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2016 DIGILAW 751 (CAL)

Senjuti Pal v. State of West Bengal

2016-09-27

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty J. : 1. The instant writ petition has been preferred challenging a judgment dated 25th June, 2015 passed by the learned Tribunal in OA 1311 of 2014. 2. Shorn of unnecessary details, the facts are that the petitioner’s mother, namely, Chhaya Pal (Raha) was initially appointed on 8th September, 1970 as a staff nurse in West Bengal Nursing Service and she retired on 31st January, 2001. She married one Surendra Nath Pal (respondent no.7) and the petitioner is their daughter and she is still unmarried. The respondent no.7 deserted the petitioner’s mother and married one Abha Rani Kar (Pal) (respondent no.8) on 14th December, 1980. The respondent no.7 was employed as a librarian in ICV Polytechnic at Jhargram and he has presently retired and is enjoying pension. The respondent no.8 was employed at Indian Institute of Technology, Kharagpur and from her matrimonial relationship with the respondent no.7, one male child and one female child were born. After the demise of her mother, the petitioner made an application for grant of family pension on 10th July, 2009, as she was unmarried and totally dependent upon the income of her mother. In the midst thereof, family pension was sanctioned in favour of the respondent no.7. The petitioner’s claim for family pension was ultimately rejected on the basis of an observation of the Finance Department to the effect that “the Administrative Department may be informed that Kumari Senjuti Pal, unmarried, D/O. Lt. (Smt.) Chhaya Pal will not be eligible for family pension as the spouse of the deceased employee is still alive as per existing rule” as communicated by the respondent no.2 vide memorandum dated 11th March, 2013. By a further memorandum dated 23rd August, 2013, the respondent no.2 intimated the petitioner that the opinion of the appropriate authority as regards settlement of leave salary was to the effect that “the applicant may be asked to produce succession certificate or no-objection from her biological father, S.N. Pal. Otherwise we may be guided by Rule 168B of WBSR Part-I”. 3. Otherwise we may be guided by Rule 168B of WBSR Part-I”. 3. A perusal of the impugned judgment reveals that the learned tribunal rejected the petitioner’s claim for family pension observing that the word ‘remarriage’ in Rule 104 of The West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 (hereinafter referred to as the DCRB Rules) means ‘legal marriage’ and that the second marriage of the respondent no.7 with the respondent no.8 was a void marriage and that there was no divorce among the petitioner’s mother and the respondent no.7 and that as such there was no infirmity in the observation of the Finance Department to the effect that the petitioner can avail family pension only after the respondent no.7 expires. 4. Mr. Santra, learned advocate appearing for the petitioner submits that the fact that the respondent no.7 entered into a second marriage with the respondent no.8 during the lifetime of the petitioner’s mother stands established as would be explicit from the declaration of the respondent no.8 herself in a letter dated 22nd November, 1985 (pg. 156) and from the declaration of the names of her family members as submitted to her employer on 23rd November, 1993 and 4th August, 1998 (pgs. 152 and 149) and the answers given by the employer of the respondent no.8 on 6th April, 2010 (pg.147) to the representation made by the petitioner. Thus, at the time of death of the petitioner’s mother the respondent no.7 was not entitled to family pension as at the said juncture he had deserted his wife and was involved in an illegal matrimonial relationship with the respondent no.8. A Hindu marriage relationship would subsist till the said marriage is declared to be void by the competent forum. In the instant case, the second matrimonial relationship of the respondent no.7 with the respondent no.8 was subsisting on the date of death of the petitioner’s mother, who was the first wife of the respondent no.7 and that as such the respondent no.7 was disentitled to avail the benefits of family pension accruing from the service rendered by the petitioner’s mother. 5. He argues that the object of the DCRB Rules towards disbursement of family pension is to provide a source of sustenance to the dependent members of the deceased’s family. 5. He argues that the object of the DCRB Rules towards disbursement of family pension is to provide a source of sustenance to the dependent members of the deceased’s family. The respondent no.7 had admittedly deserted the petitioner and her mother long ago and the fact that he was enjoying a separate residence and was residing with the respondent no.8 and her children would be explicit from the residential certificate issued by the Chairman of the Kharagpur Municipality and from his own declaration of address while obtaining a driving licence on 17th December, 1999 (pgs. 113 and 114). 6. At the time the petitioner’s mother expired, the respondent no.7 was enjoying the benefits of pension pertaining to his own service and also the benefits pertaining to the service of the respondent no.8 and was residing with the respondent no.8 and that as such, he ought not to have been construed as a dependent of the petitioner’s mother for availing the benefits of family pension. The petitioner was completely dependent upon her mother’s income and presently she has no source of sustenance and is suffering from extreme financial distress. Under the provisions of the DCRB Rules, the authorities are under an obligation to review their decision towards continuance of disbursement of family pension upon comparing the petitioner’s financial condition with that of her father. 7. Per contra, Mr. Majumder, learned advocate appearing for the State respondents submits that the petitioner’s mother herself made a conscious declaration in the pension papers to the effect that family pension should be disbursed in favour of the respondent no.7, as would be explicit from the document at page 96. The marriage of the respondent no.7 with the respondent no.8 was a void marriage in terms of the provisions of the Hindu Marriage Act, 1955. On the date of death of the petitioner’s mother, her matrimonial relationship with the respondent no.7 was subsisting and that in terms of the provisions of Rule 7(2) of the DCRB Rules there was no bar towards grant of family pension in favour of the respondent no.7. Reliance has been placed upon a judgment delivered in the case of G.L. Bhatia Vs. Union of India & Anr., reported in (1999) 5 SCC 237 . 8. Mr. Reliance has been placed upon a judgment delivered in the case of G.L. Bhatia Vs. Union of India & Anr., reported in (1999) 5 SCC 237 . 