Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 787 (MAD)

M. Premavathy v. B. Prakash

2014-03-28

N.PAUL VASANTHAKUMAR

body2014
Judgment : 1. This writ petition is filed praying to issue a writ of mandamus directing the second respondent to disburse the retirement benefits such as GPF and Family Benefit Fund to the petitioner, who is also a widow, due on the death of her daughter S.Kanchana, with all consequential benefits. 2. The case of the petitioner as could be seen from the affidavit filed in support of the writ petition are as follows : (a) Petitioner is the mother of one S.Kanchana, who was a Post Graduate in Commerce. She was appointed as Junior Assistant in the Revenue Department of the Government of Tamil Nadu in Vellore District in the year 1993. Later, she was transferred to the office of the Commissioner of Land Administration, Chennai, the second respondent herein. (b) The first respondent married the said S.Kanchana on 26.6.1996 at Chromepet, Chennai as per Hindu custom. After the marriage she went to her matrimonial house (house of the first respondent). However, within few weeks the first respondent began to torture the said Kanchana and the marriage was not consummated. On 29.12.1996 she left the matrimonial house as she was unable to bear the torture and from the said date she lived with the petitioner till her demise on 25.1.2002. (c) The first respondent filed HMOP No.377 of 1997 in February, 1997 and prayed for declaring the marriage between him and the said Kanchana as null and void on the ground of alleged fraud. In the said HMOP, notice was served to the said Kanchana in March, 1997 and she contested the version of the first respondent. She also realised the futility of trying for reunification as the intention of the first respondent was to get rid of from the matrimonial tie. (d) In July 1997 the second respondent called the petitioner's daughter to make nomination regarding her service benefits after knowing the fact that the first respondent driven out the petitioner's daughter from the matrimonial home within few months and also filed HMOP challenging the validity of the marriage. On 24.7.1997 petitioner's daughter nominated the petitioner to receive the service benefits and her signature was attested by two witnesses, who were working in the office of the second respondent, who were her superiors. On 24.7.1997 petitioner's daughter nominated the petitioner to receive the service benefits and her signature was attested by two witnesses, who were working in the office of the second respondent, who were her superiors. The nomination was effected to succeed the service benefits of the petitioner's daughter as per Tamil Nadu Pension Rules, 1978 and as per T.N.G.E.S.P. Fund-cum-Gratuity Fund Scheme. (e) The allegations made against the petitioner's daughter having been not true, she chose to contest the HMOP and the said HMOP was pending before the Family Court, Chennai, till her death on 25.1.2002 According to the petitioner, the death of her daughter was due to psychological pressure and mental pain inflicted by the first respondent by his conduct. On 19.1.2002 Kanchana was admitted in Apollo Hospital, Greams Road, Chennai and after about a week treatment, she died on 25.1.2002 without any child. (f) After death of petitioner's daughter, as per the nomination made by her, petitioner being her mother, she is eligible to get terminal benefits such as GPF, Family Benefit, etc. According to the petitioner, GPF due was Rs.86,000/- with interest from 25.1.2002. The second respondent paid a sum of Rs.5,000/- out of Family Benefit Fund and the total amount being Rs.1 lakh, the balance sum of Rs.95,000/- is due from the second respondent. (g) It is the contention of the petitioner that the Rules governing disbursement of GPF and Family Benefit Fund provide that in case of female members, they can opt to exclude their husband from their family, and they could nominate any other person as nominee. As per the said rule only petitioner's daughter nominated the petitioner to get family benefits after her demise. Nomination was made with firm intention to prevent succession of her husband to her service benefits. (h) Petitioner filed SCOP No.194 of 2004 before the Principal Sub Court, Chengalpat claiming the amount and the same was contested by the first respondent. Thereafter, on the advise, petitioner filed an interlocutory application to withdraw the proceedings with liberty to file fresh petition on the same cause of action and the said petition was allowed on 5.1.2008. The terminal benefits having not been paid by the second respondent, the petitioner has filed this writ petition with the above prayer. 3. The first respondent was served on 24.2.2014 and he has not chosen to appear to oppose the prayer made in the writ petition. The terminal benefits having not been paid by the second respondent, the petitioner has filed this writ petition with the above prayer. 3. The first respondent was served on 24.2.2014 and he has not chosen to appear to oppose the prayer made in the writ petition. 