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2016 DIGILAW 749 (ORI)

Kumari Sasmita Parida v. Union of India

2016-09-07

BISWAJIT MOHANTY, I.MAHANTY

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JUDGMENT : BISWAJIT MOHANTY, J. 1. In this writ application, the petitioner has prayed for setting aside the order passed in O.A. No. 31 of 2005 vide Annexure-7 dated 24.10.2005 by the leaned Central Administrative Tribunal, Cuttack Bench, Cuttack. 2. The case of the petitioner is that she is the adopted daughter of one Gandharba Parida, who was working as a Darwan in the office of Deputy Director, Geological Survey of India, Calcutta. The service records of her father reflect that the petitioner is the only daughter of her father as evident from Annexure-1 series documents. The said documents cover nominations for Provident Fund, Central Government Employees Group Insurance and death-cum-retirement gratuity. The documents under Annexure-1 series were executed by late father of the petitioner on 27.2.1997. On 6.6.1997, the father of the petitioner-Gandharba Parida died. In support of the same, the petitioner has filed the certificate of death under Annexure-2. After the death of her father, the petitioner got the legal heir certificate under Annexure-3 and the same shows the petitioner to be the adopted daughter of late Gandharba Parida. Thereafter, it is the case of the petitioner that she made a representation on 23.12.1998 to the opposite party No. 2 stating therein that she was staying with her legal guardian, namely, one Jogendra Behera and accordingly she is entitled for grant of family pension and death-cum-retiral benefits. After getting the said application, the opposite party No. 3 requested the petitioner to authenticate her identity for various claims from the office of the opposite party No. 3 vide letter dated 10.3.1999 (Annexure-4). In that letter, the opposite party No. 3 wanted to know whether the petitioner was an adopted daughter of late Gandharba Parida, if so, he requested the petitioner to submit proper declaration of her adoption by late Gandharba Parida from the competent court of law. He also requested to the petitioner to produce declaration from the court of law about the legal guardianship of Shri Jogendra Behera in support of her claim. Lastly, the petitioner was requested to confirm her actual residence for further necessary action. It is the further case of the petitioner that on 8.2.2000, she submitted an application to opposite party No. 3 describing all the facts and also clarified the doubt raised by the authorities and such letter dated 8.2.2000 was sent to opposite party No. 3 under certificate of posting. It is the further case of the petitioner that on 8.2.2000, she submitted an application to opposite party No. 3 describing all the facts and also clarified the doubt raised by the authorities and such letter dated 8.2.2000 was sent to opposite party No. 3 under certificate of posting. However, the prayer of the petitioner was not allowed by the authorities as opposite party No. 5 has obtained an ex-parte decree on 10.5.2004 from the court of learned Civil Judge (Junior Division), Cuttack in Title Suit No. 127 of 2001/148 of 1997 to the effect that opposite party No. 5 was validly adopted son of late Gandharba Parida and that he was entitled to the dues, allowances and all other service benefits, which were due to his deceased father. It is the further case of the petitioner that against such ex-parte decree, she filed the necessary Misc. Case to set aside the same and also filed another Misc. Case to stay operation of the ex-parte decree. Thereafter, relying on the decision of the Hon’ble Supreme Court in Rameshwari Devi v. State of Bihar and others, reported in AIR 2000 SC 735 , she filed O.A. No. 31 of 2005, without making opposite party No. 5 as a party, praying for payment of D.C.R.G. amount of her late father Gandharba Parida and for payment of family pension. The said Original Application was dismissed on 24.10.2005 vide Annexure-7 by the learned Tribunal by holding that the Original Application suffers from non-joinder of party and the petitioner may approach the Civil Court to obtain necessary decree that she is the lawfully adopted daughter of late Gandharba Parida and only after the matter is so settled in her favour; if the department neglects to pay the legal dues to her then only she can approach the Tribunal. In this context learned Tribunal made it clear that it has not been vested with jurisdiction to adjudicate the dispute regarding relationship/legal heir ship/son-ship of anybody/a Govt. of India employee and it is for a competent Civil Court to decide all such issues/disputes. 3. In this context learned Tribunal made it clear that it has not been vested with jurisdiction to adjudicate the dispute regarding relationship/legal heir ship/son-ship of anybody/a Govt. of India employee and it is for a competent Civil Court to decide all such issues/disputes. 3. Challenging the order under Annexure-7, the petitioner has filed the present writ application on the ground that when the Hon’ble Supreme Court in the case of Rameshwari Devi (supra) has made it clear that when there are two claimants to the pensionary benefits of a deceased employee and there is no nomination wherever required, then the Government has to hold an enquiry as to the rightful claimant because the disbursement of pensionary benefits cannot wait till a Civil Court pronounces upon the respective rights of the parties as that would be certainly be a long drawn affair. According to the petitioner, thus, the settled principle of law has not been taken into account by the Tribunal. Secondly, it is the case of the petitioner that when under Annexure-1 series, it has been made clear that the petitioner is the daughter of late Gandharba Parida, the learned Tribunal has gone wrong in denying retiral benefits and family pension to the petitioner. 