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2013 DIGILAW 676 (JK)

State Bank of India v. Maha Laxmi Tikoo

2013-11-21

Hasnain Massodi, M.M.Kumar

body2013
M.M. Kumar, C.J. 1. This the instant appeal under clause 12 of the Letters Patent has been preferred by the State Bank of India and its officers against judgment and order dated 06.05.2008, holding that the mother being a Class (I) legal heir under the Jammu and Kashmir Hindu Succession Act, 1956 cannot be excluded from the category of dependents of her son to qualify for pension. 2. Facts in brief are that writ petitioner respondent had a son with the name of Shri Virender Kumar Tickoo who was a chronic bachelor. He was working as Senior Manager in the appellant-bank and died in harness on 28.12.2002. The case of the writ petitioner-respondent before the Writ Court was that she was the sole legal heir and was dependent upon him and, therefore, was entitled to the claim of pension admissible to the dependent family members of such an employee. 3. The appellant-Bank has been established by the Parliamentary statute known as the State Bank of India Act 1955. Under Section 50 of the Act, the Central Board of the appellant-Bank is competent to frame regulations for various purposes. Accordingly, the Central Board framed family pension scheme which is known as State bank of India (Family Pension) Rules. The Family Pension was introduced in the State Bank of India from 01.01.1987 by incorporating Rule 23(5) in the State Bank of India Employees Pension Fund Rules, which provide for eligibility of spouse of the employee or others, but it does not include the dependent father or mother. A copy of the Pension Fund Scheme has been placed on record as Annexure R-1 with the objections filed by the appellant-Bank. The writ petitioner-respondent has challenged the exclusion of dependent mother for the purposes of earning family pension. The learned Single Judge accepted the claim on the rationale of being Class (I) legal heir under the Hindu Succession Act and issued following directions:- "1. That the rules framed by the respondent Bank under the Family Pension Scheme, so far as these relate to non inclusion of `mother' in the list of legal heirs of the purpose of family pension are held to be violative of Article 14 of the Constitution as also the provisions of Act and Schedule attached thereto and are struck down. 2. 2. The mother shall be included in the rules as one of the legal heir for the purpose of family pension. 3. The petitioner being the mother and sole surviving heir and dependent on the deceased employee shall be entitled to family pension and other retiral benefits which shall be released in her favour within a period of two months from the date, a copy of this order is made available to the respondent Bank by the petitioner. 4. That the petitioner shall also be entitled to the arrears of family pension along with interest at the rate which is being paid by the respondent Bank on fixed deposits under the five year Interest payable Scheme. The same rate of interest shall be payable on the amount of gratuity and other retiral benefits. 5. That in case the family pension and other retiral benefits along with interest as mentioned above are not released in favour of the petitioner within the stipulated period aforestated, then the petitioner shall be entitled to interest on the amount due to her at the rate of 18% per annum and this enhanced interest shall be payable by the person on whose account the delay occurs." 4. Mr. Basotra, learned counsel for the appellant-Bank has vehemently argued that, by invoking the provisions of the Jammu and Kashmir Hindu Succession Act, classifying the mother as Class (I) legal heir, it could not be concluded by the learned Single Judge that for that reason the mother is entitled to be included in the list of beneficiaries to earn family pension . According to the learned counsel such a rationale would be inapplicable to the employees belonging to the other castes and therefore it is an impossible proposition to accept. Mr. Basotra has also placed reliance on the judgments of Hon'ble the Supreme Court rendered in cases of Jodh Singh v. Union of India, AIR 1980 SC 2081 , State of Gujarat v. Sarti Devi, AIR 1996 SC 937 and State of Punjab and anr v. Devinder Kour, (1999) 9 SCC 12 and has then argued that the deceased employee Shri Tikoo had nominated his niece as per the record of the Bank which would exclude the mother from claiming any pension. 5. Mr. 5. Mr. P.N. Goja, learned counsel for the writ petitioner-respondent has vehemently submitted that rule 23(5) incorporated in the State Bank of India Employees Pension Rules with effect from 01.01.1987 would be ultra vires of Section 50 of the State Bank of India Act, 1955. According to the learned counsel Section 50(2)(o), the central Board has been empowered to frame Regulations for all such matters so as to give effect to the purposes postulated by provisions of the Act. According to Mr. Goja, in terms of section 50(2)(o) of the Act the central Board is competent to provide for establishment and maintenance of superannuation pension, provident fund and others for the employees of the Bank or dependent of such an employee.. It also aims at granting superannuation allowances, annuities and pension payable out of such fund. Mr. Goja has emphasized that once the Act requires the Central Board to frame Rules or Regulations for the benefit of the dependents of the employees of the State Bank, then a dependent mother cannot be excluded from the category of beneficiary by Rule 23(5). The submission made is that the rule must be declared ultra vires of the Act or in the alternative it should be interpreted to include a dependent mother. Mr. Goja has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Pepsu Road Transport corporation Patiala Mangal Singh and ors, 2011 (4) supreme 1 . 6. Having heard learned counsel for the parties and perusing the record, we are of the view that the instant appeal does not merit acceptance. 7. In order to appreciate the controversy it would be pertinent to read relevant part of Section 49 and 50 of the Act which are as under:- "49. Power of Central Government to make rules.