Orissa High Court
Sailabala Panda vs Union Of India And Others on 19 March, 2018
Author: S.N.Prasad
Bench: S.N.Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.10796 of 2016
In the matter of an application under Articles 226 and 227 of the Constitution
of India.
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Sailabala Panda ...... Petitioner
- Versus-
Union of India and others ...... Opposite Parties
For Petitioner : M/s Bidyadhar Pradhan, B.D.Pradhan,
D.Mishra, S.Mohapatra
For Opp.Parties : M/s C.Pradhan ( for O.Ps.1 to 4)
M/s K.P.Mishra and S.N.Mishra-4
( for O.P.No.5)
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PRESENT:
THE HONOURABLE SHREE JUSTICE S.N.PRASAD
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Date of hearing and judgment: 19.03.2018
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S.N.Prasad,J. This writ petition under Articles 226 and 227 of the Constitution
of India is for issuance of direction upon the opposite parties to disburse the
share of the petitioner in respect of the service benefits/dues from the ITBP
authorities of late Sunil Kumar Panda, Constable/General Duty of
Indo-Tibetan Border Police who is only son of the petitioner died on 1.6.2016
while in service which she is claiming in the capacity of mother of the
deceased-employee and happens to be class-I legal heir.
2. The petitioner has tried to make out a case that she being the
mother of the deceased-employee namely Sunil Kumar Panda who was
working as Constable(General Duty) in the Indo-Tibetan Border Police died on
2
1.6.2016in harness and as such she claims share upon the service benefits/dues of her deceased son on the ground of claiming as Class-I legal heir.
3. Learned counsel for the petitioner while pressing the writ petition has submitted that the petitioner is about 65 years and late Sunil Kumar Panda was her only son and due to premature death she is unable to maintain herself and as such she be given some portion of the share from the service benefits so that she may survive at this old age of life. He submits by refuting the argument and plea taken by the opposite party no.5 that the petitioner is getting pension on account of her husband who was also in Government service, he is admitting this fact but he submits that the petitioner is also to look after her widow daughter who is dependant, hence on the meager amount it is not possible to survive herself as also widow daughter, as such prayer has been made to consider the grievance sympathetically.
Learned counsel for the petitioner has relied upon the judgment of the Hon‟ble Apex Court in the case of Vashin N.Khanchandani -vs- Vidya Lachmandas Khanchandani another reported in 2000(II) OLR(SC) 528 and Shipra Sengupta -vs- Mridul Sengupta & others reported in 2009(II) OLR(SC) 695.
4. Mr.K.P.Mishra, learned counsel for the private opposite party has vehemently objected to such prayer of the petitioner by submitting that the concept of Class-I legal heir will not be applicable so far as service benefits is concerned rather service benefits is to be extended on the basis of the provisions of the Central Civil Services Pension Rules,1972 which is applicable but there is no provision to extend service benefits to mother during the life time of the wife in the case of a male Government servant or husband in case of a female Government servant and as such the plea taken by the petitioner is not to be considered in view of the settled proposition of law.
Learned counsel for the private opposite party no.5 has relied upon the judgments passed by this Court in the cases of Subasini Behera @Pothal & Anr. -vs- The Branch Manager, State Bank of India and others 3 reported in 2018(I) CLR 76 and Samser Khan and another -vs- The Commandant,202 BN, Cobra, CRPF, Sunabeda, Koraput and others, reported in Vol.122(2016) CLT 1.
5. Opposite parties 1 to 4 has contested the case by filing detailed counter affidavit wherein it has been stated that as per the service record of late Constable Sunil Kumar Panda who was married to the opposite party no.5 was declared next of Kin of the deceased employee during his posting in the 23rd Battalion, Dehradun(UKD) on 23.2.2013 as would be evident from Annexures A/1, B/1 and C/1, subsequently he died. It has been stated that in the Group Insurance Scheme the deceased has made his wife as nomine as would be evident from Annexure-C/1. It has been stated by placing reliance upon the Annexure-A/1 the description of the members of the family namely opposite party no.5 and his son is there, the said description has been furnished on the basis of the provisions contained in Clause(b) of sub-rule(14) of Rule 54 of the CCS(Pension) Rules,1972 wherein it has been provided that wife in the case of male Government servant will be entitled to get service benefits and wife happens to be in the category of first class and dependant parents is in the 4th category and as such the petitioner cannot be said to be legal claimant to the service benefits of the deceased employee, the petitioner has got no case and as such it has been submitted to dismiss the writ petition.
