Central Administrative Tribunal - Delhi
Dalbiro Devi vs M/O Railways on 5 March, 2019
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 4223/2015
New Delhi this the 05th day of March, 2019
Hon'ble Sh. Pradeep Kumar, Member (A)
Smt. Dalbiro Devi (Aged about 39 years)
W/o late Sh. Somnath
R/o Village Ramanna Rammanni
PO Bhakal Tehsil Pundri, Distt. Kaithal (Haryana)
...Applicant
(By Advocate : Sh. S.S. Tiwari)
Versus
1. Union of India
Through its General Manager
Northern Railway
Baroda House, New Delhi.
2. The Divisional Railway Manager
Northern Railway
State Entry Road, New Delhi.
3. The Divisional Personnel Officer
Northern Railway
State Entry Road, New Delhi.
4. Master Rahul Kumar
S/o late Sh. Somnath
Through his Gaurdian Smt. Ram Rati Devi
R/o Village Ghararsi Post Office Bharna
Tehsil: Thanesar, Distt : Kurukshetar
5. Kumari Preeti Devi
D/o Late Sh. Somnath
Through his Guardian Smt. Ram Rati Devi
R/o Village Ghararsi Post Office Bharna
Tehsil: Thanesar, Distt: Kurukshetar. ..Respondents
(By Advocate : Sh. Shailender Tiwari for Railway)
Sh. Satish Kumar-Private Respondents - 4 to 5
2 OA No.4223/2015
ORDER (ORAL)
1.0. The instant application has been filed by one Smt. Dalbiro Devi who claims that she is the second wife of one Shri Somnath S/o Sunhera, who was working as a Sweeper in the respondents-Railway. Shri Somnath had unfortunately died on 31.12.2012 after completing about 25 years of service.
The applicant pleads that the first wife of said Shri Somnath namely Smt. Murti Devi had died on 26.08.2006 and there are two minor children from the first wife namely Rahul Kumar (son) and Ms. Preeti Devi (daughter). These two minor children were not arrayed in this OA to start with and were both added as private respondents no. 4 and 5 in this O.A. , vide orders dated 21.07.2017.
The applicant claims that she had married late Shri Somnath sometime in 2008 and she also has two minor children namely Km. Tamanna and Km. Khushi from this marriage.
After the death of said Shri Somnath, the applicant made a claim for release of the retiral dues and for 3 OA No.4223/2015 compassionate ground appointment in her favour, for the first time ever, with the respondents on 15.04.2015, as she has to support 4 children. However, the retiral dues namely gratuity, PF, leave encashment, group insurance and pension etc. have not yet been released to any of the dependents. The instant OA has been filed seeking the following reliefs :-
"i. That to pass necessary orders to Railway Authorities to pay the retiral benefits to legal heirs of late Sh. Somnath with 18% compounding interest from December 2012.
ii. That to give a suitable job to Smt. Dalbiro Devi Widow of late Sh. Somnath who worked as sweeper under CNI/HNZM under Compassionate gounds.
iii. Any other order as the Hon'ble lordship thinks fit."
2. The applicant also mentioned that one criminal case was lodged by her in-laws claiming that the second wife (the applicant herein) along with her two brothers, had murdered her husband late Shri Somnath (criminal complaint No. 45271/2013 Dt 9.1.2013 under Section 307, 302, 380, 217, 218, 452, 120B of IPC). The applicant however also pleads that this case was eventually dismissed by the Court of Judicial Magistrate 1st class, Kurukshetra vide judgment dated 29th October, 2016 with following orders :-
"6. Looking into consideration, the aforesaid facts and circumstances, I do not find any 4 OA No.4223/2015 sufficient ground to summon the accused as prayed for. Therefore, present complaint is hereby dismissed under Section 203 of Cr.P.C. File be consigned to the record room after due compliance."
3. It was pleaded that the Sarpanch of Gram Panchayat, Village Ghararsi had issued a certificate that said Shri Somnath is a permanent resident of Village Ghararsi and Smt. Dalbiro Devi being the wife of said Shri Somnath, she be issued a voter ID. It was pleaded that this needs to be taken into account by Railway and retiral dues released without insisting for succession certificate.
The applicant relied upon a judgment of the Hon'ble Apex Court in Civil Appeal No.20858/2017, (Rupajan Begum vs. Union of India & Ors.). Specific attention was drawn to para 18 of this judgment, wherein the Hon'ble Apex Court had given certain directions with a view to establish a linkage between the holder of a certificate and the person(s) from whom legacy is being claimed. It was pleaded that the certificate issued by the Grampanchyat should be acted upon without insisting for succession certificate. Para 18 of this judgment is reproduced below :-
"For all the aforesaid reasons we set aside the order of the High Court insofar as the invalidity of the certificate issued by the G.P. Secretary is concerned and allow the present appeals to the above limited extent. We make it clear that the certificates issued by the G.P. 5 OA No.4223/2015 Secretary/Executive Magistrate will however be acted upon only to establish a linkage between the holder of such certificate and the person(s) from whom legacy is being claimed. The certificate will be put to such limited use only if the contents of the certificate are found to be established on due and proper enquiry and verification."
