nominee in the service records of the Govt. servant. But when her whereabouts remained unknown for many years and the Govt. servant got married with the petitioner, the husband applied for cancellation of the nomination of his first wife and requested for recording the name of the petitioner as his nominee, in his service record. 2. The Audit Officer acknowledged the receipt of the husband's application for change of nomination. The Annexure-B is the formal acknowledgement of the Audit Officer in the Form prescribed under the Meghalaya (Pension) Rules Sumer (hereinafter referred to as 'the Pension Rules'). The Service Book of the Govt. servant was accordingly corrected and the name of the petitioner was reflected on 24.1.2005 as the nominee of her husband. 3. As per the Death Certificate (Annexure-C), the Govt. servant died on 27.10.2007. Accordingly the petitioner as the nominee of the deceased, applied for the family pension benefits on the death of her husband. In the meantime, she also secured a Succession Certificate from the Court of the Addl. Deputy Commissioner, Khasi Hills District, in respect of the GPF, arrear salary and other dues of her husband. 4. The office of the Accountant General returned the family pension claim of the petitioner on 20.12.2010 (Annexure-F) with the comment that since Smti Irose Sumer is the first wife of the deceased, pension papers should be submitted for the first wife. Another letter was sent earlier on 4.11.2010 by the Accountant General to the Home Guard authorities seeking documentary proof on the death/divorce of the missing first wife. Because of these objections, the family pension dues were not disbursed to the petitioner. 5. Another letter was sent earlier on 4.11.2010 by the Accountant General to the Home Guard authorities seeking documentary proof on the death/divorce of the missing first wife. Because of these objections, the family pension dues were not disbursed to the petitioner. 5. The petitioner contends that when on the application made by her husband during his lifetime, her name was entered as a nominee, proof of the death/divorce of the first wife can't be insisted by the office of the Accountant General. As regards the additional objections about over writing, non attestation in the service book of the deceased Govt. servant, Mr. Shangreiso submits that the disbursal of the family pension benefit was never resisted on these grounds earlier, these additional reasons can't now be pleaded, to deny the family pension benefits to the petitioner. 6. Furthermore, the petitioner relies upon Section 108 of the Evidence Act, 1872 to project that presumption should be drawn about the death of the first wife since her whereabouts is not known at least since 1990, when the petitioner got married with the deceased Govt. servant. She accordingly submits that insistence on a death certificate of the missing first wife is an act of overreaching by the Audit Officer because of the limited role envisaged for him, under the Pension Rules. 7. Mr. R. Debnath, the learned Central Govt. counsel however submits that since there is overwriting in the service book and in me submitted Form, the Accountant General has the power to satisfy itself that the corrections were made legally to nominate the petitioner. Accordingly Mr. Debnath submits that the objection raised by the respondent No. 5 through his additional affidavit should also be considered by the Court, while considering the legitimacy of the petitioner's claim for family pension benefits. 8. Examination of the rival submission shows that the current objection of the Accountant General is not relatable to the absence of the death/divorce certificate of the missing first wife Smti Irose Sumer which were the specific reason cited in the letter(s) dated 4.11.2010 and 20.12.2010, addressed by the Accountant General's office to the Home Guard Authorities. Since the fresh reasons are now projected to repudiate the claim, having regard to the ratio of the decision in Gordhandas Bhanji reported in AIR 1952 SC 16 which was subsequently affirmed in Mohinder Singh Gill Vs. Since the fresh reasons are now projected to repudiate the claim, having regard to the ratio of the decision in Gordhandas Bhanji reported in AIR 1952 SC 16 which was subsequently affirmed in Mohinder Singh Gill Vs. The Chief Election Commissioner reported in AIR 1978 SC 851 , it is apparent that the validity of the Accountant General's objection has to be tested on the basis of the original objections mentioned in the written communication(s) dated 4.11.2010 and 20.12.2010. In view of the law laid down by the Apex Court, additional reasons can't be introduced in the shape of affidavit or otherwise, filed in the Court by the objector. 9. In so far as the absence of divorce/death certificate of the missing first wife, which of course were the original ground for objection by the office of the Accountant General, it must be noted that nothing was heard from the first wife since the year 1990 for last 22 year. Therefore a presumption under Section 108 of the Evidence Act, 1872 can be drawn against the missing person. Furthermore, as has been held by the Supreme Court in LIC of India Vs. Anuradha reported in (2004) 10 SCC 131, objection as to the legal presumption can only be raised by a authority, who is called upon to decide, whether a person is alive or dead. Conspicuously, the State in this instant case, has not questioned this legal presumption and they in fact support the petitioner's stand. In such circumstances and having noted that the petitioner's name was incorporated as the nominee during the life time of the Govt. servant on his application and noting that the corrections of the service records were made in accordance with the Pension Rules, I am of the view that the respondent No. 5 can't question the validity of the legal presumption on the death of the missing first wife. Another relevant aspect on this issue is that the first wife continues to be missing and has not re-emerged to object to the petitioner's claim of family pension benefits. 10. Another relevant aspect on this issue is that the first wife continues to be missing and has not re-emerged to object to the petitioner's claim of family pension benefits. 10. In the above backdrop and having regard to the fact that the petitioner's name was incorporated as a nominee in the service records by the competent authority i.e. the employer in accordance with the Pension Rules, I am inclined to direct the respondents to take all necessary steps to disburse to the petitioner, the family pension and other service dues, on account of Late Bording Kharpran. a Home Guard who died on 27.10.2007. Since the petitioner is the recorded nominee in the service book and has also obtained a Succession Certificate from the competent Court for the GPF, arrear DA & salary of the deceased, the respondents are directed to complete the process within a period of 3 months from today. It is ordered accordingly. A copy of this order be furnished to all the 3 learned counsel, so that the dues can be disbursed without any further hardship to the widowed petitioner.