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2021 DIGILAW 489 (JK)

Vaishnu Devi v. Union of India

2021-09-20

SANJEEV KUMAR

body2021
JUDGMENT : Sanjeev Kumar, J. 1. Petitioner is mother of late Sepoy Tilak Raj Sharma of 39th Battalion CRPF, who attained martyrdom on 29th June, 2010, while fighting with Naxalites in District Narainpur of State of Chhattisgarh. She seeks indulgence of this Court to direct respondents 1 to 6 to pay only half of the total amount being given to respondent No.7, the wife of martyr Sepoy Tilak Raj Sharma on the ground that she is sole nominee appointed by the deceased. She prays for payment of rest half of the said amount to her being mother and Class-1 legal heir of the deceased under Hindu Succession act, 1956. Petitioner has also prayed for a direction to respondent No.7 to pay one half of the total amount so far received by her being widow and nominee of Late Tilak Raj Sharma. Respondent No.9 and 10 are State Bank of India Branches Ban Talab and Billawar in District Kathua, where the benefits payable on account of martyrdom of Shri Tilak Raj have been deposited and where the respondent No.7 is maintaining her account. 2. Briefly stated, the facts projected in the writ petition are that the petitioner is proud mother of Shaheed Tilak Raj, a Sepoy of 39th BN CRPF who sacrificed his life in an encounter with Naxalite terrorists in the State of Chhattisgarh while as respondent No.7 is the widow of the martyr. On account of martyrdom of Shri Tilak Raj in the line of duty, the official respondents have released a handsome amount which is given by the Government to the heirs of the deceased so that they are in a position to tide over the financial crisis befallen on the family due to untimely demise of their bread winner. The respondent No.7 is entered as sole nominee of the deceased in his service records and, therefore, all the amounts so given by the Government are pouring in the account of respondent No.7 maintained with respondent No.9 and 10. It is submitted that in law a nominee is only entitled to collect/receive such money and the same is required to be disbursed to the legal heirs entitled to receive such money as per their share. It is submitted that in law a nominee is only entitled to collect/receive such money and the same is required to be disbursed to the legal heirs entitled to receive such money as per their share. It is alleged by the petitioner that after she lost her young son to the terrorists, she also lost her daughter-in-law, who, after receiving huge amount of money given by the Government, left her matrimonial home and started living with her parents leaving the petitioner and her husband to fend for themselves. It has also come on record that respondent No.7 has remarried. In short, the grievance projected in the petition is that though respondent No.7 may be entitled to family pension till her death or remarriage, whichever is earlier, as provided under relevant rules yet the other amounts like exgratia amount payable on account of martyrdom of Tilak Raj is required to be distributed amongst the legal heirs strictly as per Hindu Succession Act. The petitioner being Class 1 heir is entitled to receive equal share in the estate of the deceased along with wife of the deceased. 3. It is in the backdrop of aforesaid contentions, the petitioner claims half share in the family pension as well as other sums received or receivable on account of martyrdom of her son Sepoy Tilak Raj. 4. The official respondents have filed their objections wherein the stand taken is that as per their records, respondent No.7 is the legally wedded wife of Sepoy Tilak Raj and is nominee/next of kin entitled to all services benefits and exgratia as per norms. The details of terminal dues payable to the respondent No.7 being nominee have been detailed in para 3 of the objections. It is the contention of official respondents that respondent No.7 being legally wedded wife and nominee of the deceased is entitled to receive all the benefits and the petitioner, if at all has any claim, is well within her rights to approach the Civil Court of competent jurisdiction to enforce such claim. The official respondents being bound by law are under an obligation to disburse the amount to the nominee. 5. Respondent No.7 too has filed her objections and has emphatically refuted the claim of the petitioner to receive any benefit, be it family pension or other terminal benefits including exgratia payments paid on account of martyrdom of Sepoy Tilak Raj. 6. The official respondents being bound by law are under an obligation to disburse the amount to the nominee. 5. Respondent No.7 too has filed her objections and has emphatically refuted the claim of the petitioner to receive any benefit, be it family pension or other terminal benefits including exgratia payments paid on account of martyrdom of Sepoy Tilak Raj. 6. Before the matter could be considered finally, this Court vide order dated 07.05.2016, passed the following direction: “….According to Rule 54(6) of the CCS Pension Rules, pension is payable to a widow upon the date of death or re-marriage, whichever is earlier. In the present case, respondent No.7 is entitled to receive pension till 23.11.2015 and not thereafter. If that be so, the right of the petitioner, being mother of the deceased, to receive after 23.11.2015, cannot be denied. Respondents are, therefore, directed to process the case of the petitioner, being mother of the deceased for payment of pension along with arrears within a period of four weeks from today positively.” 