4. The opposite parties 1 to 4 have filed the counter affidavit and opposite party No. 5 has also filed a separate counter affidavit. 5. In the counter affidavit filed by opposite parties 1 to 4, they have defended the impugned order passed by the Central Administrative Tribunal. They have also made clear that one Saroj Kumar Behera, who was appointed as nominee vide Annexure-1 series documents, has not come forward to lodge any claim. Their further stand is that though the petitioner was asked to supply the necessary documents vide Annexure-4 and for furnishing certain clarification, however, the petitioner did not comply with the same. In such background, they have taken a stand that the petitioner is to put strict proof that she is the adopted daughter of deceased Gandharba Parida. They have further made it clear that on account of ex-parte decree under Annexure-6, they are not in a position to release any benefit in favour of the petitioner. In such background, they have taken a stand that the petitioner is to put strict proof that she is the adopted daughter of deceased Gandharba Parida. They have further made it clear that on account of ex-parte decree under Annexure-6, they are not in a position to release any benefit in favour of the petitioner. They have also further taken a plea that since the petitioner has already approached the Civil Court for setting aside the ex-parte decree and for stay of the same, unless the proceeding is finalised, they are not in a position to make payment. It is their further case that on the basis of ex-parte decree under Annexure-6, opposite party No. 5 has also made his claim for release of retiral benefits in his favour. They have also pleaded that the decision in Rameshwari Devi (supra) is factually distinguishable and the ratio laid down therein has no application to the present case. They have reiterated in the counter that unless the proceeding before the Civil Court is finalised, they are not able to make payment. No rejoinder has been filed by the petitioner to the counter filed by opposite parties 1 to 4. In the counter filed by opposite party No. 5, he has taken a specific stand that the petitioner is not the natural daughter of late Gandharba Parida and is yet to prove her adoption in accordance with law. He also specifically disputed sending of the letter dated 8.2.2000 by the petitioner to the authorities. It is the further case of opposite party No. 5 that when late Gandharba Parida was suffering, the natural father of the petitioner, namely Jogendra Behera filled up the nomination forms indicating the petitioner as daughter of late Gandharba Parida and cunningly obtained his signature over the said forms only to grab the retiral benefits of late Gandharba Parida as Jogendra Behera knew fully well that the days of Gandharba Parida were numbered. Further, it is the case of opposite party No. 5 that he has been adopted by Gandharba Parida when he was of eight years of age and was reading in primary school after holding of due ceremonial rites, i.e., giving and taking made between both the natural parents and the adoptive parents in presence of relatives and friends of both the families. Thereafter, he also filed Title Suit No. 148/97-127/2001 for a declaration that he is the son of late Gandharba Parida where the present petitioner was defendant No. 4. Though sufficient time was granted to the petitioner to file her written statement but she did not file the same. Later, she was set ex-parte. Though the other defendants filed written statement, but as they did not take steps they were also set ex-parte. The suit was heard and judgment was pronounced on 21.4.2004 and the decree was drawn on 5/10.5.2004. Accordingly, opposite party No. 5 has obtained the legal heir certificate from Tahasildar, Sadar, Cuttack vide Annexure-A/5 showing him to be the son of late Gandharba Parida. It is the further case of the opposite party No. 5 that though the petitioner had filed Misc. Case No. 76 of 2004 for setting aside the ex-parte decree and Misc. Case No. 75 of 2005 for interim order, however, both the Misc. Cases were dismissed on 14.11.2007 on account of non-taking of steps. Certified copy of the order dated 14.11.2007 passed in both the Misc. Cases has been filed as Annexure-B/5. The opposite party No. 5 has further made it clear that the decision of the Hon’ble Supreme Court in Rameshwari Devi (supra) has no application to the present case, as the same is factually distinguishable and according to him, no case is pending in the Civil Court at the instance of the petitioner. This counter affidavit filed by opposite party No. 5 is dated 5.12.2008. No rejoinder has been filed to the counter of opposite party No. 5. 6. Heard Mr. S. Mohanty, learned counsel for the petitioner and Mr. K.K. Patnaik, learned counsel for the opposite party No. 5. None appeared for opposite party nos. 1 to 4. 7. Mr. Mohanty, learned counsel for the petitioner reiterated that since as per Annexure-1 series petitioner has been described to be the daughter of late Gandharba Parida, the learned tribunal has gone wrong in dismissing the case of the petitioner highlighting her need to approach the Civil Court to obtain necessary decree. 