Central Administrative Tribunal - Ahmedabad
Prafullaben Kanjibhai Rakhesiya vs M/O Railways on 20 July, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL AHMEDABAD BENCH, AHMEDABAD Original Application No. 370/2019 With Misc. Application No. 390/2019 this is the 20th day of July, 2022 CORAM :
HON'BLE MR. JAYESH V. BHAIRAVIA, MEMBER (JUDICIAL) HON'BLE MR. A.K. DUBEY, MEMBER (ADMINISTRATIVE) Prafullaben Kanjibhai Rakhesiya aged about 52 years, Occupation Unemployed, residing at Shiv Shakti, Postal Society, Joshipara, Behind Railway Station, Junagarh - 362002.
.....Applicant [For Applicant :Ms. K.L. Kalwani, Advocate] Versus Union of India owing and representing Western Railway, through General Manager, Western Railway, Churchgate, Mumbai-400020 Divisional Railway Manager, Western Railway, Bhavnagar Para, Bhavnagar - 364003. ..Respondents [For Respondents: Ms. R.R.Patel, Advocate] O R D E R (ORAL) [Per Dr. A.K.Dubey, Member (A) Aggrieved by the respondents' order dated 28.09.2016 (Annex.A/1) rejecting the request of the applicant for granting family pension after her mothers' demise on 26.08.2015, the applicant has moved this O.A. for quashing the order dated 28.09.2016 for grant of family pension to her. M.A. No. 390/2019 for condonation of delay was also filed.
2. The issue involved in the present case pertains to family pension to a divorcee daughter of the deceased Railway employee Sh. Kanjibhai Rakhesiya who retired as a Electric Fitter at Junagarh Railway Station under the Bhavnagar Division of Western Railway on 30.11.1990 on attaining the age of superannuation. Applicant has contended that the wife of the deceased employee Savita was getting family pension during her lifetime. However, she died on August 26th, 2015 as per the Death Certificate attached with the O.A.(Annex.A/16).
3. It is the case of the applicant that after retirement of the Government employee, vide PPO dated 07.12.1990 (Annex.A/4) pension was paid to him. After his retirement, the father of the applicant informed Senior Divisional Personnel Officer, Western Railway, BVP, vide his intimation dated 04.08.2003 to mention the name of his divorced daughter in the nomination form, as fully depended on him.
4. Further, the present applicant was married on 26.02.1995 with Sh. Vipul Vrajlal Maradiya but, her marriage could not continue longer and she after separating, started living with her parents from 26.08.1995. Not only this a Cr. Misc. Application No. 568/1996 was also filed for Maintenance before the Judicial Magistrate, First Class, Junagarh under Sec. 125 of the CPC which was granted vide Court's order dated 29.08.1996 (Annex. A/7) resulting into a sum of Rs. 450/- as Maintenance Allowance to her. Ultimately, on compromise, the said matter was withdrawn as divorce took place. Applicant contends in para 4.8 that her marriage ended in of customary divorce deed executed on 28.08.1998(Annex. A/10). The deed was notorized and is valid in law, as there being traditional practice and custom and usage in the Khumbhar caste, to which the parties belonged. Applicant further contends that on 09.08.2008 her father informed the respondents through a registered letter about the events of marriage and divorce of his daughter and there under, requesting the respondents to incorporate her name as ''dependent daughter''. The respondents, before the death of the employee of the Railways on 29.11.2010, informed him that divorced daughter was not eligible for pension so long as wife was surviving. The applicant reiterates in the OA that the wife of the deceased Railway employee passed away in August 2015 and after her death the applicant requested the respondents on 14.09.2015 for granting her due family pension. Upon this, the respondents conveyed that date of applicant's divorce decree was 16.06.2016 by when, neither her father nor her mother was alive.
It is also submitted that her sibling Geeta ben K. too had passed away and the only son of the deceased employee Shri Vinod K., was living separately with his wife.