7. During pendency of this petition, an application bearing IA No.01/2018, came to be filed by the respondent No.7, in which she pleaded that the payment of family pension which was stopped by this Court vide order dated 07.05.2016 after 23rd November, 2015 i.e., the date on which the respondent No.7 remarried, be released/awarded in view of respondent No.7 having been divorced by the second husband. The application was responded by the official respondents. It is submitted that in view of the deceased having nominated respondent No.7 to receive all kinds of terminal benefits, liberalized pension award was sanctioned in favour of respondent No.7 vide PPO No.N-23903-10-371-4 dated 24.08.2010. 8. It is further submitted that proposal for grant of family pension in favour of the petitioner was submitted to the concerned authority as per directions of this Court along with speaking order for early authorization of family pension to mother of the deceased. 8. It is further submitted that proposal for grant of family pension in favour of the petitioner was submitted to the concerned authority as per directions of this Court along with speaking order for early authorization of family pension to mother of the deceased. While the process was underway to comply with the interim directions of this Court and to release family pension in favour of the petitioner, the respondent No.7 approached Director General, CRPF, New Delhi, under an information to Secretary, MHA, New Delhi, with a request not to grant family pension in favour of her mother-in-law in view of 1st Proviso to Ruled 54(6) of the CCS (Pension) Rules and Para 4(2) of LPA read with OM No.1/4/2011-P & PW(E) dated 01.04.2011, issued by Ministry of Personal, Department of Pensions and Pensioners Welfare. Alongside, she also made an application for modification of order dated 01.09.2010. It is, thus, contended by the official respondents that as per Instructions contained in Rule 54(6) of CCS (Pension) rules, childless widow of deceased Government employee is entitled to receive the family pension even after her remarriage subject to the condition that the family pension shall cease once her independent income from all sources becomes equal to or higher than the minimum prescribed for family pension in the Central Government. In the instant case, re-marriage of respondent No.7 was solemnized on 23.11.2015 and she was also appointed as HC(M) in CRPF on compassionate grounds. While serving as HC(M) CRPF, she was getting more than prescribed limit and, therefore, she was not allowed normal family pension by this Court. Now she has been removed from the service and has also been divorced by her second husband she is entitled to the family pension. This was in nutshell response to the application filed by the petitioner. 9. Heard learned counsel for the parties and perused record. 10. Now she has been removed from the service and has also been divorced by her second husband she is entitled to the family pension. This was in nutshell response to the application filed by the petitioner. 9. Heard learned counsel for the parties and perused record. 10. This petition, given the nature of controversy raised, calls for determination of following questions: (i) Who is entitled to receive family pension under CCS(Pension) Rules and if it is wife of the deceased government employee, whether she will become disentitled to continuation of family pension on remarriage; (ii) Whether in view of the first Proviso appended to Rule 54(6)(i) of CCS(Pension) Rules, a widow even after re-marriage is entitled to receive pension provided her independent income from all sources is less than amount of minimum payable family pension; (iii) Whether the nominee appointed by the deceased employee to receive his terminal benefits is entitled to appropriate the whole money received to the exclusion of other legal heirs who may be entitled to succeed to the estate of the deceased as per the personnel law; (iv) Whether the payments made by the employer, the Governments, Central or State, or other agencies including NGOs, by way of exgratia to the next-of-kin of the deceased employee on account of his having sacrificed his life in the line of duty constitute estate of the deceased to be devolved on his legal heirs as per the law of succession governing the parties or is a payment made to provide immediate relief to such deceased employee’s dependents to tide over the crisis befallen them due to untimely snatching of their bread winner. 11. The answers to these questions will determine the fate of this petition as also the entitlement of petitioner vis-à-vis respondent No.7 to receive various sums paid or payable on account of martyrdom of Sepoy Tilak Raj, brave son of the petitioner and husband of respondent No.7. Question (i): Who is entitled to receive family pension under CCS(Pension) Rules and if it is wife of the deceased government employee, whether she will become disentitled to continuation of family pension on remarriage; Question (ii): Whether in view of Proviso appended to Rule 54(C) of CCS(Pension) Rules, a widow even after re-marriage is entitled to receive pension provided her independent income from all sources is less than the family pension; 12. Before this Court ventures to find answers to these interlinked questions, it is necessary to take note of few undisputed facts. 