Central Administrative Tribunal - Hyderabad
Farheen Sultana vs Bharat Sanchar Nigam Ltd on 9 February, 2022
OA No.973/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH : AT HYDERABAD
OA/021/00973/2015
Date of CAV : 18.01.2022
Date of Pronouncement : 09.02.2022
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr.B.V.Sudhakar, Admn. Member
Between:
Farheen Sultana, D/o. Durdana Qaiser &
W/o. Syed Ahemad Mujtaba, Age 23 years, Occ: Nil,
R/o. H. No. 16-2-741/B/50/A/12,
Asmangadh, Malakpet, Hyderabad - 500036.
...Applicant
(By Advocate : Mr. P.B. Manasvee for Mr. P.B. Vijay Kumar)
And
1. Union of India, Rep. by its Secretary, Department of Telecommunication,
Ministry of Communication & Information Technology,
Sanchar Bhavan, 20, Ashoka Road, New Delhi - 110 001.
2. The Secretary,
Department of Personnel, Public Grievances & Training (DOPT),
Department of Pension & Pensioners' Welfare,
Lok Nayak Bhavan, Khan Market, New Delhi - 110 003.
3. Bharat Sanchar Nigam Limited,
Rep. by its Chairman & Managing Director,
Bharat Sanchar Bhawan, Harischandra Mathur Lane,
Janpath, New Delhi - 110 001.
4. The Principal General Manager (WB), Bharat Sanchar Nigam Limited,
Telegraph Office Building, Kashmere Gate, New Delhi - 110 006.
5. The Chief General Manager, Maharashtra Telecom Circle,
BSNL Complex, Administrative Building, 6th Floor,
C Wing, Juhu Road, Santacruz (West), Mumbai - 400 054.
6. The Principal Controller of Communication Accounts (PCCA)
Maharashtra Telecom Circle, 3rd Floor, C Wing,
Juhu Danda Telecom Complex, Santacruz (West), Mumbai - 400 054.
7. The Chief Architect, Bharat Sanchar Nigam Limited (BSNL),
5th Floor, Admn. Buldg, Juhu Danda
Santacruz (West), Mumbai - 400 054.
....Respondents
(By Advocate : Mrs. K. Rajitha, Sr. CGSC
Mrs.K. Sri Devi, SC for BSNL)
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OA No.973/2015
ORDER
(As per Hon'ble Mr. B.V.Sudhakar, Admin. Member) Through Video Conferencing:
2. The OA is filed in regard to grant of family pension to the applicant.
3. Brief facts of the case are that the mother of the applicant while working in the respondents' organization as JTO passed away on 30.7.2010. Applicant's parents separated and therefore, she was living with her mother. After the death of her mother, she got married to an unemployed youth on 19.11.2010. Consequently, family pension was stopped from 18.11.2010. Aggrieved, the OA is filed.
4. The contentions of the applicant are that on the date of the death of her mother, the applicant was dependent on her mother. The family pension was stopped on 18.11.2010 without verifying as to whether there was any source of income for the family and the same is violative of Articles 14 & 21 of the Constitution. Neither her husband nor she are gainfully employed.
Her husband is suffering from kidney ailment. At the time of marriage, applicant was 19 years of age and was not aware of the Family Pension Rules. Moreover, the circumstances that prevailed after her mother's death compelled her to get married. The Rule communicated vide para 8.4 of Dept. of Pension and Pensioners' Welfare (for short DOP & PW) letter dated 2.9.2008 informing that the married daughter is not eligible for family pension is an orthodox concept, since it curtails the financial freedom of women. It needs to be amended to the extent of providing family pension till the daughter is gainfully employed or is married to an earning husband. In case of child less widow, family pension is paid even after remarriage till Page 2 of 8 OA No.973/2015 she starts earning independently. The Principles of Natural Justice have not been followed. The rule forces an unmarried dependent daughter of a deceased employee to either remain unmarried or marry a rich man for survival but not an unemployed person, thereby infringing personal liberty guaranteed under Article 21 of the Constitution. Representation submitted on 11.5.2013 to continue pension till her husband got a job was rejected on 17.6.2013 for the reason of getting married. Several representations submitted later, met the same fate.
