Central Administrative Tribunal - Mumbai
Smt Sangita Babarao Kamble vs Central Railway on 20 July, 2023
ane 4 Central Administrative Tribunal, Murnbai Bench, Camp at Nagpur.
0.A.23/2023 Dated this Thursday the 20° day of July, 2023 Coram: Dr.Bhagwan Sahai, Member (Administrative).
Smt.Sangita Babarao Kamble, Div/d/o Shri Govindrao Bhagat, R/o. Ward No.5, Siddharth Nagar, Borgaon Meghe, Wardha ~ 442 001. .
{ By Advocate Shri S.P. Behar ).
. Versus
1. Union of India, through The General Manager, Central Railway, Mumbai CST -- 400 O01.
2, Divisional Railway Manager, DRM, 'Central Railway, Nagpur Division, Nagpur ~ 440 021.
{ By Advocate Shri Bhaskar D. Pandit }.
Order reserved on : 18.07.2023 Order pronounced on : 20.07.2023.
OA.23/2023. Applicant.
.. Respondents.
2. DA.23/2023 ORDER.
Smt.Sangita Babarao Kamble has filed this O.A. on 06.01.2025 seeking setting aside the order dated 07.11.2022 issued by the Assistant Personnel Officer, for DRM (P), Central Railway, Nagpur informing her that she was not found eligible for sanction of family pension; direction to the respondents to grant family pension to her under Old Pension Scheme by declaring action of the respondents as arbitrary and bad in law: and to direct the Respondent No.2 to compensate her towards physical and mental harassment including financial loss.
The respondents have filed reply. Counsels of both the parties were heard ah 18.07.2023 and this O.A. was reserved for orders,
2. Facts of the case as narrated by the applicant :
2{a}. Father of the present applicant Late Shri Govindrao Vithobali Bhagat had joined service in Engineering Department of Central Railway, Nagpur Division as Gateman-] on 19.04.1963 and took voluntary retirement from 10.06.1987. Thereafter he was a pensioner of the respondent and died. on 29.04.2015 leaving behind his widow Smt.Ramabai Bhagat and the present applicant, a divorcee daughter.
2(b). The applicant married to Shri Babarao D. Kamble, Kharagana, Wardha as per Buddhist caste customs. in the year 1988 they had a daughter named Sujata Babarao Kamble. Because of domestic problems the applicant came back to her father's house and in 1997 the applicant and her husband we EEE EG<YMkM@mfX"| aq™MZZZZZZEq@E 3 OA.23/2023 applied for execution of divorce before Sub-Registrar, Wardha on 13.03,1997 and it was executed.
a{c). = The applicant got one time settlement of Rs.10,000/- for her daughter from her husband. After the divorce the applicant has been living with her parents along with her daughter. After death of late Shri Govindras V¥. Bhagat his widow Smt.Ramabai G. Kamble received farnily pension, but she alse died on 15.02.2016. Thereafter the applicant submitted a representation to the respondents to extend benefit of family pension to her as per Railway Family Pension Rules. Respondent No.2 directed her to submit documents mentioned in letter dated 21.12.2020.
2{d). The applicant submitted the documents before the concerned authority and then on 24.03.2022, Respondent No.2 issued letter to the applicant for submitting other documents. The applicant submitted thase documents. She was further asked by Respondent No.2 to submit a copy of judgment of Competent Court granting divorce to her and her hushand stating that her customary divorce was not a valid document. Then she applied for mutual divorce under Section 13 B of Hindu Marriage Act, 1955 which was decided on 07.10.2022. Then she submitted a copy of the divorce decree to Respondent No.2. Thereafter the impugned order dated 07.11.2022 has been | issued. Therefore, this O.A.