13. Petitioner is mother of the deceased employee and has no independent source of income. She was, therefore, dependent upon the deceased. Respondent No.7, at the time of death of the deceased employee, was his legally wedded wife and a recorded nominee to receive death-cum-retirement gratuity in the event of death of her husband. The death of Sepoy Tilak Raj took place on 29th of June, 2010 and respondent No.7 remarried on 23.11.2015. She claims to have been divorced by her second husband which fact is also not denied by the petitioner. The contention of the petitioner that the respondent No.7 has married third time is also not refuted by the respondent No.7. There is affidavit of respondent No.7 on record wherein she has not only admitted her third marriage with Ashish Sharma on 19.08.2018, but she has also admitted having received Rs. 12.25 lacs from her second husband on divorce. It is also true that some of the benefits have already gone to the account of respondent No.7 maintained with respondent No.9 and 10. 14. In the backdrop of admitted position aforesaid, when the rival contentions of the learned counsel appearing for the parties are analysed in the light of CCS(Pension) Rules, one would find unequivocally that in terms of CCS(Pension) Rules, particularly Rule 54(6) (i), the wife of the deceased employee alone is entitled to family pension. This family pension is available to her till death or remarriage, whichever is earlier. There is, however, a proviso i.e. first proviso, appended to Rule 54(6)(i) which lays down that family pension to the issueless widow shall be discontinued on remarriage only if it is found that the independent income of such childless widow from all sources becomes equal to or higher than the minimum prescribed family pension by the Central Government. 15. In the instant case, as noted above, remarriage of respondent No.7 was solemnized on 23.11.2015 and she was already appointed as HC(M) in CRPF on compassionate grounds and was, thus receiving salary more than the prescribed limit of family pension. In view of the aforesaid, she was not entitled to and, accordingly, was not allowed normal family pension by this Court by an order dated 7th of May, 2016. In view of the aforesaid, she was not entitled to and, accordingly, was not allowed normal family pension by this Court by an order dated 7th of May, 2016. The situation has underwent change, in that, the respondent No.7 has claimed to have been divorced by her second husband and has married yet again for the third time. She has also been removed from services of the CRPF vide order dated 14th November, 2017, passed by Commandant GC, CRPF Hiranagar. 16. In view of the aforesaid admitted facts and stated position of rules, I have no doubt in mind that the rules unequivocally provide for payment of family pension in favour of widow of the deceased employee and not the mother who may be dependent upon the earnings of her son. The widow is ordinarily entitled to family pension till her death or remarriage, whichever is earlier. However, in view of proviso appended to Rule 54(6)(i) of CCS (Pension) Rules, the widow may be paid the family pension even after remarriage provided her independent income from all sources is less than the amount of minimum prescribed family pension. This is my answer to question No.1 and 2 framed above. Question (iii): Whether the nominee appointed by the deceased employee to receive his terminal benefits is entitled to appropriate the whole money received to the exclusion of other legal heirs who may be entitled to succeed to the estate of the deceased as per the personnel law; 17. In so far as question No.(iii) is concerned, regard being had to the CCS(Pension) Rules, it becomes clear that nominee is a person given authorization to receive certain benefits and that does not ipso facto entitle such nominee to appropriate the same to the exclusion of others. The money in the hands of nominee is in trust for other legal heirs and is required to be distributed to them as per the personal law governing the parties. Rule 53 of the CCS Pension Rules deals with the nominations with regard to death-cum-gratuity payable under Rule 50. The money in the hands of nominee is in trust for other legal heirs and is required to be distributed to them as per the personal law governing the parties. Rule 53 of the CCS Pension Rules deals with the nominations with regard to death-cum-gratuity payable under Rule 50. Sub Rule (1) of Rule 53 is relevant in the context of the controversy involved in this petition and the same is, therefore, reproduced hereunder:- “A Government servant shall, on his initial confirmation in a service or post, make a nomination in Form I, conferring on one or more persons the right to receive the retirement gratuity/ death gratuity payable under Rule 50.” 