5. The respondents have contended in their reply that the deceased Government employee after retirement on 30.11.1990 passed away on 29.11.2010. The reply has admitted the contentions of the applicant with regard to family members of the deceased Government employee. The reply contends that applicant had been availing the benefits flowing from her Ration Card in 2014 and therefore, it cannot be presumed that she was living with her father. The Divorce Deed dated 28.8.1998 which is only notarized, is not a valid document The family had been rightly disbursed family pension to the widow till her death.
Respondents mention in their reply that applicant was advised that since her father had expired in 2010 and mother expired in 2015 and her divorce decree was issued only on 16.06.2016 by the Family Court, Rajkot which post dated the death of her parents. Divorce did not take place during the life time of the deceased Railway employee and her mother and therefore, applicant was not entitled to any relief at this point of time.
Respondents' stand is based on the Railway Board's letter dated 28.08.2017 and the Memorandum dated 19.07.2017 issued by the Ministry of Personnel, Public Grievances and Pension, Department of Pension and Pensioners Welfare, stating that only those children who are dependent and meet other conditions of eligibility for family pension at the time of death of the Government servant or his/her spouse, are eligible for family pension.
6. Applicant in turn, has also filed a rejoinder reiterating her submissions made in the O.A.
7. Learned counsel for the applicant has placed reliance on the judgment passed by Hon'ble Bombay High Court in the case of Union of India Through the General Manager, Central Railway, Mumbai vs Smt. Usha Eknath Patil, rendered in Writ Petition No.6884/2016 on 03.04.2018. In that case, the Hon'ble Court had considered the provisions of the OM of Railway Board dated 19.07.2017 and held that the "said O.M. clarifies the earlier O.M. dated 11.09.2013 and further stipulates that daughter, if eligible may be granted family pension and the said O.M. also stipulates the intention of Railway is not to leave destitute woman without any means of livelihood. This object and intention cannot be defeated in the present case." It is further held in the said judgment that "from the date of customary divorce, the applicant was not residing with her husband and therefore, returned to the member of family of her deceased father. She was therefore residing with her mother, who expired on 28.12.1999. When the provision entitles unmarried or a divorced or a widowed daughter to family pension, the Court found that the petitioner Ms.Usha was entitled for family pension."
8. Learned counsel also placed reliance on the recent order passed by Hon'ble High Court of Gujarat in R/SCA Nos.4792/2019 and 324/2018 decided on 17.02.2020 in the case of Union of India vs. Mayuriben Jani which has referred to the judgment of Hon'ble Bombay High Court in the case of Smt. Usha Eknath Patil (supra).
9. Accordingly, the counsel for the applicant submitted that the reasons stated in the impugned order were contrary to the law laid down by the Hon'ble Gujarat High Court and Hon'ble Bombay High Court.
