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2014 DIGILAW 198 (ORI)

Akhaya Kumar Sethi v. State of Orissa

2014-03-26

CHAIRMAN, N.PRUSTY, S.N.DAS

body2014
ORDER JUSTICE N. PRUSTY, CHAIRMAN - The applicant, who is a son born through the second wife of deceased Government servant Gangadhar Sethy, has filed this O.A. with a prayer for a direction to the respondent Nos. 2 and 3 to apportion the amount already received by the respondent No.4 and the amount to be received in future including all pensionary benefits amongst all legal heirs and release 1/4th share in favour of the applicant. It has also been prayed for a direction to the respondent Nos. 2 and 3 to deduct 1/4th share of the applicant from the amount which has been received by the respondent No.4 and release the total share in favour of the applicant. 2. Heard Mr. A.S.Nandy, learned counsel for the applicant and Mr. R.K.Dash, learned Government Advocate so also Mr. M.Khuntia, learned counsel appearing for private respondent No.4. 3. Mr. Nandy, learned counsel submitted that the applicant's father late Gangadhar Sethi, while working as Head Clerk in a Horticulture Farm under the control of the Deputy Director of Horticulture, Sakhigopal Range, died on 24.5.2000 leaving behind the applicant along with other legal heirs namely Chanchala Sethi (First wife) and Kabita Sethi (Second wife and mother of the applicant), Ashok Kumar Sethi and Laxmipriya Sethi (the son and daughter through Chanchala Sethy, first wife). The Addl. Tahasildar granted the legal heirs certificate indicating the applicant and his mother Kabita Sethi as the son and second wife respectively of late Gangadhar Sethi. Thereafter, Chanchala Sethi/respondent No.4, Ashok Kumar Sethi and Benga Bewa preferred a Legal Heir Misc. Appeal before the Sub-Collector, Puri challenging the legal heir certificate issued by Addl. Tahasildar, Puri and the Sub-Collector, Puri had set aside the Legal Heir Certificate and directed to delete the name of Kabita Sethi from the Legal Heir Certificate. Thereafter the mother of the applicant Kabita Sethi preferred Misc. Revision No. 1/2004 and 2/04 before the Collector, Puri as against the said appellate order passed by the Sub-Collector, Puri. The Collector, Puri disposed of the said Misc. Revision vide order dated 31.10.2006 (Annexure-1) to the effect that "as the said Kabita Sethi is the second wife of late Gangadhar Sethi, she is not entitled to get any service benefits, etc. But her minor son being the legitimate son of the deceased employee is entitled to get the share of the property of the deceased employee. Revision vide order dated 31.10.2006 (Annexure-1) to the effect that "as the said Kabita Sethi is the second wife of late Gangadhar Sethi, she is not entitled to get any service benefits, etc. But her minor son being the legitimate son of the deceased employee is entitled to get the share of the property of the deceased employee. Till he attains the age of majority, the petitioner will act as mother guardian on his share". During pendency of the revision cases all the legal heirs of deceased Gangadhar Sethi namely Chanchala Sethi, Kabita Sethi, Ashok Kumar Sethi and Akshaya Kumar Sethi have sworn affidavits (Annexure-2) admitting and stating therein that both the Chanchala Sethi and Kabita Sethi are married wives of late Gangadhar Sethi and to avoid future litigating terms between them, they have settled to apportion the financial benefits what they will get and they do not have any quarrelsome affairs which led till the Revision before the Collector for obtaining legal heir certificate issued by the Tahasildar is accepted by them. Since in the meantime the Collector, Puri has passed an order vide Annexure-1, the mother of the applicant has represented the Authorities i.e. Deputy Director and the Director with request to release the Service benefits as her son is entitled to get by apportioning the equal amount between all the legal heirs as determined by the Collector, Puri (Annexure-3 and 4). When the applicant's mother came to know that without considering her representation the Authorities have released a part of the retiral benefits she sought for information under R.T.I. Act as to what extent the Authorities have released the retiral benefits of late Gangadhar Sethi in favour of Chanchala Sethi, and on the said application, the authorities have informed that they have released the Provisional Pension, amount due for the duty period and the un-utilized leave salary and further informed that the amount towards D.C.R.G., G.I.S., Commutation value of Pension, and G.I.S. has not been released as yet (Annexure-5) and the Final Family Pension papers received from Chanchala Sethi have already been transmitted to the office of the Director of Horticulture, Orissa, Respondent No.2 since 1.12.2008 for necessary sanction. In view of the above, in the facts and circumstances of the case, the applicant is entitled to get his 1/4th share of retiral and ancillary pensionary benefits accrued to him after the death of his father Gangadhar Sethi. Therefore direction may be issued to Respondents No.2 and 3 to apportion the amount which has already been received by the Respondents No.4 and the amount yet to be received as p6r Annexure-5 be released in favour of the applicant according his share/as per his entitlement. 