Orissa High Court
Smt. Subasini Behera Alias Pothal vs The Branch Manager State Bank Of India ... on 22 August, 2017
Author: S.K.Mishra
Bench: S.K.Mishra
HIGH COURT OF ORISSA; CUTTACK
W.P.(C) No.22427/2016 & CRLMP No.1399/2016
In the matter of applications under Articles 226 and 227 of the
Constitution of India.
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In W.P.(C) No 22427/2017 Smt. Subasini Behera @ Pothal ... Petitioner Versus The Branch Manager, State Bank of India & others ... Opposite Parties For Petitioner : M/s. Gopal Krushna Nayak (Legal Aid Counsel) For opposite party no.1 : M/s. P.V.Balkrishna, R.Biswal and B.Rout.
For opposite party no.2 : Central Government Counsel. For opposite party no.3 : M/s. Manamaya Ku. Dash, R.D.Singh, S.Singh, P.K.Nanda, D.Sahoo and H.K.Dash.
For opposite party no.4 : M/s. S.S.Das, Sr. Advocate, S.S.Pradhan, S.Das and S. Rout.
In CRLMP No.1399 of 2016 Subasi @ Subasini Behera @ Pothal ... Petitioner Versus State of Odisha & others ... Opposite Parties 2 For Petitioner : M/s. Gopal Krishna Nayak, Pravash Ch. Jena, S.J.Das,A.K.Das & B.S.Mishra. For opposite parties : Addl. Government Advocate. ---------------- PRESENT: THE HONOURABLE MR. JUSTICE S.K.MISHRA Date of judgment: 22.8.2017. S.K.Mishra,J. This judgment arises out of two applications filed by
Subasini Behera @ Pothal. In W.P.(C) No.22427/2016 Subasini Behera @ Pothal, being the widowed mother of late Akshya Kumar Pothal, who died in suspicious circumstances, has filed the writ petition to direct the opposite parties 1 to 3 not to disburse the death-cum-retirement benefit, pension etc. of the deceased till determination of cause of death of the deceased. CRLMP No.1399/2016 has also been filed by the said Subasi @ Subasini Behera @ Pothal praying that a case under Section 302 of the I.P.C. should be registered and the investigation of the case should be handed over to any other investigating agency or the C.B.I.
2. In course of hearing, it is borne out that the deceased son of the petitioner was working as an Asst. Engineer with the Government of India, Central Grownd Water Board, Division-10, Bhujal Bhawan, Khandagiri Square, Bhubaneswar. The husband 3 of the petitioner is already dead and it is her case that they have acquired two properties in Bhubaneswar and in one residence her deceased son was residing along with his wife Anita Pothal, and three daughters. She claimed that Anita Pothal tortured the said Akshaya Kumar Pothal, as a result of which he started living in a Guest House namely "SAI RESIDENCY GUEST HOUSE" where he was found dead with the door locked from inside having multiple injuries. The staff of the aforesaid Guest House took the deceased to the Hospital, but it was declared that he has been brought dead to the hospital. It is apparent that the said Akshaya Kumar Pothal has died in between 14.7.2016 and 17.7.2016. At present this Court is confronted with two questions. (i) whether the widow and children are not entitled to receive the death-cum-retirement benefit and whether the widow of the deceased Central Government Employee is entitled to receive family pension and (ii) whether there should be reinvestigation of the case regarding the death of the deceased Akshaya Kumar Pothal because of latches of investigation.
3. It is not disputed that the deceased was working as a Central Government Employee and, therefore, after his death as per the scheme his family members are entitled to family pension, the balance available in the GPF along with interest, the sum equal to unutilized leave salary, gratuity, fixed deposit and insurance.
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4. In course of hearing, learned counsel appearing for opposite party no.3-Anitha Pothal, relied upon Rule 50 of the Central Civil Services Pension Rules (hereinafter referred to as the "CCS Rules" for brevity). At sub-rule (6) of Rule 50 of the CCS Rules 'Family' has been defined. It is appropriate to quote the same:-
"6. For the purpose of this rule and Rules 51, 52 and 53, 'family', in relation to a Government servant, means-
(i) wife or wives including judicially separate wife or wives in the case of a male Government servant,
(ii) husband, including judicially separate husband in the case of a female Government servant,
(iii) sons including stepsons and adopted sons,
(iv) unmarried daughters including stepdaughters and adopted daughters,
(v) widowed daughters including stepdaughters and adopted daughters,
(vi) father, including adoptive parents in the case of individual whose personal law permits adoption,
(vii) mother, including adoptive parents in the case of individual whose personal law permits adoption.
