Central Administrative Tribunal - Allahabad
Sushil Anand vs General Manager N C Rly on 10 December, 2021
OA No.330/00777/2018
Reserved on 03.12.2021
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Allahabad, this the 10th day of December 2021
Original Application No. 330/00777/2018
Hon'ble Ms. Pratima K Gupta, Member (Judicial)
Sushil Anand, S/o Late C.P. Anand, R/o 569/8, Premganj, Sipri Bazar, Jhansi -
284003.
. . .Applicant
By Advocate : Shri Rakesh Verma
VERSUS
1. Union of India through the General Manager, North Central Railway,
Subedarganj, Allahabad.
2. The Divisional Railway Manager, North Central Railway, Jhansi.
3. The Chief Personnel Officer, North Central Railway, Allahabad.
4. Senior Divisional Personnel Officer, North Central Railway, Jhansi.
5. Senior Section Engineer, (Signal), S & T, North Central Railway, Jhansi.
6. Smt. Babita, aged about 48 years, Widow of Late Anil Anand, D/o Late
Ram Ratan Sahaney, R/o House No.44, Gusaipura, Manik Chauk,
Jhansi.
. . .Respondents
By Advocate : Shri Amit Kumar Rai
Shri Karan Singh Yadav
ORDER
By Hon'ble Ms. Pratima K Gupta, Member (Judicial) :
Shri R. Verma, learned counsel for the applicant and Shri Amit Kumar Rai, learned counsel for official respondent and Shri Karan Singh Yadav, learned counsel for the private respondent are present.
2. The present OA has been filed for seeking the following reliefs :-
"(i) to issue a writ, order or direction in the nature of mandamus, directing the respondent Nos. 3 & 4 to pay the petitioner the amount of terminal benefits, such as, PE, DCRG, GIS and Leave Encashment to the tune of 100% pursuant to nomination form duly executed by the deceased railway servant Late Anil Anand, who is real brother of the petitioner, duly nominating the petitioner therein through nominations executed on 10.04.2008 read with subsequent nomination dated 21.12.2012 whereby no substantial change was brought by the deceased except that the name of his wife was Page 1 of 8 OA No.330/00777/2018 added as per Rule 74 (3) of the railway servant (Pension) Rules 1993 with 10% of share and the official respondents be directed to act only in accordance with law in this regard.
(ii) to issue a writ, order or direction in the nature of mandamus, directing the respondents to pay interest at the rate of 12% for delayed payment for the period from 05.06.2018, till the payment is actually made to the petitioner, as the delay has caused in payment is directly attributable upon the Railway Administration.
(iii) to issue any other relief which this Hon'ble Tribunal may deem fit and proper under the circumstances of the case.
(iv) to award the cost of the application to the applicant."
3. The undisputed facts are that the applicant is the real brother of Shri Anil Anand (now deceased) who was working as Junior Engineer, (Signal) under the control of the Senior Section Engineer, (Signal), North Central Railway, Jhansi. Shri Anil Anand died on 04.06.2018 after completing 33 years regular service with the respondents. The deceased brother of the applicant got married on 18.06.2012 with Smt. Babita (Private respondent No 6). The allegations are that Respondent No.6 namely Smt. Babita deserted her husband i.e. Sh. Anil Anand, deceased brother of the applicant just after three months of marriage and left her matrimonial home. The deceased Anil Anand has filed the nomination forms on 10.08.2008 (page 24) to the OA wherein he nominated his brother i.e the Applicant to receive his death-cum-retirement gratuity dues. After Sh. Anil Anand got married on 21.12.2012, he nominated his wife Smt. Babita (Respondent No. 6) (nomination paper at page 27). The Applicant claims that since his name is mentioned in the nomination paper and as there were differences between the deceased employee with his wife, therefore, he is entitled to receive the dues of the deceased Shri Anil Anand as per Railway Service Pension Rules, 1993. The dues have admittedly not been released to any of the parties till filing of the present OA. The same are with the respondents. Hence, this OA.
