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2019 DIGILAW 742 (GAU)

Buchiya Devi v. Union of India

2019-06-13

A.K.GOSWAMI, MANISH CHOUDHURY

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JUDGMENT : A.K. Goswami, J. 1. Heard Ms. M.D. Choudhury, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned standing counsel, N.F. Railway, appearing for the respondent Nos. 1 to 5 and Mr. B.J. Mukherjee, learned counsel, appearing for the respondent No. 6. 2. By this writ application, the petitioner calls into question the order dated 07.03.2017 passed by the learned Central Administrative Tribunal, Guwahati Bench (for short, "Tribunal") in Original Application No. 040/00047/2017. 3. The case projected in the original application, a copy of which is handed over to the Court during the course of the proceedings, in a nutshell, is that the petitioner claimed to be the wife of Late Sudarshan Yadav, who died in harness while in service as a Grade-IV employee serving at New Bongaigaon under N.F. Railway. It is stated that they were married in the year 1973 as per Hindu rights and customs and out of the wedlock, three children (two sons and one daughter) were born. Sudarshan Yadav died on 15.12.2016 at Railway Hospital, New Bongaigaon. Though initially she with her three children were living with the deceased husband at Bongaigaon, subsequently they were sent to Gorakhpur where the in-laws of the petitioner resided and till 1993, her husband used to pay money through cheque for their maintenance. In the year 1994, she came to visit her husband at New Bongaigaon and was shocked to find that her husband was living with the respondent No. 6, who claimed herself as the second wife of the deceased husband. In such circumstance, she went back to the place of her in-laws at Gorakhpur and filed an application being F.C. Case No. 65/1994 before the learned Family Court at Gorakhpur claiming monthly maintenance for herself and her children. 4. Initially the Court granted Rs. 500/- as monthly maintenance to the petitioner, which was subsequently enhanced to Rs. 1000/-. The further case projected is that the respondent No. 6 was already a married woman having two children from her first husband. The petitioner approached the respondent authorities for release of pensionary and other benefits as heirs and successors but she came to learn that the respondent authorities had started the process for releasing the pensionary and other benefits to the respondent No. 6. 5. The petitioner approached the respondent authorities for release of pensionary and other benefits as heirs and successors but she came to learn that the respondent authorities had started the process for releasing the pensionary and other benefits to the respondent No. 6. 5. It was in this background, approach was made to the learned Tribunal praying for release of the pensionary and other benefits in her favour and also to give an opportunity to one of her sons for appointment on compassionate ground. 6. Noting the submission of the learned counsel appearing for the petitioner that the case of the petitioner was not being considered in view of the fact that another lady was claiming to be the legally married wife of the deceased employee, the learned Tribunal by the impugned order dated 07.03.2017 opined that there was no merit for entertaining the original application and accordingly, relegated the petitioner to the appropriate Civil Court to establish that she is the legally married wife of the deceased employee. It is common ground of the learned counsel appearing for the parties that no notice was issued to the respondent No. 6 when the said order was passed. 7. Ms. Choudhury has submitted that the learned Tribunal committed manifest error of law in relegating the petitioner to the Civil Court instead of examining the case presented by the petitioner or in the alternative, in not directing the Railway Authorities to make an enquiry to find out as to who amongst the petitioner and the respondent No. 6 was legally entitled to the benefits on behalf of the deceased employee. She has contended that in terms of the order dated 01.01.1996 passed by the learned Family Court, Gorakhpur, the deceased husband was paying the monthly maintenance to the petitioner and that in the said order, it was also reflected that the petitioner is the wife of Late Sudarshan Yadav. 8. The records produced by Mr. Sarma were also made available for inspection by the learned counsel appearing for the petitioner and the respondent No. 6 and on the basis thereof, Ms. Choudhury has submitted that in the written statement that was filed, which is there on record in Hindi, Late Sudarshan Yadav had acknowledged the petitioner to be his wife. A sum of Rs. Sarma were also made available for inspection by the learned counsel appearing for the petitioner and the respondent No. 6 and on the basis thereof, Ms. Choudhury has submitted that in the written statement that was filed, which is there on record in Hindi, Late Sudarshan Yadav had acknowledged the petitioner to be his wife. A sum of Rs. 25,000/- had fallen into arrears because of validity of the cheques having expired and recently, the said amount has also been credited to the account of the petitioner. 9. Mr. Mukherjee has submitted that it was the respondent No. 6, who was living with Sudarshan Yadav all along and after his death, cremation and other rituals had also been performed by her. He further submits that on the basis of the uncertified photocopies which are available on record, it cannot be held that Sudarshan Yadav had acknowledged the petitioner to be his wife. It is further submitted by him that as regard Provident Fund, there is a nomination in favour of the respondent No. 6 and, therefore, there is no impediment for release of the amount of Provident Fund in favour of the respondent No. 6. In the facts arising, it is submitted by him that the learned Tribunal committed no error in law in relegating the petitioner to avail the remedies before the Civil Court. He has also submitted that the name of the petitioner is nowhere reflected in the service records of the respondent Railway and it was the respondent No. 6, whose name figured along with her children in the Family Declaration Form, Gratuity, Provident Fund and Group Insurance. 