Central Administrative Tribunal - Kolkata
Ajema Bibi vs Employees State Insurance Corporation ... on 16 July, 2025
1 o.a. 350.00212.2023
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
No. O.A. 350/00212/2023 Heard on 12.06.2025
Date of order: 16.07.2025
Present : Hon'ble Mr. Anindo Majumdar, Administrative Member
Ajema Bibi W/o Lt. Sk Abdul Kader and residing
at Vill. Dakshin Kolsur, P.O. Kolsur, P.S.
Deganga, Dist. North 24 Parganas, Pin - 743438.
........ Applicant.
- VERSUS-
1) Union of India through the Secretary
Ministry of labour & Employee, New Delhi, Pin
- 110011.
2) Director of Employee State Insurance
Corporation, Panchadip Bhavan, 5/1 Grand
Lane, Kolkata - 12.
3) Deputy Director (F) E.S.I Corporation,
Panchadip Bhavan, 5/1 Grand Lane, Kolkata-
12.
4) The Assistant Director (P), E.S.I Corporation,
Panchadip Bhavan, 5/1 Grand Lane, Kolkata -
12.
....... Respondents.
For the Applicant : Mr. N. Roy, Counsel
For the Respondents : Mr. S. Banerjee, Counsel
Digitally signed by DhanuRam Hansda
DhanuRam DN: C=IN, O=Personal, T=6595, OID.2.5.4.65=1335963871619011253g9LkE5GCXYJC4,
Phone=ae67f2fe2825a3d09ab7e1f6c3245d45a1b89c1257419c6eb7e8dad5b6505515,
PostalCode=711112, S=West Bengal, SERIALNUMBER=
c6a08597b4f862e0885e118c2835105ca8a490fa0a973f858e89b777a0a70d71, CN=
DhanuRam Hansda
Hansda
Reason: I am the author of this document
Location:
Date: 2025.07.17 16:03:43+05'30'
Foxit PDF Reader Version: 2024.3.0
2 o.a. 350.00212.2023
ORDER
In accordance with the order of the Hon'ble Chairman, CAT, Principal Bench, dated 10.09.2021 issued under Sub -Section (6) of Section 5 of the Administrative Tribunals Act, 1985, this matter can be taken up by a Bench consisting of a single Member. Accordingly, this matter is taken up for disposal by this Single Bench.
2. The applicant has filed this Original Application, seeking the following relief(s):
"a) To issue direction upon the respondent to quash cancel set aside to impugned order dated 04.04.2022/26.12.22 regarding family pension forthwith.
b) To issue further direction upon the respondent to give family pension to the applicant forthwith.
c) To issue further direction upon the respondent to consider family pension to the applicant forthwith.
d) Any other order/orders as deem fit and proper.
e) To produce Connected Departmental Record at the time of Hearing."
3. Facts of the case
(a) The applicant is aggrieved because her prayer for family pension has been rejected by the respondents, vide order dated 04.04.2022.
(b) The applicant had earlier filed the Original Application being O.A. No. 350/00825/2022 which was disposed of by this Tribunal, vide order dated 20.09.2022 with the following observations and directions:
"8. The implications of the decisions are loud and clear. Where personal law permits more than one marriage and pension rules specifically give relief to more than one widow, the second widow can inarguably claim family pension in the light of the pension rules governing the employee.
9. Since the present applicant is governed by Mohammedan (Personal) Law the authorities shall duly reconsider her claim for family pension afresh in the light of Digitally signed by DhanuRam Hansda DhanuRam DN: C=IN, O=Personal, T=6595, OID.2.5.4.65=1335963871619011253g9LkE5GCXYJC4, Phone=ae67f2fe2825a3d09ab7e1f6c3245d45a1b89c1257419c6eb7e8dad5b6505515, PostalCode=711112, S=West Bengal, SERIALNUMBER= c6a08597b4f862e0885e118c2835105ca8a490fa0a973f858e89b777a0a70d71, CN= DhanuRam Hansda Hansda Reason: I am the author of this document Location:
Date: 2025.07.17 16:03:43+05'30' Foxit PDF Reader Version: 2024.3.0 3 o.a. 350.00212.2023 decisions above and issue orders by 3 months untrammelled by any offer previous considerations.
