Central Administrative Tribunal - Allahabad
Smt Nirmala Devi Deceased Represented ... vs Union Of India on 3 January, 2023
Reserved on 23.12.2022
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 03rd day of January, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Original Application No. 886 of 2011
1. Smt. Nirmala Devi, w/o Late Ram Raj, R/o Mohalla - Fatehpur
Bajaria (Near the office of Irrigation Department and Gandhi
Vidyalaya), Mahoba, District - Mahoba.
Now represented by,
1.1. Shubham Kumar Dhuriya S/o Late Smt. Nirmala Devi and
Late Ram Raj Dhuriya.
1.2. Priyanka Dhuriya d/o Late Smt Nirmala Devi and Late Ram
Raj Dhuriya
........... APPLICANTS
By Advocate: Shri Siddharth Srivastava and Shri V K Gupta
Versus
1. Union of India through Secretary, Ministry of
Telecommunication, Door Sanchar Bhawan, New Delhi.
2. Telecom District Manager, Bharat Sanchar Nigam Limtied
(B.S.N.L.), Orai (Jalaun) District - Jalaun.
3. Joint Controller (Sanyukt Niyantrak) Niyantrak Sanchar
Lekha, Uttar Pradesh Purvi Door Sanchar, Vikas Khand - 1 Gomti
Nagar, Lucknow.
4. Director (Nideshak) Karyalaya Nidekshak Dak Lekha, Sector -
D, Aliganj, Lucknow.
5. District Manager (Zila Prabandhak) Door Sanchar Orai (Jalaun)
District - Jalaun.
6. Smt. Raghuraee w/o Late Ram Raj r/o village - Tejanipur Majre -
Hardashpur, Post - Khakhreru Tehsil - Khaga District - Fatehpur.
..........RESPONDENTS
By Advocate: Shri D S Shukla and Shri S K Singh Vashisth
1|Page
ORDER
Shri Siddharth Srivastava, learned counsel for the applicants and Shri S K Singh Vashisth and Shri D S Shukla, learned counsel for the respondents, were present at the time of hearing.
2. The instant original application has been filed seeking following relief:
"the impugned order dated 15-2-2011 passed by the respondent no 2 and the impugned order dated 28/31-3-2011 passed by the respondent no. 3, be quashed / set aside by this Hon'ble Tribunal and further a direction be made to continue to pay the family pension to the applicant as earlier with arrears with interest forthwith."
3. The brief facts of the case as have been narrated in the present original application is that the deceased applicant Smt. Nirmala Devi was legally married with deceased employee Shri Ram Raj in the year 1968. After the death of her husband, she was getting family pension from the month of April 2008 but all of a sudden, without approaching the department concerned, Respondent No. 6 Smt. Raghuraee approached this Tribunal by way of O.A. No. 1556 of 2009 claiming that she is the legitimate wife of the deceased employee Ram Raj and accordingly retiral benefits be accorded to her. The said original application was decided on 18.12.2009 with a direction to Respondent No. 6 to move a fresh comprehensive representation citing her claim upon which Respondent No. 3 was directed to take a decision within a period of three months by way of a reasoned and speaking order. In compliance of the said order, Respondent No. 6 gave a representation dated 19.05.2010 and the competent authority amongst the respondents vide letter dated 07.01.2011 asked the original applicant of the instant O.A. to submit proof of her being the legally wedded wife of the deceased employee. Smt. Nirmala Devi (deceased applicant), vide letter as attached at Annexure No. 6 submitted an application before the respondents annexing therewith photocopy of certificates of date of birth, ration card, Succession Certificate issued by the District Magistrate concerned, voter ID card, voter list and PPO to show
2|Page that in all the documents her husband's name is shown as Ram Raj. However, respondents no. 1 to 5 without affording any opportunity to the original applicant of the instant OA, who is no more and in her place her legal heirs have been substituted as applicant no. 1 and 2, passed the order dated 15.02.2011 indicating that the name of wife as mentioned in the nomination form in the Service Book of the deceased employee is Smt. Raghuraee whereas at the time of retirement, name of wife as mentioned in the nomination form was Smt. Nirmala Devi. Both Raghuraee and Nirmala Devi have submitted the documents which show the name of their husband as Ram Raj. As per the service book record of the deceased employee, the name of wife as mentioned in the LTC dated 23.03.1993 is Smt. Raghuraee. Respondents further relied upon Swamy's handbook (Pension Compilation) page no. 139 para 3 which ruled "second wife is not entitled to the family pension as a legally wedded wife under the Hindu Marriage Act." Respondents further relied upon the fact that the department of pension and pensioners welfare has clarified that the second wife will not be entitled to family pension as a legally wedded wife. In view of the above, Smt. Raghuraee is entitled for pension being the first wedded wife. At present, family pension given to Smt. Nirmala Devi may be stopped and necessary action may be taken to provide the same to Smt. Raghuraee. Vide order dated 28/31.3.2011, the respondents have allowed the pension to Smt. Raghuraee and stopped the pension of Smt. Nirmala Devi. Applicant (deceased) has challenged both the orders in the present OA.