5. Respondents state that consequent to the death of applicant's mother who worked for the respondents organization as JTO, an amount of Rs.10,00,000/- was paid to her towards DCRG and family pension was paid upto 18.11.2010. Applicant got married on 19.11.2010 and hence family pension was stopped. Family pension is paid as per Rule 54 (6) & (14) of CCS (Pension) Rules 1972 (Annexure R-2). In case of childless widow, family pension is paid even after her remarriage till she meets the income criterion to promote widow remarriage as per 6th CPC and hence, comparison made to seek the relief sought is incorrect. An unmarried daughter is paid family pension even after 25 years as per OM dated 2.9.2008 of DOP&PW. The common order of the Family Court in OS Nos. 208/2000 & 100/2003 dated 14.7.2005 does indicate that the deceased employee earned house property.
Applicant filed two rejoinders claiming that the contention of the respondents that her mother was in possession of a house property is irrelevant. The marriage certificate submitted shows that her husband is not employed. Her mother has served for 27 years and that on the date of death Page 3 of 8 OA No.973/2015 of her mother, she was dependent family member. No notice was issued before stopping the family pension. Claiming that Rule 54 provides for family pension as per the definition of 'family' is a hypothetical submission since she is the only dependent family member and there are no others to whom family pension is to be paid. If there are younger unmarried daughters, then the family pension can be paid to them. Respondents admitted that a child-less widow is paid family pension under certain conditions and denying the same benefit to a daughter who got married with no income to her or to her husband is discrimination. Other contentions made are repetitive.
6. Heard both the counsel and perused the pleadings on record.
7. I. The dispute is about non-payment of family pension to the applicant after she got married. The relief sought is as under:
"In view of the foregoing it is just and necessary that the Hon‟ble Tribunal may be pleased to declare:
(a) The Rules and orders issued by the 2nd respondent vide G.I. Dept. of Pen. & P.W. F. No. 38/37/08-P&PW (A) dated 2.9.2008, para 8.4 (c), in so far as it operates to "stoppage of family pension" in respect of a daughter of a deceased Central Government Employee, upon mere getting married without linking to financial criteria
(b) Action of the BSNL respondents stopping/ denying the payment of family pension to the applicant with effect from 19.11.2010, vide impugned proceedings No. CCA/MH/MBI/PG PORTAL/04 dated 23.05.2014 issued by the 6th respondent and No.CAM/BSNL/PENSION/ Durdana/196 dated09.12.2014 of the 7th respondent as arbitrary, illegal and violative of Articles 14 & 21 of the Constitution of India and violative of very preamble of the Constitution of India and by quashing the same direct the respondents to restore the family pension to the applicant from the date on which it was stopped i.e. from 19.11.2010 onwards and direct the respondents to pay arrears of family pension with interest @ 12% pa and continue paying the family pension until the applicant starts earning a decent independent wages or getting married to an earning husband and pass such other order or orders as this Hon‟ble Tribunal may deem fit and proper in the circumstances of the case."Page 4 of 8 OA No.973/2015
II. The rule that governs family pension is Rule 54(6) of CCS (Pension) Rules 1972, which is statutory in nature, is extracted as under:
"(6) The period for which family pension is payable shall be as follows:-
(iii) in the case of an unmarried or widowed or divorced daughter, until she gets married or remarried or until she starts earning her livelihood or till the age of (twenty five) years, whichever is earlier;
Explanation 1 to the said rule prescribes that „An unmarried son or an unmarried or widowed or divorced daughter except a disabled son or daughter shall become ineligible for family pension under this sub-rule from the date he or she gets married or remarried."
