Kerala High Court
Sobhana V vs The Senior Divisional Finance Manager on 12 July, 2016
Author: Anil K. Narendran
Bench: P.R.Ramachandra Menon, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938
OP (CAT).No. 206 of 2016 (Z)
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( AGAINST THE ORDER IN OA 180/2014 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 12-07-2016)
PETITIONER(S)/APPLICANT:-:
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SOBHANA V
AGED 52 YEARS, D/O.LATE GOPALAN NAMBIAR,
(EX-KEYMAN, SOUTHERN RAILWAY),
PALAKKAD DIVISION, RESIDING AT A.P.HOUSE,
P.O.THAVAM, VIA CHERUKUNNU,
KANNUR DISTRICT - 670 301.
BY ADV. SRI.U.BALAGANGADHARAN
RESPONDENTS/RESPONDENTS:-:
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1. THE SENIOR DIVISIONAL FINANCE MANAGER,
SOUTHERN RAILWAY, PALAKKAD DIVISION,
PALAKKAD - 678 009.
2. THE GENERAL MANAGER,
SOUTHERN RAILWAY, HEADQUARTERS,
PARK TOWN, CHENNAI - 600 003.
3. THE DIVISIONAL RAILWAY MANAGER,
SOUTHERN RAILWAY,
PALAKKAD DIVISION,
PALAKKAD - 678 009.
4. UNION OF INDIA,
REPRESENTED BY SECRETARY,
RAILWAY BOARD, RAIL BHAVAN,
NEW DELHI - 110 001.
5. THE SECRETARY,
DEPARTMENT OF PERSONNEL & TRAINING,
NORTH BLOCK, NEW DELHI - 110 001.
R1-4 BY ADV. SRI.N.K.SUBRAMANIAN, SC, RAILWAYS
BY SRI.C.S.DIAS,SC, RAILWAYS
R5 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 29-07-2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT).No. 206 of 2016 (Z)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1. A TRUE COPY OF THE ORIGINAL APPLICATION ALONG WITH
ANNEXURES DATED 16.12.2014 FILED BEFORE THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM (O.A.NO.180/01106/14).
EXHIBIT P2. A TRUE COPY OF THE REPLY STATEMENT DATED 30.06.2015
FILED BY THE RAILWAYS BEFORE THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM.
EXHIBIT P3. A TRUE COPY OF THE MISCELLANEOUS APPLICATION WITH OM OF
DEPARTMENT OF PENSION DATED 12.02.2015 FILED BY THE
RAILWAYS BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM.
EXHIBIT P4. A TRUE COPY OF THE ENQUIRY REPORT ISSUED BY THE SUB
INSPECTOR OF POLICE, KANNAMPURAM DATED 11.03.2010.
EXHIBIT P5. A TRUE COPY OF TEH ENQUIRY REPORT ISSUED BY THE VILLAGE
OFFICER, CHERUKUNNU DATED 07.12.2009.
EXHIBIT P6. A TRUE COPY OF THE ORDER DATED 12.06.2016 OF THE CENTRAL
ADMINISTRATIVE TRIBUNAL.
/TRUE COPY/
P.S. TO JUDGE
P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.
..............................................................................
O.P.(CAT)No.206 of 2016
.........................................................................
Dated this the 29th July, 2016
JUDGMENT
Anil K. Narendran, J.
This Original Petition arises out of the order dated 12.07.2016 of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.1106 of 2014. The petitioner, who is the daughter of a deceased ex-Railway servant, has filed the said Original Application seeking for an order to quash Annexure A1; to direct the first respondent to resume disbursement of family pension as per Annexure A5 letter of authority and to disburse her the arrears with immediate effect and ensure continuous payment of family pension; and for a declaration that she is entitled to family pension being a divorced dependent daughter of the deceased railway servant in view of express statutory provision.
2. The prayers sought for in the Original Application were opposed by the respondents by filing Ext.P2 reply statement. O.P.(CAT)No.206 of 2016 2 After considering the rival contentions, the Tribunal dismissed the Original Application by Ext.P6 common order dated 12.07.2016, holding that Railway Board letter No.F(E) III/2007/PN1/5 dated 30.9.2014 cannot be termed as ultra vires the statutory provisions under the Railway Services (Pension) Rules, 1993. The Tribunal has also repelled the challenge made against the orders issued to the respective applicants for discontinuance of family pension, in terms of Department of Pension and Pension Welfare OM No.1/13/09-P&PW(E) dated 18.9.2014, on the ground that they became widow/divorcee after the death of the pensioner/spouse and as such they are not eligible for family pension.
3. Feeling aggrieved by Ext.P6 order passed by the Tribunal to the extent of rejecting the reliefs sought for in O.A.No.1106 of 2014, the petitioner is before this Court in this Original Petition.