4. The counsel for the applicant Shri Rakesh Verma argues that once the deceased employee was clear in his mind as to who was entitled to receive the dues of the applicant, the respondents had no reason to hold the same, they should be released forthwith.
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5. Learned counsel Shri Karan Singh Yadav for the private respondent i.e the wife namely Smt Babita is present and has argued that since she is legally wedded wife of the deceased and there was no divorce, she being the Class-I legal heir as per the Hindu Succession Act is entitled for the retiral dues of her deceased husband.
6. Learned counsel for the respondents submit that as per the rules of the Railway Service Pension Rule, 1993, the applicant being the brother and was 33 years of age at the time of the first nomination, he could not have been nominated by the applicant. He relies on the definition of FAMILY in section 74 of Railway Service Pension Rules, 1993. Ld. Counsel relies on the following Rules:-
"70. Retirement gratuity or death gratuity - (1) (a) In the case of a railway servant, who has completed five years' qualifying service and has become eligible of service gratuity or pension under rule 69, shall, on his retirement, be granted retirement gratuity equal to one-fourth of his emoluments for each completed six monthly period of qualifying service subject to a maximum of sixteen and one-half times the emoluments and there shall be no ceiling on reckonable emoluments for calculating the gratuity.
74. Nomination - (1) A railway servant shall on his initial confirmation in a service or post, make a nomiation in Form 4 or Form 5, as may be appropriate in the circumstances of the case, confering on one or more persons the right to receive the death-cum-retirement gratuity payable under rule 70.
Provided that if at the time of making the nomination -
(i) the railway servant has a family, the nomination shall not be in a favour of any person or persons other than the members of his family; or
(ii) the railway servant has no family, the nomination may be made in favour of a person or persons, or a body of individuals, whether incorporated or not.
(2) If a railway servant nominates more than one person under sub-
rule (1), he shall specify in the nomination the amount of share payable to each of the nominees in such manner as to cover the entire amount of gratuity.
(3) A railway servant may provide in the nomination -
(i) that in respect of any specified nominee who pre-deceases the railway servant, or who dies after the death of the Page 3 of 8 OA No.330/00777/2018 railway servant but before receiving the payment of gratuity, the right conferred on that nominee shall pass to such other person as may be specified in the nomination; Provided that if at the time of making the nomination the railway servant has a family consisting of more than one member, the person so specified shall not be a person other than a member of his family;
Provided further that where a railway servant has only one member in his family, and a nomination has been made in his favour, it is open to the railway servant to nominate alternate nominee or nominees in favour of any person or a body of individuals, whether incorporated or not;
(ii) that the nomination shall become invalid in the event of the happening of the contingency provided therein.
(4) The nomination made by a railway servant who has no family at the time of making it, or the nomination made by a railway servant under the second proviso to clause (i) of sub-rule (3) where he has only one member of his family shall become invalid in the event of the railway servant subsequently acquiring a family, or an additional member in the family, as the case may be.
(5) A railway servant may, at any time, cancel nomination by sending a notice in writing to the authority mentioned in sub-rule (7):
Provided that he shall, alongwith such notice and a fresh nomination made in accordance with its rule.
(6) Immediately on the death of a nominee in aspect of whom no special provision has been made the nomination under clause (i) of sub-
rule (3) or on the occurrence of any event by reason of which the nomination becomes invalid in pursuance of clause (ii) of that sub-rule, the railway servant shall send to authority mentioned in sub-rule (7) a notice in writing canceling the nomination together with a fresh nomination made in accordance with this rule.
(7) (a) Every nomination made, and every notice of cancellation given by a railway servant under these rules, shall be sent by the railway servant to his Accounts Officer in the case of a gazetted railway servant and to the Head of his office in the case of non-gazetted railway servant.
