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2013 DIGILAW 417 (CAL)

Kamala Banerjee v. UNION OF INDIA

2013-07-05

SAMBUDDHA CHAKRABARTI

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Judgment :- Sambuddha Chakrabarti, J. By the present writ petition, the petitioners have inter alia prayed for a declaration that the respondents had failed to act in accordance with law and the principles of natural justice, a writ in the nature of mandamus commanding the respondents to recall the decision impugned in the writ petition and to release the amount of arrear pension and for other reliefs. The case of the petitioners, inter alia, is that one Sankar Prasad Banerjee was an employee of the Kolkata Port Trust, i.e. respondent no. 2 herein, and he died after his retirement leaving behind his wife and four sons. The petitioner no. 1 is the widow and the petitioner no. 2 is the youngest son of the said deceased employee. The respondent no. 4 had issued a letter intimating the petitioner no. 1 that an amount of Rs.52,385/- has been raised in favour of her deceased husband on account of arrear pensions. She applied to the Office of the Administrator General, West Bengal for issuing a succession certificate in her favour and a succession certificate was issued. The petitioners had produced the said succession certificate. A copy of the said succession certificate was sent to the respondent no. 4 with a request to release the arrear pension. The petitioners allege that they had visited the Office of the respondent no. 4 many times but the respondent no. 4 neither replied to their letter nor did he release the arrear pensions. Finding no other alternative, the petitioner no. 1 sent a notice demanding justice through her learned Advocate. The respondent no. 4 now requested the petitioners to produce a succession certificate from the Court of law. The grievance of the petitioners is that when the Statute permits the Administrator General of West Bengal to grant succession certificate, there is no reason to refuse the same and not to release the arrear pensions. The petitioners are aggrieved by the conduct of the respondent no. 4 and for refusing the payment on the ground that they had not produced the succession certificate from a Court of law. This action has been challenged by the petitioners in this writ petition. Respondent nos. 3 and 4 have filed an affidavit-inopposition and have denied the allegations made by the petitioners. According to them, the petitioner no. 1 is already drawing the family pension after the death of her husband. This action has been challenged by the petitioners in this writ petition. Respondent nos. 3 and 4 have filed an affidavit-inopposition and have denied the allegations made by the petitioners. According to them, the petitioner no. 1 is already drawing the family pension after the death of her husband. The life time arrear pension of her deceased husband was Rs.52,385/- without any nomination. In the year 2004, the wife being the legal heir was requested to submit a succession certificate in terms of the Succession Act, 1925. On June 02, 2006, the petitioner no. 1 herein had submitted a certificate from the Office of the Administrator General of West Bengal who is said to have granted the certificate on the basis of an affidavit filed by her as the dues were less than Rs.2,00,000/-. A more specific case of the respondents is that so far as the rules of the Government are concerned, on June 04, 1985 the Department of Expenditure, Ministry of Finance had issued an Office Memorandum to determine the procedure for payment of arrear of unnominated amount of a deceased pensioner. According to it, if the arrear exceeds Rs.25,000/-, payment shall be made only to the person producing the legal authority. In terms of the relevant pension rules, all pensioners are supposed to draw their arrear pension by nominees after their death. It also specifies that in the absence of any nomination, such an amount is to be paid to the heirs of the deceased on being satisfied to the right of the claimant. The Kolkata Port Trust had also framed its own rules following the Government orders and the same specifies that any pension exceeding Rs.25,000/- would be released to the heirs of the ex-employee only on production of a succession certificate. The respondents have contended that as the petitioner no. 1 had produced merely a certificate on the basis of an affidavit and not a succession certificate per se issued by a District Judge or a District Delegate of a competent Court of law, the amount could not be released to her. In response to the Advocate’s letter, the petitioners were again advised to produce a certificate from a competent Court of law for disbursing the amount to the legal heirs. The Port authorities are also not very sure if the deceased employee had any other legal heir. In response to the Advocate’s letter, the petitioners were again advised to produce a certificate from a competent Court of law for disbursing the amount to the legal heirs. The Port authorities are also not very sure if the deceased employee had any other legal heir. One very specific objection to the release of the arrear amount on the basis of the certificate produced by the petitioners has been that Kolkata Port Trust will have no protection under the Administrator Generals Act with regard to any other legal heir of the ex-employee if he or she ever claims his or her share before the respondents. According to the answering respondents, the Government of India also