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2020 DIGILAW 1293 (KAR)

Shanta Sadani v. General Manager, New Gms Office

2020-07-01

SACHIN SHANKAR MAGADUM

body2020
JUDGMENT Sachin Shankar Magadum, J. - The captioned writ petition is filed by the petitioner herein seeking writ of mandamus against the respondents to consider the case for grant of fami ly pension to the petitioner with effect from 06.06.2016 as per request made vide Annexures-J and K dated 07.07.2017 and 14.08.2017 respectively. 2. The facts leading to the top noted writ petition are as under: The petitioner is claiming to be the legally wedded wife of one Sri S.Joseph son of D.Sanjeevinathan. The husband of the petitioner was working as a Goods Guard in Gadag and retired from services on 29.08.1996 in Hubballi Division of South Western Railway, under Divisional Railway Manager, Hubballi. The petitioner to evidence the same, has furnished service certificate issued by the 3rd respondent as per Annexure-A to the writ petition. It is the case of the petitioner that the 5th respondent sanctioned pension as per Pension Payment Order (PPO) No.5905202756, dated 12.09.1997 and also claims that pension was revised by the 5th respondent after the implementation of 6th Pay Commission with effect from 01.01.2006 and the same is also placed on record as per Annexure-B2. 3. The case of the petitioner is that her husband died on 05.06.2016 and to evidence the same, the petitioner has placed on record the death certificate as per Annexure-C. 4. The case of the petitioner before this Court is that her husband had married first wife by name Arogyamerry @ Tavamani on 01.01.1970 and had led marital life with the said Arogyamerry @ Tavamani up to 1981. The case of the petitioner before this Court is that the said Arogyamerry @ Tavamani deserted her husband and started living with another person by name P.Dhanaraj. It is also averred in the writ petition that in the wedlock of the pensioner and Arogyamerry @ Tavamani there are no issues. A specific contention is taken at paragraph No.4 of the writ petition that the said Arogyamerry @ Tavamani having deserted the petitioner's husband started residing with one P.Dhanaraj and she has three chi ldren. 5. It is also averred in the writ petition that in the wedlock of the pensioner and Arogyamerry @ Tavamani there are no issues. A specific contention is taken at paragraph No.4 of the writ petition that the said Arogyamerry @ Tavamani having deserted the petitioner's husband started residing with one P.Dhanaraj and she has three chi ldren. 5. The contention of the petitioner before this Court is that, since there was litigation pending between the petitioner's husband and his first wife, the authorities did not include the petitioner's name in the Pension Payment Order (PPO) in-spite of repeated representations submitted by the petitioner's husband, which are produced before this Court as per Annexures-F and G. At paragraph No.7 of the writ petition, the petitioner has speci fically contended that the 3rd respondent has issued retirement pass to the pensioner i.e., the husband of the petitioner herein by duly including the petitioner as wi fe on 19.05.2015. The petitioner by relying on the copy of the pass has furnished the same before this Court as per Annexure-H. 6. The grievance of the petitioner is that, after the death of pensioner, the petitioner has submitted representation on 07.07.2017 to the 3rd respondent by annexing al l the relevant documents for sanction of family pension. The petitioner has also submitted another representation dated 14.08.2017 to the Member Staff Railway Board, New Delhi . The grievance of the petitioner before this Court is that in-spite of petitioner having submitted representation on 07.07.2017, the respondents have not sanctioned the family pension. On these set of facts, the petitioner is before this Court seeking writ of mandamus against the respondents. 7. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record. 8. The counsel for the petitioner would vehemently argue and contend before this Court is that, in view of amendment to Rule 75(7)(i)(a) of Railway Services (Pension) Rules, 1993 would submit to this Court that, even if, the present petitioner is accepted as second wife, still the respondents-authorities are under legal duty to sanction family pension in the light of amendment brought to the Railway Services (Pension) Rules, 1993. 9. To buttress his arguments, he would rely on the judgment of Hon'ble Apex Court rendered in the case of Union of India through General Manager, South East Centre Railway and another Vs. 9. To buttress his arguments, he would rely on the judgment of Hon'ble Apex Court rendered in the case of Union of India through General Manager, South East Centre Railway and another Vs. Jayawantabai confirming the Division Bench judgment of the High Court of Bombay at Nagpur in W.P.No.4467/2014. By relying on this judgment, learned counsel for the petitioner would submit to this Court that the respondents in view of amendment to Rule 75 to Railway Services (Pension) Rules, 1993, are bound to pay pension. 