Central Administrative Tribunal - Chandigarh
Naresh Kumar Kaura vs Post Punjab Circle on 18 April, 2023
1- O.A. No. 1099/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/1099/2022
Decided on: 18.04.2023
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
1. Naresh Kumar Kaura son of Late Shri Satpal, aged 59 years, resident
of House No. 3549, Sector 23-D, Chandigarh-160023.
2. Rajeev Kaura son of Late Shri Satpal, aged 50 years, Resident of
House No. 133, Sector 78, SAS Nagar, Mohali, Punjab.
....Applicants
(By Advocate: Mr. Harish Chandra)
Versus
1. Union of India through the Secretary, Government of India,
Ministry of Communications & Information Technology, Department
of Posts, Dak Bhawan, New Delhi-110001.
2. Senior Postmaster, General Post Office, Sector 17, Chandigarh-
160017.
3. Director of Accounts (Postal), Kapurthala-144601.
... .Respondents
(By Advocate: Mr. K.K. Thakur)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicants have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
(i) Quash the letter / order dated 17.10.2022 (Annexure A-1) vide which it was informed that in terms of sub rule (2) of rule 51 of CCS (Pension) Rules, 2021, only family pension is eligible in case of missing pensioner and there is no provision of payment of pension / arrears of pension in case of missing 2- O.A. No. 1099/2022 pensioners as per extant provision / ruling and order dated 11.10.2022 (Annexure A-2), to the extent the claim of the applicants for release of arrears of pension w.e.f. 1.3.2015 to 20.9.2021 has been rejected by the respondents.
(ii) Issue direction to the respondents to release the arrears of pension of deceased employee for the period from 1.3.2015 to 20.9.2021 to the legal heirs namely applicants (who are sons of deceased) with interest thereon @ 12% per annum from the date the amount became due to the actual date of payment.
2. The factual matrix of the case is that Sh. Satpal Kaura, father of applicants, retired in May, 1992 as Assistant sub Postmaster, Sector 22 Post Office, Chandigarh. He received retiral dues and started getting pension. On 14.2.2014, the applicants‟ father left home for a walk and did not return. The family lodged a DDR No.74 in Police Station, Sector 22, Chandigarh. After a lapse of seven years, the applicants filed a Civil Suit in Sessions Court, Chandigarh on 17.2.2021 which was decreed on 20.9.2021 whereby the father of applicants was declared as dead. The Registrar of Birth and Death, Chandigarh has also issued Death Certificate. Thereafter, the applicant no.1 submitted a representation dated 10.11.2021 (Annexure A-5) that pension standing to the credit of his father for the period 01.03.2015 to 20.9.2021 may be credited in Pension Account No.0318948113 CIF No.025014126 in Post Office, Sector 17, Chandigarh. The Respondent No. 2, vide letter dated 28.12.2021 (Annexure A-6) asked the applicant no.1 to provide status of Smt. Raksha Rani, spouse of the deceased employee. Again, the Respondent No. 2 vide letter dated 3- O.A. No. 1099/2022 6.1.2022 (Annexure A-7), asked the applicant to supply original copy of Death Certificates of deceased employee and mother of applicants, legal heir certificate and consent / dissent statement of legal heirs for processing the case further. In response thereto, the applicant supplied the requisite documents / certificates vide letter dated 18.1.2022 (Annexure A-8). The Assistant Accounts Officer (P) Kapurthala vide letter dated 3.6.2022 (Annexure A-9) addressed to Sr. Postmaster, Chandigarh, informed that the case is not complete for want of sanction memo, indemnity bond attested by Executive Magistrate, Disburser‟s Half of PPO, Aadhar Card of concerned members etc. The applicant No.1 submitted the documents vide letter dated 10.6.2022 (Annexure A-10). The Senior Postmaster GPO, Sector 17, Chandigarh wrote a letter dated 17.8.2022 (Annexure A-1) to the Director of Accounts (Postal) Kapurthala that in terms of Sub Rule (2) of rule 51 of CCS (Pension) Rules, 2021, only family pension is eligible in case of missing pensioner and there is no provision of payment of pension / arrears of pension in case of missing pensioners as per extant provision / ruling. In case there is any other provision/rule in this regard, the same may be intimated to that office so that further action may be taken. The applicant submitted a detailed representation dated 30.8.2022 (Annexure A-11), placing reliance on a judgment of the Hon‟ble Delhi High Court in the case of Tripta Rani Vs. Union of India & Another (W.P(C) No. 1577/2016 decided on 16.05.2016), to release the dues of arrears of pension which was forwarded by the Respondent No. 2 to Respondent No. 3 vide letter dated 6.9.2022 (Annexure A-12). The Respondent No. 3 vide order dated 11.10.2022 (Annexure A-2), rejected the claim of the applicant on the ground that 4- O.A. No. 1099/2022 the matter is to be decided in light of Rule 51 (2) of CCS (pension) Rules, 2021.