4. The second respondent filed counter affidavit wherein it is stated that the marriage of the first respondent with the said deceased S.Kanchana was not declared as null and void and the HMOP was dismissed on 5.2.2002 as abated and therefore, who is eligible to get the terminal benefits is not determined as on date. From the service register of the said S.Kanchana it is seen that she has filed GPF and DCRG nominations on 24.7.1997 in favour of her mother, the petitioner herein. The Tahsildar, Chengalpet disbursed a sum of Rs.5,000/- from the Family Benefit Fund on the death of S.Kanchana and the balance amount has to be paid by the District Collector, Kancheepuram District. Ultimately, it is stated in the counter affidavit that the petitioner can work out her remedy before the Family Court, Chennai, where the applications are pending and due to the opposition made by the first respondent requesting not to release the benefits to the writ petitioner, the claimed amounts have not been paid. 5. Mr. A.Sirajudeen, learned counsel appearing for the petitioner submitted that the second respondent was not justified in withholding the terminal benefits viz., GPF, DCRG, payable to the petitioner as her daughter died on 25.1.2002 while in service, merely because the first respondent raised objections. The learned counsel also submitted that the first respondent having not accepted the deceased Kanchana as his wife during her life time, he is not justified in claiming the death benefits as the first respondent even failed to attend the funeral ceremony of the petitioner's daughter. Learned counsel further submitted that the first respondent filed divorce petition within few months after the marriage, praying for declaration of the marriage as null and void. Therefore, the learned counsel submitted that the petitioner being the mother of the deceased, who is also a widow, is entitled to get death benefits, particularly when the deceased daughter nominated the petitioner to receive the benefits, which is provided under the rules. 6. Mr. Therefore, the learned counsel submitted that the petitioner being the mother of the deceased, who is also a widow, is entitled to get death benefits, particularly when the deceased daughter nominated the petitioner to receive the benefits, which is provided under the rules. 6. Mr. V.Subbiah, learned Special Government Pleader appearing for second respondent on the other hand submitted that because of the objection raised by the first respondent only the amounts payable are not paid to the petitioner, who is mother of the deceased S.Kanchana and if this Court directs, the second respondent is willing to settle the amounts to the petitioner. 7. I have considered the rival submissions of the learned counsel for the petitioner as well as the second respondent in the light of the pleadings in the writ petition, divorce petition (HMOP No.377/1997) as well as relevant rules. 8. The fact about the marriage between the first respondent and the deceased Kanchana on 26.6.1996 is not in dispute. Filing of H.M.O.P.No.377 of 1997 before the Family Court at Chennai to declare the said marriage as null and void under section 12(1)(c) of the Hindu Marriage Act on 12.3.1997 by the first respondent alleging that he was not prepared to condone the act of the deceased or her agent, who suppressed the relevant facts to the first respondent prior to marriage is also not in dispute. The first respondent alleged that the deceased was suffering from 'Pulmonary Hypertension', which according to him is not curable disease and the deceased was not fit for conceiving a child. 9. On a perusal of the pleadings in the H.M.O. Petition, which was pending till the date of death of the petitioner's daughter, it is evident that the first respondent had not accepted the petitioner's daughter Kanchana as his wife, even though a formal decree of nullity of marriage was not passed due to the demise of the said S.Kanchana on 25.1.2002 and the said HMOP was dismissed as abated on 5.2.2002. 10. During the life time of the said Kanchana, on 24.7.1997 she had nominated the writ petitioner, who is none other than her mother, as nominee to receive the benefits of Family pension, DCRG, GPF, etc. The nomination forms submitted by the deceased Kanchana are extracted hereunder : "GENERAL PROVIDENT FUND TAMILNADU SUBSCRIBER'S NOMINATION When the Subscriber has a family and wishes to nominate one member thereof. The nomination forms submitted by the deceased Kanchana are extracted hereunder : "GENERAL PROVIDENT FUND TAMILNADU SUBSCRIBER'S NOMINATION When the Subscriber has a family and wishes to nominate one member thereof. I hereby nominate the persons mentioned below, who is a member of my family as defined in rule 2 of the General Provident Fund, Tamil Nadu Rules to receive the amount that may STAND TO MY CREDIT in the fund, in the event of my death before that amount has become payable, or having become payable has not been paid. Name and address of the Nominee Relationship with the Subscriber Age Contingencies on the happening of which the nomination shall become invalid Name and address and relationship of persons if any to whom the right of the