4. We heard the arguments of the learned counsel for the petitioner/applicant.
5. As far as O.A.No.1106 of 2014 filed by the petitioner/applicant is concerned, the factual position is explained O.P.(CAT)No.206 of 2016 3 in para.20 of Ext.P6 order of the Tribunal, which reads thus:
"20. Mr. Balagangadharan, learned counsel appearing for the applicant in O.A.No.1106 of 2014 submitted that the applicant in that case was forsaken by her husband since a very long time even during the life time of her father who was Railway pensioner but unfortunately the Family Court granted the decree for divorce only after the death of the father. Mr.Balagangadharan therefore prayed for considering the pathetic situation of the applicant and to treat her eligible for family pension as the divorced daughter of the pensioner. However, as the status of the applicant in that case as a divorcee has been declared only by the decree of the Family Court which was passed after the death of her father, we are of the view that her prayer for treating her as eligible for family pension cannot be granted."
6. As discernible from Ext.P6 order, before the Tribunal O.A.No.1047 of 2014 was treated as the leading case, in which Annexure A4 Railway Board letter No.F(E) III/2007/PN1/5 dated 30.9.2014 (which is same as Annexure A7 in O.A.No.1106 of 2014), which is in concordance with Department of Pension and Pension Welfare OM No.1/13/09-P&PW(E) dated 18.9.2014 (Annexure A6 in O.A.No.1106 of 2014) was under challenge, O.P.(CAT)No.206 of 2016 4 contending that the said Railway Board letter dated 30.9.2014 is ultra vires to the statutory provisions under the Railway Services (Pension) Rules, 1993 and hence unconstitutional.
7. Instead of challenging Annexures A6 and A7 in O.A.No.1106 of 2014, the petitioner/applicant contended that, the purpose and intend of the said orders is not to grant family pension to those who were married and residing with their husband at the time of death of the Railway servant, which orders have no application in her case, who was only 14 years old at the time of death of her father and was admittedly a dependant of her father.
8. According to the applicant, after the death of her father, she was a dependant of her mother, who was sanctioned with family pension. Though the applicant got married on 8.11.1981 and a female child was born in the said wedlock, the marriage has broken and she started living with her mother as a dependent, with effect from 17.11.1984. While so, her mother died on 6.3.2008. Therefore, according to the applicant, Annexures A6 and A7 do not apply to her case under any stretch of imagination, she being a divorced daughter. In support of the O.P.(CAT)No.206 of 2016 5 said contention, the applicant would rely on Annexure A4 judgment of the Family Court, Kannur dated 16.6.2012 in O.P.No.778 of 2011, granting an ex parte decree of divorce.
9. The family pension to the dependents of the deceased Railway servants is governed by the Railway Services (Pension) Rules, 1993. Rule 75 of the said Rules deals with Family Pension Scheme for Railway Servants, 1964. Subject to the provisions contained in Rule 75, an unmarried/widowed/divorced daughter of a deceased Railway servant is entitled for payment of family pension. By Annexure A5 letter of authority dated 3.2.2014, the applicant was granted family pension as a divorced daughter of the deceased Railway servant, consequent to the death of her mother who was in receipt of family pension. However, by Annexure A1 order dated 6.11.2014 payment of family pension to the applicant was discontinued with immediate effect, subject to the condition that the family pension so far paid need not be recovered. Annexure A1 has been issued based on the Department of Pension and Pensioners Welfare OM No.1/13/09- P&PW(E) dated 18.9.2014 (Annexure A6). Paras.2 and 3 of Ext.P6 OM reads thus;
O.P.(CAT)No.206 of 2016 6
"2. Provision for grant of family pension to a widowed/divorced daughter beyond the age of 25 years has been made vide OM dated 30.8.2004. This provision has been included in clause (iii) of sub-rule 54(6) of the CCS (Pension) Rules, 1972. For settlement of old cases, it was clarified, vide OM dated 28.4.2011, that the family pension may be granted to eligible widowed/divorced daughters with effect from 30.8.2004, in case the death of the Govt. Servant/pensioner occurred before this date.
3. It was further clarified vide OM dated 11th September, 2013 that if a daughter became a divorcee/widow during the period when the pension/family pension was payable to her father/mother, such a daughter, on fulfillment of other conditions, shall be entitled to family pension. The clarification was aimed at correctly interpreting the conditions of eligibility of a widowed/divorced daughter in terms of the concept of family pension under the CCS (Pension) Rule, 1972. It was also stated that it was only a clarification and the entitlement of widowed/divorced daughter would continue to be determined in terms of OM dated 25th/30th August, 2004 read with OM dated 28th April, 2011. It implies that the family pension should discontinue in those cases where it had been sanctioned in pursuance of these OM but without taking into consideration that the widowed/divorced daughter was leading a married life at the time of death of her father/mother, whoever died later and was, therefore ineligible for family pension. It would be appropriate that in order maintain equality before law, family pension payable to such daughters is discontinued. O.P.(CAT)No.206 of 2016 7 However, recovery of the already paid amount of family pension would be extremely harsh on them and should not be resorted to."
