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2015 DIGILAW 396 (ORI)

NIRMALI SAMAL v. STATE OF ORISSA

2015-07-08

A.K.RATH

body2015
JUDGMENT : Dr. Akshaya Kumar Rath, J. - The instant challenge is to laciniate the office order dated 24.3.2012, vide Annexure-7, passed by the Principal Secretary to Government rejecting the prayer of the petitioner for grant of family pension. 2. Bereft of unnecessary details the short facts of the case of the petitioner are that Abhiram Samal was working as a Havildar in the Orissa State Armed Police, 4th Battalion, Rourkela. A disciplinary proceeding was initiated against him on the ground that while his first legally married wife Smt. Nalini Samal is alive, he married Smt. Nirmali Samal, the present petitioner, in contravention of Government Servants Conduct Rules, 1959 without obtaining prior permission. He was dismissed from service on 23.6.1990 by opposite party No. 4. Thereafter, he challenged the order before the learned Orissa Administrative Tribunal in O.A. No. 1799(C) of 1993. The same having been dismissed, he filed a writ petition being WP(C) No. 16910 of 2007 before this Court. While the matter stood thus, Abhiram Samal died. Thereafter, the present petitioner was impleaded as petitioner. The said writ petition was dismissed on 26.2.2010 with an observation that it is open to the Government to decide if pension is to be paid to both the wives of the petitioner. Thereafter, she made an application before opposite party No. 1 on 7.4.2010 to grant minimum pension. Since the same was not disposed of, she again filed a writ petition being WP(C) No. 379 of 2010 with a direction to the opposite parties to pay the minimum pension. The writ petition was disposed of on 25.01.2011 with a direction to the opposite party No. 1 to dispose of the representation. While the matter stood thus, by order dated 24.3.2012, the representation of the petitioner was rejected relying on Rule 56 of the Orissa Civil Services (Pension) Rules 1992 (hereinafter referred to as "the OCS Pension Rules"). 3. Heard Mr. S.K. Nath, learned counsel for the petitioner and learned Addl. Government Advocate for the opposite parties. 4. Mr. Nath, learned counsel for the petitioner, submitted that since Smt. Nalini Samal first wife of Abhiram Samal died in the meanwhile, there is no impediment to grant family pension to the petitioner. He further submitted that the petitioner is entitled to compassionate allowance under Rule 46 of the OCS Pension Rules. Government Advocate for the opposite parties. 4. Mr. Nath, learned counsel for the petitioner, submitted that since Smt. Nalini Samal first wife of Abhiram Samal died in the meanwhile, there is no impediment to grant family pension to the petitioner. He further submitted that the petitioner is entitled to compassionate allowance under Rule 46 of the OCS Pension Rules. Lastly he submitted that a direction may be given to the opposite parties to grant family pension and other retiral dues to her children. 5. Three points really arise for consideration of this Court. "I. Whether the second wife is entitled to family pension? II. Whether the petitioner is entitled to compassionate allowance under Rule 46 of the OCS Pension Rules? III. Whether the children born through the second marriage are entitled to family pension and other retiral dues of their father?" Point No. I 6. Rule 24 of the Orissa Government Servants' Conduct Rules, 1959 deals with bigamous marriage. The Rule provides that no Government servant shall enter into, or contract a marriage with a person having a spouse living; and no Government servant, having a spouse living shall enter into, or contract, a marriage with any person. Proviso to the said Rule stipulates that the Government may permit a Government servant to enter into or contract, any such marriage as is referred to in clause (1) or clause (2), if they are satisfied that such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage and there are other grounds for so doing. Further the note appended to sub-rule (6) of Rule 56 of the OCS Pension Rules provides that after the commencement of the Hindu Marriage Act, 1955, any second marriage contracted by a Hindu male during the life-time of his first wife shall be void and the second wife shall not be entitled to the family pension as a legally wedded wife. 7. In the instant case, no permission has been accorded by the Government to the employee. Thus the conclusion is irresistible that the petitioner is not entitled to family pension. Point No. II 8. Though the learned counsel for the petitioner submitted that the compassionate allowance under Rule 46 of the OCS Pension Rules can be granted to the petitioner, this Court is unable to accept