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2019 DIGILAW 2366 (BOM)

Bharati v. Bebitai Punjabrao Atole

2019-10-16

MANISH PITALE

body2019
JUDGMENT : Manish Pitale, J. 1. By this appeal, the original defendants have challenged concurrent orders passed by the two Courts below, whereby the suit filed by the respondent No. 1 (original plaintiff), was decreed and it was held that she was entitled to specific share in the amount towards provident fund dues and insurance policies payable upon demise of Ramesh, who was husband of appellant No. 1 and son of respondent No. 1. 2. The said Ramesh was working with the respondent Nos. 2 and 3 as a Junior Loading Clerk. He died on 09.08.2005 and a question arose as to disbursal of amounts towards gratuity, insurance policies and provident fund dues. While the appellants claimed exclusive right towards such amounts, respondent No. 1, being mother of deceased Ramesh, claimed a share in the said amounts. 3. When her share was denied, respondent No. 1 filed Special Civil Suit No. 117/2006, before the Court of Civil Judge (Senior Division), Chandrapur (Trial Court). The claim of respondent No. 1 was resisted by the appellants and it was claimed by the appellant No. 1 that since she was specifically named as nominee, the entire amount under the aforesaid heads was required to be disbursed to the appellants as per provisions of The Payment of Gratuity Act, 1972, The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and under the insurance policies. By its judgment and order dated 07.07.2010, the Trial Court found that respondent No. 1 was entitled to 1/6th share in the amount towards provident fund and insurance policies, but, she was not entitled to any share towards gratuity payable to the deceased. On this basis, it was declared that the appellants shall pay a sum of Rs. 1,46,065/- along with 6% interest per annum to the respondent No. 1. 4. Aggrieved by the said judgment and order, appellants filed appeal before the Court of District Judge, Chandrapur (Appellate Court). By judgment and order dated 17.01.2018, the Appellate Court dismissed the appeal and confirmed the decree passed by the Trial Court. 5. 1,46,065/- along with 6% interest per annum to the respondent No. 1. 4. Aggrieved by the said judgment and order, appellants filed appeal before the Court of District Judge, Chandrapur (Appellate Court). By judgment and order dated 17.01.2018, the Appellate Court dismissed the appeal and confirmed the decree passed by the Trial Court. 5. Smt. V.P. Thakare, learned counsel appearing for the appellants submitted that in so far as the amounts under the insurance policies are concerned, the appellants are not seriously disputing share granted to respondent No. 1 and, therefore, the dispute in the present case was limited to the question of right of respondent No. 1 to claim share in the amounts payable towards provident fund. It was submitted that the Trial Court had itself denied share in gratuity to respondent No. 1 on the basis that the respondent No. 1 had failed to demonstrate that she was dependent parent of deceased Ramesh and further that since the definition of "family" under the Payment of Gratuity Act, 1972 and the Employees Provident Fund and Miscellaneous Provisions Act, 1952, was identical, for the same reason, share in the amount towards provident fund should also have been denied to respondent No. 1. An argument was also made on behalf of the appellants that since the nomination was made by deceased Ramesh in favour of appellant No. 1, respondent No. 1 could not claim any share in the amount towards provident fund. 6. On the other hand, Mr. N.A. Chauhan, learned counsel appearing for respondent No. 1 submitted that even if appellant No. 1 was nominated by deceased Ramesh, she could not claim exclusive right on the amount towards provident fund because nomination merely meant that the appellant No. 1 could receive the said amount, for being distributed in accordance with law to all the claimants, including respondent No. 1 herein. It was further submitted that the Courts below were justified in granting share to the respondent No. 1 in the amounts payable towards provident fund. 7. Mr. Yash Venkatraman, Advocate holding for Mrs. Gauri Venkatraman, Advocate, appearing for respondent No. 2 and 3 submitted that the scheme applicable in the present case was Coal Mines Provident Fund Scheme, 1948 and that the contesting claims made by the appellants and respondent No. 1 were required to be decided in terms thereof. Mr. 7. Mr. Yash Venkatraman, Advocate holding for Mrs. Gauri Venkatraman, Advocate, appearing for respondent No. 2 and 3 submitted that the scheme applicable in the present case was Coal Mines Provident Fund Scheme, 1948 and that the contesting claims made by the appellants and respondent No. 1 were required to be decided in terms thereof. Mr. Jayant Mokadam, learned Advocate appeared on behalf of respondent No. 4 while Mr. S.S. Nerkar, appeared on behalf of respondent No. 5. 