6. Heard learned counsel for the parties, perused the affidavits including the counter affidavit as well as rejoinder affidavits filed today.
Before entering into the merit of the claim of the parties it would be relevant to point out here that son of the petitioner was working under the establishment of which will govern by the provisions of Central Civil Service(Pension) Rules,1972 ( herein after referred to as Rules,1972) where there is provision under Rule 54(14)(b) which provides definition of „family‟ in relation to a Government servant which means wife in the case of a male Government servant, or husband in the case of a female Government servant. The other provision has been made under the aforesaid Rules,1972 for disbursement of Death-cum-Retirement gratuity which provides under the provisions of Rule 50(6) and Rule 51.
4Rule 50(6) provides:
"(6) For the purposes of this rule and Rule 51,52 and 53, `family', in relation to a Government servant, means -
(i) wife or wives 7[including judicially separated wife or wives] in the case
of a male Government servant,
(ii) husband, 7[including judicially separated husband] in the case of a
female Government servant,
(iii) sons including stepsons and adopted sons,
(iv) unmarried daughters including stepdaughters and adopted daughters,
(v) widowed daughters including stepdaughters and adopted daughters,
(vi) father, including adoptive parents in the case of individuals whose
personal law permits adoption,
(vii) mother, including adoptive parents in the case of individuals whose
personal law permits adoption,
(viii) brothers below the age of eighteen years including stepbrothers,
(ix) unmarried sisters and widowed sisters including stepsisters,
(x) married daughters, and
(xi) children of a pre-deceased son."
51. Persons to whom gratuity is payable-
(1) (a) The gratuity payable under Rule 50 shall be paid to the person or persons on whom the right to receive the gratuity is conferred by means of a nomination under Rule 53;
(b) If there is no such nomination or if the nomination made does not subsist, the gratuity shall be paid in the manner indicated below -
(i) if there are one or more surviving members of the family as in clauses (i), (ii), (iii) and (iv) of sub-rule (6) of Rule 50, to all such members in equal shares;
(ii) if there are no such surviving members of the family as in sub- clause (i) above, but there are one or more members as in clauses (v),
(vi), (vii), (viii), (ix), (x) and (xi) of sub-rule (6) of Rule 50, to all such members in equal shares.
(2) If a Government servant dies after retirement without receiving the gratuity admissible under sub-rule (1) of Rule 50 the gratuity shall be disbursed to the family in the manner indicated in sub-rule (1).
(3) The right of a female member of the family, or that of a brother, of a Government servant who dies while in service or after retirement, to receive the share of gratuity shall not be affected if the female member marries or re-marries, or the brother attains the age of eighteen years, after the death of the Government servant and before receiving her or his share of the gratuity.
(4) Where gratuity is granted under Rule 50 to a minor member of the family of the deceased Government servant, it shall be payable to the guardian on behalf of the minor"5
7. It is not in dispute in the instant case that the claim is to be adjudicated on the basis of the applicability of the Rules,1972 and as such whatever provision has been made the claim, is to be examined on the basis of the said provisions of law and not on the basis of the Hindu Marriage Act or Hindu Succession Act.
Learned counsel has relied upon the judgment of the Hon‟ble Apex Court in the case of D.S.Nakara and others -vs- Union of India reported in AIR 1983 SC 130 wherein at para-20 their Lordship has held:
"The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar & Ors. (1) wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab -v- Iqbal Singh,(1975) 3 SCR 360: AIR 1976 SC 667."
Here in the instant case the petitioner who happens to be mother of the deceased employee namely Sunil Kumar Panda who died while working as Constable on 1.6.2016. The petitioner claims her right on the basis that she is treating her as first legal heir under the Hindu Succession Act but as has been observed herein above that the provision of Hindu Succession Act will not be applicable so far as service benefit is concerned rather the Rules,1972 which is applicable in the facts and circumstances of the case since the claim pertains to service benefits of the deceased employee who was working as Constable under Indo-Tibetan Border Police and as such reliance of the provisions is to be seen by this Court and on the basis of the same family is defined under the provisions of Rule 54(14)(b) of the Rules,1972 which indicates wife in the case of a male Government servant or husband in the case of a female Government servant.
6Under the Rules,1972 there is reference that during lifetime of wife, mother will not get service benefits as would be evident from Annexure-A/1 under the provisions of Rule 54(14)(b) and on perusal of the said provision, wife has been said to be the first category of dependant and the dependant parents comes under the forth category, hence if wife is alive there is no question of considering the claim of the petitioner who is mother of the deceased.
