Chattisgarh High Court
Chhotu Lal Nishad vs Cg.State Power Holding Com. And Ors on 22 March, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No.2323 of 2012
• Chhotu Lal Nishad, aged 32 years, S/o Tirath Ram Nishad, R/o
Vill. & P.O. Hathband, Tehsil Simga, District Balodabazar (CG)
---- Petitioner
Versus
1. Chhattisgarh State Power Holding Company Limited (A
Government of Chhattisgarh undertaking) (A successor company
of CSEB) Through its Managing Director, H.Q. Daganiya, Raipur
(CG).
2. The Chief Engineer (EHT: C&M) Chhattisgarh State Power
Transmission Co. Ltd., Raipur (CG).
3. The Executive Engineer, (EHT: C&M) Chhattisgarh State Power
Transmission Co. Ltd., Bhilai, District Durg (CG).
---- Respondents
For Petitioner : Mr. Palash Tiwari, Advocate. [ For Respondents : Mr. Jitendra Pali, Advocate.
Hon'ble Mr. Justice Parth Prateem Sahu Order on Board 22.3.2022
1. Petitioner, brother of deceased employee, has filed this petition being aggrieved by action of respondent No.3 in refusing to release 'after death benefits of deceased employee' in favour of petitioner for want of a succession certificate.
2. Facts relevant for disposal of this petition are that Mohanlal Nishad, brother of petitioner, was an employee of respondent Company and posted as Assistant Grade-II under respondent No.3. He died in harness on 6.2.2010. As name of petitioner in service record of Late Mohanlal Nishad is recorded as nominee, he was paid amount of ex gratia on 9.2.2010. When petitioner approached authority concerned for release of amount of provident fund, DCRJ, GS-LIS, respondent No.3 vide letter dated 2 8.3.2011 (Annexure P-1) asked the petitioner to submit succession certificate, specifically mentioning the amount which may be subject matter of succession application. Petitioner through his advocate issued legal notice to respondent No.3 on 20.42010 calling upon him to disburse aforementioned amount, but even then respondents have not disbursed the said amount in favour of petitioner, which made him to file this petition seeking for following reliefs:-
"a. This Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamus or suitable direction to the respondents allowing the retiral dues to the petitioner on account of legal heir and nominee of deceased Moti Lal Nishad. Further, may kindly be pleased to direct the respondents for not insisting the petitioner for production the succession certificate..
b. This Hon'ble Court may kindly be pleased to allow 12% interest p.a. on the payment of retiral dues payable to the petitioner.
c. Any other relief as the Hon'ble Court may be deemed fit and proper. "
3. Mr. Palash Tiwari, learned counsel for petitioner would submit that petitioner is real brother of deceased Mohan Lal Nishad, who was an employee of respondent No.1-Corporation and died in harness. As petitioner was recorded as nominee of deceased employee in service record, after death of his brother, amount of ex-gratia was disbursed to him. Petitioner has annexed nomination forms nominating petitioner to be nominee of Mohan Lal Nishad (deceased employee). He submits that once name of petitioner has been mentioned as nominee, respondents cannot 3 relegate petitioner to obtain succession certificate. A person whose name is not recorded as nominee in service record of deceased employee is only required to obtain succession certificate. Action of respondents in denying after death benefits of deceased employee to petitioner being his nominee is arbitrary and illegal. Hence, a direction may be issued to respondents to disburse amount towards provident fund etc. of deceased Mohan Lal Nishad in favour of petitioner without insisting for succession certificate.
4. Mr. Jitendra Pali, learned counsel for the respondents would submit that it is not in dispute that brother of petitioner died in harness while working as Assistant Grade-II under respondent No.3. Petitioner himself has pleaded in writ petition that deceased was married to Smt. Laxmi Bai, hence status of deceased employee on his death was of a married man. He contended that nomination forms filed along with petition mention family members who could be nominee for benefit of amount under which nomination form is submitted. Referring to Nomination Form (Annexure P-3), he argued that nominee shall be husband or wife, child or children, father or mother in that order. There is no mention of 'brother' to be nominee of an employee.
The Chhattisgarh Civil Services (Pension) Rules, 1976 (for short 'the Rules of 1976') have been adopted by erstwhile Madhya Pradesh State Electricity Board. Referring to proviso to Rule 46 of the Rules of 1976, he submits that it is specifically 4 mentioned under this proviso that if a government servant is having family, the nomination shall not be in favour of any person or persons other than members of family. Nomination in favour of other persons can be made only where employee has no family. Referring to Rule 44 (5) of the Rules of 1976 which defines 'family', which is also applicable to Rule 45 & 46, he submits that as per said provisions, first entitlement is of 'wife' in case of male government servant and if government servant is female, then first entitlement is of 'husband'. In the list of family members mentioned therein, 'major brother' is not included. Referring to provisions of the Chhattisgarh Electricity Board General Provident Fund Regulations, 2001 (for short 'the Regulations of 2001'), he submits that definition of 'family' is given under Regulation 3 (e) which includes wife, children, married or unmarried, deceased son's widow and children and dependent parents of the member. 'Major brother' is not included in the definition of 'family' also. Hence, petitioner cannot claim that being nominee of deceased employee, amount due on death of his brother be disbursed to him without producing a succession certificate.
He contended that in writ petition, petitioner has very specifically pleaded that Smt. Laxmi Bai is widow of deceased employee. It has also been pleaded that Laxmi Bai left deceased and married with some other person. Pleadings made in writ petition are disputed facts, which cannot be gone into writ petition. When there is dispute with regard to nominee entitled 5 for after death benefits of deceased employee, respondents have not committed any mistake in asking petitioner to obtain succession certificate so that entitlement and right of petitioner qua Smt. Laxmi Bai, widow of Late Mohan Lal Nishad, can be decided by Court of competent jurisdiction.