3. The applicants have challenged the impugned orders dated 11.10.2022 and 17.10.2022 rejecting their claim for arrears of pension on the ground that the controversy as to whether the legal heirs of pensioner, who has gone missing and has been declared now as dead after 7 years, is entitled to arrear of pension from the date of missing to the date of death, stands settled by Hon‟ble Delhi High Court in the case of Tripta Rani (supra) in which it has been held that "if any pension amount remains unpaid to the pensioner for the period when he was alive or is presumed as alive, the said amount would be paid to the legal heirs of the pensioner, who has died or has gone missing and is presumed to be dead. This unpaid pension amount does not get forfeited. The arrears or unpaid pension would be payable after the death of the pensioner to his legal heirs as per law." Thus, the claim of applicants merits acceptance. The applicants have also referred to OM No.1/17/86-P&PW dated 29.08.1986 issued by Ministry of Personnel & Pension Welfare provides that (i) when an employed disappears leaving his family, the family can be paid in the first instance the amount of salary due, leave encashment due and the amount of GPF having regard to the nomination made by the employee, (ii) after the elapse of a period of one year other benefits like retirement or death gratuity/ family pension may also be granted to the family subject to the fulfilment of prescribed conditions inter-alia, (i) The family must lodge a report with the concerned Police Station and obtain a report that the employees has not been traced out after all efforts had been made by the Police (ii) An Indemnity Bond shall be taken from the nominee / 5- O.A. No. 1099/2022 dependents of the employee that all payments will be adjusted against the payments due to the employee in case he appears on the scene and makes any claim. The aforesaid OM was discussed and reiterated in OM No. F.No.1/17/2011-P&PW(E) dated 25.06.2013 (Annexure A-3) wherein it has been provided that in the case of a missing employee/ pensioner / family pensioner, the family can apply for grant of family pension, amount of salary due, leave encashment due and the amount of GPF and gratuity (whatever not already received) to the Head Office of the organization where the employee / pensioner had last served, after six months of lodging the Police report. It has also been argued that the retiral dues of a retiree is a valuable right and property in the hands of a pensioner and not a bounty and the same cannot be illegally withheld or delayed owing to negligence / whims of respondents. Reliance in support of the argument has been placed on judgments of the Hon‟ble Supreme Court in the cases of Subrata Sen & Others Vs. UOI etc., 2002 (1) SLJ, 110and State of Kerala Vs. B.M. Padmanabha Nair & Others, 1985 SCC (L&S), 278.
4. The respondents have filed written statement. The factual accuracy of the facts has not been disputed. It has been submitted by the respondents that the applicant was drawing his pension from GFO, Chandigarh till Feb-2015. Every pensioner is mandatorily required to submit annual life certificate every year in the month of November. The life certificate of the said Shri Satpal was not received till Feb- 2015. Thus, the pension of the ex-pensioner was stopped w.e.f. March- 2015 due to non-submission of life certificate. It has been further submitted that matter has been taken up with the Pension Sanctioning Authority i.e Director Accounts Kapurthala for guidance and the case 6- O.A. No. 1099/2022 has been decided as per relevant rules and provisions of Rule 51(2) of CCS Pension Rules 2021 under which it is clearly mentioned that "(a) in case of pensioner who goes missing family pension shall be payable to an eligible member or members of the family at a rate specified in Sub Rule (2) of Rule 50, and in the manner and subject to the eligibility conditions as applicable in the case of death of a pensioner
(b) The family pension under (a) shall be payable from the date following the date up to which pension has been paid to the pensioner who went missing or from the date on which a report was lodged with the concerned police station in the first information report or a Daily Diary Entry or a General Diary Entry whichever is later". It has been further submitted that no amount pertaining to salary, leave encashment and GPF dues were pending. For family pension, the applicant has been asked to submit the details of eligible family member.
5. The applicants have filed rejoinder along with a judgement passed by Hon‟ble High Court of Judicature at Madras in the case of The Commissioner & Another Vs. Zaibunnisa & Another (Writ Appeal No. 967/2012 decided on 28.11.2014). The averments made in the O.A. have been reiterated in the rejoinder.
6. I have gone through the pleadings and heard learned counsel for both the sides and consider the judgments relied upon by them.
7. The controversy in the instant case is as to whether the legal heirs of the missing retired employee, who has been declared dead, are entitled to the benefit of pension from the date the applicant was found missing till the date he was declared dead i.e. from 01.03.2015 to 20.09.2021.