the prayer of the learned counsel for the petitioner. Thus the conclusion is irresistible that the petitioner is not entitled to family pension. Point No. II 8. Though the learned counsel for the petitioner submitted that the compassionate allowance under Rule 46 of the OCS Pension Rules can be granted to the petitioner, this Court is unable to accept the prayer of the learned counsel for the petitioner. Rule 46 of the OCS Pension Rules provides as follows; "46. Compassionate allowance--(1) A Government servant who is dismissed or removed from service shall forfeit his pension and gratuity: Provided that the authority competent to dismiss or remove him from service may, if the case is receiving of special consideration, sanction a compassionate allowance not exceeding two-third of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension. (2) A compassionate allowance sanctioned under the proviso to Sub-rule (1) shall not be less than the amount of minimum pension admissible. (3) On receipt of the order of the competent authority removing an officer from service for misconduct, insolvency, or inefficiency, the Head of Office, if he proposes to grant compassionate allowance shall fill in the application form for pension and send the same to the Accountant General for necessary action after due concurrence of Finance Department. The Head of Office shall not wait for receiving the application from the Officer." 9. A bare perusal of the said Rule would show that compassionate allowance can be granted to a Government servant who is dismissed or removed from service by the authorities. Thus Rule 46 of the OCS Pension Rules cannot be pressed into service by the petitioner. Point No. III 10. Section 16 of the Hindu Marriage Act deals with legitimacy of children of void and voidable marriages. The same is quoted hereunder; "16 Legitimacy of children of void and voidable marriages.--(1) Notwithstanding that marriage is null and void under section 11, any 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 the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, and whether or not a decree of nullity 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. (2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents." 11. On an interpretation of the above quoted provision, the apex Court, in the case of Rameshwari Devi Vs. State of Bihar and others, AIR 2000 SC 735 : (2000) 1 DMC 164 : (2000) 85 FLR 174 : (2000) 1 JT 328 : (2000) 1 LLJ 1087 : (2000) 1 SCALE 262 : (2000) 2 SCC 431 : (2000) SCC(L&S) 276 : (2000) 1 SCR 390 : (2000) AIRSCW 273 : (2000) 1 Supreme 385 , held that the children born out of a second marriage performed during the subsistence of the previous marriage are entitled to their legal share in the death benefits of the father even though the second marriage is otherwise void in law. 12. Relying on Rameshwari Devi (supra), this Court, in the case of Smt. Kanakalata Maharana Vs. Smt. Shantilata Maharana and Others, (2002) 94 CLT 53 : (2002) OLR 796 Supp, came to hold that the children born through the second wife are also 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. In Kanakalata Maharana (supra) it was further held that the children born from the second marriage are also entitled to other benefits like gratuity, provident fund, unutilized leave salary in equal shares. The said decision was subsequently followed in the case of Smt. Sudha Das and Others Vs. In Kanakalata Maharana (supra) it was further held that the children born from the second marriage are also entitled to other benefits like gratuity, provident fund, unutilized leave salary in equal shares. The said decision was subsequently followed in the case of Smt. Sudha Das and Others Vs. Collector and Others, (2009) 1 OLR 44 . 13. On taking a holistic view of the matter, this Court holds that the children of late Abhiram Samal born through first wife Smt. Nalini Samal as well as children born through Smt. Nirmali Samal, the present petitioner, shall be entitled to family pension, gratuity, provident fund and unutilized leave salary in equal shares in accordance with the provisions of the OCS Pension Rules. 14. No clear picture emerges as to who are the sons and daughters of the deceased through first wife and second wife. In view of the same, the writ petition is disposed of with a direction to the petitioner to produce the legal heir certificates before opposite party No. 4 who shall examine the same and allow the family pension to the children in accordance with the provision of OCS Pension Rules. This Court further observes that the children born through the petitioner are also entitled to get other benefits like gratuity, provident fund and unutilized leave salary. Final Result : Disposed off