(GP here stands for Gram Panchayat).
4. The respondents opposed the OA and mentioned that the service record of said Shri Somnath does not have any indication that Smt. Dalbiro Devi is his second wife. However, now since there is a dispute and even though they are ready, they are unable to disburse any of the retiral dues to any of the dependents. This has been advised also to the applicant vide letter Dt. 20.4.2015 as well as on 30.6.2015. 4.1 It is also to be noted here that the custody of the two children from the first wife, who both are minors, was handed over to Smt. Ram Rati, w/o Sunhera Ram and mother of late Shri Somnath, resident of Village Ghararsi, in her capacity as paternal Grandmother (Dadi) of the two children, vide orders Dt. 9.9.2014 by Addl. Civil Judge (Sr. Divn), Kurukshetra (petition no. 66/2013 Dt. 5.12.2013 and computer ID No. Gurd/0008936/2013).
4.2 It is also seen from the counter reply of respondents that the said Smt. Ram Rati Devi had submitted an application on 23.10.2013 to DRM office to register the name of Rahul Kumar 6 OA No.4223/2015 for compassionate ground appointment till he attains the age of majority. This has not been agreed to in view of objection by applicant.
4.3 Following averment has also been made by the respondents in their additional affidavit.
"6. It is submitted that Late Sh. Som Nath, Ex. Safai Wala had one son Master Rahul Kumar and one daughter Ms. Priti Devi from his 1st wife late Smt. Murti Devi.
Xxx xxx xxx
11. ...... In this particular case family pension and other settlement dues are to be released being the employee Sh. Som Nath s/o Sh Sunhera ex Safai Wala under CHI/HNZM who was expired on 31/12/2012.
Xxx xxx xxx
13. It is submitted that since no such formal applications (with pension papers duly signed by the competent authority) for release of settlement dues have been received in this office neither from Smt Dalbiro and nor from Smt Ram Rati."
5. The matter has been heard at length. Sh. S S Tiwari, learned counsel represented the applicant. Sh. Shailender Tiwari, learned counsel represented the respondent-Railway and Sh. Satish Kumar, learned counsel represented the private respondents no. 4 & 5 namely Sh. Rahul (minor Son) and Kumari Preeti Devi (minor daughter) of late Sh. Somnath from first wife.
7 OA No.4223/2015
M.A. No. 3823/2015 has been filed seeking exemption from submitting dim documents. Since the OA has been heard and decided, the same has become infructuous.
6. The instant case appears to be one where there are rival claims by two different entities namely the two minor children from the first marriage on one hand and the second wife and her two minor daughters on the other. 7.0. While there may be certain controversy about eligibility of second wife and her two daughters from her marriage to late Shri Somnath, as per her claims, and which may be disputed in the instant case, and may fall under the category of a void or voidable marriage, there appears to be no controversy about eligibility of the two children from first marriage, on their legitimate claim on the retiral dues of late Shri Somnath. In respect of eligibility of children from a void or voidable marriage for family pension, certain directions have been issued by Department of Pension and Pensioners Welfare vide OM Dt. 27.11.2012. It reads as under :-
"The undersigned is directed to refer to this Department's O.M. No. 1/16/96-P&PW(E), dated 2.12.1996 whereby it was clarified that Pensionary benefits will be granted to children of a deceased Government servant/pensioner from void or voidable marriages when their turn comes in accordance with Rule 54(8). It is mentioned in Para 4 of the O.M. that "It may be noted that 8 OA No.4223/2015 they will have no claim whatsoever to receive family pension as long as the legally wedded wife is the recipient of the same.
2. The matter has been re-examined in consultation with the Ministry of Law and Justice (Department of Legal Affairs) and Ministry of Finance (Department of Expenditure). It has been decided that in supersession of Para 4 of the O.M, ibid, dated 2.12.1996, the share of children from illegally wedded wife in the family pension shall be payable to them in the manner given under sub-rule 7 (c) of Rule 54 of CCS (Pension) Rules, 1972, along with the legally wedded wife.
3. It has also been decided that in past cases, no recovery from the previous beneficiary should be made. On receipt of an application from eligible child/children of the deceased Government employee/pensioner born to an ineligible mother, a decision regarding division or otherwise of family pension may be taken by the competent authority after satisfying himself/herself about veracity of facts and entitlement of the applicant(s)."