8. This Court framed substantial question of law in this appeal on 27.06.2018 and subsequently on 30.08.2019, another substantial questions of law was framed. The two substantial questions of law framed by this Court in this appeal read as follows: "(i) In the light of nomination made by the deceased in favour of the defendant No. 1, whether the plaintiff is entitled to claim a share in the amount received by the defendant No. 1 on the death of the assured? (ii) Whether the Courts below were justified in granting share in provident fund amount to the respondent No. 1 (original plaintiff) when it was held that she was not entitled to share in gratuity on the basis that she could not be said to be a dependent parent of the deceased as covered under definition "family" under the Payment of Gratuity Act, 1972 when definition of "family" even under paragraph 2(g) of the Employees Provident Fund Scheme, 1952 is similar to the definition under the Payment of Gratuity Act, 1972?" 9. In so far as first substantial question of law is concerned, regarding nomination made by deceased Ramesh, the controversy is no longer res-integra, because this Court in the case of Nozer Gustad Commissariat vs. Central Bank of India and Others, 1993 Mh. L.J. 228, in the context of entitlement towards provident fund under the aforesaid Act, held as follows: "There are two main points of distinction, which have to be kept in mind while considering the submission concerning literal interpretation of section 10(2) of the 1952 Act as appears to have been done by the High Court of Calcutta. The question to be asked is why the word "absolutely" hitherto before existing in section 5 of the Employees' Provident Funds Act, 1925 was deliberately omitted by the Amending Act XI of 1946. The question to be asked is why the word "absolutely" hitherto before existing in section 5 of the Employees' Provident Funds Act, 1925 was deliberately omitted by the Amending Act XI of 1946. Was it the intention of the Legislature that even after omission of the said work from the said provision, the nominee must be held to have an absolute right to the provident fund amount lying to the credit of the deceased employee. Even prior to 1946, some of the High Courts had interpreted the provision to mean that the nominee of provident fund had no title to the amount belonging to the deceased subscriber. The object of Amending Act, 1946 by directing omission of word absolutely from section 5 of the Act of 1925 was to make it clear beyond doubt that the nominee would have no title to the amount. Section 10(2) of Act of 1952 does not use the word "absolutely." It appears to me that the Supreme Court judgment highlighting various meanings of the word "vest" in the case of Fruit and Vegetable Merchants Union vs. Delhi Improvement Trust, (1957) AIR SC 344 and holding that the word "vest" in the context could mean mere possession for specific purpose without any title was not cited before the Hon'ble High Court of Calcutta. If the various English and Indian cases noticed by Hon'ble Justice Sinha of the Supreme Court in the above referred judgment are to be considered and applied having regard to the context and object of the Act, it would follow that the use of the word "vest" in section 10(2) of the Act merely means that the nominee is merely entitled to collect the amount for benefit of heirs of the deceased coupled with exemption thereof from attachment and subject to category of heirs being restricted as specified in Provident Funds Scheme. I therefore, hold that the provident fund amount forms belonging to the estate of the deceased and the petitioner is solely entitled thereto. Having regard to the facts of this case, the respondent No. 4 is liable to be restrained from collecting the said amount from the former employer of the deceased. It is the duty of this Court to pass appropriate orders so as to safeguard the interest of petitioner minor and pass order of injunction against respondent No. 4 having regard to the above. It is the duty of this Court to pass appropriate orders so as to safeguard the interest of petitioner minor and pass order of injunction against respondent No. 4 having regard to the above. I am supported in the view which I have taken on interpretation of section 10(2) of the Employees' Provident Funds and Misc. Provisions Act, 1952 and also by judgments of High Court of Delhi in the case of Smt. Om Wati vs. Delhi Transport Corporation, (1988) Lab IC 500 and also the recent judgment of the High Court of Gujrat in the case of Lalitaben Bhanabhai D/o Bhanabhai Malabhai vs. Laliben Bhanabhai W/o Bhanabhai Malabhai, (1992) 1 CLR 164 ." 10. The above quoted portion of the said judgment clearly shows that nomination made in favour of appellant No. 1, would not deprive the respondent No. 1 of a share in the amount towards provident fund, if she was entitled to said amount under the provident fund scheme. Therefore, first substantial question of law is answered against the appellants and in favour of respondent No. 1. 11. As regards second substantial question of law, it was clarified at the outset by the learned counsel for the respondents No. 2 and 3 that the present case was covered under the Coal Mines Provident Fund Scheme, 1948 and that, therefore, the said substantial question of law would have to be decided by taking the same into consideration and not just the provisions of the Employees' Provident Fund Scheme, 1952, framed under the aforesaid Act. The learned counsel for rival parties did not dispute the said fact of applicability of Coal Mines Provident Fund Scheme, 1948 and, therefore, the learned counsels were heard on the second substantial question of law by taking into consideration the aforesaid scheme of 1948. 