10. Per contra, learned counsel for the respondents would rely on the judgment of the Hon'ble Apex Court in the case of Khursheed Ahmad Khan Vs. State of U.P., (2015) AIR SC 1429 and Division Bench judgment of this Court in the case of Union of India represented by the General Manager, South Western Railway, Hubbal li and others Vs. Smt.Nithya S.E. and another, (2017) 2 KCCR 1225 (DB) and contend before this Court that the petitioner is not entitled for pension since the pensioner was ordered for compulsory retirement for having contracted second marriage during subsistence of first marriage. Relying on the judgment of the Division Bench of this Court learned counsel for the respondents would vehemently argue and contend before this Court that, conjoint homogeneous reading of Rule 21(1) of the Railway Servants (Conduct) Rules, 1996 and paragraph No.7 of Family Pension Scheme for Railway servants would make it amply clear that second wife is not entitled to fami ly pension. Rule 21(1) of the Rules states that no Railway servant, having a spouse living shall enter into, or contract, a marriage with any person. She would further submit that, however, the Government by exercising its discretion may permit a Railway servant to enter into such second marriage, if it is satisfied that such marriage is permissible under the personal law applicable to such Railway servant and other party to the marriage. Relying on paragraph No.8 of the judgment, learned counsel for respondents would submit to this Court that the Division Bench has held that as a general rule, the second marriage for a Railway servant is impermissible. 11. Relying on paragraph No.8 of the judgment, learned counsel for respondents would submit to this Court that the Division Bench has held that as a general rule, the second marriage for a Railway servant is impermissible. 11. Having heard the learned counsel for the petitioner and respondents and having examined the material on record, this Court is of the view that the judgment relied on by learned counsel for petitioner in the case of Union of India through General Manager, South East Centre Railway and another Vs. Jayawantabai is applicable to the present case on hand. The judgments relied on by the learned counsel for the respondents cannot be considered to the present set of facts, in the light of latest judgment of Hon'ble Apex Court which is rendered in the year 2014 and same is the latest law in the point of time. 12. On perusal of material on record, it is forthcoming that the husband of the petitioner was given compulsory retirement for having violated the Railway Servants (Conduct) Rules, 1966. It is not in dispute that the husband of petitioner was receiving pension ti l l his death. After the death of the pensioner the present petitioner claiming to be the widow has submitted a representation to the respondent-authorities. The petitioner has also placed on record, the order passed in M.C.No.18/2008, wherein the marriage of husband of petitioner and with first wi fe Arogyamerry @ Tavamani is dissolved by order dated 31.01.2009. 13. In the present case on hand, the contention of the respondents that the petitioner being the second wife is not entitled for family pension cannot be accepted and the same has to be rejected in the light of the amendment brought to Rule 75 of the Railway Services (Pension) Rules, 1993. The relevant amendment for the purpose of better understanding is culled out hereunder: "75(7)(i)(a) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares." 14. The Division Bench of High Court of Bombay at Nagpur whi le interpreting the amended provisions to Rule 75 to the Railway Services (Pension) Rules, 1993 was of the view that the provisions of amended Rule 75 made by the Indian Railways is not in confl ict or interdiction with Section 11 of the Hindu Marriage Act. The Division Bench of High Court of Bombay at Nagpur whi le interpreting the amended provisions to Rule 75 to the Railway Services (Pension) Rules, 1993 was of the view that the provisions of amended Rule 75 made by the Indian Railways is not in confl ict or interdiction with Section 11 of the Hindu Marriage Act. The Division Bench expressed that respondents-Railways for having brought in the amendment was of the view that this amendment would ultimately achieve the constitutional goal and would protect an unfortunate wife/widow and the amended provision would enable even the second wife to seek pension for survival. The Division Bench while examining the above said amendment also observed the payment of pension to two widows is required to be made in equal share and this would no way burden the treasury or the Indian Railways by inserting the said noble ideal . This judgment is confirmed by the Hon'ble Apex Court in Civi l Appeal No.11491/2015 by judgment dated 08.05.2015. In this background, I am of the view that insofar as the second wife seeking pension in the light of the amendment to the Railway Services (Pension) Rules, 1993 has to be treated as a widow and thereby she is entitled for pension. Though scheme of pension rules in respect of employees did not permit a second wife from seeking family pension, but however, in the present case on hand since the petitioner's husband was an employee of respondent-Railways, she has to be treated as widow, in the light of the amendment brought in by the respondent-Railways to Rule 75 of the Railway Services (Pension) Rules, 1993. 15. Having examined the documents and rival contentions of the parties, this Court is of the view that the respondents-Authorities are require to examine the petitioner's case for grant of fami ly pension in terms of the amended provisions of Rule 75(7)(i)(a) of Railway Services (Pension) Rules, 1993 and also the judgment rendered by the Division Bench of High Court of Bombay at Nagapur in the case of Union of India through General Manager, South East Centre Railway and another Vs. Jayawantabai. 16. For the reasons stated supra, writ petition is allowed. Jayawantabai. 16. For the reasons stated supra, writ petition is allowed. Respondent Nos.3 to 5 are directed to consider the case of the petitioner for grant of family pension as per representations submitted as per Annexures-J & K by taking into note of the amended provision of Rule 75(7)(i)(a) of Railway Services (Pension) Rules, 1993 and also the judgment of the Division Bench of High Court of Bombay at Nagapur rendered in the case of Union of India through General Manager, South East Centre Railway and another Vs. Jayawantabai. This exercise shall be done by the respondents-authorities within a period of eight weeks from the date of receipt of copy of this