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2014 DIGILAW 403 (GAU)

Sumitra Das v. Union of India & Ors.

2014-04-03

UJJAL BHUYAN

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1. Heard Mr. S Saikia, learned counsel for the petitioner and Mr. P.K. Mazurndar, learned counsel for respondent No. 5. Standing Counsel, Railways is not present. 2. By way of this petition under article 226 of the Constitution of India, petitioner seeks a direction to the respondents to pay family pension to her and her minor handicapped son for the service rendered by her husband Late Sonaram Das. 3. Case of the petitioner is that she is the widow of Late Sonaram Das, who worked as Point-man in the North-East Frontier Railway. Out of her wedlock, two sons were born. The eldest son has attained the age of majority but the younger son Jatin Das, who was 15 years at the time of filing of the writ petition, is, however, physically handicapped. After her marriage, she came to know that she was the second wife of Sonaram Das, whose 1st wife Smt. Joyprova Das died in the year 1993. Sonaram Das had two daughters and one son from Smt. Joyprova Das and all of them have attained the age of majority. Petitioner’s husband took voluntary retirement from service in the month of June 2010 but died soon thereafter on 5.7.2010. After the death of Sonaram Das, petitioner moved the authorities of the North-East Frontier Railway for payment a of family pension for herself and her minor son Jatin Das, who is physically handicapped. 4. Since no family pension was paid, petitioner has filed the present writ petition seeking the relief as indicated above. 5. No affidavit has been filed by the authorities of North-East Frontier J Railway. On 6.3.2014, the court had passed the following order: “This case is pending since the year 2011. Last chance is granted to the Railway authorities to, file affidavit, failing which Court may consider disposing of the writ petition on the basis of available materials.” Respondent No. 5 has filed affidavit. She has stated that she is the 2nd wife of Late Sonaram Das. According to her, after the death of his 1st wife, Sonaram Das married her. She has denied the marital status of the petitioner as wife of Sonaram Das. She has placed on record the legal heir certificate d issued by the office of the Deputy Commissioner, Nagaon showing her to be the legally married wife of Late Sonaram Das. According to her, after the death of his 1st wife, Sonaram Das married her. She has denied the marital status of the petitioner as wife of Sonaram Das. She has placed on record the legal heir certificate d issued by the office of the Deputy Commissioner, Nagaon showing her to be the legally married wife of Late Sonaram Das. Sonaram Das nominated respondent No. 5 as his legal heir and nominee in his official documents. 6. Submissions made by learned counsel for the parties are on pleaded lines. Therefore, a detailed reference to the submissions made is considered not necessary. 7. The Railway Services (Pension) Rules, 1993, framed in the exercise of power conferred by the proviso to Article 309 of the Constitution, deals with payment of pension to railway employees. Rule 75 contains the Family Pension Scheme for Railway Services, 1964. Under Sub-rule (6), family pension is payable in case of a widow up to the date of death or re-marriage whichever is earlier, in case of a son until he attains the age of 25 years and in case of unmarried daughter, until she attains the age of 25 years or until she gets married whichever is earlier. As per the proviso, if the son or daughter of a railway servant is suffering from any disorder or disability of mind or 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, the family pension shall be payable to such son or daughter for life subject to the conditions mentioned therein. 8. Admittedly, the parties to the present proceedings are Hindus. Section 16 of the Hindu Marriage Act, 1955 provides that even if a marriage is void, the children born out of such marriage would be deemed to be legitimate and entitled to his legal rights. 9. The Apex Court in the case of Rameshwari Devi v. State of Bihar and Ors., AIR 2000 SC 735 held that children of void marriage are legitimate and would be entitled to the property of the father in equal share. 10. Thus, the legal position is that if a Hindu male dies intestate the children of the deceased employee born out of the second wedlock, which is otherwise void, would still be entitled to a share in the family pension and death-cum-retirement gratuity. 10. Thus, the legal position is that if a Hindu male dies intestate the children of the deceased employee born out of the second wedlock, which is otherwise void, would still be entitled to a share in the family pension and death-cum-retirement gratuity. The second wife however would not be entitled to such benefit. The children would be entitled to such benefit till they attain majority or as per Rule 75 of the Railway Services (Pension) Rules, 1993, in case of disability for the entire life time subject to fulfilment of the conditions mentioned therein. 11. That being the. position, court is of the view that the General Manager, North-East Frontier Railway should examine the rival claims of the petitioner and her handicapped son on the one hand and respondent No. 5 on the other hand. After considering the rival claims, he shall pass a speaking order within a period of three months from the date of receipt of a certified copy of this order in accordance with law. 12. After such decision is taken, consequential benefits may be paid to the entitled person as per law. Writ petition is accordingly disposed of.