18. From plain reading of the above Rule, it is crystal clear that what the provisions of Rule 53 (I) confer on the Nominee is a mere right to receive the Death-Cum-Retirement Gratuity and the provision cannot be construed to mean that nominee is entitled to appropriate the amount received on account of such gratuity to the exclusion of other legal heirs who may be entitled to the estate of the deceased under the personal law governing them. 19. In Ramayee v. Krishnaveni and ors, 1997 (1) LLN 406, the Madras High Court in the identical fact situation framed following question of law:- “Whether the nomination made by the deceased in relation to pecuniary benefits gratuity and the family benefit fund which become payable on the death of the deceased will override the right of inheritance available to the legal heirs of the deceased under the personal law?” 20. The Court, after examining the issue and relying on the judgment of Hon’ble the Supreme Court in Sarbati Devi v. Usha Devi, 1984 (1) SCC 424 , held thus:- “All these judicial decisions clearly show that the nominee gets only a right to receive the amount and distribute the same to the heirs of the deceased in accordance with the law of succession governing them. The above said legal position has not been disputed by any of the respondent’s counsel. Hence the judgment of the lower appellate court is set aside and the judgment of the trial court is restored, accordingly the second appeal is allowed.” 21. In a later judgment, Hon’ble the Supreme Court in Shipra Sengupta v. Mridul Sengupta and ors, 2009 (10) SCC 680 , while dealing with a similar controversy, in paragraph nos. Hence the judgment of the lower appellate court is set aside and the judgment of the trial court is restored, accordingly the second appeal is allowed.” 21. In a later judgment, Hon’ble the Supreme Court in Shipra Sengupta v. Mridul Sengupta and ors, 2009 (10) SCC 680 , while dealing with a similar controversy, in paragraph nos. 17 and 18, held thus:- “17. The controversy involved in the instant case is no longer res integra. The nominee is entitled to receive the same, but the amount so received is to be distributed according to the law of succession. In terms of the factual foundation laid in this case, the deceased died on 8.11.1990 leaving behind his mother and widow as his only heirs and legal representatives entitled to succeed. Therefore, on the day when the right of succession opened, the appellant, his widow became entitled to one half of the amount of the general provident fund, the other half going to the mother and on her death, the other surviving son getting the same. 18. In view of the clear legal position, it is made abundantly clear that the amount in any head can be received by the nominee, but the amount can be claimed by the heirs of the deceased in accordance with law of succession governing them. In other words, nomination does not confer any beneficial interest on the nominee. In the instant case amounts so received are to be distributed according to the Hindu Succession Act, 1956.” 22. In view of the above, the official respondents are right when they say that they are bound to deliver all the terminal benefits of the deceased employee to respondent No.7, who, as per their record, is nominee of the deceased employee. They are correct when they say that the dispute, if any, with regard to apportionment of the benefits is to be decided by the civil court. Now when the eleven years old matter is before this Court and the facts are not in dispute, it would a travesty of justice if the petitioner and respondent No.7 are sent to litigate in the civil courts with no end to such litigation expected in near future. Having, thus, answered question No.(iii), it is time to decide the last question framed for determination. Having, thus, answered question No.(iii), it is time to decide the last question framed for determination. Question (iv): Whether the payments made by the employer, the Governments, Central or State, or other agencies including NGOs, by way of exgratia to the next-of-kin of the deceased employee on account of his having sacrificed his life in the line of duty constitute estate of the deceased to be devolved on his legal heirs as per the law of succession governing the parties or is a payment made to provide immediate relief to such deceased employee’s dependents to tide over the crisis befallen them due to untimely snatching of their bread winner; 23. The stand of the official respondents, that even this amount is to be construed as terminal benefit and payable to the respondent No.7, being the nominee of the deceased employee, is without substance. As noticed above, the nomination in terms of Rule 53 is only with respect to death-cum-gratuity and for no other terminal benefits. Otherwise also, the official respondents have not been able to show me any statutory rule or even executive instructions to substantiate this plea. At this stage I may refer to the observations of Hon’ble the Supreme Court made in Jodh Singh v. Union of India, 1980 (4) SCC 306 , which, for ready reference, are also reproduced as under:- “10. Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased. If it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition.” 