4. Mr. R.K.Dash, learned Govt. Advocate, on the basis of averments made in the counter, submitted that provisional family pension has been sanctioned by the Director of Horticulture, Odisha in favour of Smt. Chanchala Sethi, the legally married 1st wife of late Gangadhar Sethi vide order No. 3/567 dated 26.2.2009. The family pension case remains unsettled for want of complete pension papers. The applicant can get the share of his deceased father late Gangadhar Sethi till he attains the age of majority of and his mother Kabita Sethi will act as mother guardian on his share. 5. Mr. Nandy, learned counsel filed written note submission inter alia stating that as per Sub-rules 5(b), 6(a) and (c), 12(a) of Rule 56 of the OCS (Pension) Rules, 1992, the applicant Akshaya Kumar Sethy being minor son born through 2nd wife of the deceased, is entitled to get family pension in equal share. At the time of death of his father in the year 2000 the applicant was 7 years old. In support of his contention that the children born through 2nd wife of a deceased Government servant is entitled to share of family pension learned counsel relied on the decision of the Hon'ble Supreme Court in the case of Rameshwari Devi v. State of Bihar reported in AIR 2000 SC 735 , which reads as follows "14. It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of Clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include widow and son. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void, Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That, is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement gratuity payments which is governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the direction issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment. Relying on the decision of the Hon'ble Supreme Court (supra) the Hon'ble High Court in the case of Smt. Kanakalata Maharana v. Smt. Shantilata Maharana and others reported in 94(2002) CLT 53 held that the children born through the second wife are declared to be entitled to a share of the family pension, but the exact share of the said children would have to be determined by the employer in accordance with the family pension rules. It was also further declared that such children born from the second wife were also entitled to further benefits like gratuity, provident fund and unutilized salary in equal share. The Hon'ble High Court also in the case of Smt. Sudha Das and others v. Collector, Rayagada and others reported in 2009 (I) OLR 44 referring to the decision of Hon'ble Supreme Court as well as the judgment of the Hon'ble Court (supra) held that: "5. Accordingly, we hold that the children of late Kishore Chandra Das, born through the first wife Baidei Das as well as the children born through Sudha Das, shall be entitled to get family pension, gratuity, provident fund, etc. Accordingly, we hold that the children of late Kishore Chandra Das, born through the first wife Baidei Das as well as the children born through Sudha Das, shall be entitled to get family pension, gratuity, provident fund, etc. in equal share in accordance with the provisions of Family Pension Rules and this would be determined by the employer, namely, Tahasildar, Rayagada within a period of three months from the date of receipt of this judgment. Till determination is made by the Tahasildar, Rayagada, the Accountant General, Orissa shall issue necessary direction not to release any benefit to any party and in the event any benefit has already been released, the same shall be computed and adjusted from payments due to be made in terms of the directions contained hereinabove." 6. Mr. Khuntia, learned counsel appearing for respondent No.4 submitted that since late Gangadhar Sethy during his life time had nominated his first wife Chanchala Sethi/respondent No.4 to receive the family pension as per Pension Rules, as such during the life span of respondent No.4 the applicant is not entitled to family pension. 7. Considering the submissions made by the learned counsel for the respective parties and keeping in view the settled position of law as per the decisions of the Hon'ble Supreme Court as well as Hon'ble High Court (supra), so also the averment made by State respondents to the effect that the applicant can get the share of his deceased father late Gangadhar Sethi till he attains the age of majority and his mother Kabita Sethi will act as mother guardian on his share, I am of the considered view, the applicant who was born through Kabita Sethy/the second wife of late Gangadhar Sethy, shall be entitled to get a share of family pension, gratuity, provident fund, etc. as due and admissible in accordance with the provisions of the OCS (Pension) Rules, 1992. 8. In view of the above, the respondent authorities are directed to determine the share of the applicant in the family pension, gratuity, provident fund, etc. and disburse the same in favour of the applicant through his mother guardian Kabita Sethy, if he has not yet attained majority, within a period of two months from the date of communication of this order. and disburse the same in favour of the applicant through his mother guardian Kabita Sethy, if he has not yet attained majority, within a period of two months from the date of communication of this order. Till determination in respect of share payable to the applicant is made by the respondents no retiral benefits shall be extended in favour of respondent No.4 and in the event any benefit has already been released in favour of respondent No.4, the same shall be computed and adjusted from payments due to be made in her favour in terms of the above direction. O.A. is accordingly disposed of with the above observation and direction. Dr. S.N.DASH, MEMBER (ADMN) I agree. O.A. disposed of.