10. In the instant case, at the time of death of her father, the applicant was a minor aged 14 years. After the death of her father, the applicant was a dependant of her mother, who was sanctioned with family pension. Though the applicant got married on 8.11.1981 and a female child was born in the said wedlock, the marriage has broken and she started living with her mother as a dependent, with effect from 17.11.1984. While so, her mother died on 6.3.2008. Therefore, the issue to be decided is as to whether the applicant is a 'divorced daughter' of a deceased Railway servant at the time of death of her mother, who is entitled for payment of family pension as provided under Rule 75 of the Railway Services (Pension) Rules.
11. Relying on Annexure A4 judgment of the Family Court dated 16.6.2012 in O.P.No.778 of 2011, the learned counsel for the petitioner/applicant would contend that, in view of the finding in the said judgment that, the applicant is living separately from her husband from 18.11.1984, she has to be treated as a divorcee with effect from 18.11.1984. If that be so, as on O.P.(CAT)No.206 of 2016 8 6.3.2008, the date on which her mother died, was a divorced daughter of a retired Railway servant, who is entitled for family pension as provided under Rule 75 of the Railway Services (Pension) Rules.
12. As discernible from Annexure A4 judgment of the Family Court, it is an ex parte judgment granting the applicant a decree of divorce under Section 13(1)(vii) of the Hindu Marriage Act, 1955 on the ground that her husband has not been heard of as being alive for a period of more than 20 years by those persons who would naturally have heard of it, had her husband been alive. The Family Court, by Annexure A4 judgment, allowed O.P.No.778 of 2011 by granting a decree of divorce holding that the marriage between the applicant and her husband solemnised on 8.11.1981 stands dissolved with effect from the date of judgment, i.e., 16.6.2012.
13. In Accounts Officer (Pension Sanction) v. Mariyamma (2010 (2) KLT 241), a similar issue has come up for consideration before a Division Bench of this Court. In the said case, the question was as to the entitlement of family pension by a married daughter of a deceased Government O.P.(CAT)No.206 of 2016 9 servant, who was deserted by her husband few days after the marriage. After considering the rival contentions, with reference to sub-rule (6) of Rule 90 of Part III Kerala Service Rules, it was held that such deserted daughter cannot be said to be a member of the family of the employee for the purpose of payment of family pension . Para.7 of the judgment reads thus;
" 7. As per items (e), (j) and (k) of sub-rule (6) of Rule 90 only unmarried daughters above 25 years of age or disabled divorced daughters/widowed disabled daughters of the employee are eligible for payment of family pension. The petitioner was admittedly given in marriage to Sri.Jacob even while her father was alive. Therefore, she is not an unmarried daughter of the employee. She does not also suffer from any physical or mental disorder or disability. The marriage between her and Sri.Jacob has not been dissolved. Therefore, she cannot be treated as a disabled divorced daughter. Her husband is alive and therefore, she cannot be treated as a disabled widowed daughter. In our view, on the terms of Rule 90(6) of Part III Kerala Service Rules, the petitioner cannot, therefore, be said to be a member of the family of the employee for the purpose of payment of family pension."
14. In the instant case, in view of Anexure A4 judgment, the applicant can be treated as a divorcee only with effect from 16.6.2012. As discernible from Annexure A4 judgment, the O.P.(CAT)No.206 of 2016 10 applicant had earlier approached the competent Civil Court in O.S.No.15/2001 alleging that her husband has not been heard for more than 17 years and seeking for appropriate declaration to that effect. However, the said suit ended in dismissal for want of evidence to substantiate the said claim. Therefore, as on 6.3.2008, the date on which the applicant's mother died, she can not be treated as a divorced daughter of a retired Railway servant, who is entitled for family pension as provided under Rule 75 of the Railway Services (Pension) Rules. In that view of the matter we find absolutely no reason to interfere with Ext.P6 judgment of the Tribunal to the extent of dismissing O.A.No.1106 of 2014 filed by the applicant by repelling the challenge made against Annexure A1 order dated 6.11.2014.
15. The learned counsel for the petitioner/applicant, with reference to Annexure MA1 OM No.1/7/2015-P&PW(E) dated 12.2.2015 of the Department of Pension and Pensioners Welfare, would submit that in view of the observations contained in Annexure A4 judgment of the Family Court the Ministry of Railways has been requested to look into the facts of the case and explore, in consultation with the Department of Legal Affairs, O.P.(CAT)No.206 of 2016 11 whether the petitioner/applicant can be treated as a widowed daughter at the time of death of her mother, in terms of Sections 107 and 108 of the Evidence Act, 1872 and the family pension be continued to her as a widowed daughter. Since the said issue is beyond the scope of the challenge made in O.A.No.1106 of 2014 and since the same is stated to be pending consideration before the Ministry of Railways, we are not expressing anything on the merits of the said submission made by the learned counsel for the petitioner/applicant.
In the result, the Original Petition fails and the same is accordingly dismissed.
P.R. RAMACHANDRA MENON, JUDGE ANIL K. NARENDRAN, JUDGE lk