nominee shall pass in the event of his predecessing the Subscriber, or on the happening of the contingencies specified in the previous column M.Premavathy Mother 54 -- -- 27, Second Street, Bharathy Nagar, Pallavaram, Chennai-48. Dated this the 24th day of July, 1997. Two witnesses to Signature : 1. xxxxxxxxxxxxx 2. xxxxxxxxxxxxx Sd/- xxxxxxxxxxx SIGNATURE OF THE SUBSCRIBER FORM-I NOMINATION FOR T.N.G.E.S.P.FUND CUM GRATUITY SCHEME When the Government Servant has a family and wishes to nominate one member, or more than one member thereof. I hereby nominate the person/persons mentioned below, who is/are members of my family and confer on him/them the right to receive, to the extent specified below, any Tamil Nadu Government Employees Special Provident Fund-cum-Gratuity that may be sanctioned by the Government in the event of my death while in service and the right to receive on my death, to the extent specified below any TNGES.P.Fund-cum-Gratuity Scheme which having become permissible to me on retirement may remain unpaid at my death : ------------------------------------------------------------- Original Nominee (s) Alternative Nominee (s) ------------------------------------------------------------- M. Parvathy, Mother ------------------------------------------------------------- ------------------------------------------------------------- Amount of share of T.N.G.E.S.P.Fund cum Gratuity Scheme payable to each ------------------------------------------------------------- ----- ------------------------------------------------------------- This nomination supersedes the nomination made by me earlier which stands cancelled. Note: The Government Servant shall draw lines across the blank space below the last entry to prevent the insertion of any name after he has signed. Strike out which is not applicable. *This column should be filled in so as to cover the whole amount of the gratuity. This amount/share of the gratuity shown in this col. Should cover the whole amount/share payable to the original nominee(s). Strike out which is not applicable. *This column should be filled in so as to cover the whole amount of the gratuity. This amount/share of the gratuity shown in this col. Should cover the whole amount/share payable to the original nominee(s). Dated this 24th day of July, 1997 at Chennai. Witness to Signature Sd/- xxxxxxxxxxx 1. xxxxxxxxxxx SIGNATURE OF GOVERNMENT SERVANT 2. xxxxxxxxxxx FORM-II NOMINATION FOR TAMIL NADU FAMILY BENEFIT FUND SCHEME ------------------------------------------------------------- Name and Address of Relationship with Age Nominee(s) Officer ------------------------------------------------------------- M. Parvathy, Mother 54 Yrs. 27, Second Street, Bharathy Nagar, Pallavaram, Chennai-48. Dated this 24th day of July, 1997. Sd/- xxxxxxxxxx SIGNATURE OF THE GOVERNMENT SERVANT Witnesses to Signature: 1. xxxxxxxxxxx 2. xxxxxxxxxxx Certified that the above nomination is in order with reference to the rules mentioned in paragraph 3, 1 of the Hand Book of Instructions. Sd/- xxxxxxxxxxx ASSSISTANT COMMISSIONER LAND ADMINISTRATION DEPARTMENT CHEPAUK, MADRAS-600 005. SIGNATURE OF THE COUNTER SIGNING OFFICER (*) In the case of nomination of minor, name and address of the person to whom the cheque should be handed over, should be specified just below the name of the nominee within brackets. 11. From the above nomination Forms viz., Form-I & Form-II nominating the petitioner, mother of the deceased Kanchana, it is evident that the wishes of the deceased Kanchana was to convey the terminal benefits to her mother alone, in case of her demise. 12. 11. From the above nomination Forms viz., Form-I & Form-II nominating the petitioner, mother of the deceased Kanchana, it is evident that the wishes of the deceased Kanchana was to convey the terminal benefits to her mother alone, in case of her demise. 12. Under the GPF (Tamil Nadu) Rules, Rule 2(c) defines 'Family', which reads as follows : "2(c) 'Family' means:- (i) in the case of a male subscriber, the wife or wives, parents, children, minor brothers, unmarried sisters, deceased son's widow and children and where no parents of the subscriber is alive, a paternal grandparent : Provided that if a subscriber proves that his wife had been judicially separated from him or has ceased under the customary law of the community to which she belongs to be entitled to maintenance, she shall henceforth be deemed to be no longer member of the subscriber's family in matters to which these rules relate, unless the subscriber subsequently intimates in writing to the Account Officer that she shall continue to be so regarded and (ii) in the case of a female subscriber, the husband parents, children, minor brothers, unmarried sisters, deceased son's widow and children and where no parents of the subscriber is alive, a paternal grandparent : Provided that if a subscriber by notice in writing to the Accounts Officer expresses her desire to exclude her husband from her family, the husband shall henceforth be deemed to be no longer a member of the subscriber's family in matters to which these rules relate, unless the subscriber