10. The present O.A. accordingly stands disposed of. No costs."
(c) In pursuance of the aforesaid order, the Additional Commissioner and Regional Director, ESIC, had vide order dated 26.12.2022 whereby he had rejected the prayer of the applicant for grant of family pension. Aggrieved by the rejection of her prayer, the applicant has filed this Original Application seeking the above mentioned relief(s).
4. Heard the Ld. Counsel for both the sides and considered the material on record.
5. At hearing, the submissions made by the Ld. Counsel for the applicant are summarised below:
(a) The applicant is the widow of Late Sk Abdul Kader who was a retired employee of ESI Corporation, Kolkata and who had expired on 06.06.2021.
(b) The marriage between the applicant and Late Sk Abdul Kader had been solemnized according to Muslim rights and customs and Registered under Section '6' of the Bengal Mohammadam Marriages and Divorces Registration Act, 1876 on 23.01.1988 (Annexure A-3). Her Late husband Sk. Abdul Kader had received pension w.e.f. 01.01.2016 as per the pension payment order dated 19.06.2018 (Annexure A-2).
(c) Her husband had expired on 06.06.2021. A copy of the death certificate has been annexed at Annexure A-1.Digitally signed by DhanuRam Hansda
DhanuRam DN: C=IN, O=Personal, T=6595, OID.2.5.4.65=1335963871619011253g9LkE5GCXYJC4, Phone=ae67f2fe2825a3d09ab7e1f6c3245d45a1b89c1257419c6eb7e8dad5b6505515, PostalCode=711112, S=West Bengal, SERIALNUMBER= c6a08597b4f862e0885e118c2835105ca8a490fa0a973f858e89b777a0a70d71, CN= DhanuRam Hansda Hansda Reason: I am the author of this document Location:
Date: 2025.07.17 16:03:43+05'30' Foxit PDF Reader Version: 2024.3.0 4 o.a. 350.00212.2023
(d) She had a joint account with her husband Sk Abdul Kader. A copy of the Bank Pass Book has been annexed at Annexure A-4.
(e) The applicant had made representation dated 08.12.2021 seeking grant of family pension. She did not receive any reply to the said letter.
(f) The first wife of her husband of the applicant had expired on 11.02.2004. The order dated 26th December, 2022 passed by the Additional Commissioner & Regional Director in pursuance of the orders of this Tribunal dated 20.09.2022 was passed without proper application of mind.
(g) The applicant had married Sk Abdul Kader only after his first wife had expired.
6. Ld. Counsel for the applicant cited the following judgements:
(a) W.A. No. 977 of 2817 and CMP No. 13600 of 2017 R. Rajathi Vs. The Superintendent Engineer & Ors. rendered by the High Court of judicature at Madras on 05.06.2018.
(b) Judgement of the Hon'ble High Court of Madras in W.P. No. 5706 of 2021rendered on 09.03.2021.
7. At hearing, the submissions made by the Ld. Counsel for the Respondents are summarised below:
(a) Sk Abdul Kader had retired from service of ESI Corporation on 31.07.1989. He had declared his wife to be one Suriya Begum in the family declaration (Form-3) submitted by him on 12.02.1988.
(b) After the death of Suriya Begum on 11.02.2004, Sk Abdul Kader, vide his application dated 29.04.2004 had declared that he had married one Ajema Digitally signed by DhanuRam Hansda DhanuRam DN: C=IN, O=Personal, T=6595, OID.2.5.4.65=1335963871619011253g9LkE5GCXYJC4, Phone=ae67f2fe2825a3d09ab7e1f6c3245d45a1b89c1257419c6eb7e8dad5b6505515, PostalCode=711112, S=West Bengal, SERIALNUMBER= c6a08597b4f862e0885e118c2835105ca8a490fa0a973f858e89b777a0a70d71, CN= DhanuRam Hansda Hansda Reason: I am the author of this document Location:
Date: 2025.07.17 16:03:43+05'30' Foxit PDF Reader Version: 2024.3.0 5 o.a. 350.00212.2023 Bibi on 23.01.1988 and that he requested the competent authority to include her name as his wife in the official record.