12. It is relevant that the Trial Court in the present case held that the respondent No. 1 was not entitled to share towards gratuity amount because definition of "family" under the payment of Gratuity Act, 1972, specifies that dependent parent would be a member of such family to be entitled for share in gratuity. 12. It is relevant that the Trial Court in the present case held that the respondent No. 1 was not entitled to share towards gratuity amount because definition of "family" under the payment of Gratuity Act, 1972, specifies that dependent parent would be a member of such family to be entitled for share in gratuity. It was further held by the Trial Court that evidence on record demonstrated that respondent No. 1, though being the mother of deceased Ramesh, had not established that she was dependent on deceased Ramesh and, therefore, she could not be included in the definition of "family", thereby denying share to the respondent No. 1 towards gratuity amount. This finding about the respondent No. 1 not being dependent was confirmed and had attained finality as there was no challenge raised to the same on behalf of the respondent No. 1. 13. It is not disputed that the definition of "family" under the Payment of Gratuity Act, 1972, is identical to the definition of "family" under the Employees' Provident Funds Scheme, 1952, framed under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, but, since it was pointed out that the present case was covered under the Coal Mines Provident Fund Scheme, 1948, it was necessary to peruse the definition of "family" under the Payment of Gratuity Act, 1972 and the Employees Provident Fund Scheme, 1952, as also the Coal Mines Provident Scheme, 1948. 14. "Family" under the Employees Provident Fund Scheme, 1952 under clause 2(g) is defined as follows: "(g) "Family" means:- (i) in the case of a male member, his wife, his children, whether married or unmarried, his dependent parents and his deceased son's widow and children: Provided that if a member proves that his wife has ceased, under the personal law governing him or the customary law of the community to be deemed to be a part of member's family for the purpose of this Scheme, unless the member subsequently intimates by express notice in writing to the Commissioner that she shall continue to be so regarded. (ii) in the case of a female member, her husband, her children, whether married or unmarried, her dependent parents, her husband's dependent parents and her deceased son's widow and children: Provided that if a member by notice in writing to the Commissioner expresses her desire to exclude her husband from the family, the husband and his dependent parents shall no longer be deemed to be a part of the member's family for the purpose of this Scheme, unless the member subsequently cancels in writing any such notice. Explanation - In either of the above two cases, if the child of a member [or, as the case may be, the child of a deceased son of the member] has been adopted by another person and if, under the personal law of the adopter, adoption is legally recognised, such a child shall be considered as excluded from the family of he member." 15. "Family" is defined in Clause 2(h) of the Coal Mines Provident Fund Scheme, 1948 reads as follows: "(h) "Family" means in the case of a male member, his wife, his children, whether married or unmarried, his dependent parents and his deceased son's widow and children. Provided that if a member proves that his wife has ceased under the personal law governing him or the customary law of the community to which the spouse belongs to be entitled to maintenance she shall no longer be deemed to be a part of the member's family in matters which this scheme relates, unless the member subsequently intimates by express notice in writing to the commissioner that she shall continue to be so regarded. In the case of a female member, her husband, her children whether married or unmarried, her dependent parents, her husband's dependent parents and her deceased son's widow and children. Provided that if a member by notice in writing to the commissioner expresses her desire to exclude her husband from the family, the husband shall no longer he deemed to be a part of the member's family in matters to which this scheme relates unless the member subsequently cancels in writing any such notice. Provided that if a member by notice in writing to the commissioner expresses her desire to exclude her husband from the family, the husband shall no longer he deemed to be a part of the member's family in matters to which this scheme relates unless the member subsequently cancels in writing any such notice. Explanation - In either of the above two cases, if the child of a member [or as the case may be, the child of a deceased son of a member] has been adopted by another person and it, under the personal law of the adopter adoption is legally recognised such a child shall be considered as excluded from the family of the member." 