1 to 4. 7. Mr. Mohanty, learned counsel for the petitioner reiterated that since as per Annexure-1 series petitioner has been described to be the daughter of late Gandharba Parida, the learned tribunal has gone wrong in dismissing the case of the petitioner highlighting her need to approach the Civil Court to obtain necessary decree. Secondly, he submitted that as per the decision in Rameshwari Devi (supra) there was no need to wait till a Civil Court pronouncement upon the respective rights of the parties as that would certainly be a long drawn affair and accordingly prayer for the petitioner before the learned tribunal for payment of family pension as well as the retiral benefit of Shri Gandharba Parida should have been allowed. 8. Learned counsel for opposite party No. 5, on the contrary, submitted that petitioner is not the adopted daughter of late employee, namely, Gandharba Parida and in any case, unless the judgment and decree pronounced in Title Suit No. 148/97-127/01 are set aside, where the petitioner was a defendant, she cannot get any benefit out of Annexure-1 series where petitioner has been shown to be the daughter of late Gandharba Parida. In this context, he submitted that as per the judgment and decree in Title Suit No. 148/97-127/01, opposite party No. 5 has been declared as a validly adopted son of late Gandharba Parida and also that opposite party No. 5 was entitled the service benefits dues of late Gandharba Parida. Secondly, he submitted that the decision in Rameshwari Devi (supra) has no application to the facts of the present case. He also submitted that presently no case is pending at the behest of the petitioner after dismissal of CMA No. 76 of 2004 and CMA No. 75 of 2005 as per Annexure-B/5. Therefore, he prayed that the writ application be dismissed. 9. In reply, Mr. Mohanty, learned counsel for the petitioner submitted that after orders dated 14.11.2007 passed in CMA No. 76 of 2004 and CMA No. 75 of 2005, steps have been taken in appropriate forum challenging the same and accordingly the matter is still pending adjudication as to the claim of opposite party No. 5 being the adopted son of late Gandharba Parida. 10. 10. Considering the submissions made and on perusing the records, it is crystal clear that though the petitioner has based her claim on the basis of Annexure-1 series and so also on the basis of decision rendered in Rameshwari Devi (supra), however, the fact remains that there exists an ex-parte decree under Annexure-6 declaring opposite party No. 5 to be the validly adopted son of late Gandharba Parida with a further declaration that opposite party No. 5 is entitled to dues, allowances and other service benefits of his deceased father late Gandharba Parida. Though the petitioner filed Misc. Cases for setting aside the ex-parte decree and for stay operation of the ex-parte decree, both the Misc. Cases have been dismissed during pendency of the present writ application on 14.11.2007. As per Mr. Mohanty, learned counsel for the petitioner appropriate steps have been taken by the petitioner for challenging the orders dated 14.11.2007 before appropriate forum. In such background, the submission of Mr. Mohanty, learned counsel for the petitioner that the claim of the petitioner should be allowed as per the decision in Rameshwari Devi (supra) cannot be accepted as the matter is still pending before the Civil Court. In such factual background, the decision relied on by Mr. Mohanty, as aforesaid, will have no application to the present case. In that case, there is nothing to show that any proceeding was pending before the Civil Court. In the present case, the decree under Annexure-6 in favour of opposite party No. 5 stares at us. The petitioner in order to succeed has not only to get ex-parte decree set aside, but also to furnish the proof that she is the adopted daughter as declared by a competent civil court as her adoption has been disputed by opposite party No. 5. In such background, the said decree cannot be ignored by the authorities till the same is set aside. Further, unlike in that case, in the present case, though an enquiry was initiated under Annexure-4, however, the petitioner never participated in the same nor did she supply relevant documents. It may be noted here that when Annexure-4 was issued, the Title Suit filed by opposite party No. 5 was also pending disposal. The factum of the petitioner sending explanation dated 8.2.2000 to the queries under Annexure-4 cannot be accepted as the same has been disputed by the opposite parties. It may be noted here that when Annexure-4 was issued, the Title Suit filed by opposite party No. 5 was also pending disposal. The factum of the petitioner sending explanation dated 8.2.2000 to the queries under Annexure-4 cannot be accepted as the same has been disputed by the opposite parties. The petitioner also did not take any steps to file a copy of the same before this Court. As indicated earlier, no rejoinder has been filed either to the counter of opposite parties 1 to 4 or to the counter filed by opposite party No. 5. In such background, we are not inclined to interfere with the matter. It is made clear that since proceeding at the behest of the petitioner is pending before the appropriate civil court as stated by the learned counsel for the petitioner, no disbursement of retiral benefits/ pensionary benefit of late Gandharba Parida be made to anybody. With the aforesaid observations, the writ application is dismissed. I. Mahanty, J. – I agree.