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2014 DIGILAW 1154 (CAL)

Union of India v. Seema Chakraborty

2014-12-05

ISHAN CHANDRA DAS, JAYANTA KUMAR BISWAS

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JUDGMENT : Jayanta Kumar Biswas, J. The petitioners in the WPCT under Article 226 of the Constitution of India dated July 9, 2014 are questioning an order of the Central Administrative Tribunal Calcutta Bench dated April 4, 2014 disposing of an OA No.350/00197/2014 of the first seven respondents dated February 12, 2014. 2. One Rajat Ranjan Chakraborty was working in the Eastern Railway as a Welfare Inspector. A disciplinary proceeding was initiated against him for unauthorised absence from office. The disciplinary authority inflicted the penalty of compulsory retirement from railway service on April 17, 2003. Rajat submitted pension papers mentioning in Form 6 that the first respondent was his wife, and that the second-seventh respondents were his children. 3. Rajat was paid all retirement benefits except DCRG. It was withheld on the grounds that he was in unauthorised occupation of the railway quarters that had been allotted to him. He was evicted from the quarters on February 16, 2012. He died on May 8, 2013. Payment of DCRG amount after deduction of penal rent and other dues was in the process. The first respondent claimed the family pension as Rajat’s wife. 4. The office records of the Eastern Railway, however, revealed that the eighth respondent, Anjali Chakraborty, was Rajat’s first wife, and that the compulsory retirement notice issued to Rajat had been received by Anjali qua his wife at his Naihati railway quarters residence. Under the circumstances, Eastern Railway requested the North 24-Parganas Collector to make an inquiry. The report of the Collector was also that Rajat was survived by two wives (Anjali and the first respondent). 5. Under the circumstances, Eastern Railway wrote a letter dated January 16, 2014 to the first respondent. Eastern Railway informed the first respondent that her marriage with Rajat being a void marriage under the Hindu Marriage Act, 1955, Anjali, Rajat’s first legally married wife, would be entitled to family pension, not she (the first respondent); but that her eligible child, Subrata, the sixth respondent, would be entitled to share the family pension equally with Anjali. 6. Feeling aggrieved by the decision of the Eastern Railway contained in its letter dated January 16, 2014, the first seven respondents filed the OA. 7. The petitioners filed a reply to the OA dated March 12, 2014 and they gave the reasons supporting their decision contained in the letter dated January 16, 2014. 8. 6. Feeling aggrieved by the decision of the Eastern Railway contained in its letter dated January 16, 2014, the first seven respondents filed the OA. 7. The petitioners filed a reply to the OA dated March 12, 2014 and they gave the reasons supporting their decision contained in the letter dated January 16, 2014. 8. Referring to rr.70, 71 and 75 of the Railway Services (Pension) Rules, 1993, the Tribunal held that since under the rules more than one widow of a deceased railway servant would be entitled to receive the retirement benefits of a deceased railway servant, all the respondents would be entitled to the retirement benefits according to their respective shares; and that the first and the eighth respondents both would equally share the family pension. 9. Mr. Das appearing for the petitioners has said that more than one affidavit of service has been filed stating that notices of the WPCT sent to the respondents were duly served on them. However, none appears for the respondents. 10. Mr. Das has submitted as follows. The order of the Tribunal contravened of the Railway Board Establishment Serial No.26 of 1997 dated March 3, 1997 in that the first respondent’s marriage being a void marriage under the provisions of the Hindu Marriage Act, 1955, though her eligible children or child would have been entitled to the benefits that became payable on Rajat’s death, the first respondent herself was not entitled to any share of it. The decision of this court in Pratima Chaudhury v. Director of Pension, (2011) 1 Cal LT 115 supports the petitioners’ case. 11. The Railway Services (Pension) Rules, 1993 came into force on December 3, 1993; and before this date the pension rules applicable to the railway servants were contained in the Manual of Railway Pension Rules, 1950 and the Indian Railway Establishment Code Volume II (1971 Edition). While updating the Code in 1987, the Chapters therein on pension rules, etc. were not taken up for revision. Finally, the pension rules were made and notified. 12. It is true that the provisions of rr.70-75 and the rules do not specifically say whether the second wife of a deceased Hindu railway servant (the second marriage having taken place during the lifetime of his first wife) would be entitled to any share of the benefits becoming payable on the death of the railway servant. 12. It is true that the provisions of rr.70-75 and the rules do not specifically say whether the second wife of a deceased Hindu railway servant (the second marriage having taken place during the lifetime of his first wife) would be entitled to any share of the benefits becoming payable on the death of the railway servant. The rules rather refer to widow or widows of the deceased railway servant. The Tribunal referred to the rules and passed the order as noted hereinbefore. 13. But it is evident that the issue that was involved in the OA was to be resolved applying the provisions of the Railway Board Establishment Serial No.26 of 1997 dated March 3, 1997. The Serial was regarding grant of pensionary benefits to children from the void or voidable marriages. Under the Serial the Board forwarded a letter dated February 14, 1997 with an OM of the Department of Pension & Pensioners’ Welfare of the Government of India dated December 2, 1996. 14. It was mentioned in the Railway Board letter dated February 14, 1997 that to the cases of grant of pensionary benefits to children from the void or voidable marriages orders contained in the Dop&PW OM dated December 2, 1996 would apply mutatis mutandis. 15. The Dop&PW OM para.3, being relevant, is quoted below:– “3. In view of the fact that Section 16 of the Hindu Marriage Act, 1955 as amended by Hindu Marriage Laws (Amendment) Act states “Notwithstanding that a marriage and is null and void under Section 11, and child of such marriage who would have been legitimate if the marriage had been valid shall be legitimate, whether such child is born before or after the commencement of Marriage Law (Amendment) Act, 1976 and whether or not a decree of nullify is granted in respect of that marriage under this act, and whether or not the marriage is held to be void otherwise than on a petition under this act.” 16. It is, therefore, evident that no share of the benefits becoming payable on the death of a Hindu railway servant can be claimed by the second wife of the railway servant, if he had married the second wife during the lifetime of his first wife; but that the eligible children or child would be entitled to share the benefits with the first wife of the deceased railway servant and the children or child through the first wife. 17. In this case, the facts and circumstances revealed by the pleadings and the materials produced therewith clearly lead to the conclusion that Rajat, a Hindu, married the first respondent during the lifetime of his first wife, Anjali. This being the established fact, we are of the view that the Tribunal erred in law in holding that the first respondent would be entitled to receive a part of the benefits that became payable on Rajat’s death. 18. In our opinion, the decision of the Eastern Railway contained in its letter dated January 16, 2014 was the correct decision; and it was in consonance with the provisions of the Railway Board Establishment Serial No.26 of 1997 dated March 3, 1997. 19. For these reasons, we set aside the Tribunal order, allow the WPCT and dismiss the first-seventh respondents’ OA. No costs. Certified xerox. Das, J – I agree.