24. Though the observations were made by Hon’ble the Supreme Court in slightly different context, yet by analogy of the reasoning given, it can safely be concluded that the payments in the nature of ex-gratia, which are paid by the Central Government, the State Government or other government or non-government organizations on account of death of an employee in the line of duty, do not constitute estate of the deceased. These are the payment made for the welfare of the dependents of the deceased employee who has sacrificed his life in the line of duty to save the honour of the Country. These are the payment made for the welfare of the dependents of the deceased employee who has sacrificed his life in the line of duty to save the honour of the Country. Such amounts become payable contingent upon the death of a Government employee in the line of duty and, therefore, do not constitute estate of the deceased which must devolve on his legal heirs as per the rules of succession contained in the personal law governing such employee. Estate of an employee is the property, movable or immovable, acquired by him during his life time and would also include the payments which may become payable after his death. However, the payments which are not part of service conditions of a government employee and are paid by the employer or by the State and Central Governments gratuitously are only to compensate the immediate dependents of such employee for the loss which they suffer for the Country. Such payments, which are contingent in nature, in my opinion, do not constitute the estate of the deceased. If that be so, the gratuitous payments made out of benevolence by the State and Central Governments including the employer of the deceased from its welfare fund would be in the nature of compensation paid to the immediate dependents of the deceased and its apportionment and distribution amongst the dependents would be relatable only to deprivation/ dependency. The rules of distribution of compensation as are applicable for the distribution of compensation under Motor Vehicles Act or for similar type of torts shall apply equally to the aforesaid payments and the parents along with wife, minor son and unmarried daughter etc. shall all be entitled to the share in the compensation in equal proportion. In the instant case, the deceased has left behind wife (respondent No.7 herein), mother (petitioner herein) and respondent No.8 (father of the deceased). The deceased has died issueless and, therefore, the payment made on account of exgratia and from the welfare fund of CRPF shall be divided into three equal shares payable, one each to the petitioner, respondents 7 and 8. Rest of the terminal benefits as may be payable to the deceased employee, whether or not he has died in the line of official duty, shall be governed by CCS(Pension) Rules. 25. Rest of the terminal benefits as may be payable to the deceased employee, whether or not he has died in the line of official duty, shall be governed by CCS(Pension) Rules. 25. The money received and receivable on account of martyrdom of Sepoy Tilak Raj can be broadly classified in the following manner: (i) Family pension @ Rs.9540 per month with effect from 30th June, 2010; (ii) Exgratia payments from Central and State Governments =Rs.18.00 lakhs (iii) Central Welfare Fund of CRPF =Rs.10.50 lakhs (iv) GPAIS from Chhattisgarh Govt.=Rs.10.00 lakhs (v) Other terminal benefits =Rs.1,54,548 (vi) Leave encashment=Rs.37,993 26. So far as the family pension is concerned, I have already discussed its entitlement and, therefore, it needs no further elaboration. It is, thus, for the official respondents to conduct requisite verification to find out as to whether the income of respondent No.7, who is now married third time, from all sources is not less than the amount of the prescribed minimum family pension. The result of such enquiry shall govern the continuation or otherwise of family pension in favour of respondent No.7. 27. In view of my answers to the questions formulated, this petition is disposed of by providing as under: I) The amounts received or receivable on account of exgratia from Central Government, exgratia from Chhattisgarh Government, Welfare Fund of CRPF and GPAIS from Chhattisgarh Government, shall be divided in three equal shares to be paid one each to the petitioner, respondent No.7 and respondent No.8; II) Other terminal benefits like DCRG, leave encashment etc. shall be paid as per applicable rules and a decision in this regard shall be taken by the DG, CRPF; III) Family pension shall be paid and is payable to the respondent No.7 till her death or re-marriage, whichever is earlier, and continuation of the family pension even after re-marriage shall depend upon the determination by the official respondents as to whether independent income of the respondent No.7 from all sources is less than the minimum prescribed family pension (Refer Rule 54 (6) (i) Proviso Ist). A decision in this regard shall be taken by the competent authority after holding proper enquiry/verification. And in case the respondent No.7 is not held entitled to family pension, family pension shall be sanctioned in favour of dependent parents as the deceased has died issueless (Refer Rule 54). A decision in this regard shall be taken by the competent authority after holding proper enquiry/verification. And in case the respondent No.7 is not held entitled to family pension, family pension shall be sanctioned in favour of dependent parents as the deceased has died issueless (Refer Rule 54). IV) That the amounts, if any, received by respondent No.7 or the petitioner, shall be adjusted while disbursing the balance amount. V) It is further provided that the amounts lying in the accounts of respondent No.7 with respondent Nos. 9 and 10, which have not been withdrawn so far, shall be distributed on the authority/ certificate in this regard issued by the competent authority of the official respondents after working out the share of the petitioner, respondent No. 7 and 8 and making necessary adjustments on account of money already received by any of them.