Central Administrative Tribunal - Jodhpur
Smt. Samshad Banu W/O Late Shri Murad Ali vs The Union Of India Through The General ... on 15 October, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No.376/2012
Date of decision: 15.10.2012
HONBLE Mr. B.K.SINHA, ADMINISTRATIVE MEMBER.
Smt. Samshad Banu W/o Late Shri Murad Ali, aged about 30 years, C/o Asraf Khan, Plot No.33, Kamla Nehru Colony, New Power House Road, Jodhpur. Her husband was last employed in DRM Office, NW Railway, Jodhpur.
: Applicant
Mr. N.K.Khandelwal, counsel for applicant.
Versus
1. The Union of India through the General Manager, North Western Railway Headquarters Office, Jaipur.
2. The Divisional Railway Manager, North Western Railway, Jodhpur Division, Jodhpur.
3. Senior Divisional Personnel Officer, North Western Railway, Jodhpur Division, Jodhpur.
4. Assistant Personnel Officer, North Western Railway, Jodhpur Division, Jodhpur.
5. Smt. Sinthiya Messy R/o 719 Rangpur Road Near Lal Kothi, Jota Junction, Kota (Raj.).
.Respondents
None present for respondents No.1to4.
Mr. Deepak Choudhary, counsel for respondent No.5.
ORDER (ORAL)
Per Honble Mr. BK Sinha, Administrative Member Heard the learned Counsel for the applicant as well as the respondent No.5. The case basically involves a dispute regarding marital standard. The applicant in this case is one Shamshad Banu, who claims that she is legally wedded wife of the deceased employee, Murad Ali. It has been submitted that the deceased employee, Murad Ali had married to the respondent No.5, Sinthiya Messy, on 08.08.1978, and a son and a daughter were born in this marriage. The deceased employee divorced his earlier wife Sinthiya Messy, on 26.08.1997 and married the applicant, Shamshad Banu, on 15.08.2011. Subsequently, on 23.04.1999, the deceased employee, Murad Ali filled a nomination for the purposes of PF, Insurance, Gratuity etc. in favour of his son and daughter from the earlier wife, and in the event of their death 100% to her earlier wife Sinthiya Messy. These facts are undisputed.
2. On 21.11.2001, the applicant informed the competent authority that he divorced her earlier wife, Sinthiya Messy, and married to the applicant, Shamshad Banu, according to the Muslim Law and requested therein that the name of the applicant may be substituted in place of the respondent No.5, Sinthiya Messy. The learned Counsel for the applicant has also drawn the attention of the Court towards the provisions of Provisional Family Pension under Rule 96 of the Railway Services (Pension) Rules, 1993, which states as follows:
96. Sanction, drawal and disbursement of provisional Family Pension and gratuity.- (1) After the documents referred to in rule 95 have been sent to the Accounts Officer concerned, the Head of Office shall draw provisional family pension not exceeding the maximum family pension and hundred per cent of the gratuity as determined in accordance with the provisions of this Chapter and, for this purpose the Head of Office, shall adopt the following procedure, namely:-
(a) he shall issue a sanction letter in favour of claimant or claimants endorsing a copy thereof to the Accounts Officer concerned indicating the amount of provisional family pension and hundred per cent of the gratuity as determined;
(b) he shall indicate in the sanction letter the amount recoverable out of the gratuity under sub-rule (4) of rule 95;
(c) after issue of the sanction letter shall draw:-
(i) the amount of the provisional family pension; and
(ii) The amount of hundred per cent of the gratuity after deducting there from the dues mentioned in clause (b), in the same manner as pay and allowance of the establishment are drawn by him.
(2) The head of Office shall disburse the provisional family pension (including arrears, if any) and the gratuity immediately after the same have been drawn under sub-rule (1).
(3) The payment of provisional family pension shall continue for a period of six months from the date of following the date of death of the railway servant unless the period is extended by the Accounts Officer under the proviso to sub-rule (1) of Rule 97.
(4) The Head of office shall inform the Accounts Officer:-
(a) as soon as the gratuity has been paid to the claimant or claimants; and
(b) as soon as the provisional family pension has been paid for a period of six months or for the period extended under provision to sub-rule (1) of rule 97, as the case may be.
