Madras High Court
J.Pushpam vs )The Internal Audit Officer(Pension) on 26 September, 2018
Author: J.Nisha Banu
Bench: J.Nisha Banu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.09.2018
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P(MD)No.9261 of 2012
and
M.P(MD)Nos.1 and 2 of 2012
J.Pushpam ... Petitioner
vs.
1)The Internal Audit Officer(Pension),
Board Office Audit Branch,
Tamilnadu Electricity Board,
No.144, Anna Salai,
Chennai-600 002.
2)The Superintending Engineer,
Kanyakumari Electricity Distribution Circle,
Tamilnadu Electricity Board,
Nagercoil-629 009,
Kanyakumari District. ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India,
for issuance of a Writ of Certiorarified Mandamus, calling for the records
relating to the impugned order passed by the first respondent in his
proceedings vide Letter No.030966/407/F8/F83/PPO.27699/09 dated 23.10.2009,
in so far as the portion denying the family pension and other benefits to the
petitioner is concerned and quash the same as illegal and consequently direct
the respondents to release the family pension and all other benefits to the
petitioner which is legally entitled to her from 25.11.2008, the date which
was subsequent to the date of death of her husband Mr.M.Johnson with arrears
and interest within a stipulated time that may be fixed by this Honourable
Court.
!For Petitioner : Mr.B.Brijesh Kishore
^For Respondents : Mr.A.U.Ramanathan
:ORDER
In this writ petition, the petitioner seeks to quash the order passed by the 1st respondent in his proceedings vide Letter No.030966/407/F8/F83/PPO.27699/09, dated 23.10.2009, denying family pension and other benefits to her. The petitioner has also sought for a consequential direction to the respondents to release family pension and all other benefits which she is legally entitled to from 25.11.2008 along with arrears and interest within a stipulated time frame to be fixed by this Court.
2.Learned counsel for the petitioner would aver that the petitioner is the legally wedded wife of the deceased Mr.Johnson and to prove her marriage with Mr.Johnson, the petitioner has filed marriage certificate dated 02.11.1973, to prove that the marriage was solemnised before the Salvation Army Church in Kanyakumari District and out of the wedlock, she gas got two sons and one daughter. It is further stated that one Lakshmi was working with her husband when he was working as a Mason in Andhra Pradesh and since nobody was to take care of her, the petitioner's husband had taken her to Tamilnadu and with the consent of the petitioner, she was permitted to live with her husband. There was no marriage with the deceased and the said Lakshmi and she did not have any issues till her death on 28.06.2009.
3.Learned counsel for the petitioner would further submit that the petitioner's husband Mr.M.Johnson retired from service as Line Inspector on 31.05.1998 on his superannuation without any blemished records. During his entry into the service, he has registered the names of his wives as R.Lakshmi, aged 36 years and D.Meenakshi, aged 22 years in the service register. According to the petitioner, she is the legally wedded wife of the deceased and after marriage, her name D.Meenakshi was changed as J.Pushpam and all official records has been changed incorporating her name as J.Pushpam.
4.It is further submitted that in the family pension register of the deceased, the petitioner's name has been incorporated as wife and next legal heir to receive family pension. Accordingly, the 2nd respondent has sanctioned family pension to the petitioner after the death of her husband in his proceedings vide No.03141/Adm.II/A1/F/Pension/98-5 dated 17.05.1998 and sent the same to the 1st respondent. After the retirement of her husband on 31.05.1998, the pension payment order in PPO No.27699 was released by the 1st respondent on 10.08.1998, wherein, the petitioner's photo along with her husband has been countersigned by the Executive Engineer, Distribution, TNEB, Nagercoil, in the descriptive role of employee. The petitioner's husband had received pension during his life time till his death on 24.11.2008 and thereafter, the petitioner submitted an application before the 1st respondent on 18.12.2008, enclosing all the relevant documents so as to enable the 1st respondent to sanction and disburse the family pension.
