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Patna High Court · body

2013 DIGILAW 201 (PAT)

Rina Kumari v. Bihar State Electricity Board

2013-02-12

AHSANUDDIN AMANULLAH

body2013
ORDER Heard learned counsel for the petitioners, learned counsel for the Board, learned counsel for respondents no. 6 to 8 and learned counsel for the respondent no. 4. 2. Earlier notices have been issued to the private respondents no. 4 to 9 and the same has also been validly served. 3. The claim of the petitioners in the present writ application was for a direction upon the respondent-Board to pay the amount under General Provident Fund (G.P.F.), Group Saving Scheme (G.S.S.) and leave encashment due to the late father of the petitioners. 4. The petitioners, at the relevant time when their father died, were unmarried daughters. Besides them there were four adult brothers and two married sisters also. 5. A counter affidavit has been filed on behalf of the Board in which the stand is that due to the dispute raised among the claimants, that is, the petitioners and respondents no. 4 to 9 and there being no nomination made by the deceased father of the petitioners, the Board thought it appropriate that a succession certificate from a Court of competent jurisdiction be asked from the parties so that the payment could be made. It is also the stand of the Board that amount due under G.P.F. and G.S.S. has already been sanctioned but because of the controversy raised and claim and counter claim among the brothers and sisters including the petitioners, such payment has not actually been effected. Learned counsel for the petitioners had drawn the attention of this Court to the proviso of Rule 31 (i) (b) of the Bihar General Provident Fund Rules, 1948. According to the same, in case an amount has become payable and the subscriber leaves the family without nomination in favour of a member or members of the family of the subscriber, the amount has to be paid to the members of his family in equal shares. The proviso excludes from such consideration the following:- “(1) sons who have attained legal majority; (2) sons of a deceased son who have; attained legal majority; (3) married daughters whose husbands are alive; (4) married daughters of deceased son whose husbands are alive if there is any member of the family other than those specified in clauses (1), (2), (3) and (4)” 6. According to learned counsel for the petitioners, there is no dispute that the petitioners were the only persons coming within the definition of family members who were not excluded under the provision, the rest either being sons who has attained majority and married daughters whose husbands were alive at the time of death of the subscriber, that is, the father of the petitioners. 7. With regard to the payment under G.S.S., learned counsel refers to the Bihar State Electricity Board, Group Saving-Scheme Rules in which under Rule 9 (i) it is stipulated that in case of non-filing of nomination or filing incomplete nomination, payment will be made to the legal heirs of the deceased member according to the provisions laid down under General Provident Fund Rules. Learned counsel submits that in view of the earlier provision under the Bihar General Provident Fund Rules, 1948 for payment under the G.S.S. also, the petitioners are the only rightful claimants and the respondent Board be directed to apportion the payment equally amongst the petitioners. 8. With regard to the leave encashment, learned counsel for the petitioners fairly submits that there are no special rules governing such payment but he draws an analogy with the rules governing payment of gratuity inasmuch as the same has to be paid equally among all the heirs of the deceased employee excluding the married daughters. In the present case, as would be apparent from Annexure-1 which is the gratuity payment order bearing no. 3779 dated 14th November, 2005, the gratuity due to the late father of the petitioners had been apportioned among the petitioners and respondents no. 4 to 7, since respondents no. 8 and 9 were excluded being the married daughters. Learned counsel submits that once the Board has made such payment in a particular manner, it now cannot wait and furthermore ask for succession certificate and the same mode has to be applied for payment of leave encashment. 9. Learned counsel also submits that respondent no. 6 has been given compassionate appointment by the respondent-Board as the father of the petitioners had died in harness and at the time of making appointment various affidavits/undertakings were sought for from all the heirs of the deceased employee in which their marital position as well as their age has been disclosed. 9. Learned counsel also submits that respondent no. 6 has been given compassionate appointment by the respondent-Board as the father of the petitioners had died in harness and at the time of making appointment various affidavits/undertakings were sought for from all the heirs of the deceased employee in which their marital position as well as their age has been disclosed. It is submitted that on the basis of such documents the Board was satisfied with regard to their contents and then only compassionate appointment was offered to the respondent no. 6. Learned counsel further submits that the order sanctioning gratuity being of the year 2005 and the name of the petitioners figuring in the same itself proves that the petitioners were the unmarried daughters of the deceased employee. 10. Learned counsel for the Board defends the action in asking for succession certificate stating that by way of precaution the Board has asked for succession certificate. 11. Having considered the rival contentions, this Court finds substance in the submissions of learned counsel for the petitioners. Since the payment of General Provident Fund and under the Group Saving Scheme are governed by the statutory rules, the respondent Board cannot device a mode which is alien to the scheme especially if the situation as existing in the present case is covered and provided for by the provisions made in the statute as discussed above. This Court holds that payment of G.P.F. and under G.S.S. shall be governed by Rule 31 of the Bihar General Provident Fund Rules, 1948. The Board, at best, can satisfy itself with regard to the position existing at the time of death of the employee inasmuch as whether the persons were minor/major and married/unmarried. The Board having relied on and accepting certain documents while offering compassionate appointment to respondent no. 6 and making payment of gratuity may have already arrived at a conclusion with regard to the issues involved. Still, if any further clarification is required the Board may ask for additional documents/affidavits from the petitioners and may then make payment under the above two heads to the rightful claimants. As far as payment of leave encashment is concerned, the Board will consider the stand of the learned counsel for the petitioners that since gratuity has been made in favour of seven heirs of the deceased employee, whether the same principle shall govern the payment of leave encashment also. As far as payment of leave encashment is concerned, the Board will consider the stand of the learned counsel for the petitioners that since gratuity has been made in favour of seven heirs of the deceased employee, whether the same principle shall govern the payment of leave encashment also. If the Board differs from the same then a reasoned order has to be passed as to why payment of gratuity has been made in a particular manner and payment of leave encashment is being held up subject to production of succession certificate. 12. Let the aforesaid exercise be taken to its logical conclusion latest by 30th April, 2013. The petitioner shall serve a copy of the order upon the respondent Board by 28th February, 2013. 13. Accordingly, the writ application stands disposed off in the aforementioned terms.