Research › Search › Judgment

Madras High Court · body

2020 DIGILAW 1762 (MAD)

G. Minnoli v. Accountant General (A & E), Chennai

2020-09-30

A.P.SAHI, SENTHILKUMAR RAMAMOORTHY

body2020
JUDGMENT : A.P. Sahi, J. (Prayer: Appeal filed under Clause 15 of the Letters Patent against the order dated 20.07.2018 passed in W.P.No.28357 of 2008 on the file of this Court.) 1. This is a very peculiar case on the given facts where the appellant is said to have married one R.Govindarajan in 1985 and a male child was born from the wedlock, who was earlier named as Ramkumar and is stated to be now known as G.Ravikumar. 2. The appellant herself discloses that she started living with one Mr.K.H.Aseef after the death of her husband, which she now describes not to be a valid marriage. But, in order to continue to receive the family pension after the death of her husband, she represented herself voluntarily before the Superintending Engineer, Public Works Department that she got remarried on 25.11.1991 to Mr.Aseef and therefore, the pension may now be continued in favour of her then minor son whose date of birth is 19.07.1986. Acting upon the said representation of the appellant, the Superintending Engineer passed an order on 18.07.1992 in terms of Rule 49 of the Tamil Nadu Pension Rules, 1978 extending the benefit of family pension to be paid to the said minor under the guardianship of his mother. The son became a major and continued to receive family pension. 3.It appears that the appellant moved an application on 15.11.2006 that was forwarded by the Executive Engineer to the Accountant General on 29.01.2007 recommending the continuance of pension in appellant's favour instead of her son. The said letter is extracted hereinunder:- PUBLIC WORKS DEPARTMENT FROM TO Er.P.Balasubramanian, B.E., The Accountant General (A & E), Executive Enginer, PWD, WRO, Tamilnadu, 361, Anna Salai, Aliyar Basin Division, Chennai 600 018. Pollachi 642 003. Letter No. AD1/139/06(3182) Dated 29.01.2007 Sir, Sub: Pension – Family – G.Minnoli, Wife of Late R.Govindarajan, Assistant Engineer, P.W.D. - Udumalpet Division, Udumalpet Died on 20.11.1986 wile in Service - Contract Dated 25.11.1991 with enter into marriage – Not materialized – Pension Payment Order No.65708/FA Dated 4.10.1984 – payment of Family Pension to me – Requested – Regarding. Ref: 1)Letter No.EA1/4503/92-1 Dated 18.7.92 of the Superintending Engineer, P.W.D., Parambikulam Aliyar Basin Circle, Pollachi to the Chief Engineer (General) P.W.D., Madras (copy enclosed). 2)Letter No.E.III (2)/820020/92-1 Dated 13.10.92 of the Chief Engineer (General), P.W.D., Chepauk, Chennai-5 addressed to the Accountant General, Chennai-18. 3)Tmt.G.Minnoli, Assistant, Application dated 15.11.2006. Ref: 1)Letter No.EA1/4503/92-1 Dated 18.7.92 of the Superintending Engineer, P.W.D., Parambikulam Aliyar Basin Circle, Pollachi to the Chief Engineer (General) P.W.D., Madras (copy enclosed). 2)Letter No.E.III (2)/820020/92-1 Dated 13.10.92 of the Chief Engineer (General), P.W.D., Chepauk, Chennai-5 addressed to the Accountant General, Chennai-18. 3)Tmt.G.Minnoli, Assistant, Application dated 15.11.2006. ----------- Sir, I enclose one application (with enclosure) received from Tmt.G.Minnoli, Assistant, W/o.Late Thiru R.Govindarajan, Assistant Engineer, P.W.D. requesting for the payment of Family Pension with effect from 19.7.04 onwards. In this regard, I have to state that Tmt.G.Minnoli, W/o.(Late) Thiru.R.Govindarajan, was sanctioned Family Pension by the Accountant General with effect from 21.11.1986, vide PPO No.65708/FA, consequent on the death of her husband Thiru.R.Govindarajan, Assistant Engineer, on 20.11.86 while he was in service. Subsequently the Family Pension was sanctioned to her son selvan G.Ramkumar (now known as G.Ravikumar) born thro' her husband Thiru.R.Govindarajan with effect from 25.11.91 as per request and as recommended by the Superintending Engineer, P.W.D., Parambikulam Aliyar Basin Circle, Pollachi, in reference (1) cited. As the Agreement made between K.H.Aseef and Tmt.G.Minnoli, Assistant on 25.11.91 was a contact with enter into marriage and the Agreement did not become actual fact and put into practice, and she is not interested in the remarriage in future and not got remarried so far, she has requested to sanction the Family Pension to her with effect from 19.7.2004 onwards. I request that the application of Tmt.G.Minnoli, Assistant, P.W.D. of this office may kindly be complied with and necessary authorization may please be issued for the payment of Family Pension to her with effect from 19.7.2004 onwards. Sd/- P.Balasubramanian, Executive Engineer, P.W.D., W.R.O. Aliyar Basin Division, Pollachi-3. 4. This had been done on an affidavit moved by the appellant which is as follows:- NON REMARRIAGE AFFIDAVIT I, Mrs.G.Minnoli, W/o Late R.Govindarajan, residing at 5/197-N, M.G.R.Nagar, Chinnampalayam Panchayat, backside of P.A.P. Colony, Makkinampatti PO, Pollachi Tk, Coimbatore District do hereby solemnly affirm and sincerely state as follows:- I married one R.Govindarajan on 28.06.1985 and we lived together as happy married couple. In our livelihood, I got one male child now is aged about 20 years, through my husband R.Govindarajan. My son's name is Ramkumar. Now his name known as G.Ravikumar as published in the Tamilnadu Gazette dated on 26.10.2005. Now he is in my custody and in my guardianship. In our livelihood, I got one male child now is aged about 20 years, through my husband R.Govindarajan. My son's name is Ramkumar. Now his name known as G.Ravikumar as published in the Tamilnadu Gazette dated on 26.10.2005. Now he is in my custody and in my guardianship. Then I got one remarriage agreement between myself and one K.H.Aseef and due to sudden movement and activities arose between us, we revoked the agreement and now I am free from remarriage and living separately with my son G.Ravikumar. Hereinafter I assure that I will not get any remarriage. If it is done, it will be against Hindu Marriage Act. If it happens I assure that I will abide by the action taken against me through Court of law. The above said facts are true to the best of my knowledge and belief and nothing material has been concealed. 