5.Learned counsel for the petitioner would further submit that the 1st respondent vide proceedings dated 11.02.2009 has sent a letter of clarification to the 2nd respondent in disbursing family pension to the legal heirs with a copy marked to the petitioner. On the basis of the same, the 2nd respondent vide proceedings dated 16.03.2009 has sent a letter to the petitioner seeking certain clarifications and to furnish certain relevant documents so as to enable him to disburse family pension to the petitioner. On receipt of the same, the petitioner has sent a detailed explanation by RPAD to the 2nd respondent on 19.05.2009, enclosing all the relevant documents which were directed by him to produce before the 1st respondent. Moreover, No Objection Certificate issued by the other legal heirs namely, children of the petitioner and Mrs.R.Lakshmi was also forwarded stating that they have no objection in respect of disbursing family pension to the petitioner. In spite of the same, the 1st respondent had not chosen to disburse family pension to the petitioner and therefore, the petitioner approached the Kanyakumari District Electricity Board Pensioners Association, Nagercoil, and accordingly, a resolution was passed in the General Committee on 16.08.2009 and the same was forwarded to the 2nd respondent on 19.10.2009 to take necessary steps for disbursing family pension, but to her shock and surprise, the impugned order came to be passed by the 1st respondent denying pension as per Rule 49(7)(9)(1) of the Tamil Nadu Pension Rules.
6.It is further contended that the reason assigned by the 1st respondent in the impugned order is that as per Rule 49(7)(9)(1) of the Tamil Nadu Pension Rules, if a Government employee contracts a second marriage during the subsistence of the first marriage, the second marriage is void and the second wife is not entitled to pensionary benefits of the deceased employee, even if the second marriage is registered and in the present case, since the deceased employee Mr.Johnson who married the petitioner/Pushpam while the subsistence of his first marriage with first wife/Lakshmi, the petitioner is not entitled to family pension due to the death of the deceased in the eye of law. Therefore, the legal heirs of the deceased namely, Tmt.Jhansi Rani, Mr.John Rajan and Mr.Vijayakumar alone are entitled to family benefit fund of Rs.25,000/- and the arrears of family pension payable to the first wife/Lakshmi between 25.11.2008 and 28.06.2009 in equal shares or to any one of the three heirs upon submission of no objection certificate from other two heirs.
7.According to the learned counsel for the petitioner, the petitioner is the legally wedded wife of the deceased and she is entitled for family pension. Therefore, he submitted that the impugned rejection order passed without application of mind is liable to be set aside by allowing the writ petition.
8.In support of his contention that the petitioner is entitled to family pension due to the death of the deceased, the learned counsel relied on the following judgments:-
i)S.Pushpavalli vs. The Senior Accounts Officer, O/o, The Principal Accountant General (A&E), Tamil Nadu and others (W.P(MD)No.7817 of 2011, dated 26.08.2014)
ii)S.Parvathy vs. Principal Accountant General, Tamil Nadu and others (W.P.No.6270 of 2012, dated 15.11.2016)
iii)P.S.Shanthi Balakrishnan vs. Director of Medical Education, Chennai and others (W.P.No.9856 of 2015, dated 02.11.2015)
iv)P.Vishalakshiamma vs. Director of School Education, Chennai, reported in 2014 (2) L.W 1009.
9.The respondents filed counter affidavit. Learned counsel for the respondents would submit that the petitioner is not eligible for family pension and other benefits as per Rule 49(7) of the Tamil Nadu Pension Rules, 1978. Thiru.M.Johnson, retired Board employee had married the petitioner while his first wife was alive and hence the petitioner is not considered as legally wedded wife of the deceased. As per the Service Book of Thiru.M.Johnson, Board employee retired on 31.05.1998 and expired on 24.11.2008, the date of appointment of Thiru.M.Johnson was 11.02.1965 and absorbed as R.W.Establishment category as Stone Cutter with effect from 01.01.1973. The alleged statement that Tmt.R.Lakshmi aged 36 years and D.Meenakshi aged 22 years as his wives during his entry into service is denied as incorrect. The petitioner claimed that her name was D.Meenakshi and even as per her averment, she had not married Thiru.M.Johnson at the time of his entry into the service. The alleged second marriage of Thiru.M.Johnson was held on 02.11.1973 and on the date of alleged marriage, the bride's age was 18 years and the bride had signed as D.Pushpam, whereas the petitioner is J.Pushpam. Tmt.R.Lakshmi and Tmt.D.Meenakshi are the wives as per the nomination given by Thiru.M.Johnson on 16.08.1974 for Employees Family Benefit Fund Scheme. No record has been produced by the petitioner to prove that Tmt.D.Lakshmi wife of Thiru M.Johnson as per the Service Register and the petitioner is one and the same. The petitioner had not made any claim till the death of Thiru.M.Johnson and she has also not produced any proof for the legal marriage. According to the respondents, as per the nomination given by Thiru.M.Johnson on 16.08.1974 for the Employees Family Benefit Fund Scheme, Tmt.R.Lakshmi and D.Meenakshi are noted as the wives with equal shares and the petitioner's claim that she and the second wife D.Meenakshi is one and the same is not substantiated with any documentary proof.