(b) Immediately on receipt of a nomination from non-gazetted railway servant, the Head of Office shall countersign it indicating the date of receipt and keeping with him or other responsible officer nominated by him for this purpose, and a clear note made in the service record or service book, as the case may be, of the railway servant as to what nomination and related notices have been received from him and where they have been lodged for safe custody and an acknowledgement to the railway servant concerned confirming that the nominations made by him and the related notices have been duly received and placed on record shall invariably be sent to every railway servant making or cancelling a nomination, by the Accounts Officer in the case of gazetted railway servants and by the Head of Office in the case of non-gazetted railway servants.
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OA No.330/00777/2018 Note: - The power to countersign nominated form sent by non- gazetted railway servants may be delegated by the Head of Office to his subordinate gazetted officer.
(8) Every nomination made, and every notice of cancellation given by a railway servant shall, to the extent that it is valid, take effect from the date on which it is received by the authority mentioned in sub-rule (7)."
7. After referring to the above Rules, the Ld. Counsel for the respondent further argued that at appropriate time, the deceased employee was not married therefore he may have nominated his brother. But since in 2012 (page 27 nomination dated 21.12.2012), the applicant filed fresh nomination, whereby, the wife (Respondent No. 2/6) was made nominee with the brother. He further argued that the applicant i.e. the brother of the deceased employee was above the aged of 18 years and he does not fall within the definition of "Family" as defined in Rule 70(5) of Railway Service Pension Rules, 1993 and therefore, the applicant brother's nomination is not valid. Therefore dues cannot be released to him in fact the private respondent being the legally wedded wife was entitled for the dues.
8. The facts and documents placed on record and from the nomination dated 21.12.2012, it is clear that the applicant as well as private respondent i.e. wife of the deceased has been nominated by the deceased employee. The nomination of brother / applicant by a deceased employee was not in accordance with the Rules. The brother of the deceased was above 18 years of age at the time of nomination, he does not fall within the definition of "Family" as per Rule 70(5) of Railways Service Pension Rules, 1993. It is also important to note the wife Smt. Babita is the only legal heir of the deceased employee in view of the fact that there was no divorce between them. She continuous to be the wife, now widow and is the Class-I legal heir under Hindu Succession Act, 1956.
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9. The effect of nomination is no longer res- integra. Reference here can be made to 2000 (6) SCC 724 titled as "Vishin Khemchandani Vs. Vidya Lachmandas Khemchandani" and 1984 (1) SCC 424 titled as "Sarbati Devi Vs. Usha Devi". Thus, in simple words, a Nominee is somebody who will receive the amount upon the death of the employee and distribute the same to legal heirs of the deceased. The brother is in fact not a Legal heir of the deceased employee.
10. In light of the fact of the present case, there no dispute that respondent no. 6 is the legally wedded wife of the deceased Sh. Anil Anand. The marriage between the two subsisted when Shri Anil Anand died. She is the only surviving legal heir of the deceased and she was duly nominated by deceased employee as per the Rule 74 (3) of Railway Service Pension Rules, 1993. It is also explicitly clear that the applicant's nomination was void.
11. Ld. Counsel for the applicant on 25.10.2021 forwarded the copy of Rules and the Judgment of Hon'ble Madras High Court, titled as "S. Sandhya & Ors. Vs. Chief General Manager& Ors", bearing W.P. No. 29894/2002, decided on 09.04.2012 and contended that the applicant is entitled for the relief.