Rule 75 of Railway Services (Pension) Rules, 1993 corresponds to Rule 54 of CCS (Pensions) Rules, 1972. The relevant part of Rule 75 of Railway Services (Pension) Rules, 1993 are reproduced below:
"(7) (i) (a) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares.
(b) On the death of a widow, her share of the family pension shall become payable to her eligible child:
Xxx xxx xxx 9 OA No.4223/2015
(ii) Where the deceased railway servant or pensioners is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the railway servant or pensioner.
Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse, but shall be payable to the other widow or widows or the other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child.
(iii) Where the deceased railway servant or pensioners is survived by a widow but has left behind child or children from a divorced wife or wives, such child or children if they satisfy other conditions of eligibility for payment of family pension shall be entitled to the share of family pension which the mother would have received at the time of the death of the railway servant or pensioner had she not been so divorced.
Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse but shall be payable to the other widow or widows and/or to the other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child.
Xxx xxx xxx (8) (i) Except as provided in clause (d) of sub-
rule (6) and clause (i) of sub-rule (7), the family pension shall not be payable to more than one member of the family at the same time.
10 OA No.4223/2015
(ii) If a deceased railway 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.
(iii) Family pension to the children shall be payable in the order of their birth and the younger of them will not be eligible for family pension unless the elder next above to him has become ineligible for the grant of family pension:
Xxx xxx xxx (9) Where a deceased railway servant or pensioner leaves behind more children than one, the eldest child shall be entitled to the family pension for the period mentioned in Clause (b) or Clause (c) of sub-rule (6), as the case may be, and after the expiry of that period the next child shall become eligible for the grant of family pension. (10) Where family pension is granted under this rule to minor, it shall be payable to the guardian on behalf of the minor."
8. When such is the rule position, it would be necessary that the applicant herein has to approach the relevant Court and obtain the succession certificate in her favour, as per merits, and submit the same to the respondents to consider and to take further necessary action in respect of releasing her share of the retiral dues as well as for consideration in respect of compassionate ground appointment.
9. In view of the foregoing, this OA is dismissed being premature in absence of a succession certificate in favour of the instant applicant.
11 OA No.4223/2015
10. The Tribunal further observes that while there may be certain dispute about the status of applicant herein and her two daughters vis-a-vis late Shri Somnath, since her name does not appear in the service records with Railways, there does not appear to be any such dispute about the status of private respondent 4 and 5 herein. It is expected that their names would be available in service records as respondents had made averments (para 4.3 supra). These two respondents are minor and may be in need of support at this stage of their life. Moreover, they in any case have their legitimate claim on retiral dues (para 7 supra), at least to the extent of certain share if not in full. Therefore, this cannot be delayed.
11. In view of the above, the OA is dismissed with further directions as under:
(a) The 2nd respondent shall arrange release of the death-cum-retirement benefits of late Shri Somnath, including provident fund, gratuity, insurance and leave encashment, to the extent of 25% each in favour of the two respondents 4 and 5, alongwith GPF rate of interest, within six weeks from receipt of certified copy of these 12 OA No.4223/2015 orders. The amount so released shall be kept in two separate fixed deposits in a Nationalised Bank, under the guardianship of their grandmother Smt. Ram Rati, till the respondents 4 and 5, attain the age of majority.
(b) It shall be open to the instant applicant and her two daughters, to approach the competent court of civil jurisdiction to get declaration as regards their relation with and succession to late Shri Somnath, and keep the 2nd respondent informed of the development in such proceedings.
(c) The 2nd respondent shall take necessary steps in accordance with the adjudication, which the civil court may undertake, on the proceedings instituted by the applicant and her children as per (b) above. If, however, no such adjudication takes place within a period of three years, the 2nd respondent shall take necessary steps to release the remaining 50% share of the retirement benefits of late Shri Somnath to respondents 4 and 5 in equal proportions alongwith interest, as at (a) above. 13 OA No.4223/2015 This shall, however, be subject to any interim or final order that may be passed by any civil court on the adjudication at (b) above.
(d) The 2nd respondent shall take immediate further steps to release the pensionary benefits in accordance with law, in favour of respondents 4 and 5. This, however, shall be modified as per the interim or final outcome of the proceedings, which the applicant may institute as per (b) above.
(e) The claim on pension, if any, in favour of the applicant, shall accrue only after orders are issued in favour of the applicant as per the adjudication at (b) above. Respondent No.2 shall take necessary action in respect of further pension, if and when such adjudication takes place.
(f) The facility of appointment on compassionate basis shall be extended, in accordance with law, to respondent No.4, as and when he attains the age of majority, and acquires the qualification or to the applicant as the case 14 OA No.4223/2015 may be, depending upon adjudication as per
(b) above.
(g) Respondents No.4 & 5 shall have liberty to approach Tribunal, if they have any grievance in compliance of these directions.
12. There shall be no order as to costs.
(Pradeep Kumar) Member (A) Sarita