It is also argued that under the Hindu Succession Act, 'brother' is a Class-2 heir, whereas 'wife' is Class-1 heir, hence till wife of deceased employee is alive, her right and entitlement to claim benefits cannot be ignored. Respondents have not rejected claim of petitioner but only asked him to produce succession certificate so that rightful claimant can get benefits, settling rival claims of parties.
5. At this stage, Mr. Palash Tiwari, learned counsel for the petitioner would submit that in reply to legal notice sent by petitioner, respondent Department has admitted that initially name of Smt. Laxmi Bai was recorded as wife in service book of Late Mohan Lal Nishad. Subsequently, on the application of deceased employee, name of petitioner along with his father and mother was recorded as nominees of deceased employee in service record. Change of nomination in service record itself shows that Smt. Laxmi Bai left company of deceased as there was judicial separation / community divorce between them. He also submits that parents of deceased employee also died, hence on the date of death of deceased employee, he was not having his family as defined under Regulation 3 (e) of the Regulation of 2001. As there is specific regulation dealing with payment of provident 6 fund etc., the Rules of 1976 will not apply in present case. In reply to legal notice issued by petitioner, respondent Department has mentioned about judicial separation / divorce between deceased employee and Smt. Laxmi Bai. Hence, there is no factual dispute. In support of his contention, he places reliance on decision of a Division Bench of High Court of Madhya Pradesh in case of Sita Bai Sinodia vs. Regional Provident Fund Commissioner reported in 2002 (3) MPLJ 116 and Smt. Samunda Bai vs. General Public & ors reported in 2019 (3) CGLT 270.
6. I have heard learned counsel for both sides and perused record of writ petition.
7. From the pleadings made in writ petition as also reply to legal notice, it is clear that deceased employee was married to Smt. Laxmi Bai. In writ petition it has only been pleaded that Smt. Laxmi Bai left company of deceased employee and performed marriage with another man, but there is nothing in entire petition about that another man, even his name has not been disclosed. Once it is accepted that Smt. Laxmi Bai was legally married wife of deceased employee, then it is for the petitioner to plead and prove by documentary evidence that there was divorce between deceased employee and Smt. Laxmi Bai, which is lacking in this petition.
8. So far as submission of learned counsel for petitioner that during his lifetime deceased employee had changed his nominee from 7 Smt. Laxmi Bai to petitioner is concerned, there may be several reasons with deceased to change his nomination, which is not known to Court. A wife can be excluded as beneficiary in view of conditions enumerated in nomination form only when it is proved that she has been legally divorced prior to death of employee. Residing separately, may be for more than one reason, which may not exclude a wife from her entitlement to get monetary benefits on death of her husband. Nomination Forms for Group Personal Accident Insurance Policy, GIS, Family Pension, Gratuity, LIC policies, which are placed on record along with petition, would show that nominee shall be wife/husband/minor child or children/mother or father in that order. 'Family' has been defined under Regulation 3 (e) of the Regulations of 2001 wherein word 'married brother' is not included in definition of 'family'. Regulation 3 (e) is extracted below for read reference:-
"(e) "Family" means-
(i) In the case of a male member, the wife, children, whether married or unmarried, deceased son's widow and children and dependent parents of the member.
Provided that if a member proves that his wife has ceased under the personal law governing him or the customary law of the community to which spouse belong to be entitled to maintenance, she shall no longer be deemed to be a part of the members family for the purpose of these regulations unless the member subsequently intimates by express notice in writing to the Board that she shall continue to be so regarded and,
(ii) In case of a female member, her husband, her children, whether married or unmarried, her dependent parents, her husband's dependent parents and her deceased son's widow and children;
Provided that if a member, by notice in writing to the Board of Trustees, expresses her desire to exclude her husband from the family, the husband and his 8 dependent parents shall no longer be deemed to be a part of the members family for the purpose of these rules unless the member subsequently cancels in writing any such notice."
9. As per application and nomination form under the Chhattisgarh State Electricity Board Provident Funds Regulations, there should be declaration from employee that he/she is having no family and after such declaration if acquires family, then aforementioned declaration be deemed as cancelled. From the pleadings in writ petition as well as contents of reply to legal notice it is clear that disputed question of fact is involved in case at hand, because status of Smt. Laxmi Bai, wife of deceased, is not clear. In other words, it is not in dispute that deceased employee had a wife, the only dispute is with respect to status of his wife, whether she is a divorcee or married to another man on the death of husband-employee. Disputed question of facts can only be decided by a Court of competent jurisdiction after recording evidence of respective parties. Case laws relied upon by learned counsel for petitioner being distinguishable on facts are of no help. In case of Sitabai (supra) issue for consideration before their Lordships was whether second wife of a deceased employee is entitled for pension and claim of second wife was dismissed. In case of Samunda Bai (supra), the question for consideration was whether government servant can make testamentary disposition of his retiral benefits or it has to be disbursed in accordance with rules and regulations governing service of such government employee. In case at hand, requirement of bringing succession certificate is because Note appended to nomination form specifies who shall be nominee, 9 wherein there is no mention of 'major brother' of an employee. Further, wife of deceased employee Smt. Laxmi Bai is still alive. Hence, in the opinion of this Court respondent department has not committed any error in asking petitioner to produce succession certificate for disbursement of amount mentioned in document Annexure P-1 to petition.
10. For the foregoing, I do not find any merit in this writ petition, the same is liable to be and is hereby dismissed. No order as to costs.
Sd/-
(Parth Prateem Sahu) Judge roshan/-