3.0 Contentions of the parties :
Applicant :
In the O.A. and during submissions of her counsel, it has been contended as under: :
ye COLL 4 . OA.23/2023 3f{a}.- the impugned order dated 07.11.2022 has been issued in violation of principles of natural justice without following due process and applying mind. Therefore, by the impugned order fundamental right of the applicant under Article 14 of the Constitution has been violated;
3ib}. sin the Railway Board circular dated 19.07.2017 it has not been mentioned that customary divorce is not valid and only legal divorce through Competent Court is valid. Since the applicant had obtained customary divorce from her husband in 1997, the contents of the impugned order are not applicable to her and, therefore, that order needs to be set aside:
3c}. family pension cannot be denied to the applicant once it is found that ag divorcee daughter of ex-employee / pensioner and her divorce had taken place during lifetime of the employee/pensioner. The impugned order is capricious and discriminatory;
3(d}. the applicant's counsel has relied on Bombay High Court, Nagpur Bench decision in Writ Petition No.6884/2016 dated 03.04.2018 {Union of india & Another Vs. Smt.Usha Eknath Patil) holding that family pension to a widowed/divorced daughter is payable if she fulfils all aligibility conditions at the time of death or ineligibility of her parents and on the date of her turn to receive family pension comes, it has been held with reference to Clauses of OM dated 11.09.2013. In that case customary divorce had been recognized by the Competent Civil Court on 29.11.2010 and, therefore, dissolved the marriage. {ft was further mentioned in the decision of the High Court that although customary divorce on 21.07.1992 may not be legally recognized but fram that date the respondents in the Writ Petition had not been residing with her husband and, therefore, was a member of family of her deceased father.
an Wwe 5 0A.23/2023 Therefore, the order passed by the CAT got upheld by the High Court and the Writ Petition was dismissed.
3{e}. The applicant's counsel has also relied on the decision of High Court of Gujarat at Ahmedabad dated 22.12.2021 {Union of India Vs. Rekhaben D/o Gopalbhai N. Parmar), in which it was mentioned that retired employee was getting pension till 27.06.2013 and the app lication for family pension was made on 10.04.2018. Since the respondent | in that case was not fulfilling the candition of family pension as she obtained the divorce decree on 29.04.2016, conditions mentioned in OM dated 19.07.2017 as well as 23.08.2017 were not fulfilled. The issue of earning of income by the respondent in that Writ Patition was also considered and it was held that as per CCS {Pension} Rules, 1972, unmarried or divorced daughter until she gets married or starts earning her livelihood, whichever is earlier, is eligible for family pension in view of the provisions of Rule 75 of Family Pension Scheme for Railway Servants, 1964 and in View of communication dated 23.08.2019 issued by the joint Director of Accounts, Railway Board about simplification of procedure for grant of family pension. lt was held that respondent in that Writ Petition was eligible for family pension. Therefore, the Writ Petition Was dismissed.
B. Respondents :
In reply and during arguments of their counsel, they had contended as under :
Sif}. the ex-employee Shri Govind Bhagat expired on 29.04.2015 and his widow, mother of the present applicant, aiso died on 15.02.2016, The applicant pursued her divorce petition to separate from her husband Babarao Kamble on 21.03.2022 and the divorce decree was granted on 07.10.2022;
Seek:6 OA.23/2023
3(g}. as per Railway Board OM dated 19.07.2017, family pension can be granted to a divorced daughter where the divorce proceedings had been filed before the Competent Court during life time of the employee or pensioner or his / her spouse but divorce took place after their death, if all other conditions for grant of family pension are fulfilled. Since the present applicant filed the divorce case after death of the pensioner and family pensioner, her claim has been rightly rejected by the impugned order;
3th). the present O.A. has been filed by the applicant after 7 years of death of her mother, who was the family pensioner. Therefore, this is beyond period of limitation under the provisions of AT Act, 1985 and the applicant has not filed any application for condonation of delay. Since the applicant does not fulfil the conditions stipulated under. the Railway Board OM dated 19.07.2017, her case has been rightly rejected and, therefore, the O.A. should be dismissed:
3(i}. as per the Department of Pension and Pensioner's Welfare OM dated 19.07.2017, family pension can be granted to a divorced daughter in case where the divorce proceedings had been filed in a competent court in the life-time of the employee / pensioner or his/her spouse but divorce took place after their death, provided the claimant fulfils all other conditions for grant of family pension under Rule 54 of the CCS (Pension) Rules, 1972. Since the applicant did not fulfil the conditions, her case has been rightly rejected.
Therefore, the O.A. should be dismissed.
We SS vi OA.23/2023 4, Analysis and conclusions :
| have carefully considered the submissions advanced by the counsels for the parties in the OA, reply and during their arguments along with caselaws cited.
A{a}. There are many contradictions in the submissions of the applicant. in synopsis to the OA It has been mentioned that she got married with Babarao Kamble in May, 1987 according to Hindu rituals. She also applied for divorce undar Section 414-B of Hindu Marriage Act, 1955 on 21.03.2022 and the divorce decree was granted on 07.10.2022. On the contrary, the applicant has claimed that she obtained customary divorce in 1997. However, there was no such divorce obtained by the applicant under atiy customary law. When the marriage took place as per Hindu Marriage Rituals, it is not understood as to how she can claim to have filed divorce proceedings under any customary law. No such customary law has been brought on record by her. When a customary divorce is granted to a couple, a group of local senior persons hears the couple and thereafter divorce is granted as per prevailing tradition / custom. In case of the applicant, no such customary divorce took place.