12. The judgment of S. Sandhya (Supra) relied upon by the Ld. Counsel for the applicant is of no help. In fact, it reiterates the legal position as settled by the Hon'ble Supreme Court. The G.P.F. Rules and the C.P.F. (India) Rules as referred in the aforesaid judgment, the Railway Service Pension Rules, 1993 are similar, which are applicable to the facts and circumstances of the present case. Rather the judgment supports the contention of the respondent, wherein, the Hon'ble Madras High Court has held as under:-
"51. As discussed in the foregoing paragraphs, this Court after referring to the relevant provisions relating to General Provident Fund, Gratuity, Leave Encashment Salary and Insurance Scheme, has noticed the specific exclusion of the brother of the deceased who had attained the age of 18 years and above, from inclusion in the definition 'family', as one of the nominees, entitled to the beneficial interest, in the property, after the death of the person concerned. Therefore, when the statutory Page 6 of 8 OA No.330/00777/2018 provisions relating to GPF, Family Pension, Gratuity, or the Group Insurance Scheme, 1980, do not contemplate nomination of the brother of the deceased who had attained the age of 18 years and above, the intention of the framers to restrict the beneficial interest in the property only to the members of the family, in the respective rules, is clear and in such circumstances, the very nomination made in favour of the brother of the deceased 4th respondent herein, is questionable and therefore, his contention that on the basis of the nomination made by his deceased brother, he alone is entitled to receive the retiral benefits and the lump sum amount under the Group Insurance Scheme, 1980, cannot be countenanced. Material on record discloses that the marriage between the petitioners' parents had been dissolved and for some reasons, best known to him, during the life time, father of the petitioners had nominated his brother, 4th respondent herein, to receive the terminal benefits.
52. In view of the settled pronouncement of law in ShipraSengupta's case (cited supra) of the nominee is only an authorised person or a trustee to receive the amount or manage the property. If there is any claim by the heirs of the deceased, to the beneficial interest in the property, the same should devolve only upon the legal heirs of the deceased, in accordance with the law of succession, governing them.
53. In the light of the decision of the Supreme Court, the petitioners, daughters of the deceased alone are entitled to the beneficial interest and to receive the payments under the heads."
13. The Hon'ble Supreme Court in the case of G.L. Bhatia Vs. Union of India & Ors., reported at 1999 (5) SCC 237 has held as under:-
"2. The sole question that arises for consideration in this appeal is whether the appellant, who happens to be the husband of the deceased government servant, is entitled to family pension under the provisions of the Central Civil Services (Pension) Rules (for short "the rules") notwithstanding the fact that the deceased wife in her nomination did not include the husband. The forums below have taken the view agreeing with the authorities that since the nomination was not in favour of the husband and the husband was staying separate from the wife, the husband would not be entitled to family pension in question. This view cannot be sustained in view of the provisions contained in Rule 54 of the rules. It is too well settled that where rights of the parties are governed by statutory provisions, the individual nomination contrary to the statute will not operate.
3. Under Rule 54 sub-rule (14)(b)(i) the expression "family" has been defined thus:
"54. (14)(b)(i) Wife in the case of a male government servant, or husband in the case of a female government servant...."
4. Sub-rule (8)(ii) of Rule 54 states that:
"54. (8)(ii) If a deceased government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child."
5. In the light of the aforesaid provisions and there being no divorce between the husband and wife even though they might be staying separately, the appellant husband would be entitled to the family pension in terms of the rules as noted aforesaid and the authorities, therefore, committed error in not granting family pension to the appellant relying upon the nomination made by the deceased wife of the appellant. The Page 7 of 8 OA No.330/00777/2018 impugned order is, accordingly, set aside and this appeal stands allowed."
14. The aforesaid judgment of Hon'ble Supreme Court squarely applicable to the facts and circumstances of the present case, as the nomination of the applicant is contrary to the Rules. The marriage between the respondent no. 6 wife and the deceased employee was subsisting at the time of death i.e. there was no divorce, the respondent no. 6 widow of the deceased employee is entitled to the benefits of retiral-cum-death gratuity in terms of the Rules 70, 71, 73 and 74 of Railway Service Pension Rules, 1993.
15. In view of the facts and circumstances, it is concluded that no case is made out by the applicant and he cannot be granted the relief. The respondents may proceed to release the death-cum-retiral dues of the deceased employee Shri Anil Anand to his Class-I legal heir i.e. his widow namely Babita (private respondent No 6) as per rules after completing the desired formalities that may be necessary within 3 months from the receipt of the copy of this order.
16. The OA is disposed of in above terms. No order as to costs.
(Pratima K Gupta) Member (Judicial) RKM/ Page 8 of 8