7- O.A. No. 1099/2022
8. Admittedly, the applicants are legal heirs of the deceased (retired) employee Sh. Satpal, who was found missing on 28.01.2014 and a DDR in this regard was lodged with the jurisdictional police station. The learned District Judge vide decree dated 20.09.2021 in Civil Suit filed by the applicants declared the father of the applicants as dead on 20.09.2021. Pursuant thereto, the Registrar of Birth and Death, Chandigarh has also issued Death Certificate. The fact that the deceased employee was paid pension till February, 2015 has been admitted by the respondents. The mother of the applicants Mrs. Raksha Rani had already expired on 15.01.1995. The applicants filed representation along with the requisite documents to the respondents that they being the legal heirs are entitled to the benefit of pension which was due to their deceased father from 01.03.2015 till the date he was declared dead i.e. 20.09.2021. However, the claim of the applicant has not been accepted by the respondents while referring to Rule 51(2) of CCS Pension Rules, 2021 which actually deals with the subject of family pension. However, in the instant case, the matter pertains to the issue of pension which could not be paid after February, 2015 due to the fact that the father of the applicants went missing and the life certificate could not be produced before the authorities. The reliance upon Rule 51(2) of CCS Pension Rules by the respondents to reject the claim of the applicants is misconceived and lacks application of mind for the reason that "pension" and "family pension" are two different components. The term „family pension‟ is defined under Rule 3 (1) (i) of the CCS (Pension) Rules, 2021 and the term „pension‟ is defined under Rule 3(1)(t) which read as under respectively :- 8- O.A. No. 1099/2022
"(i) 'Family Pension' means family pension admissible under Rule50 but does not include Dearness Relief.
'(t) Pension' includes gratuity except when the term pension is used in contradistinction to gratuity, but does not include dearness relief."
The claim of the applicant herein is with regard to the arrears of pension not the family pension. The rule governing the „family pension‟ cannot be applied to the component of „pension‟ only to reject the claim of the applicant as both are separate service benefits.
9. The applicant has staked his claim while relying upon a judgment of the Hon‟ble High Court of Delhi in an identical case of Tripta Rani (supra). On perusal thereof, I am of the view that the relied upon judgment clinches the issue in hand wherein the Hon‟ble High Court has observed as under:-
"11. We have read the aforesaid circulars. Pension is payable till the pensioner dies or is presumed to be dead. Family pension is payable after the death of the pensioner and not for the period before his death. The affect thereof is that the respondent would be liable to pay pension and not family pension, till the pensioner had died or is presumed to be dead. If any pension amount remains unpaid to the pensioner for the period when he was alive or is presumed as alive, the said amount would be paid to the legal heirs of the pensioner, who has died or has gone missing and is presumed to be dead. This unpaid pension amount does not get forfeited. The unpaid pension would be payable after the death of the pensioner to his legal heirs as per law. The OMs relied do not state that the unpaid pension would not be paid to the legal heirs/ representatives. This is not the purport and objective of the OMs. The first OM dated 29.08.1986, rightly observes that unpaid dues like salary, leave encashment and GPF would be paid. Therefore, we fail to understand the reason or cause as to why the respondents have failed to make payment of the arrears of pension to the petitioner.
12. In the present case, family pension as directed by the Tribunal is payable with effect from 20.01.2006. This direction of the Tribunal has been accepted by the respondents, though earlier it was asserted by them that family pension would be payable only after the date of the registration of the FIR. As a sequitor it follows that the respondents would have to pay unpaid pension from 21.01.1999 to 19.01.2006 to the legal heirs/ representatives of Om Prakash Arora. Once the respondents admit and agree that they would pay family pension from a particular or specified date, they would be liable to pay unpaid pension to the legal heirs/ representatives."9- O.A. No. 1099/2022
The respondents have not been able to cite any law contrary to the law settled in the case of Tripta Rani (supra). They have also failed to refer to any rules which may disentitle the legal heirs of the benefits which were due to their deceased father.
10. In view of the facts of the case and law settled in the case of Tripta Rani (supra), the applicants are held entitled to the benefit of pension which was not paid to the ex-employee (deceased) Sh. Satpal from March, 2015 till the date he was declared dead. The impugned orders dated 17.10.2022 (Annexure A-1) and dated 11.10.2022 (Annexure A-2) are quashed and set aside. The respondents are directed to release the arrears of un-paid pension along with interest @ 6% p.a. for the period of 01.03.2015 to 20.09.2021, to the legal heirs of the deceased employee within a period of two months from the date of receipt of a copy of this order. The Original Application is allowed. No costs.
(SURESH KUMAR BATRA) MEMBER (J) „mw‟