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2014 DIGILAW 710 (KER)

Asistant Commissioner v. N. Dharmarajan

2014-09-02

P.B.SURESH KUMAR, THOTTATHIL B.RADHAKRISHNAN

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JUDGMENT P.B. Suresh Kumar, J. 1. Fourth respondent in the Writ Petition is the appellant. 2. The first respondent, who is the petitioner in the Writ Petition retired from the service of Northern Coal Fields Limited on 15.4.2000. He was a member of Coal Mines Pension Scheme 1998, hereinafter referred to as 'the Scheme', framed under the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948. The wife of the first respondent was entitled to receive pension under the Scheme, after his death. Unfortunately, she died prior to the retirement of the first respondent. The first respondent remarried one Omana after his retirement on 15.12.2006. After the remarriage, he submitted an application to his employer to make necessary entries in the records pertaining to the Scheme, to enable Omana to claim pension under the Scheme. The said application was rejected by Ext.P5 communication, which was impugned in the Writ Petition. 3. After the institution of the Writ Petition, Ext.P8 communication was issued by the appellant, the competent authority under the Scheme, stating that in view of the provisions contained in Clauses 2(g) and 2(h) of the Scheme, the request of the petitioner cannot be entertained. The Writ Petition was thereupon amended, challenging Ext.P8. 4. The learned single Judge, relying on the decision of the Apex Court in Bhagwanti v. Union of India ( AIR 1989 SC 2088 ), took the view that the stand of the competent authority that post retiral spouses are not entitled to the benefit of the Scheme is unjustified and accordingly, allowed the Writ Petition, directing the appellant to permit, among others, to carry out appropriate corrections in the records of the Scheme. 5. The contention of the appellant is that in view of the provisions of the Scheme, the post-retiral spouse of an employee would not come within the definition of 'family' in the Scheme and he/she cannot, therefore, claim the benefit of the Scheme. Clauses 2(g) and 2(h) of the Scheme were relied on in support of the said contention. Clauses 2(g) and 2(h) of the Scheme read thus : "2(g): 'employee' means an employee of the Coal Mines in respect of which the Coal Mines Provident Fund Schemes have been made applicable. Clauses 2(g) and 2(h) of the Scheme were relied on in support of the said contention. Clauses 2(g) and 2(h) of the Scheme read thus : "2(g): 'employee' means an employee of the Coal Mines in respect of which the Coal Mines Provident Fund Schemes have been made applicable. 2(h): 'family' in relation to an employee means:- (i) wife in the case of a male employee or husband in the case of a female employee, (ii) a judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was not held guilty of committing adultery, and (iii) son who has not attained the age of twenty five years and unmarried daughter who has not attained the age of twenty five years including such son or daughter adopted legally before superannuation." The above Clauses define 'employee' and 'family'. True, 'family', which includes the spouse, is defined under the Scheme with reference to an employee. But the very purpose of the pension being one to provide sustenance in the old age, and since pension is payable on a consideration of the past service rendered by the pensioner, the classification of the claimants for family pension with reference to their date of marriage is wholly arbitrary. In Bhagwanti v. Union of India (supra), the vires of a provision in the Central Civil Services (Pension) Rules, which excludes post-retiral spouses from claiming family pension was under consideration. It was held by the Apex Court in that case that the consideration upon which pension is admissible or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of 'family' by keeping the post-retiral spouses out of it. The issue in this case is also substantially the same. 6. The learned counsel for the appellant contended that the judgment of the Apex Court referred to above does not apply to the facts of this case, as the same was rendered in the context of Central Civil Services (Pension) Rules, 1972 and the principle laid down in that case cannot be applied to the Scheme, which is a contributory pension scheme. As far as the rights of the claimants for family pension are concerned, in so far as no contribution is payable after the retirement of the employee under a contributory pension scheme, there is virtually no difference between the Central Civil Services (Pension) Rules, 1972 and the Scheme. There is, therefore, no merit in the Writ Appeal and the same is accordingly, dismissed.