10. Mr. Sarma has submitted that in the facts and circumstances where a dispute had arisen between the two ladies, who proclaimed to be the wives of the deceased employee, the learned Tribunal was justified in relegating the petitioner to the Civil Court. It is, however, submitted by him that on the basis of the records available with him that though there is some nomination form in respect of Group Insurance, Gratuity, Provident Fund, save and except Provident Fund, the other nominations were not signed. 11. It is, however, submitted by him that on the basis of the records available with him that though there is some nomination form in respect of Group Insurance, Gratuity, Provident Fund, save and except Provident Fund, the other nominations were not signed. 11. Rule 70(1)(b) of the Railway Services (Pension) Rules, 1993 (for short "1993 Rules") deals with a situation where a Railway servant dies while in service and it is indicated that amount of death gratuity shall be paid to the family in the manner indicated in the Table appended thereto. "Family" is defined for the purpose of Rules 71, 73 and 74 in Rule 70(5) of the 1993 Rules. Rule 71(1)(a) provides that gratuity payable under Rule 70 shall be paid to the person or persons on whom the right to receive the gratuity is conferred by making a nomination under Rule 74. Rule 74 of the 1993 Rules provides that a Railway servant shall, on his initial confirmation in a service or post, make a nomination in Form 4 or Form 5, as may be appropriate in the circumstances of the case, conferring on one or more persons the right to receive the death-cum-retirement gratuity payable under Rule 70. It is also provided that if at the time of making the nomination the Railway servant has a family, the nomination shall not be in favour of any person or persons other than the members of his family and if the Railway servant has no family, the nomination may be made in favour of a person or persons, or a body of individuals, whether incorporated or not. 12. Rule 75 provides for a family pension scheme for Railway servants. It is not necessary for us to deal with the Rule in its entirety but suffice is to say that the family of the deceased shall be entitled to the family pension and the amount shall be determined as per the Table appended to Rule 70(1)(b). So far as this rule is concerned, family means family as defined in Rule 75(19)(b). 13. So far as this rule is concerned, family means family as defined in Rule 75(19)(b). 13. In Smt. Violet Issaac and Others vs. Union of India and Others, (1991) 1 SCC 725 , the Hon'ble Supreme Court had held that the family pension scheme is in the nature of welfare scheme and the employee has no title or any control over the family pension as he is not required to make any contribution to it. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition. The extant Rules also do not indicate that it provides for any nomination with regard to the members of the family of the deceased. 14. The Hon'ble Supreme Court in the case of Rameswari Devi vs. State of Bihar and Others, (2000) 2 SCC 431 , wherein the dispute was in relation to payment of family pension and death-cum-retirement benefit to the two wives of the deceased employee, has held that disbursement of pension cannot wait till a Civil Court pronounces upon the respective rights of the parties as that would certainly be a long drawn affair. It was also observed in the context of the case that the State Government was not debarred from making an enquiry about the existence of such a marriage and act on that in order to grant pensionary and other benefits. 15. A nomination does not have the affect of conferring on the nominee the beneficiary interest on the amount payable. It only specifies the person, who is authorised to receive the amount and to make the payment on behalf of such nominee. A nomination is not to be equated to the only person entitled to the amount in question and the amount received by the nominee can be claimed by the heirs in accordance with the law of succession governing the field. 16. The materials on record do not indicate on what date the services of the Railway servant was confirmed or in what post. The first nomination in the Provident Fund, Mr. Sarma submits, was made on 08.05.2011. The materials on record including the pleading before this Court also do not indicate on what date the respondent No. 6 got married to Late Sudarshan Yadav. But there is some document to suggest that a maintenance case was filed by the present petitioner against Sudarshan Yadav. Sarma submits, was made on 08.05.2011. The materials on record including the pleading before this Court also do not indicate on what date the respondent No. 6 got married to Late Sudarshan Yadav. But there is some document to suggest that a maintenance case was filed by the present petitioner against Sudarshan Yadav. In the written statement filed in F.C. Case No. 65/1994, according to the translated version produced by Ms. Choudhury, it appears that the deceased Railway employee had acknowledged the petitioner to be his wife but we hasten to add that we do not record any conclusion in this regard. 17. In the attending facts and circumstances, we are of the opinion that it will be in the interest of justice to direct the respondent authorities to hold an enquiry to find out who is/are the rightful persons for the purpose of grant of pensionary and other benefits in respect of Sudarshan Yadav. 18. Ordered accordingly. 19. Needless to say that such an enquiry has to be made in conformity with the principles of natural justice and both the petitioner and the respondent No. 6 shall be given due opportunity in such enquiry. The decision has to be taken bonafide, reasonably and rationally on the basis of the materials on record as well as the materials that may be furnished by the contesting parties. Upon such determination, the respondent authorities will proceed to disburse the pensionary and other benefits to the rightful person. Till such enquiry is concluded, the pensionary and other benefits shall not be given to any of the parties. 20. The impugned order dated 07.03.2017 passed by the learned Tribunal is set aside. 21. The writ petition stands disposed of with the above observations and directions.