(c) Shri Abdul Kader had not taken any prior permission for his second marriage which had taken place while he was still in service. He had thereby violated Rule 21 of CCS (Conduct) Rules, 1964. He had informed the Corporation about his second marriage to Ajema Bibi, vide letter dated 29.04.2004.
(d) The prayer of Sk Abdul Kader for inclusion of name of Ajema Bibi, vide his letter dated 29.04.2004 was rejected by the competent authority in accordance with provisions of the CCS (Conduct) Rules, vide letter dated 30.07.2004.
(e) Since the name of Ajema Bibi was not included by the respondents in the official records as the wife of Sk Abdul Kader, the prayer of the applicant for grant of family pension was rejected by the competent authority.
Judgements/Orders
8. This Tribunal, in its order dated 20.09.2022 in O.A. No. 350/00825/2022, has, inter alia, observed as follow:
"8. The implications of the decisions are loud and clear. Where personal law permits more than one marriage and pension rules specifically give relief to more than one widow, the second widow can inarguably claim family pension in the light of the pension rules governing the employee."Digitally signed by DhanuRam Hansda
DhanuRam DN: C=IN, O=Personal, T=6595, OID.2.5.4.65=1335963871619011253g9LkE5GCXYJC4, Phone=ae67f2fe2825a3d09ab7e1f6c3245d45a1b89c1257419c6eb7e8dad5b6505515, PostalCode=711112, S=West Bengal, SERIALNUMBER= c6a08597b4f862e0885e118c2835105ca8a490fa0a973f858e89b777a0a70d71, CN= DhanuRam Hansda Hansda Reason: I am the author of this document Location:
Date: 2025.07.17 16:03:43+05'30' Foxit PDF Reader Version: 2024.3.0 6 o.a. 350.00212.2023
9. Extracts of the observation an order of the Hon'ble High Court at Madras in W.P. 977 of 2817 CMP NO. 13600 of 2017 in the case of R. Rajathi Vs. The Superintendent Engineer & Ors. An extract are reproduced below:
"In W.A. No. 977 of 2817 and CMP No. 13600 of 2017, R. Rajathi Vs. The Superintendent Engineer & Ors. rendered by the High Court of Judicature at Madras on 05.06.2018.
Where an interesting question arose is as to whether, a second wife of a Hindu, whose marriage was contracted during the subsistence of the first marriage that too after the introduction of the Hindu Marriage Act, 1955, would be entitled to family pension under Sub Rule 7(a)(1) of Rule 49 of the Tamil Nadu Pension Rules 1978 which reads as follows:
(a)(i). Where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares."
Hon'ble Court observed:
"Law is settled that two Hindus cannot contract marriage after the enforcement of the Hindu Marriage Act and if any of them is having a living spouse, the marriage would be a nullity and would also not be protected under the Conduct Rules, as well as, the pension rules. Therefore, the second wife as referred to under the pension rules would only include second wife whose marriage is permissible under the Personal Law, but in the case of Hindus, the second wife will have no right, whatsoever, as the law prohibits second marriage, as long as, the Government servant has a spouse who is alive. Thus for harmonious construction of the Rules governing pension, wherever, the rule provides for wives, it has to be interpreted as per the law governing marriage as applicable to the Government servant and in cases where the second marriage is void under the law, second wife will have no status of a widow of the Government servant.
XXX XXX XXX We are, therefore, of the opinion that in order to enable a second wife to claim family pension the marriage should have been valid under the Personal Law applicable to the parties, to hold otherwise would be in violation of the law of the land, viz. the Personal Law of the parties as well as the Criminal Law, which prohibits bigamous marriage."