considers succession certificate to be the appropriate legal document and in the Office Memorandum issued by the Ministry of Law in 1988, it has been clearly stated that the intention in calling upon the claimant to obtain succession certificate is to get a legal document so that the claims of the rival parties may be settled once and for all. A very specific point taken by the respondents is that in the Administrators-Generals Act, 1963, succession certificate has nowhere been referred to and the said Act contemplates issuing certificates for administering an estate. The said respondents have denied the allegations that the respondent no. 4 had been most arbitrarily withholding the arrear pension or they had acted against the Statute. The said respondents have prayed for dismissal of the writ petition. The petitioners have filed their affidavit-in-reply wherein they have largely reiterated their stand taken in the writ petition. According to them, the petitioner no. 1 has obtained a certificate from a statutory authority after making payment of the requisite fees from the Office of the Administrator General of West Bengal. The petitioners insist that the Administrator General is a competent authority to issue certificate certifying that the claimant is legally entitled to get the assets of the deceased and that such certificate cannot be annulled or rejected on the ground of any Circular or Rule of a Government department. According to the petitioners, all the heirs of the deceased employee have signed the petition declaring that they have no objection if the arrear pension is released in favour of their mother and, as such, the question of protection of the authorities under the Act does not arise. According to the petitioners, all the heirs of the deceased employee have signed the petition declaring that they have no objection if the arrear pension is released in favour of their mother and, as such, the question of protection of the authorities under the Act does not arise. According to them, only a proof from the legal authority is required and such proof having been produced, but the respondent no. 4 has pressed for production of a succession certificate from a Court of law. For the purposes of the present writ petition it is necessary to consider Section 29 of the Administrator’s General Act, 1963. Section 29 of the said Act reads as follows:- “29(1) W henever any person has died leaving assets within any State and the Administrator General of such State is satisfied that such assets, excluding any sum of money deposited in a Government Savings Bank or in any provident fund to which the provisions of the Provident Funds Act, 1925, apply, did not at the date of death exceed in the whole five thousand rupees in value, he may grant to any person, claiming otherwise than as a creditor to be interested in such assets or in the due administration thereof, a certificate under his hand entitling the claimant to receive the assets therein mentioned left by the deceased within the State, to a value not exceeding in the whole five thousand rupees. (2) No certificate under this section shall be granted before the lapse of one month from the death unless before the lapse of the said one month the Administrator General is requested so to do by writing under the hand of the executor or the widow or other person entitled to administer the estate of the deceased and he thinks fit to grant it. (3) No certificate shall be granted under this section- (i) where probate of the deceased’s will or letters of administration of his estate has or have been granted or (ii) in respect of any sum of money deposited in a Government Savings Bank or in any provident fund to which the provisions of the Provident Funds Act, 1925, apply.” It may be mentioned that under section 31 of the said Act an Administrator General shall not be bound to grant any such certificate unless he is satisfied after making an enquiry of the title of the claimant and on the value of the assets left by the deceased within the State. Section 32 of the Act says that the holder of a certificate shall have in respect of the assets specified in the certificate the same powers and duties and he shall be under the same liabilities as he would have had or been subject to if letters of administration had been granted to him. The petitioner submits that thus a certificate issued by the Administrator General is also a certificate issued by a competent authority. But the question that falls for consideration is whether a certificate issued by the Administrator General can be equated with a succession certificate issued by a Court of law. There is no doubt that the procedure required for issuing succession certificate is much elaborate in nature. Notice has to be served on the rival claimants. But a certificate issued by the Administrator General is on affidavits only. The certificate issued by the Administrator General under section 29 of the Act cannot be equated with that of a certificate issued by the Administrator General. I do not find any lack of logic in the insistence of the respondents upon a succession certificate from a Court of law. If the law requires a succession certificate to be obtained from a competent Court of law that cannot be short-routed by obtaining a certificate under section 29. In such view of it, it cannot be said that the authorities had unjustly insisted on a succession certificate. The writ petition is thus dismissed. There shall, however be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.