10.Learned counsel for the respondents would also contend that Thiru.M.Johnson while submitting the proposal for family pension had mentioned one Tmt.J.Pushpam as his wife without any proof for the marriage, but vide proceedings dated 17.05.1998, inadvertently, the 2nd respondent sent proposal for acceptance to the 1st respondent to sanction family pension in the name of Tmt.J.Pushpam and the 1st respondent has rightly rejected the same and sought clarifications vide letter dated 11.08.1998 which is reproduced below:-
''It is further pointed out that a scrutiny of the service Rolls the following points are observed:-
1.In his letter dated 25.06.79 and 18.09.79 Thiru.M.Johnson has stated that his wife Meenakshi underwent sterlization operation on 13.02.77. For the above operation sanction was accorded for one incentive increment for the sterlization operation to his wife Tmt.Meenakshi (vide SR Vol I) by raising his pay from Rs.310/- to Rs.320/- from 13.03.77.
2.He had submitted nomination on 16.08.74 for employees family benefit fund scheme as follows:-
Name Age
1.Tmt.R.Lekshmi(wife) 36 years
W/o.M.Johnson
Equal share
2.Tmt.D.Meenakshi (wife) 22 years
W/o.M.Johnson
Whereas in his proceedings No.013141/Adm.II/A1/98/5 dated 17.05.98 the SE has sanctioned the family pension to Tmt.J.Pushpam on the status that she is the wife of Thiru.M.Johnson.
Hence, it is to be informed that the above matter may be scrutinized once again by personnel enquiry from Thiru.M.Johnson and other three persons who come across the status of wife of Thiru.M.Johnson and Family pension may be sanctioned to the actual wife of Thiru.M.Johnson so as to avoid legal proceedings against the payment of Family Pension.
The family pension is not authorised to Tmt.J.Pushpam. Immediate action may be taken to this matter at this initial stage. Further it is to be informed that in the pension proposal under the head of STATEMENT OF SERVICE, the date of strike has been noted as 21.09.82 instead of 21.10.82. This may be corrected at your end.''
11.Learned counsel for the respondents would further state that a notice was sent to the petitioner to produce the documents and the petitioner produced certain documents and on 07.03.2009, the 2nd respondent sent the same to the 1st respondent. However, as the alleged second marriage of the deceased with the petitioner was illegal, the 1st respondent rightly rejected family pension to the petitioner declaring her as ineligible as per the Tamil Nadu Pension Rules, 1978 and passed the impugned order dated 23.10.2009.
12.Heard the learned counsel for the petitioner as well as the respondents and perused the materials available on record.
13.It is not in dispute that No Objection Certificate has been given by the other legal heirs namely, children of the petitioner and the alleged Tmt.R.Lakshmi. Now, the impugned order has been passed stating that the petitioner's marriage was a second marriage. It is not in dispute that there is no evidence to prove that the first marriage of the deceased took place with the said Tmt.R.Lakshmi, whereas, the petitioner herein has provided all proof to show that her marriage with the deceased M.Johnson solemnised on 02.11.1973, before the Salvation Army Church in Kanyakumari District and the rejection has been made as per the Tamil Nadu Pension Rules, 1978, stating that the second marriage was illegal.