4{b). The applicant has made more contradictory claim in Para 4.2 of the O.A. that she got married as per Buddhist caste customs. There is no Buddhist caste, when her own submission in synopsis to the O.A. is that she married as per Hindu rituals and then the fact that she herself filed the divorce petition before the Civil Court in March, 2022 under Section 14-B of Hindu Marriage Act, 1955. In view of these contradictory claims and submissions, itis clear that the applicant has made a. deliberate attempt to misled the Court and her submissions in this regard about customary divorce are baseless and false.
4 a a Yoo a:
& & OA,23/2023 Airc}. | Her claim that she obtained divorce by filing a case before the Sub-Resistrar also has no meaning because the Sub-Registrar is not an authority for granting decree of divorce. That office is only for registration of documents submitted. What was filed before the Joint Sub-Registrar, Wardha was only a write up on divorce ona stamp paper submitted by Shri Babarao Kamble and the present applicant on 13.03.1997 in presence of two persons. Since the Sub-Registrar is not competent authority to grant divorce to a couple, this submission of a write of divorce was not valid under the law. Therefore, the claim of the applicant cannot be accepted as of legally obtained divorce under a particularly customary law or under the Hindu Marriage Act, 1958.
A{d). sin fact in the order of Joint civil Judge, Sr. Dn. Wardha granting decree of divorce to the applicant from her husband dated 07.10.2022 it has been recorded that the applicant herself had submitted that Shri Kamble was legal husband of the applicant till then as the divorce write up submitted on 13.03.1997 was not a decree by order of any Competent Court.In view of these contradictory claims and submissions of the applicant herself in her divorce proceedings before the Joint Civil Judge, Wardha it is clear that she had no divorce sanctioned by a Competent Court before decree of 07.10.2022.
A{e}. in the documents submitted by the applicant to the respondents she also submitted an income certificate issued by the Tehsildar, Wardha on 18.10.2022 certifying her annual income for the year 2021-22 as Rs.40,000/-. About her total dependence on her mother, she is not submitted any evidence such as copy of ration card, etc. This also refutes her claim that she is totally dependent on her mother.
We So ioe 9. OA23/2023 Af}. The caselaws relied upon by the applicant have only held that a divorced daughter is also eligible for family pension if she fulfills all the eligibility conditions as per the OM of Railway Board dated 19.07.2017 and the facts | in those cases were also different.
Aig}. n the decision of the Gujarat High Court relied upon by the applicant, the facts were also different, there the respondent Rekhaben belongs to a community where customary divorce has been recognized and with the Intervention of the elder members of the family, the customary divorce had been granted to her in December, 2008. The present applicant has not produced any evidence about her claim of customary divorce in 1997 which she herself has admitted as it was not divorce granted by any order of compstent Court.
in the decision of the Gujarat High Court, Ahmedabad, the view taken was that the applicant being divorced daughter was eligible for grant of family pension as per Rule 75 of Family Pension Scheme for Railway Servants, 1964 and communication dated 23.08.2019 issued by the Railway Board.
4{(h). The respondents in the present O.A. are not disputing about eligibility for pension of a divorced daughter about their continuation is that the divorce proceedings had not been filed during life-time of her parents. The parents of the present applicant died in April, 2015 and February, 2016 whereds she filled the divorce proceedings decree only in March, 2022. Therefore, even as per-the DP & PW OM dated 19.07.2017, she is not eligible because the divorce proceedings had not been filed by her before the competent Court during life-time of her parents and she is not fulfilling other 0 OA23/2023 conditions for grant of family pension under Rule 54 of CCS (Pension) Rules, L564.
A. As per Railway Board circular dated 23.08.2017 corresponding te the DP & PW OM dated 19.07.2017, the Railway Board instructions issued on 16.03.2005 and 20.09.2013. The applicant is not fulfilling the required conditions for grant of family pension as per stipulations of the OM of the Department of Pension & Pensioners' Welfare, and instructions issued by the Railway Board.
4{j). "im view of the above analysis of facts of the case and stipulations under the relevant instructions in the OM of DP & PW and Railway Board, thers is no merit in this 0.4. and the impugned order issued on 07.11.2022 is fully justified.
5. Decision :
The O.A. is dismissed. No costs. -
(Dr. BhaéWah Sahat) Member {A). --