5. The said request has been rejected by order dated 16.06.2008 by the Accountant General on the analogy that the divorce cannot be treated to be an unmarried status, and therefore, the pension could not be resumed in her favour again. The order passed on 16.06.2008 rejecting the request is extracted hereinunder:- “This has reference to the representation from Smt.G.Minnoli, W/o. (L) R.Govindarajan received through the Department letter under reference. In this connection, I am to state that the Government had already clarified that a divorce cannot be treated as unmarried. On the same analogy, even if she obtains a divorce through Court of Law, family pension could not be resumed in her favour again. Therefore, FP can be admitted to her son G.Ravikumar from 19.7.2004 till his marriage or till he attains 25 years whichever is earlier. Hence, the following documents may be forwarded for admitting family pension. 1. Form 14 (FP application) 2. Age Proof 3. Income Certificate 4. Descriptive Roll (Photo, specimen signature, identification) 6. Therefore, FP can be admitted to her son G.Ravikumar from 19.7.2004 till his marriage or till he attains 25 years whichever is earlier. Hence, the following documents may be forwarded for admitting family pension. 1. Form 14 (FP application) 2. Age Proof 3. Income Certificate 4. Descriptive Roll (Photo, specimen signature, identification) 6. Aggrieved, the appellant approached this Court by filing the writ petition that has given rise to this appeal being W.P.No.28357 of 2008, which has been dismissed holding that according to the disclosure made, her contention that she was not remarried cannot be accepted and further went on to hold that as per the Hindu Marriage Act, if any woman is married to another person after the death of her husband, she does not have a right to claim anything arising out of her first marriage life. 7. Questioning the same, learned counsel for the appellant contends that the alleged second marriage with Mr.Aseef was invalid and was even otherwise unacceptable in law. He has relied on the following judgments to substantiate his submissions. (a) Deokinandan Prasad vs. State of Bihar & Ors., AIR 1971 SC 1409 ; (b) M/s.Motilal Padampat Sugar Mills vs. State of Uttar Pradesh and Ors., AIR 1979 SC 621 ; (c) D.S.Nakara & Ors. vs. Union of India, AIR 1983 SC 130 ; (d) Rajamani, Wife and Nominee of S.Rajagopalan and Ors., vs. The Deputy Commissioner of Labour and the Appellate Authority under the Payment of Gratuity Act and Ors., (2001) 2 LLJ 1453 Mad.; (e) Allahabad Bank & Anr. vs. All India Allahabad Bank Retired Employees Assn., (2010) 2 SCC 44 ; and (f) Allahabad Bank vs. A.C.Aggarwal, (2013) 4 SCC 141 . 8. Apart from the aforesaid decisions, what we find is that her relationship was with one K.H.Aseef who belongs to a minority community. The applicability of the Hindu Marriage Act, therefore, may not arise and even otherwise a marriage between a Hindu and a non- Hindu would be an inter-religious marriage that can only take place under The Special Marriage Act, 1954. These issues have not been looked into by the learned single Judge. Even otherwise, we find that the question of marriage could neither have been investigated nor delved into either by the Accountant General or by the learned single Judge, as this can only be decided in a civil Court or a Court of competent jurisdiction. 9. These issues have not been looked into by the learned single Judge. Even otherwise, we find that the question of marriage could neither have been investigated nor delved into either by the Accountant General or by the learned single Judge, as this can only be decided in a civil Court or a Court of competent jurisdiction. 9. The only issue in our opinion which requires consideration is that after the appellant had surrendered her rights in favour of her son for receiving family pension, could she have asked for a resumption in her favour? The question as to whether the son had received the entire pension upto to the age of 25 years has not been examined and consequently, the claim of the appellant will have to be looked into in the said background. 10. Learned counsel for the Accountant General contends that there is no provision of resumption once it has been waived in favour of the son, but we find from the impugned order dated 16.06.2008 that this aspect in terms of the Rules has not been examined by the Accountant General. 11. Consequently, for all the reasons above, we find it necessary to remand the matter back to the Accountant General for a decision afresh in the light of the rules applicable and we, accordingly, dispose of this appeal by setting aside the impugned judgment dated 20.07.2018 and the order dated 16.06.2008 with a direction to the first respondent to decide the matter within a period of three months, from the date of receipt of copy of this order, in the light of the observations made hereinabove by a reasoned and speaking order. The Writ Appeal is disposed of accordingly. No costs.