14.With regard to the issue raised in this writ petition, it is relevant to consider the judgments relied on by the counsel for petitioner:-
(i)In S.Parvathy vs. Principal Accountant General, Tamil Nadu and others (W.P.No.6270 of 2012, dated 15.11.2016), it has been held as follows:-
''9.As far as payment of pension or family pension is concerned, it is government by the Tamil Nadu Pension Rules. As per Rule 49 (7) (a) of the Tamil Nadu Pension Rules, if there are more than one wife to a government servant who died, they are entitled for family pension in equal moieties, until the amendment which were brought into force on 02.06.1992 did not prohibit the wife of a bigamous marriage from getting a share in the family pension. The explanation to the said Rule was introduced by amending the Rule only with effect from 02.06.1992. On or after 02.06.1992, if any government servant dies, then the wife of a bigamous marriage, which is void, is also entitled for payment of family pension. The very same issue was considered by this Court in the decision rendered in (S. Pushpavalli vs. The Senior Accounts Officer, office of the Principal Accountant General (A&E), Tamil Nadu and others) reported in 2014 SCC Online Madras 6319 wherein in Para No. 5 it was held as follows:-
''Admittedly, the marriage between the petitioner and her husband is void as per Section 5 of the Hindu Marriage Act. But the question whether the wife of such void marriage is entitled for family pension or not had been dealt with elaborately by this Court with reference to Sub-Rule 7 (a) (i) of Rule 49 in WP (MD) No. 9374 of 2010. In that case, this Court took a view that the second proviso to the said provision was inserted only with effect from 14.10.1991 and therefore any wife of the void marriage whose marriage had taken place on or after 14.10.1991 alone is not entitled for family pension. In paragraphs 12 to 18 of the order passed by this Court in WP (MD) No. 9374 of 2010 dated 22.07.20104, this Court has held as follows:-
?2.As I have already pointed out, so far as Tamil Nadu State is concerned, family pension is governed by the Tamil Nadu Pension Rules, 1978, which is a statutory Rule. As per Sub-Rule (7) (a) of Rule 49, it is crystal clear that if there are more than one wife to a Government servant, who died, they are entitled for family pension in equal moieties, until the amendment which was brought into force on 02.06.1982 did not prohibit the wife of a bigamous marriage from getting a share in the family pension. The explanation to the said Rule was introduced by amending the Rule only with effect from 02.06.1992. Therefore, on or after 02.06.1992, if any government servant dies, then the wife of a bigamous marriage, which is void, is not entitled for family pension. This Rule, in my considered opinion, is prospective in operation. In the case on hand, the deceased died in the year 1988. That is the reason why the family pension was shared between Mrs. Amsavalli and the petitioner in equal moieties.
Now, the question is as to whether the petitioner is entitled for getting the remaining 50% the pension which was hitherto paid to Mrs. Amsavalli. As I had already extracted, the second proviso to sub-Rule 7 (a)
(i) of Rule 49 makes it clear that if the widow is survived by a child, her share of the family pension shall be payable to her child, if the child is eligible. If there is no child, who is eligible to get pension, the share which was hitherto paid to the widow would cease. This proviso was in force only until 14th October 1991. Thereafter the same was substituted by the proviso which reads as under:-
''Provided that the widow is not survived by any child, her share of family pension shall be payable to the other widows in equal shares, or if there is only one such widow, in full to her.''''
10. Applying the above said decision rendered by this Court and the statutory Rule in force, in this case, the deceased government servant died only in the year 2009 and at that time, the first wife of the deceased government servant was not alive. Therefore, the petitioner is the only surviving legal heir of the deceased government servant. Further, as held by this Court in (P.S. Shanthi Balakrishnan vs. The Director of Medical Education, Kilpauk, Chennai and others) reported in 2015 SCC Online Madras 11754 mentioned supra, Rule 49 (7) (a) (i) of the Tamil Nadu Pension Rules, 1978, provides that where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares. Therefore by application of Rule 49 (7) (a) (i) of The Tamil Nadu Pension Rules, I hold that the petitioner is entitled for payment of family pension as the only surviving legal heir of the deceased government servant.