(viii) Brothers below the age of eighteen years including
stepbrothers,
(ix) Unmarried sisters and widowed sisters including
stepsisters,
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(x) Married daughters, and
(xi) Children of a pre-deceased son.
5. In interpreting these two provisions, this Court in the case of Samser Khan and another Vrs. The Commandant, 202 BN. COBRA, CRPF, Sunabeda, Koraput and others; 122 (2016) CLT 1 has come to the conclusion that the personal law guiding the people is not applicable to family pension and as in this case, the petitioner happens to be the mother of the deceased employee and as per Rules given above, the widow of the deceased employee is entitled to family pension. It is argued on behalf of the petitioner that as per Section 25 of the Hindu Succession Act, 1956, a person who commits murder or abets for commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. However, in this case, there is no material on record regarding the alleged torture meted out by Anita Pothal to the deceased Central Government Employee and that actually the deceased was murdered by Anita Pothal. So this Court is of the opinion that the family pension of the deceased employee should be granted in favour of opposite party no.4-
Anital Pothal. In addition the GPF, unutilized leave salary, gratuity and fixed deposit that are entitled to be shared by all the legal heirs of the deceased employee i.e. his widowed mother, 6 widow and three daughters. As far as the insurance is concerned, learned counsel appearing for the Insurance Company submits that the insurance was taken by the deceased employee in the name of one of his daughter. The amount has already been credited in the nominee's account, i.e. opposite no.4, which is for the purpose of education of his daughter. Since the policy was taken in favour of one of his daughter, the said amount should not be shared by all legal heirs.
6. Hence, this Court disposes of the writ petition directing the employer to fix the family pension as early as possible and grant the same in favour of opposite party no.4-Anita Pothal, who happens to be the widow of the deceased employee.
7. The funds available in the GPF, Gratuity, Unutilized Leave Salary and any Fixed Deposit should be shared by all the legal heirs, they are, the petitioner, opposite party no.4 and three daughters of the deceased employee. Accordingly, opposite party no.2 is directed to disburse the amount equally in favour of the aforesaid legal heirs as expeditiously as possible.
8. Coming to the question of reinvestigation of the case of the petitioner is concerned, it is borne out from the record that the deceased was found with multiple injuries on his body as result of which he died. It is apparent from the final report of the U.D. case that the deceased was lying on the floor. There were injuries on the body of the deceased especially the injury on the scalp of the deceased with corresponding intra carnial 7 hemorrhage. It is also borne out from the photographs of the deceased that he has sustained several injuries on his body. So the report of the inquiring officer and the opinion of the supervising officer that the deceased might have fell down accidentally on the floor of the room and as a result of which he succumbed to the injuries and there is no suspicion of foul play appear to be incorrect. This Court could not appreciate how a person who fell down from his bed which is not more than 1.5 ft. high from the floor could sustain such injuries. So this Court is of the opinion that the case should be reopened. Accordingly, the DCP, Bhubaneswar is directed to initiate a case for commission of offence under Section 302 of the I.P.C. against unknown persons, register the same and direct the I.I.C., Khandagiri P.S. to take up investigation of the case.
9. Care must be taken to investigate into the case properly and find out if the death of the deceased was homicidal in nature and the person who is responsible for the same. However, this order should not be construed to be a direction to definitely implicate the widow of the deceased. If the Investigation Officer finds any material against the widow, it is open to the I.O. to take appropriate action against her.
10. With such observation, the CRLMP is disposed of.
11. Mr. Gopal Krishna Nayak, learned counsel, was requested by the Court to advance his submissions on behalf of the petitioner in the writ petition as she was unable to engage a 8 counsel. The counsel Mr. Nayak rendered invaluable assistance to the Court. Hence, this Court records its appreciation for Mr. Nayak.
12. A free copy of this judgment be given to the learned Addl. Government Advocate for early compliance.
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S.K.Mishra, J Orissa High Court, Cuttack Dated 22nd August, 2017/A.K.Behera.
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