The Rule and the subsequent OM dated 6.9.2007 of DOP & PW (Annexure A-III of RS) are clear that family pension would be paid till the dependent daughter is married. In the case of the applicant, she got married on 19.11.2010 and from the said date family pension was stopped. The claim of the applicant is though she was married, her husband was unemployed and therefore, there is no income to the family. In addition, he has kidney ailment inviting medical expenses. The respondents in turn submitted that the applicant being the sole dependent was paid DCRG of around Rs.10.00 lakhs and that her mother had a house property and therefore, it is incorrect to state that she has no income. The applicant in the rejoinder has claimed that the issue of house property is irrelevant in the context of grant of family. However, it was not elaborated as to why it was not relevant during oral submissions or otherwise and hence, the pleading of the applicant that she had no source of income is difficult to appreciate.
III. The comparison with a childless widow, who is granted family pension till the income criteria is met as per the relevant rule, for seeking the relief, is not justifiable. The reason to continue to grant family pension to a childless widow until the income criteria stipulated is met is to promote Page 5 of 8 OA No.973/2015 widow remarriage as per the accepted recommendations of the 6 th CPC. This is a welfare measure to promote widow remarriage, a social taboo that had to be overcome. There is no such recommendation in respect of married daughters, with no income, as claimed in the instant case, by Pay Commission nor there is any social taboo similar to that of a childless widow, to be overcome in the case of the applicant. Hence, the contention of discrimination of the applicant is not maintainable as applicant is not on the same footing as that of the childless widow.
III. Other aspect raised is that the applicant was not put on notice before withdrawing the family pension. When the rule is clear, it has to be implemented. Hon'ble Supreme Court has held that rules are to be followed and any violation of the same has to be viewed seriously in a series of judgments as under:
The Hon‟ble Supreme Court observation in T.Kannan and ors vs S.K. Nayyar (1991) 1 SCC 544 held that "Action in respect of matters covered by rules should be regulated by rules". Again in Seighal‟s case (1992) (1) supp 1 SCC 304 the Hon‟ble Supreme Court has stated that "Wanton or deliberate deviation in implementation of rules should be curbed and snubbed." In another judgment reported in (2007) 7 SCJ 353 the Hon‟ble Apex court held " the court cannot de hors rules."
Respondents have implemented the rule in congruence with the observations of the Hon'ble Apex Court as at above. If a notice were to be issued, it would be an empty formality since the rule is explicit requiring adherence. Hon'ble Supreme Court has observed that issue of notice, as required under the Principles of Natural Justice for the sake of complying with an empty formality, is not required. The relevant verdict is extracted hereunder:
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Empty Formality need not be followed: Vide Haryana Financial Corpn. v. Kailash Chandra Ahuja,(2008) 9 SCC 31, the Apex Court has stated:-
40. In Aligarh Muslim University v. Mansoor Ali Khan (2000) 7 SCC 529 the relevant rule provided automatic termination of service of an employee on unauthorized absence for certain period. M remained absent for more than five years and, hence, the post was deemed to have been vacated by him. M challenged the order being violative of natural justice as no opportunity of hearing was afforded before taking the action. Though the Court held that the rules of natural justice were violated, it refused to set aside the order on the ground that no prejudice was caused to M. Referring to several cases, considering the theory of "useless" or "empty" formality and noting "admitted or undisputed" facts, the Court held that the only conclusion which could be drawn was that had M been given a notice, it "would not have made any difference" and, hence, no prejudice had been caused to M. IV. Lastly, the applicant has admitted that if she had younger unmarried dependent sisters, then the family pension could have been granted to them. In other words, even if she is married and her husband is unemployed, then the family pension to the other dependent siblings as per Rule can be granted. Rule cannot be interpreted to suit the needs of the applicant. It has an objective to be met and that is to take care of the dependent family members of the deceased employee in a particular manner. The applicant seeking amendment of the Rule to suit her requirements that the dependent daughter when she gets married to an unemployed youth should continue to get family pension till he is gainfully employed, does not persuade us since it may be a harbinger of a social evil of unemployed youth marrying girls for the sake of the benefit of family pension and not to really take care of the girl to whom he got married.
V. Other contentions made by both the parties have been gone through and since they are not relevant we did not touch upon them. Page 7 of 8 OA No.973/2015
VI. From the aforesaid circumstances, we find no ground to intervene on behalf of the applicant and hence, the OA is dismissed, with no order as to costs.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
evr
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