8. Learned counsel for the petitioner has tried to impress upon the Court by relying the judgments rendered by this Court in the case of Vashin N.Khanchandani -vs- Vidya Lachmandas Khanchandani another(supra) and Shipra Sengupta -vs- Mridul Sengupta & others(supra).
So far as case of Vashin N.Khanchandani -vs- Vidya Lachmandas Khanchandani another(supra) is concerned, the factual aspect of the said case is not of service benefits rather same pertains to the dispute on account of maturity of savings certificate and as such the Hon‟ble Apex Court while dealing with the said case has made observation that any amount paid to the nominee after valid deductions becomes the estate of the deceased and such an estate devolves upon all persons who are entitled to succession under law, custom or testament of the deceased holder. The Hon‟ble Apex Court relying upon the judgment in the case of Smt. Sarbati Devi & another
-vs- Smt. Usha Devi reported in (1984)1 SCC 424 held that the mother of the deceased Niharbala Sengupta being the Class-I heir under the Hindu Succession Act,1956 was entitled to the half share along with the appellant, but here in the instant case the petitioner is not claiming any benefit of saving certificates rather it is the service benefits and as such the proposition laid down in the case of D.S.Nakara and others -vs- Union of India(supra) with applicability of the service rule with respect to the pensionary benefits/post death benefit will be applicable under the provisions of the Rules,1972, hence the judgment is not applicable.
7So far as Shipra Sengupta -v- Mridul Sengupta & others(supra) is concerned, that was related to gratuity, insurance and provident fund and the Hon‟ble Apex Court while dealing with the issue, has been pleased to hold that the amount in any head can be received by the nominee but the amount can be claimed by the heirs of the deceased in accordance with law of succession governing them, meaning thereby the nomination does not confer any beneficial interest on the nominee and the amount so received are to be distributed according to the Hindu Succession Act and accordingly directed the State Bank of India to release half of the amount of general provident fund to the appellant within specified period basing upon the fact that the competent court has granted succession certificate in respect of the mother of the deceased in respect of total amount of life insurance, gratuity, public provident fund and general provident fund. However, it has been held that the nominee did not confer any beneficial interest due from life insurance, gratuity, public provident fund and general provident fund and the High Court while following the Sarbati Devi case(supra) held that it is well settled that mere nomination made in favour of a particular person does not have the effect of conferring on the nominee any beneficial interest in property after the death of the person concerned and the Hon‟ble Apex Court while dealing with the issue has decided as to whether nominee is entitled to received same, while answering the issue it has been held that amount in any head can be received by the nominee but the amount can be claimed by the heirs of the deceased in accordance with law of succession governing them, learned counsel for the petitioner by giving much emphasis upon the said judgment is tried to impress upon the Court that the ratio of the judgment rendered in the case of Shipra Sengupta -vs- Mridul Sengupta & Others(supra) which is squarely covered the case but according to the considered view of this Court, this judgment will not be applicable for the reason that the mother has never been made nominee by the deceased employee rather in the description of family as would be evident from Annexure-A/1 only name of his wife namely opposite party no.5(Smt.Jayashree Panda) is there. Likewise in the document related to Group Insurance Scheme the name of the opposite party no.5 and her son is 8 there. It is further evident from Annexure-C/1 that the deceased employee has furnished declaration by making nominee in favour of his wife in case of Death-cum-Retirement Gratuity, meaning thereby the nominee has been made by the deceased employee in favour of his wife and if the judgment rendered by this Court in the case of Shipra Sengupta -vs- Mridul Sengupta & Others(supra) will be applied it will go against the petitioner since there is no nomination in her favour by the deceased employee during the lifetime and in course of service.
Name of the petitioner has been furnished by the deceased employee under the list of relatives as would be evident from Annexure-H/1 wherein name of the petitioner Sailabala Panda has been mentioned as first heir but when wife is alive, question of making disbursement of service benefits in favour of the first heir does not arise in view of the provisions of Rule 54(14) of the Rules,1972.
This Court putting reliance upon the judgment rendered by this Court in the case of Samser Khan and another -vs- The Commandant,202 BN, Cobra, CRPF, Sunabeda, Koraput and others(supra) and Subasini Behera @Pothal & Anr. -vs- The Branch Manager, State Bank of India and others(supra) is of the view that the petitioner has failed to make out a case for passing positive order in favour of the petitioner.
9. In the result, the writ petition fails and it is dismissed.
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S.N.Prasad,J.
Orissa High Court, Cuttack, Dated the 19th March,2018/Palai