Kerala High Court
Kerala State Electricity Board Ltd vs Leelavathy. K on 6 February, 2024
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 6TH DAY OF FEBRUARY 2024/17TH MAGHA, 1945
WA NO.2211 OF 2018
JUDGMENT IN WP(C) 7971/2018 OF HIGH COURT OF KERALA
DATED 11.4.2018
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APPELLANTS/RESPONDENTS 1 TO 4 :-
1 KERALA STATE ELECTRICITY BOARD LTD.,
VYDUTHIBHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004,
REPRESENTED BY ITS CHAIRMAN.
2 THE CHIEF ENGINEER(HRM),
KERALA STATE ELECTRICITY BOARD LTD., VYDUTHI BHAVAN,
PATTOM, THIRUVANANTHAPURAM-695 004.
3 THE EXECUTIVE ENGINEER,
KERALA STATE ELECTRICITY BOARD LTD., KANNUR-670 001.
4 ACCOUNTS OFFICER(PENSION AUTHORISATION),
KERALA STATE ELECTRICITY BOARD, PATTOM,
THIRUVANANTHAPURAM-695 004.
BY ADV SHRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY
BOARD LIMITED
RESPONDENTS/PETITIONER & 5TH RESPONDENT :-
1 LEELAVATHY. K.,
W/O.ANANDAKRISHNAN, KARIYATH HOUSE,
PERUVANGOOR P.O., MAYYIL, KANNUR-670 602.
2 THE PRINCIPAL SECRETARY,
FINANCE (PENSION DEPARTMENT),
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
BY ADVS.
SUBHASH CYRIAC
SHEEBA JOSEPH
ASHA JYOTHY
SRI.B.UNNIKRISHNA KAIMAL,SR. GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.1.2024, THE
COURT ON 6.2.2024 DELIVERED THE FOLLOWING:
WA NO. 2211 OF 2018
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ANU SIVARAMAN, J. & C. PRATHEEP KUMAR, J.
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W.A. No.2211 of 2018
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Dated this the 6th day of February, 2024
JUDGMENT
Anu Sivaraman J.
1. The question raised in this appeal is whether the directions issued by the learned single Judge to the respondents to pay the arrears of pension due to the petitioner's husband from April 2008 to November, 2015 to the petitioner is justified in the factual and legal situation available in the instant case.
2. The 1st respondent, who was the writ petitio ner was the wife of Anandakrishnan, who was an employee of the 1 st appellant Board. He retired from service and was drawing pension from August 1991 onwards. He went missing from April 2008 onwards. The 1st respondent approached the appellants in the year 2014 requesting payment of pensionary benefits. She was informed that family pension can be released only from the date of expiry of one year from the date of filing of an FIR. Thereafter, E xhibit WA NO. 2211 OF 2018 3 P6 FIR was registered in respect of the 1 st respondent's husband on 18.12.2014. Family pension was sanctioned on the basis of Exhibit P8 from 28.12.2015. The writ petition was filed by the 1st respondent contending that since her husband has been missing from 2008 onwards, she was entitled to family pension from April 2008 onwards. It was further contended that the restriction in Exhibit P10 and P11 Government Orders that the Family Pension would be payable only after one year from the date on which an FIR is filed is illegal. The prayer in the writ petition was to call for Exhibits P10 and P11 communications and to quash the same and to grant arrears of family pension from April 2008 to December 2015, untrammelled by the limitations prescribed in P10 and P11.
3. The learned single Judge considered the contentions raised in the writ petition and found that Exhibits P9, P10 and P11 orders liberalised the procedure for settlement of pensionary claims in respect of man missing cases and had made family pension payable on a man missing case being registered. It was found that pension is the property of the pensioner and where the WA NO. 2211 OF 2018 4 pension remains unclaimed by the pensioner, it would be the entitlement of the family. Respondents 1 to 4 were directed to pay the arrears of pension, which was due to the petitioner's husband from April 2008 to November 2015, within four months.
4. The learned counsel appearing for the appellants submits that the Government Orders in question are not with regard to any presumption of life or death of the pensioner. It is stated that the Government Orders produced are only pieces of beneficial legislation in cases where the pensioner was missing after the pension becomes payable. It is contended that the requirement of a complaint being filed before the police is the only requirement to ascertain that the pensioner is actually missing and that the orders therefore grant a relaxation from the time period required for presumption of death. It is submitted that there is absolutely no illegality in the requirement of an FIR being registered since it is only to verify that the petitioner is actually missing.
5. We have considered the contentions advanced. Exhibit P9 Government Order specifically states that the presumption as to WA NO. 2211 OF 2018 5 death of a person would arise under Section 108 of the Indian Evidence Act only after a period of seven years from the date of his disappearance. However, the Government of India had, by their O.M.dated 29.8.1986, liberalised the settlement of pensionary claims in respect of man missing cases. The Government of Kerala, therefore, issued instructions to the effect that when an employee disappears leaving his family, the family will be paid in the first instance, the amount of salary due, leave encashment due and amount of general provident fund having regard to the nomination. After the elapse of the period of one year from the date of disappearance, pensionary benefits will also be granted to such employee. Clause 2 of Exhibit P9 also specifically stated that such cases should be forwarded to the Government through Head of the departments with documents including the certificate from the concerned police station to the effect that the employee could not be traced out after all efforts as well as an indemnity bond in stamped paper from the legal heir stating that all payments will be adjusted against the payments due to the employee in case he appears and make a claim.
WA NO. 2211 OF 2018 6
6. Thereafter, Exhibit P10 order was passed on 23.9.1989 further relaxing the conditions and stating that when a pensioner disappears leaving his family, family pension is to be sanctioned within one year after the serving employee is reported missing, reckoning the said period from the date of First Information Report. The further requirement in the earlier order that the certificate to the effect that the employee could not be traced out is to be forwarded was omitted. Thereafter, Exhibit P11 was issued on 13.12.2011. It was made clear that the family pension in man missing cases will continue to be sanctioned and paid one year after the date of lodging of the FIR but it will accrue from the date of lodging of the FIR or registering the crime, whichever is later. It is, therefore, clear that there is no question with regard to waiting for seven years from the date of disappearance of the employee. However, the Government Orders which provided a relaxation in the said waiting period of seven years in the case of pensionary benefits, specifically provided that there must be a report with the police that the employee or pensioner concerned is missing. From a reading of Exhibits P9, P10 and P11, it is clear that the liberalised orders also provided that WA NO. 2211 OF 2018 7 there must be a report before the police that the person is missing. It is only on the basis of Exhibits P9 and P10 orders that the employee's wife became entitled to family pension within a year of reporting the person missing.
7. In the above circumstances, we are unable to accept the contention of the learned counsel for the respondent that the condition contained in Exhibits P10 and P11 that there should be a report before the police was illegal in any manner. In view of the fact that the pensioner was, admittedly, missing from April, 2008 onwards, we are of the opinion that the directions contained in the judgment to the appellant to pay arrears of pension was completely unjustified since the payment of pension is subject to several formalities as contained in the service rules including the production of life certificate of the pensioner concerned, We are, therefore, of the opinion that this appeal is liable to succeed. The writ appeal is, therefore, allowed. The judgment of the learned single Judge is set aside. The respondents shall be paid family pension in accordance with Exhibits P10 and P11. Any arrears WA NO. 2211 OF 2018 8 found due shall be calculated and disbursed within a period of three months from the date of receipt of a copy of this judgment.
Sd/-
Anu Sivaraman, Judge Sd/-
C. Pratheep Kumar, Judge sj19/1