11. In the result, the writ petition is allowed with a direction to the respondents to sanction family pension to the petitioner on account of the demise of the deceased government servant, who was in receipt of pension after his retirement. The consequential order shall be passed by the respondents 2 to 4 within a period of eight weeks from the date of receipt of a copy of this order and the first respondent shall sanction the amount within a further period of eight weeks thereafter. No costs.''
(ii)In P.S.Shanthi Balakrishnan vs. Director of Medical Education, Chennai and others (W.P.No.9856 of 2015, dated 02.11.2015), it has been held as follows:-
4.The learned counsel for the petitioner submitted that as per Rules 49(7)(a)(i) of the Tamil Nadu Pension Rules, 1978, the second wife is also entitled for pension. The relevant portion is extracted below :
Rules 49(7)(a)(i) Where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares.
5.The plain reading of the provision would reveal that the Parliament in its wisdom that it fit to extent the benefit to the widows if the deceased had more than one wife. The issue is no longer resintegra. As this Court, in the decisions relied upon by the learned counsel for the petitioner reported in (i)CDJ 2014 MHC 3594 S.Kamatchi V. The Accountant General and another and
(ii)CDJ 2014 MHC 3978 S.Pushpavalli V. The Senior Accounts Officer, O/o.The Principal Accountant General (A&E) Tamil Nadu and others, held that the second wife is also entitled for pension, as per sub Rule 7(a)(i) of Rule 49 of Tamil Nadu Pension Rules. The marriage of the petitioner with Dr.P.R.Balakrishnan @ Sampath is not disputed by the respondents and the petitioner has further stated that they got two children out of the marriage wedlock.
6.In view of the above facts, the impugned order dated 07.05.2003 in K.Dis.No.78942/A3(1)/01 passed by the first respondent is liable to be set aside and it is accordingly set aside.
7.In the result, the writ petition is allowed. The respondents are directed to disburse the family pension to the petitioner, with effect from 28.01.2001 within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.''
15.In the present case, as per the nomination given by Thiru.M.Johnson on 16.08.1974 for the Employees Family Benefit Fund Scheme, Tmt.R.Lakshmi and the petitioner are noted as the wives of the deceased. In the legal heirship certificate dated 16.03.2009, issued by the Tahsildar, Thovalai, the petitioner has been mentioned as the second wife of the deceased. As of now, the first wife is not alive and she is stated to have died on 28.06.2009 without any issues and therefore, as per the above decisions, as the only surviving legal heir/wife of the deceased government servant, the petitioner is entitled to get full family pension due to the death of the deceased.
16.Though the learned counsel for the petitioner contended that the petitioner alone is the only legally wedded wife and the alleged Lakshmi was only permitted to live with the deceased and she did not marry the deceased, this Court is not inclined to decide the said contention, as the issue as to the entitlement of the second wife to the family pension of the deceased is no longer res integra, in view of the above extracted decisions by this Court. Further, as of now, the said Lakshmi is not alive and she herself has given no objection on 14.05.2009 to disburse the life time arrears due to the deceased to the petitioner. Therefore, this Court is of the view that the impugned order declining disbursement of family pension to the petitioner is liable to be set aside.
17.Accordingly, the impugned order of the 1st respondent in Letter No.030966/407/F8/F83/PPO.27699/09, dated 23.10.2009, in so far as the portion denying the family pension and other benefits to the petitioner is concerned, is set aside and the respondents are directed to release family pension and all other benefits to the petitioner which is legally entitled to her from 25.11.2008, the date which was subsequent to the date of death of her husband Mr.M.Johnson, along with arrears within a period of eight weeks from the date of receipt of a copy of this order.
J.NISHA BANU, J bala With the above direction, this Writ Petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.
To
1)The Internal Audit Officer(Pension), Board Office Audit Branch, Tamilnadu Electricity Board, No.144, Anna Salai, Chennai-600 002.
2)The Superintending Engineer, Kanyakumari Electricity Distribution Circle, Tamilnadu Electricity Board, Nagercoil-629 009, Kanyakumari District.
.