4. Per contra, learned counsel for the Respondents No. 1 to 5 filed counter affidavit in which it has been stated that Ram Raj joined services on 31.5.1958 and retired on 30.06.1997. He died on 15.09.2008. As per service records, the name of the nominee of Late Ram Raj in the year 1963 is Smt. Raghuraee. However, Form 3 filled by Shri Ram Raj at the time of retirement shows his wife name as Smt. Nirmala Devi. Smt. Nirmala Devi appears to be the second wife of Late Ram Raj and as such she is not to be treated as legally wedded wife during the lifetime of first wife. On perusal of
3|Page the death cum retirement gratuity Form A submitted by Late Ram Raj on 30.03.1967, the name of his wife is Smt. Raghuraee.
5. Counter reply has also been filed by respondent no. 6 reiterating the facts as stated by Respondents No. 1 to 5 in their counter reply. However, it is further stated that name of the respondent no. 6 is available in the service record of the late employee and she is the first married wife of Late Ram Raj since beginning of the service of the deceased employee. Respondents stopped the pension of the deceased applicant on the basis of documentary evidence. Along with his counter reply, he has also annexed service records in which name of Smt. Raghuraee have been shown as wife of deceased employee from the beginning.
6. Heard learned counsel appearing for the parties at length.
7. Learned counsel for the applicants referring to the facts disclosed in written submission argued that the impugned orders were passed without any proper notice or opportunity of hearing to the deceased applicant. It is further argued that respondent no. 6 was not having succession certificate from the competent authority at all therefore no order could have been passed in her favour for grant of family pension. It is further argued that nowhere it is proved that respondent no. 6 is the first legally wedded wife of the deceased employee whereas deceased applicant was the legally wedded wife of the deceased employee and her marriage took place in the year 1968. Since then, she was residing with the deceased employee. Respondent no. 6 has never challenged the marriage of the applicant for about last 52 years in any court of law. It is further argued that the deceased applicant was the nominee in all the service documents maintained by her husband and as such, she is only entitled for family pension. Learned counsel appearing for the applicants has relied upon the following case laws:
i. Smt. Sarbati Devi and another vs. Smt. Usha Devi (1984) 1 SCC 424 ii. Vishin N. Khanchandani and another Vs. Vidya Lachmandas Khanchandani and another (2000) 6 SCC 724
4|Page iii. Shipra Sengupta Vs. Mridul Sengupta and others (2009) 10 SCC 680 iv. O.A. No. 1030 of 2007 titled Smt. Ram Mani Giri vs Union of India and others decided by Allahabad Bench of Central Administrative Tribunal
8. Learned counsel for the respondents no. 1 to 5 argued that earlier the deceased applicant of the instant OA was granted family pension however, respondent no. 6 filed OA No. 1556 of 2009 before this Tribunal which was decided vide order dated 18.12.2009 and in pursuance of the same, deceased applicant was directed to submit proof regarding her claim of being the legally wedded wife of the deceased employee. She submitted few documents in which name of her husband are shown as Shri Ram Raj. However, on the basis of documentary evidence submitted by respondent no. 6, respondents no. 2 to 5 have stopped the pension of the deceased applicant of the instant OA and allowed the same to respondent no. 6 which is in accordance with law because her name is shown in the service record since the beginning of the service of deceased employee and as such, she is entitled for the family pension. Deceased applicant of the instant OA appears to be the second wife of the deceased employee because her name has appeared in the nomination form at the time of retirement of the deceased employee. Learned counsel appearing for the official respondents places reliance on the following case laws:
i. Judgment dated 27.01.2000 titled Rameshwari Devi vs State of Bihar and Others passed by Hon'ble Supreme Court of India.