8. Mr. Sen, learned advocate appearing for the respondent no.7 disputes the contention of the petitioner and submits that in terms of Rule 105 of the DCRB Rules, the family pension is first admissible to the widower and that as such the same has been rightly conferred upon the respondent no.7 since there was no cessation of matrimonial relationship among the petitioner’s mother and the respondent no.7 and such relationship was existing on the date of death of the deceased. In terms of Rule 104 of DCRB Rules, the entitlement of the respondent no.7 to avail family pension continues upto his death or remarriage, whichever is earlier. 9. Heard the learned advocates appearing for the respective parties and considered the materials on record. 10. The petitioner, as a nominee under the Payment of Arrears of Pension (Nomination) Rules, 1986, was granted the benefits of lifetime arrears of pension and other cash benefits were also disbursed in favour of the petitioner as would be explicit from the documents at pages 95 and 178 of the writ petition. There is also no infirmity in the observation of the Finance Department to the effect that for settlement of leave salary the petitioner is required to produce succession certificate or no-objection from her biological father inasmuch as the benefits of cash equivalent of leave salary of the deceased is payable to the ‘family’ of the deceased, as specified under Rule 168B of WBSR Part-I. 11. The petitioner also preferred a suit, being Other Suit No.35 of 2012, inter alia, praying for a declaration to the effect that she is the sole survivor and successor of Chhaya Pal and that she is entitled to get the benefit of family pension but the said suit was subsequently withdrawn by the petitioner with leave to sue afresh on 15th March, 2014 and no document has been produced to show as to whether any suit has again been preferred. 12. 12. For proper adjudication of the matter, the following rules would be relevant : Rule 7(2) for the purpose of a family pension- (i) wife in the case of a male officer, (ii) husband in the case of a female officer, (iii) minor sons including adopted sons, (iv) unmarried minor daughters including adopted daughters, (v) dependant parents. Rule 104. Period during which pension is admissible.-The pension shall be admissible (a) in the case of widow/widower upto the date of death or remarriage whichever is earlier; **(b) in the case of minor son until he attains the years; **(c) in the case of unmarried daughters until she attaints the age of 21 years or marriage whichever is earlier; (d) in the case of dependent parents upto the date of their death or remarriage whichever is earlier. Rule 105. Pension payable to one member of the family.– Subject to the provisions contained in the note under rule 104 the pension awarded under this scheme shall not be payable to more than one member of the Government servant’ s family at the same time, It shall first be admissible to the widows/widower and than to the minor children and thereafter to mother and lastly to father. 13. It is true that Rule 104 of DCRB Rules does not deal with the entitlement of a person to avail the benefits of family pension. It only details the period during which pension would be admissible. Indisputably there was no cessation of the legal matrimonial relationship among the petitioner’s mother and the respondent no.7 and such relationship was subsisting on the date of death of the petitioner’s mother and as such the respondent no.7 was entitled to avail the benefits of family pension and there is no infirmity in the decision of the Finance Department to the effect that the respondent no.7 will continue to enjoy the benefits of family pension till his death or remarriage, whichever is earlier. 14. No provision under the DCRB Rules has been brought to the notice of this Court which debars a widower from availing the benefits of family pension, which accrued due to the service rendered by his spouse, for existence of a void marriage relationship of the widower with any other women. 14. No provision under the DCRB Rules has been brought to the notice of this Court which debars a widower from availing the benefits of family pension, which accrued due to the service rendered by his spouse, for existence of a void marriage relationship of the widower with any other women. There is also no provision under the DCRB Rules to the effect that a void marriage will continue to subsist in law till such marriage is declared to be void by the competent matrimonial forum. In terms of Rule 104 such entitlement to avail family pension continues till he remarries and enters into a valid matrimonial relationship. Neither did the respondent no.7 divorce the petitioner’s mother nor did the petitioner’s mother, during her lifetime, divorce the respondent no.7. Furthermore, the petitioner’s mother, in her service records, incorporated the name of the respondent no.7 declaring, inter alia, that the respondent no.7 should be granted the benefits of family pension. For the reasons discussed above, we do not find any reason to interfere with the judgment impugned. 15. Rule 8(1) of the DCRB Rules provides that “future good conduct shall be an implied condition of every grant of pension”. Rules 3 and 4 of the DCRB Rules provide that authority and power stands vested upon the government to deal with the cases of disbursement of pensionary benefits including family pension in a just and equitable manner. The document at page 167 of the writ petition shows that the respondent no.7 married the respondent no.8 on 14th December, 1998. It stands established that the respondent no.7 married the respondent no.8 during subsistence of his marriage with Chhaya. The Senior Accounts Officer by a memorandum dated 1st February, 2011 (pg.179), in continuation of an earlier memorandum dated 19th August, 2010 (pg.167) requested the respondent no.4 to review the issue of admissibility of family pension among the petitioner and the respondent no.7. 16. Applying the proposition of law to the facts of this case, it needs to be ascertained by the competent authority as to whether the conduct of the respondent no.7 was irreproachable and as to whether the decision towards grant of family pension in favour of the respondent no.7 warrants revisitation. 16. Applying the proposition of law to the facts of this case, it needs to be ascertained by the competent authority as to whether the conduct of the respondent no.7 was irreproachable and as to whether the decision towards grant of family pension in favour of the respondent no.7 warrants revisitation. As such, we are keeping the point open for the authorities to take appropriate steps, subject to grant of a reasonable opportunity of hearing to the respondent no.7, the petitioner and other interested parties, if any. 17. The writ petition is, accordingly, disposed of with the aforesaid findings and observations. There shall, however, be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.