(5) If the claimant or any of the claimants desire the payment of provisional family pension or of gratuity or of both through money order or bank draft, the same shall be remitted to him or her through money order or bank draft at his or her own cost:
Provided that in the case of any claimant who is sanctioned a provisional family pension not exceeding two hundred and fifty rupees (inclusive of relief on family pension) per mensem, the amount of pension shall, at the request of the claimant, be remitted to his or her by money order or bank draft at Government expense.
3. The learned Counsel for the applicant has further drawn the Courts attention towards the Rule 74 and 75 regarding nominations and family pension scheme, and has submitted that the financial condition of the applicant, Shamshad Banu, is poor and she cannot subsist without pension.
4. However, the learned Counsel for the private respondent No.5 vehemently opposed this prayer saying that the deceased employee Murad Ali had married with Sinthiya Messy according to Christian rites and the divorced was made according to Muslim laws by uttering the word talak, talak, talak. He also submits that Rs.40,000/- has been paid to the applicant to perform last rites of the deceased employee.
5. After having heard the respective parties, the following points emerge for consideration. There is indeed a question of law involved that whether the deceased employee Murad Ali who had married the respondent No.5 in Christian rites could have been divorced her according to the Muslim rites. Here, I feel that this is a substantive question of law, which is beyond the capacity of the Railway Authority to adjudicate and the applicant has been rightly directed to obtain a succession certificate from the Court of competent jurisdiction. Second issue is that irrespective of the dispute whether the provision of Rule 96 of the Railway Services (Pension) Rules, 1993 will operate. Here, the learned Counsel for the private respondent No.5 submits that this is disputed between legally wedded wife, Sinthiya Messy and the applicant, who is not legally wedded wife, in view of the religious standard of the applicant who had converted to Christianity in order to marry he former. Hence, the amount of the family pension cannot be shared. Here also one has to know about the final relief claimed by the applicant in this OA, which is as follows:
(i) That the applicant respectfully prays for grant of appointment on compassionate grounds on any Group C; or Group D Post.
(ii) That the applicant may kindly be granted her pension and othe formerer retiral benefits because as per latest documentary proof with the respondents, she alone is entitled for that.
(iii) That the respondents may kindly be directed to release at least half of the family pension to the applicant which is permissible as per rules in case of two claimants.
(iv) That the respondents be directed to release the balance amount of Rs.20,000/- which was not paid at the time of death of the applicants husband.
(v) That the applicant also prayed to making payment of accrued interest on the pension and final settlement dues @ 12% per annum.
(vi) That any other relief or reliefs, which this Honble Tribunal deems just, fit and proper so as to impart justice to the petitioner, in addition to above, be also ordered in favour of the applicant in the interest of justice.
(vii) That the costs of this application be awarded to the applicant.
6. The question here arises is that once the matter in dispute had been referred to the Court of competent jurisdiction, whether all other rights of the disputing party are under suspension. It also gives rise to question of living standard especially when the applicant has alleged a condition of indigence. That is why, Rule 96 of the said Rules provides for payment of provisional family pension and gratuity. The only question remains is that whether the applicant can be given the same as a measure of interim relief or as a measure of final relief i.e. relief No.2&3.
7. Considering the fact that the respondent No.5 is already in employment at Kota in State Government, and is already getting a salary, while the applicant and her children are without any substantive needs of livelihood it appears that the balance of convenience and justices weighs in favour of the applicant. Irrespective of the suspension of other rights the right to live is never suspended. The widows have to continue living. That is why the provision of Rule 96 IREM has been inserted to tide over such grave and emergent situation.
8. The learned Counsel for the applicant further submitted that the applicant prepared to provide undertaking/sureties that if her case is not sustained before the competent Court, she will be prepared to refund the same. I also find the validity of the argument of the learned counsel for the respondent No.5 that if 50% of the family pension can give to the applicant, why the respondent No.5 should be also deprived to this amount. All the documents filed are not on record and only the competent Court who is best position to take a decision to it, therefore, the following orders/directives are given:
(i) The competent authority, Divisional Railway Manager, North Western Railway, Jodhpur Division, Jodhpur, will consider granting 50% of the pension to the applicant on furnishing the sureties to his satisfaction.
(ii) He shall be free to grant 50% to other claimant as per his discretion and the materials on record.
(iii) The competent authority will also decide on other benefits that can be given pending the decision of the competent civil court.
9. With this, the OA is disposed of. No order as to costs.
[B.K.Sinha] Administrative Member rss 1