ii. Judgment dated 29.07.2005 titled Usha Kapoor vs Union of India and others in 2006 (91) SLJ 278 CAT iii. Judgment dated 27.02.2013 in WP No. 4828 of 2008 titled T Stella vs Metropolitan Transport passed by High Court of Madras
9. Respondent no. 6 has also filed written submission stating the same facts as have been stated in counter affidavit by which she has relied upon the following case laws:
5|Page i. 2001 U.P.L.B.E.C. 869 Shakuntala Devi v/s Executive Engineer Transmission Ist U.P. Electricity Board Allahabad ii. 2001 ACJ (Supreme Court) G.L. Bhatia v/s Union of India page 840 iii. 2015 ACJ Page 40 Manno Singh v/s State of U.P. and others
10. I have considered the rival submissions made by the learned counsel for the parties and gone through the documents on record.
11. It would be pertinent to mention at this stage itself that the instant OA was dismissed by this Tribunal vide order dated 26.07.2011 citing the reason that Tribunal has got no locus standi to decide upon the controversy regarding who is the legally wedded wife of the deceased employee as it can only be decided by the competent Civil Court of the Family Court. However, against the said order of the Tribunal, the applicant filed CMWP No. 4091 of 2012 before the Hon'ble High Court of Allahabad, wherein the Hon'ble Court remanded the matter back to the Tribunal with the observation that 'Tribunal was required to determine with reference to the facts and placed before it as to who was entitled to receive pension under the applicable rules, and for such purpose, it was not necessary for the Tribunal to decide as to who was legally wedded wife of Late Ram Raj.' The above view of the Hon'ble High Court ascertains that the instant matter can be decided by this Tribunal in accordance with the facts and documents as have been relied upon by the parties.
12. In the present case, it is admitted fact that name of respondent no. 6 was entered in the service book of deceased employee since 1963 and the deceased employee has never deleted her name from the service book. Learned counsel for the applicants in the instant OA has also failed to produce divorce certificate, if there ever was one, of respondent no. 6 with the deceased employee. It is true that deceased employee has mentioned the name of deceased applicant Smt. Nirmala Devi in the nomination form at the time of retirement but as per CCS Pension Rules, since the first wife i.e, respondent no. 6 is still alive, deceased applicant in the instant OA cannot be said to be the family member of the deceased employee. Documents
6|Page shown by the official respondents show that nowhere before the date of retirement of the deceased employee, the name of the deceased applicant is mentioned in the service record and it was only at the time of retirement that the name of deceased applicant was shown as a nominee. It is also clarified that if any mistake is detected in the P.P.O., the same can be rectified at any point of time. Although the employee concerned has the right to change the nomination but he / she cannot exclude the legal person from obtaining the retiral benefits through nomination.
13. Thus, the core question for decision is as to whether deceased applicant Smt. Nirmala Devi was entitled for family pension on death of deceased employee or respondent No. 6 Smt. Raghuraee who claimed herself first legally wedded wife of the deceased employee is entitled for family pension. Thus, before dwelling into the facts and circumstances of the case, I find it necessary to discuss the settled legal position.
14. In the case of Shakuntala Devi (Smt.) Vs. Executive Engineer, Electricity Transmission, 1st U.P. (Supra), Hon'ble Allahabad High Court has held that nomination of illegally wedded wife cannot defeat the claim of legally wedded wife and only legally wedded wife is entitled to retiral benefits etc.
15. In the case of G.L. Bhatia Vs. Union of India and others (supra), Hon'ble Supreme Court while dealing with the similar issue has held that under Rule 54 sub rule (14)(b)(i) the expression 'family' has been defined, wherein it has been mentioned that wife in the case of male Government servant or husband in the case of female Govt. servant will be entitled for family pension. It has also been held that making nomination contrary to the CCS (Pension) Rules, the entitled persons cannot be denied of family pension.
16. Similar issue was also raised before the Hon'ble Allahabad High Court in the case of Manno Singh Vs. State of U.P. and others (supra), wherein Hon'ble Court discussing the law laid down by the Hon'ble Courts in the case Bakulabai and another Vs. Gangara and another, 1988 (25) ACC 119, Smt. Sarbati Devi and another
7|Page Vs. Smt. Usha Devi , AIR 1984 SC 346, Shakuntala Devi (Smt.) Vs. Executive Engineer, Electricity Transmission 1st U.P. Electricity Board, Allahabad (supra), Poonam Devi (Smt.) Vs. Chief Engineer, Electricity Board and others (2004) 3 UPLBEC.