- (1) The Central Government, in consultation with the Reserve Bank, may, by notification in the Official Gazette, make rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act." 50. Power of Central Government to make rules.- (1) The Central Government, in consultation with the Reserve Bank, may, by notification in the Official Gazette, make rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act." 50. Power of Central Board to make regulations.- (1) The Central Board may, after consultation with the Reserve Bank and with the previous sanction of the Central Government 194 [by notification in the official Gazette] make regulations, not inconsistent with this Act and the rules made thereunder, to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for- (3) the establishment and maintenance of superannuation, pension, provident or other funds for the benefit of the employees of the State Bank or of the dependents of such employees or for the purposes of the State Bank, and the granting of superannuation allowances, annuities and pensions payable out of any such fund." 8. A perusal of the aforesaid statutory provisions would make it evident that the Central Government in consultation with the Reserve Bank of India, is competent to make rules to provide for all matters for which provision is necessary or expedient for the purposes of giving effect to the provisions of the Act. Section 50 makes it clear that Regulation can also be framed by the Central Board in consultation with the Reserve Bank of India and with the previous sanction of the Central Government to provide for all matters subject to a condition that such regulations are in consistent with the Act and the Rules framed thereunder. There is a specific provision made in Section 50(2)(o) that such Regulations may provide for establishment and maintenance of superannuation, pension, provident and other funds for the benefit of the employees of the State Bank or their dependents. 9. In the light of the aforesaid provision, the provision for family pension made by Rule 23(5) of the State Bank of India Employees Pension Rules has to be construed. 9. In the light of the aforesaid provision, the provision for family pension made by Rule 23(5) of the State Bank of India Employees Pension Rules has to be construed. It would be profitable to read the category of persons made eligible to claim pension under Rule 23(5) and the same is set out below in extenso:- "ELIGIBILITY:- i) Spouse of the employee, if the member dies during service after putting in a minimum of one-year pensionable service. ii) Eligible only if the deceased employee was eligible for pension. If the employee was not eligible/deprived of pension benefits, then his family will not get benefits under this scheme. iii) Family pension is payable:- (a) To widow/widower up to her/his death or re-marriage whichever is earlier. (b) Failing (a) above, to the oldest surviving children in order of their birth up to the age of 25 years of he/she is gainfully employed whichever is earlier. (c) In case the beneficiary is an unmarried daughter, until she attains 25 years of age or is married or is gainfully employed whichever occurs first. (d) This process will continue till the last beneficiary attains the age of 25 years or is gainfully employed or married in case of daughter, whichever is earlier. (e) Fresh sanction should be obtained in respect of every beneficiary as and when there is change of beneficiary as above, where simultaneous sanction of family pension was not obtained along with sanction of pension as per new instructions. (f) In case of twin children, family pension will be payable to both in the proportion of 50:50. (g) Family Pension will be payable even if the widow/widower is working in the Bank on compassionate grounds. (h) If the pensioner leaves two legally wedded wives, the family pension is payable to both the wives in equal proportion. (i) The family pension shall be payable to such son or daughter for life if he/she is physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of 25 years. Provided that only that disability, which manifests itself in the child before retirement or death of the employee while in service, shall be taken into account." 10. Provided that only that disability, which manifests itself in the child before retirement or death of the employee while in service, shall be taken into account." 10. A perusal of the aforesaid clauses of the Rule would show that for earning family pension, spouse of the employee would be eligible, provided the employee himself was eligible. The family pension even to the surviving spouse would be up to her/his death or re-marriage. A provision has further been made in favour of the eldest surviving children in order of their birth up to the age of 25 years etc. However, the name of mother or father is excluded. It has come on record and it remains undisputed that in all other Nationalized Banks, mother and father have been included in the list eligible persons to earn family pension. Even section 50(2)(o) talks of framing Regulations for payment of pension, provident or other funds for the benefit of the employees of the State Bank or their dependents. Once the Act itself provide for framing of Regulations to provide for pension to the dependents then it is not possible to read Rule 23(5) without including in the list of eligible persons the mother or father who might be dependent on their son. Therefore, Rule 23(5), providing for eligibility to earn pension, must be read down to mean that it includes other dependents apart from the spouse, son/daughter. The aforesaid construction is imperative in order to save the rule from coming in conflict with the provisions of Section 49 and 50(2)(o). 