10. Heard the parties and perused the material on record.
11. In view of the said factual matrix, the question required to be answered is whether the respondents were right in rejecting the claim of the applicant being divorcee daughter for granting her family pension. The issue about eligibility of divorcee daughter for releasing family pension that too on customary divorce, is not res integra and by now, is now well settled. The Hon'ble High Court of Gujarat in the case of Union of India vs. Mayuriben Jani (supra) decided on 17.02.2020 held in paras 15 as under :
''15. The provision of Rule 75 of the Family Pension Rules, in fact, is a benevolent piece of subordinate legislation and therefore it needs to be governed by the principles which required to be pressed into service for extending the benefit of the family pension to those who are in need thereof, as it is intended to benefit those family members who needs support. Bearing this proposition of law in mind, if one examines Rule 75 which is also in parimateria with Rule 54 of the said Rules, would indicate that the family pension is available to the divorced daughter. The Rule does not recognized any further or other requirement to be eligible for receiving the family pension. The device in the form of guideline developed by the authorities and incorporated in Office Memorandum are, therefore, to be viewed as only facilitating tools to assess gauge and examine the cases of the divorced daughter to receive family pension on the basis of the eligibility. When the factum of customary divorce is well recognized by the provision of the Hindu Marriage Act with special emphasis upon Section 29(2), then perhaps rightly the author of Rule 54 and/or Rule 75 have not thought it fit to qualify the word "divorced daughter" by making it conditional that the divorce has to be declared by the competent Court, else it would perhaps amounted to improve upon the provision of Hindu Marriage Act, which unequivocally recognizes the customary divorce as a valid divorce provided the same is permissible under the community and the circumstances. The question, therefore, arises as to whether the respondents in the instant case, were having any justification to insist upon the divorce decree from the competent Court and were they justified in declining to act upon the customary divorce factum which have remain unchallenged before the authority and which have been recorded by the Tribunal in its orders at length and elaborately. Section 29(2) of the Hindu Marriage Act, read as under: "Section 29(2):- Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act." Para 16. In other words, it can well be said that when the factum of customary divorce in both the cases have not been challenged by the authorities. Their insistence for divorce decree only from the competent Court indicating valid dissolution of marriage would not be justified. The Court hasten to add here that this proposition on the valid premise that there exists no dispute qua customary divorce, in other words, the factum of applicants having a valid customary divorce deed when not under challenge and has accepted, then its mere authentication in the form of dissolution of marriage by the decree of the competent Court, in our view, would be improving the provision of the Hindu Marriage Act without any authority of law and the benefit, therefore, which are enuring (to check by me) under Rule 54 and Rule 75 when it is not qualified in any other manner would have to be accorded to the divorced daughter also."
12. In the light of Hon'ble Bombay High Court's observation in its judgment referred above, important factor to be looked into is that the daughter after her divorce has been staying with her parent(s) and continued there after the demise of her parent(s). When the applicant was residing with the pensioner/recipient of the family pension after customary divorce, then insistence on dissolution of marriage by the competent Court only by way of decree, is not justified as observed in Hon'ble High Court orders quoted above. Hon'ble High Court had referred to the provisions of Family Pension Scheme for Railway Servants, 1964 and Rule 75 of Railway Services (Pension) Rules, 1993. Accordingly, here when the factum of applicants having a valid customary divorce deed is not under challenge, insistence on mere authentication in the form of dissolution of marriage by the decree of the competent Court, does not seem necessary at all.
13. We see that the customary divorce deed was executed on 28.08.1998 (Annex. A/10) which was duly notorised. Further, the father had informed the respondents on 09.08.2008 about marriage and divorce of the daughter. Thus, the applicant fulfills the conditions to become eligible for family pension even if Court decree is dated 16.06.2016 which in the present case, is a date after the father and applicant's mother had died although divorce took place before the demise of parents. A similar matter was decided by this Tribunal in OA No. 72/2019 in which the judgment of Hon'ble Bombay High Court and Hon'ble Gujarat High Court were relied upon.
14. In view of the aforesaid discussion and in the light of the judgment passed by the Hon'ble High Court of Gujarat in Union of India vs. Mayuriben Jani Daughter of Shri Durgeshbhai Nandlal Jani (supra), we are of the considered opinion that the impugned orders (Annexs. A/1 & A/2) suffer from infirmities and deserves to be set aside. Accordingly, these are quashed and set aside.
15. Delay was condoned as M.A. for condonation of delay was allowed. In the factual matrix above and in the light of Hon'ble High Court's order relied upon, the applicant's claim for grant of family pension deserves to be allowed. Accordingly, we allow this O.A. Respondents are directed to see to it that the family pension is paid to the applicant from the date when she became eligible under Rule 75 of the Railway Services (Pension) Rules and the payment including arrears be made on that basis as expeditiously as possible and certainly within 90 days from the date of receipt of a copy of this Order. No Cost.
(A.K.Dubey) (Jayesh V. Bhairavia) Member (A) Member(J) pps PAGE \* MERGEFORMAT 1