2292, G.L. Bhatia Vs. UOI and another 2000(1) ESC 135 135 (SC) and Rameshwari Devi Vs. State of Bihar and others 2000 (1) ESC 577 (SC), has held that nomination excluding the legally wedded wife for family pension would not defeat the claim of legally wedded wife of family pension, as she falls within the definition of family. It has also been held that marriage of second wife is null and void after coming into the force of Hindu Marriage Act, 1955.
17. In the case of Smt. Sarbati Devi and another Vs. Smt. Usha Devi (supra), matter relates to receiving the amount of life insurance policy as a nominee whereas in the present case the controversy pertains to family pension. As such, this case as has been relied upon by the applicant is not applicable to the present case.
18. If the facts and submissions of the present matter are taken into consideration in the light of ratio law laid down in the cases relied upon by the learned counsel for the parties, it emerges that deceased employee Ram Raj joined the service in the year 1958 and service book Form No. A pertaining to the year 1963 discloses the name of wife as Smt. Raghuraee, respondent No. 6, it continued till the retirement of deceased employee. At the time of retirement, in form No. 3, deceased employee changed the nomination and in place of Smt. Raghuraee, he nominated the deceased applicant Smt. Nirmala Devi as his wife. It is also evident from perusal of record that on the basis of aforesaid nomination, the department concerned on death of deceased employee has granted family pension to the deceased applicant Smt. Nirmala Devi. When respondent No. 6 approached this Tribunal through the aforesaid O.A., which was disposed of by this Tribunal directing the department concerned to decide the representation moved by the respondent No. 6 and in compliance thereof, department considered the matter affording opportunity to all interested parties and thereafter vide impugned
8|Page orders stopped the family pension granted to the deceased applicant and allowed the pension to respondent No. 6, who is the first wife of the deceased employee. If the evidence adduced by the parties in support of their pleadings is taken into consideration, it is also clear that name of respondent No. 6 Smt. Raghuraee continued in the service book of the deceased employee till his retirement. In 1993, name of respondent No. 6 is also mentioned as his wife in the LTC claim submitted by the deceased employee. Legal position as has been settled by the Hon'ble Apex Court and Hon'ble High Court is that if first wife is alive and the marriage between the deceased employee and his first wife is not dissolved/ divorced, nomination of second wife for pensionary benefits is contrary to the law. It is also pertinent to mention here that when the first wife is alive and no divorce has been taken place, second marriage of deceased employee under Hindu Marriage Act, 1955 and under relevant service rule cannot be said to be legal one. Thus, nomination of second wife made by the deceased employee during life time of first wife will not defeat the right of first wife Smt. Raghuraee i.e. respondent No. 6. In the opinion of the court, respondent No. 6 is only entitled for family pension.
19. The pleas taken by the learned counsel appearing for the applicants is not tenable. The impugned orders also reveal that before passing the impugned orders, the authority concerned have given ample opportunity to the applicants as well as interested parties to adduce evidence in support of their claim. Deceased applicant Smt. Nirmala Devi has also participated in those proceedings. Department concerned has passed the impugned orders after going through the entire evidence adduced by the parties. The facts of the case laws relied upon by the learned counsel for the applicants are entirely different from the facts and circumstances of the present case. Thus, the applicants do not get any help with the case laws relied upon by them.
20. Vide impugned orders, the family pension granted to the deceased applicant Smt. Nirmala Devi has rightly been stopped by the department concerned issuing PPO in favour of respondent No. 6,
9|Page allowing family pension in her favour. There is no question to decide at this stage as to who is the legally wedded wife of the deceased employee as has been clarified by the Hon'ble High Court in the Civil Misc. Writ Petition No. 4091/2012, whereby order passed by the Tribunal in this O.A. was set aside and the matter was remanded back to decide afresh.
21. Thus, on the basis of the aforesaid discussion, court is of the view that no illegality is found in the impugned orders. Pleas taken by the applicants are not liable to be allowed. O.A. being devoid of merit is liable to be dismissed.
22. Accordingly, O.A. is dismissed. Competent authority amongst the respondents is directed to continue paying the family pension in favour of the respondent no.6, if the same is being paid and initiate paying the same, if it is not being paid to anyone at this time.
23. There shall be no order as to costs.
(Justice Om Prakash VII) Member (Judicial) (Ritu Raj) 10 | P a g e