Madras High Court
R.Santhi vs The Assistant Director on 5 August, 2022
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
W.P.No.15754 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.08.2022
CORAM
THE HON'BLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
W.P.No.15754 of 2011
R.Santhi ...Petitioner
-Vs-
1.The Assistant Director,
Office of the Cooperative Audit,
5-A, PVR, Mohanoor Main Road,
Ayyappan Kovil Opp Street,
Ganesapuram Post, Namakkal,
Namakkal District.
2.The Director,
Department of Cooperative Audit,
T.N.S.C.P. Compound,
No.5, Kamarajar Salai, Chennai -5.
3.The Accountant General,
Department of Cooperative Audit,
T.N.S.C.P. Compound,
No.5, Kamarajar Salai, Chennai -5. ...Respondents
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W.P.No.15754 of 2011
Prayer:- Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of certiorarified mandamus calling for the
records from the file of the first respondent made in
Na.Ka.3086/2008/AaPaAa-1 dated 17.09.2010, and quash the same and
further direct the respondents to grant pension which eligible by the
petitioner and other service benefits of the petitioner's late husband based on
the nomination by the deceased employee and also her representation dated
13.09.2010.
For Petitioner : Mr.C.Kulanthaivel
For Respondents – 1 & 2 : Mr.G.Nanmaran
Special Government Pleader
For Respondent – 3 : M/s.T.S.Selvarani
Senior Counsel
ORDER
The relief sought by the petitioner in this writ petition is to call for the records of the order passed by the first respondent in Na.Ka.3086/2008/AaPaAa-1 dated 17.09.2010, and quash the same and further direct the respondents to grant pension which eligible by the petitioner and other service benefits of the petitioner's late husband based on 2/14 https://www.mhc.tn.gov.in/judis W.P.No.15754 of 2011 the nomination by the deceased employee and also her representation dated 13.09.2010.
2. The case of the petitioner is that the petitioner's husband by name Raju died on 08.05.1995, while he was in service as senior Cooperative Auditor at Rasipuram circle. The late husband of the petitioner has been died leaving behind the petitioner as wife and one son by name Raja (born through the first wife) and mother by name Errammal as legal heirs at the time of his death. The first wife of the said late Raju has been found missing even at the time of his appointment dated 27.03.1981, and he has given his first wife name as wife for the record purpose and later he remarried the petitioner in the year 1987. In the year 1993 itself nominating the petitioner as wife and his son born through the first wife as nominees for getting benefit of pension and other retirement benefits. The respondent has also accepted the said nomination made by the late husband of the petitioner and the same has not been returned till his death. The petitioner after the death of her husband she has made an application in the year 1995 itself for pension and other retirement benefits. The first respondent has been 3/14 https://www.mhc.tn.gov.in/judis W.P.No.15754 of 2011 informed the petitioner vide his letter dated 16.05.1995, to submit the necessary applications along with certain documents so as to enable them to recommend the petitioner request. Subsequently the petitioner has also submitted the necessary applications along with the relevant documents including the death certificate and legal heir certificates of her husband which was required by the first respondent. Thereafter, the petitioner was informed to produce the documents relating to the first wife of her late husband who was missing long years back and the petitioner also submitted the relevant documents relating to missing of the first wife of her husband in the year 1997 itself. Thereafter, the petitioner did not receive any response or reply from the respondents in spite of her repeated approach and request from 1997 to 2010 for the period of more than 13 years. The mother of the deceased employee died on 12.11.2005, and subsequently the only son by name Raja of the deceased employee who was born through the first wife also died on 01.10.2008, and subsequently she also got remarried leaving the petitioner alone who is living without any support and source of income and also not able to meet her daily needs. The petitioner on 13.09.2010, made an application to the first respondent by enclosing all the relevant 4/14 https://www.mhc.tn.gov.in/judis W.P.No.15754 of 2011 documents including the death certificates of the mother and son of the deceased employee and wherein the petitioner has requested to consider her request otherwise she will constrained to approach the court of law against the respondent. Thereafter, the first respondent has given the impugned reply dated 17.09.2010, stating that the deceased employee has been married the petitioner which is against the Government servant conduct rules and the facts of missing the first wife has not been confirmed through the proper documents. Aggrieved by this impugned order the petitioner has come forward with the present writ petition.
3. The learned counsel appearing for the petitioner submitted that the petitioner was nominated as wife of the deceased employee on 24.06.1993, and the nomination was also accepted by the respondents. The first wife of the deceased employee disappeared for 18 years and the certificate to that effect was also issued by the Village Administrative Officer, Karaikurchi Village, Namakkal Taluk on 20.01.1996. Then the legal heirship certificate No.12390/96(B5) dated 31.07.1995, was also obtained in which the following members are mentioned as legal heirs of the deceased 5/14 https://www.mhc.tn.gov.in/judis W.P.No.15754 of 2011 employee Raju:-
S.No. Name of the Legal heirs Age Relationship to the deceased
1. Tmt.Errammal 75 Mother
2. Tmt.Santhi 30 Wife
3. Thiru.Raja 19 First Wife Son The above legal heirship certificate was issued by the Deputy Tahsildar, Head Quarters, Namakkal, and the Inspector of Police, Puduchatram Police Station, Namakkal District has also issued a non traceable certificate dated 23.11.1998, stating that the first wife of the deceased employee was missing for the past 18 years. The son of the deceased employee namely Raja died on 01.10.2008, and the death certificate of the son of the deceased employee was issued by the Registrar of Births and Deaths and Village Administrative Officer, Karaikurchi Village, to that effect dated 04.11.2008. The mother of the deceased employee namely Errammal died on 12.11.2005, and the death certificate of the mother of the deceased employee was also issued by the Office of the Registrar, Puduchatram to that effect dated 07.11.2008. The petitioner also gave a representation dated 13.09.2010, for which the reply 6/14 https://www.mhc.tn.gov.in/judis W.P.No.15754 of 2011 was given by the first respondent dated 17.09.2010 is under the challenge in the present writ petition.