subsequently cancel such notice in writing (vide G.O.Ms.No.1260, Finance (All-I) 29.11.1989)." (Emphasis Supplied) Under the Tamil Nadu Pension Rules, Rule 45 deals with Death-cum-Retirement Gratuity. Sub-rule (5) of Rule 45 reads as follows : "45(5) For the purposes of this rule and Rules 46, 47 and 48, family in relation to a Government Servant means; (i) wife or wives, including judicially separated wife or wives in the case, of a male Government servant. (ii) husband including judicially separated husband, in the case of a female Government Servant. (ii) husband including judicially separated husband, in the case of a female Government Servant. (iii) Sons including step-sons, adopted sons and born through illegitimate wife; (iv) unmarried daughters including step daughter, adopted daughters and unmarried daughters born through illegitimate wife; (v) widowed daughters including step-daughters, adopted daughters and widowed daughters born through illegitimate wife; (vi) father, including adoptive parents in the case of individual whose personal law permits adoption; (vii) mother, including adoptive parents in the case of individuals whose personal law permits adoption; (viii) brothers below the age of eighteen years, including step brothers; (ix) unmarried sisters and widowed sisters, including stepsisters; (x) married daughters; and (xi) children of pre-deceased son." (Emphasis Supplied) Rule 48 deals with nomination of any of the one or more family members for receiving DCRG. In terms of Rule 48, the deceased daughter of the petitioner nominated the petitioner as nominee to receive DCRG. Similarly, for receiving the Family Benefit Fund, the petitioner who is mother of the deceased, was nominated in Form-II on 24.7.1997. 13. The said nominations to receive the benefits having been made by the deceased Government Servant, who is none other than the petitioner's daughter, and the first respondent having not recognised or accepted the marriage with the deceased S.Kanchana, he has no right to oppose the payment of the said benefits to the petitioner, who was legally nominated to receive the same, in case of demise of the Government Servant viz., S.Kanchana. A husband of a deceased female Government Servant, who was not willing to accept his wife during her lifetime, has no moral right to oppose the payment of terminal benefits to other member of the deceased female Government Servant's family. Legally also the first respondent is not entitled to object the payment to the petitioner, as the deceased S.Kanchana had nominated her mother, the petitioner, and the same was not changed till her death on 25.1.2002. 14. The second respondent ought to have verified the above rule position and decided the matter by rejecting the alleged objection said to have been filed by the first respondent, opposing payment of terminal benefits to the petitioner. By the said inaction of the second respondent in deciding the issue, petitioner who is a widow and who lost her daughter, was unable to get the terminal benefits such as GPF and Family Benefit Fund from January, 2002. By the said inaction of the second respondent in deciding the issue, petitioner who is a widow and who lost her daughter, was unable to get the terminal benefits such as GPF and Family Benefit Fund from January, 2002. Only a paltry sum of Rs.5,000/- was paid out of the Family Benefit Fund and the balance of Rs.95,000/-is due from 25.1.2002. 15. Similarly, GPF to the tune of Rs.86,000/- is also payable from 25.1.2002. It is not in dispute that as per Rule 13, GPF amount will fetch interest at the rate fixed by the Government from time to time. Similarly, for the belated payment of Family Benefit Fund to the tune of Rs.95,000/-, which was payable on 25.1.2002, the second respondent is bound to pay interest at the rate of 9% per annum. Due to the inaction of the second respondent in sanctioning the amount viz., GPF and Family Benefit Fund, the petitioner was compelled to file writ petition on 12.12.2011. Even in the writ petition, the second respondent, who alone opposed the writ petition, has chosen to file counter affidavit only on 24.2.2014. Considering the above circumstances, namely for forcing the petitioner to approach this Court and made her to wait for three years, the second respondent is bound to pay cost of this writ petition, which is quantified at Rs.10,000/-. 16. In fine, the writ petition is allowed with the following directions : (i) The second respondent shall sanction and pay GPF amount of Rs.86,000/- in favour of the petitioner as per the nomination made by her deceased daughter viz., S.Kanchana, with accrued interest as on the date of payment. (ii) The second respondent shall also pay the balance Family Benefit Fund of Rs.95,000/- with 9% interest per annum from 25.1.2002. (iii) Petitioner is entitled to get any other eligible terminal benefits. (iv) Petitioner is also entitled to get cost of this writ proceeding, which is quantified at Rs.10,000/-, payable by the second respondent. (v) The above amounts are directed to be paid within a period of two weeks from the date of receipt of copy of this order.