The Hon'ble High Court held:
"43. We are, therefore, constrained to conclude that the judgments which conclude that a second wife would be entitled to family pension, irrespective of her marriage being void, under the provisions of their relevant Personal Law is applicable to the parties do not reflect the correct position of law and therefore will stand overruled. The applicability of Sub Rule 7(a)(i) is confined only to cases where the second marriage is valid under the Personal Law applicable to the parties, only in such cases, widows of such marriages would be entitled to family pension."Digitally signed by DhanuRam Hansda
DhanuRam DN: C=IN, O=Personal, T=6595, OID.2.5.4.65=1335963871619011253g9LkE5GCXYJC4, Phone=ae67f2fe2825a3d09ab7e1f6c3245d45a1b89c1257419c6eb7e8dad5b6505515, PostalCode=711112, S=West Bengal, SERIALNUMBER= c6a08597b4f862e0885e118c2835105ca8a490fa0a973f858e89b777a0a70d71, CN= DhanuRam Hansda Hansda Reason: I am the author of this document Location:
Date: 2025.07.17 16:03:43+05'30' Foxit PDF Reader Version: 2024.3.0 7 o.a. 350.00212.2023 Similarly an extract of the judgement of the Hon'ble High Court at Madras in W.P. 5706 of 2021 dated 09.03.2021 to reproduce below:
"15. When the Rule specifically gives relief to more than one widow, taking into account Personal Law, the question of validity of the second marriage does not arise at all during the subsistence of the first marriage. I am of the view that, the second wife attains the deeming status of a wife from the date of demise of the first wife, in case, the husband is alive on the date of demise of the first wife. Also, when unknown relationship comes to be known after the demise of the husband, such woman may not be entitled to any relief, unless Personal Law permits more than one marriage or declaration is obtained from the competent Judicial Forum with regard to her https://www.mhc.tn.gov.in/judis/W.P.No.5706 of 2021 legal status, after making the first wife as a party, if she is alive."
Findngs
10. In their reply to the Original Application the respondents have submitted that Sk Abdul Kader, in his family declaration in Form-3 submitted on 12.02.1988, had declared one Suriya Begum as his wife. The respondents have further averred that the said Suriya Begum had expired on 11.02.2004 and that Sk Abdul Kader had submitted a letter dated 29.04.2004 wherein he had declared that he had married Ajema Bibi on 23.01.1988 and had sought inclusion of her name in the official records as his wife.
11. The respondents have however not placed on record the family declaration submitted by Sk Abdul Kader on 12.02.1988, and the letter of Sk Abdul Kader dated 29.04.2004. In the absence of these documents, the aforesaid averments made by the respondents in their reply to the Original Application cannot be substantiated.
12. The applicant has claimed that she is the widow of Late Sk. Abdul Kader. The applicant has submitted a copy of a certificate of Marriage dated 23rd January, 1988 issued by the Muslim Marriage Registrar & Qazi which Digitally signed by DhanuRam Hansda DhanuRam DN: C=IN, O=Personal, T=6595, OID.2.5.4.65=1335963871619011253g9LkE5GCXYJC4, Phone=ae67f2fe2825a3d09ab7e1f6c3245d45a1b89c1257419c6eb7e8dad5b6505515, PostalCode=711112, S=West Bengal, SERIALNUMBER= c6a08597b4f862e0885e118c2835105ca8a490fa0a973f858e89b777a0a70d71, CN= DhanuRam Hansda Hansda Reason: I am the author of this document Location:
Date: 2025.07.17 16:03:43+05'30' Foxit PDF Reader Version: 2024.3.0 8 o.a. 350.00212.2023 certifies "that a marriage has been solemnized according to Muslim rites and customs and registration under Section 6 of the Bengal Mohammedan Marriages and Divorces Registration Act, 1976" between Sk. Abdul Kader and Azema Bibi.
13. Rule 21 of CCS (Conduct) Rules, 1964 is reproduced below:
"1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living; and
2) No Government Servant, having a spouse living, shall enter into, or contract, a marriage with any person.