4. The learned counsel appearing for the third respondent drew the attention of this Court to the counter affidavit filed by the third respondent, in which, it is stated as follows:
“3. It is submitted that due to efflux of time the records relating to the return of pension proposal of late Raju could not be traced. However, the rule position relating to two wives and the missing family pensioner is as narrated below:
(a) According to Hindu Marriages Act 1955, a Second Marriage is null and void if it had been solemnized during the subsistence of the first wife. As per the explanation under Rule 49(7) of Tamil Nadu Pension Rules 1978 “for the purpose of this Rule, the second wife shall be eligible for the benefits of family pension only if the second marriage-
(i) solemnized as per the customary law prevailed among the community before the date of commencement of Hindu Marriages Act 1955 or 7/14 https://www.mhc.tn.gov.in/judis W.P.No.15754 of 2011
(ii) solemnized under the Mohameedan Law in which bigamy is permissible” Further as per the extent orders, the family pension in respect of a deceased official who had two wives shall be paid as follows:
(i) Legally wedded wife or children through the legally wedded wife and
(ii) Children through illegitimate wife, if any at the rate of 50% each and family pension to the children is payable till they attain the age of 25 years or start earning their livelihood, which ever is earlier. If no eligible person exists in one category, the payment @ 100% shall be made to the eligible person in the other category.
(b) Thus as per the existing orders, the petitioner is not eligible for family pension as the second wife of the deceased Government servant as her marriage has been solemnized during the subsistence of the first wife.8/14
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(c) However, the petitioner contends that the whereabouts of the first wife were not known even at the time of her marriage with the deceased. But as per Section 108 of the Indian Evidence Act, in the normal course, unless a period of seven years has elapsed since his date of disappearance, a person cannot be deemed to be dead. Based on this Act, Government issued G.O.Ms.No.478 Finance (Pension) dated 04.06.87 to grant DCRG and family pension to the family after the elapse of a period of one year. The benefit may be sanctioned by the Administrative Department of Secretariat after observing the following formalities:
(i) The family must lodge a report with the concerned Police Station and obtain a report that the employee has not been traced after all efforts made by the Police.
(ii) An Indemnity Bond shall be taken from the nominee/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.
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(d) In G.O.Ms.No.43 Finance (Pension) dated 22.01.91, DCRG and Family pension were granted to the family of the missing employee after two years instead of one year. As per Government letter No.21396-A/Pension/91-2 Finance dated 09.04.91, the date of disappearance of the employee/pensioner shall be reckoned from the date of First Information Report lodged with the police and the period of two years after which the benefits of DCRG and family pension are to be sanctioned shall also be reckoned from this date.
(e) In G.O.Ms.No.574 Finance (Pension) Department dated 03.09.96, Government decided to extend the above system in case of family pensioners also. In such cases family pension shall be paid to the next eligible family pensioner if there is one, after two years from the date on which First Information Report is lodged with Police.
5. Heard the rival submissions made by the learned counsel on either side and perused the materials available on record.
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6. It is pertinent to note that the third respondent had issued a letter dated 05.11.2019 to the petitioner informing him of returning of the service book for want of following documents:
(i) Copy of the missing report of Smt.Rajammal or death certificate of Rajammal is enclosed with the proposal.
(ii) Xerox copies of Tahsildar certificate, VO certificate, Police certificate, FIR copy ought to be countered and signed by the Department.
(iii) Copy of W.P.No.15774 of 2011 filed by the petitioner, if any order passed by the Hon'ble High Court may also be enclosed with the proposal.
It is also mentioned that service book with the proposals may kindly be sent back to the office after correcting the discrepancies quoting the reference numbers of this order.
7. Considering the facts and circumstances of the case and having regard to the submissions made by the learned counsel on either side, this Court, without going into the merits of the case, directs the third 11/14 https://www.mhc.tn.gov.in/judis W.P.No.15754 of 2011 respondent to consider the petitioner's representation dated 13.09.2010, and pass appropriate orders on merits and in accordance with law, as expeditiously as possible, preferably within a period of six weeks from the date of receipt of a copy of this order.
8. With the above direction, the writ petition is disposed of. No costs.
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1.The Assistant Director, Office of the Cooperative Audit, 5-A, PVR, Mohanoor Main Road, Ayyappan Kovil Opp Street, Ganesapuram Post, Namakkal, Namakkal District.
2.The Director, Department of Cooperative Audit, T.N.S.C.P. Compound, No.5, Kamarajar Salai, Chennai -5.
3.The Accountant General, Department of Cooperative Audit, T.N.S.C.P. Compound, No.5, Kamarajar Salai, Chennai -5.
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