16. Definition of "family" under Section 2(h) of the Payment of Gratuity Act, 1972 reads as follows: "Family" in relation to an employee, shall be deemed to consist of:- (i) in the case of a male employee, himself, his wife, his children, whether married or unmarried, his dependent parents [and the dependent parents of his wife and the widow] and children of his predeceased son, if any. (ii) in the case of a female employee, herself, her husband, her children, whether married or unmarried, her dependent parents and the dependent parents of her husband and the widow and children of her predeceased son, if any: Explanation - Where the persons law of an employee permits the adoption by him of a child, any child lawfully adopted by him shall be deemed to be included in his family and where a child of an employee has been adopted by another person and such adoption is, under the personal law of the person making such adoption, lawful, such child shall be deemed to be excluded from the family of the employee." 17. A comparison of the aforesaid three definitions under the said schemes and Act would show that they are identical in so far as the claim of respondent No. 1 in the present case is concerned, because dependent parents under all the definitions are covered under the expression "family." 18. In this backdrop, the learned counsel appearing for the appellants invited attention of this Court to a crucial admission given in cross - examination by respondent No. 1. The said respondent in cross-examination admitted that she was dependent on her husband and that she lived with her husband and another son named Suresh. In this backdrop, the learned counsel appearing for the appellants invited attention of this Court to a crucial admission given in cross - examination by respondent No. 1. The said respondent in cross-examination admitted that she was dependent on her husband and that she lived with her husband and another son named Suresh. This admission and other such material on record was taken into consideration by the Trial Court while giving categorical finding that respondent No. 1 was not dependent upon deceased Ramesh. It is on the basis of such finding that the Trial Court itself found that respondent No. 1 was not entitled to share towards gratuity amount. 19. It is surprising that when definition of "family" under the Payment of Gratuity Act, 1972 and Provident Fund Scheme applicable in the present case was identical, the Trial Court thought it fit to hold that the respondent No. 1 did have share in the amount payable towards provident fund. Once it was established by evidence on record that the respondent No. 1 was not a dependent parent of deceased Ramesh, she did not qualify to be considered as "family" under the Provident Fund Scheme and therefore, she could not claim any share towards provident fund in the present case. This aspect was clearly ignored by the Appellate Court while considering the challenge raised by the appellants in the present case. Therefore, it is found that the two Courts below have erred in holding in favour of respondent No. 1 in so far as share in amount towards provident fund is concerned. To that extent the decree passed by the Courts below deserves to be set aside. 20. But, since the appellants have conceded to the fact that they are not disputing about the entitlement of respondent No. 1 towards share in the amounts payable under the insurance policies, it is held that the respondent No. 1 is entitled towards 1/6th share in the amounts received by the appellants towards insurance policies. 21. In view of above, second substantial question of law is answered in favour of the appellants and against the respondent No. 1. Accordingly, the appeal is partly allowed and the decree passed by the Courts below to that extent is set aside by holding that the respondent No. 1 is not entitled to any share in the amount towards provident fund. Accordingly, the appeal is partly allowed and the decree passed by the Courts below to that extent is set aside by holding that the respondent No. 1 is not entitled to any share in the amount towards provident fund. It is held that the respondent No. 1 would be entitled to share in only the amount towards insurance policies. Accordingly, decree is modified and it is held that the respondent No. 1 shall be entitled to 1/6th share in the amount of Rs. 4,41,310/- received by the appellant No. 1 towards insurance policies. The respondent No. 1 would be entitled to interest @ 6% per annum from the date of filing of suit till the said amount is paid to her. It is brought to the notice of this Court that the execution of decree had been stayed during pendency of the present appeal on the appellants depositing Rs. 75,000/- in the Appellate Court. The respondent No. 1 is permitted to withdraw the said amount along with accrued interest, if any from the Appellate Court. 22. Needless to say, the withdrawal of the said amount by respondent No. 1 as per order passed by this Court while partly allowing the present appeal shall be taken into account while ascertaining the amount payable to respondent No. 1 towards aforesaid 1/6th share in the amount received by the appellant No. 1 under the insurance policies. The decree is accordingly modified in above terms as the appeal stands allowed partly. 23. Appeal is disposed of in above terms with no order as to costs.