Provided that the Central Government may permit a Government to enter into, or contract any such marriage as is referred to in clause (1) or clause (2), if it is satisfied that
(a) such marriage is permissible under the personal law applicable to such Government Servant and the other party to the marriage; and
(b) there are other grounds for so doing: -"
14. From the averments made by the respondent in their reply as well as the submissions, Ld. Counsel for the respondents, at hearing, it is evident that the respondents have rejected the prayer of the applicant, Ajema Bibi for grant of family pension, on the ground that her name is not recorded in the official records as the wife of Late Sk Abdul Kader. The respondents have justified their decision of not including the name of the applicant as the wife of Sk Abdul Kader on the ground that Sk Abdul Kader had violated the Rule 21 of the CCS (Conduct) Rules, 1964 and that accordingly his marriage with the applicant, Ajema Bibi is not legally valid. The respondents have not considered the applicant, Ajema Bibi to be the widow of Late Sk. Abdul Kader on the ground that her husband had violated Rule 21 of the CCS (Conduct) Rules. Digitally signed by DhanuRam Hansda DhanuRam DN: C=IN, O=Personal, T=6595, OID.2.5.4.65=1335963871619011253g9LkE5GCXYJC4, Phone=ae67f2fe2825a3d09ab7e1f6c3245d45a1b89c1257419c6eb7e8dad5b6505515, PostalCode=711112, S=West Bengal, SERIALNUMBER= c6a08597b4f862e0885e118c2835105ca8a490fa0a973f858e89b777a0a70d71, CN= DhanuRam Hansda Hansda Reason: I am the author of this document Location:
Date: 2025.07.17 16:03:43+05'30' Foxit PDF Reader Version: 2024.3.0 9 o.a. 350.00212.2023
15. The mere fact that the Sk Abdul Kader had not obtained prior permission of the competent authority in ESI Corporation where he had been serving before entering into a marriage with the applicant, Ajema Bibi during the life time of his first wife Suriya Begum cannot be a ground for denying the legal validity of such a marriage. Further, the respondents are not the competent authority to decide the legal validity of a marriage. The applicant, Smt. Ajema Bibi cannot therefore be deprived of family pension, merely, because her Late husband had violated provision of Rule 21 of the CCS (Conduct) Rules, 1964.
16. The respondents have also taken the ground that since Sk. Abdul Kader had not taken consent from his first wife namely Smt. Suriya Begaum for his second marriage with the applicant, the same is not valid under the Muslim Personal Law. However, the respondent have not placed any material on record in support of their contention in this regard. Hence, this cannot be a ground for denying the legal validity of the marriage of the applicant with Sk. Abdul Kader.
17. If the respondent authority had doubts about the bonafides of the applicant, Ms. Ajema Bibi or the about whether she was the legally married wife of Sk Abdul Kader, they ought to have asked the applicant to produce a succession certificate in her favour from the competent court of law in support of her claim for family pension.
Digitally signed by DhanuRam Hansda DhanuRam DN: C=IN, O=Personal, T=6595, OID.2.5.4.65=1335963871619011253g9LkE5GCXYJC4, Phone=ae67f2fe2825a3d09ab7e1f6c3245d45a1b89c1257419c6eb7e8dad5b6505515, PostalCode=711112, S=West Bengal, SERIALNUMBER= c6a08597b4f862e0885e118c2835105ca8a490fa0a973f858e89b777a0a70d71, CN= DhanuRam Hansda Hansda Reason: I am the author of this document Location:
Date: 2025.07.17 16:03:43+05'30' Foxit PDF Reader Version: 2024.3.0 10 o.a. 350.00212.2023
18. In view of the above discussion, the impugned order dated 26.12.2022 of the Additional Commissioner & Regional Director, Employees State Insurance Corporation, Kolkata is quashed and set aside.
19. The applicant is granted the liberty to file an application before the competent court of law for grant of succession certificate in her favour. If a succession certificate is granted to the applicant, she may produce it before the competent respondent authority, who on receipt of the same, to shall re- consider her prayer for grant of family pension in the light of the aforesaid observations within a period of 03 (three) months of the receipt of such succession certificate.
20. With the aforesaid directions, this Original Application is disposed of. There will be no order as to costs.
(Anindo Majumdar) Administrative Member drh Digitally signed by DhanuRam Hansda DhanuRam DN: C=IN, O=Personal, T=6595, OID.2.5.4.65=1335963871619011253g9LkE5GCXYJC4, Phone=ae67f2fe2825a3d09ab7e1f6c3245d45a1b89c1257419c6eb7e8dad5b6505515, PostalCode=711112, S=West Bengal, SERIALNUMBER= c6a08597b4f862e0885e118c2835105ca8a490fa0a973f858e89b777a0a70d71, CN= DhanuRam Hansda Hansda Reason: I am the author of this document Location:
Date: 2025.07.17 16:03:43+05'30' Foxit PDF Reader Version: 2024.3.0