11. It is well settled that principle of reading down as a tool of interpretation of a statute may be adopted in cases of social legislation and to save the rule from being declared as invalid. In that regard to reliance may be placed on the judgment of Hon'ble the Supreme Court rendered in the case of Government of Andhra Pradesh v. P. Laxmi Devi, (2008) 4 SCC 720 . It has been observed by their Lordships that when two views are possible, one for making the statute Constitutional and the other making the statute un-Constitutional, the former view must prevail and the Court must make efforts to uphold the Constitutional validity of a statute. It has been observed by their Lordships that when two views are possible, one for making the statute Constitutional and the other making the statute un-Constitutional, the former view must prevail and the Court must make efforts to uphold the Constitutional validity of a statute. Therefore, once the act uses the expression `dependent' in Section 50(2)(o), and Section 49 provide for subordinate legislation by the Central Government/Central Board respectively to achieve all the purposes of the Act, which would include the purposes of framing rules for dependents, then a category of dependents, like parents, cannot be excluded from the list of beneficiaries to earn benefits like family pension. 12. In the case of Joginder Pal v. Naval Kishore Behal, (2002) 5 SCC 397 their Lordships of the Supreme Court seized an opportunity to interpret the provisions of Section 13(3)(a)(ii)(a) of the East Punjab Urban Rent Restriction Act, 1949, which provide for eviction of a tenant on the ground of personal necessity. The expression used in the statutory provision is, `for his own use'. However, the landlord required the rented premises for the purposes of opening an office for his son who was a Chartered Accountant Accepting the view of the landlord their Lordships of the Supreme Court observed as under:- "24. We are of the opinion that the expression `for his own use' as occurring in Section 13(3)(a)(iii) of the Act cannot be narrowly construed. The expression must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. In the several decided cases referred to hereinabove we have found the pari materia provisions being interpreted so as to include the requirement of the wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew, coparceners, members of family and dependents and kith and kin in the requirement of landlord as "his" or "his own" requirement and user. Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close inter-relation or identity nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the abovesaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent. The landlord is not going to let out the premises to his son and though the son would run his office in the premises the possession would continue with the landlord in a sense the actual occupation by the son would be the occupation by the landlord himself. It is the landlord who requires the premises for his son and in substance the user would be by landlord for his son's office. The case squarely falls within the scope of Section 13(3)(a)(ii) of the Act. 33. Our conclusions are crystalised as under: (i) ..................... (ii) The expression landlord requires for `his own use', is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal `emanations' of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. The requirement not only of the landlord himself but also of the normal `emanations' of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as inter-relationship and interdependence economic or otherwise, between the landlord and such person in the background of social socio-religious and local customs and obligations of the society of region to which they belong. (iii) The tests to be applied are : (i) whether the requirement pleaded and proved may properly be regarded as the landlord's own requirement? and, (ii) Whether on the facts and in the circumstances of a given case actual occupation and user by a person other than the landlord would be deemed by the landlord as `his own' occupation or user? The answer would, in its turn, depend on (i) the nature and degree of relationship and/or dependence between the landlord pleading the requirement as `his own' and the person who would actually use the premises, (ii) the circumstances in which the claim arises and is put forward, and (iii) the intrinsic tenability of the claim. The Court on being satisfied of the reasonability and genuineness of claim, as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord's claim." (Emphasis added) 13. If the aforesaid principles are applied to the facts of the present case then for the purposes of interpretation the provision made in the Rules has to be read for the benefit of the dependents which would also mean mother. Therefore, we are of the view that the conclusion reached by the learned Single Judge is correct on facts and law. 14. We are in agreement with Mr. Basotra, learned counsel for the appellant-Bank that the provisions of the Jammu and Kashmir Hindu Succession Act, 1955 would not be relevant for the purposes of determining the issue of dependency. Therefore, the reasoning adopted by the learned Writ Court to that extent would not be acceptable and therefore the same is set aside. 15. We are also not impressed by the argument raised by Mr. Therefore, the reasoning adopted by the learned Writ Court to that extent would not be acceptable and therefore the same is set aside. 15. We are also not impressed by the argument raised by Mr. Basotra that the deceased employee had exercised option in favour of his niece because the writ Court has rightly placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Sarbati Devi v. Usha Devi, AIR 1984 SC 346 . The aforesaid argument was rejected by quoting a para, which makes a reference to Section 37 of the Life Insurance Corporation Act, 1939. The aforesaid para reads as under:- "A mere nomination made under Section 39 does not have the effect of conferring on the nominee any beneficial interests in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them". 16. As a sequel to the above discussion this appeal fails and the same is dismissed as we approve the conclusion reached by the learned Single Judge, although by adopting a different rationale. The directions issued by the learned Writ Court shall be complied with expeditiously, preferably within a period of two months from the date of receipt of a copy of this order.