Central Administrative Tribunal - Ahmedabad
Faridunnisa I Pathan vs D/O Post on 26 April, 2024
::1 :: OA No.332/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BECH
Original Application No. 332/2021
Dated this the 26th day of April, 2024
Reserved on: 17.04.2024
Pronounced on: 26.04.2024
CORAM:
Hon'ble Shri Umesh Gajankush , Member (J)
1. Faridunnisa I. Pathan
Daughter of Ismalkhan Pathan
Female, aged about 54 years,
32, Nutan Gandhi Smruti, Co.op,
Society ltd. Maktampura,
Juhapura,
Ahmedabad - 380 055
... Applicant
(By Advocate Mr. P H Pathak)
V/s.
1. Chief Post Master General
Gujarat Circle,
Khanpur,
Ahmedabad - 380 001.
2. Assistant Director of Postal Services,
(Ministry of Communication)
Office of the Chief Post Master General,
Gujarat Circle,
Ahmedabad - 380 001.
... Respondents
(By Advocate Mr. H D Shukla)
::2 :: OA No.332/2021
ORDER
Per: Hon'ble Shri Umesh Gajankush, Member (J)
1. Present Original Application has been filed challenging the impugned order dated 24.06.2021 (Annexure A/1) whereby respondent department has asked the applicant to furnish decree of divorce from court of law for issuance of family pension.
2. Brief facts of the case are as under:-
2.1 Applicant's later father Mr. Ismalkhan Pathan was working under respondent no.1 i.e., Chief Accountant, Internal Financial Adviser.
The father of the applicant retired from service w.e.f. 31.10.1992 and died on 27.11.2010. The father of the applicant was granted pension. After death of the father, the widow mother Smt. Merajibibi Pathan was granted family pension. The mother of the applicant also died on 28.04.2021. Applicant was residing with the mother. She married in 1998 and got divorce w.e.f. 11.11.2001 as per Muslim Law. Applicant was divorced during the lifetime of his father. The father of the applicant had requested the authority to add the name of applicant as a dependent for payment of family pension.
2.2 Respondent department vide letter dated 09.06.2005 called for certain documents as required by Directorate, New Delhi (Annexure A/2). Applicant's late father vide letter dated 03.09.2005, supplied the documents, which were received by respondents authority on 06.09.2005 (Annexure A/3). The request of the father of the applicant was accepted by the Account Officer, Postal Department, Nagpur and in the year 2006, a specific endorsement was made stating that "family pension would be admissible to daughter Faridunnisa (divorced daughter) after the death of Smt. Merajibibi (Annexure A/4). During the life time, the mother was getting family pension and the name of the applicant was included as family member by the Account Office (pension) of ::3 :: OA No.332/2021 the respondents. Copy of last PPO showing details of revised family pension is annexed at Annexure A/5. Even the name of the applicant, being dependent, was included in index card issued by Ministry of Health and Family Welfare under CGHS Scheme (Annexure A/6).
2.3 After the death of the mother, the applicant had requested the respondents to sanction family pension to her (Annexure A/7) but no steps were taken by the respondents and the applicant is denied family pension. On the contrary, the office of respondents conveyed vide impugned letter dated 24.06.2021 (Annexure A/1) to submit decree of divorce issued by the competent court during the lifetime of one of the parents. Thereafter, the applicant sent an advocate notice on 09.07.2021 (Annexure A/8) to the respondent department but no reply was given by the respondents. Aggrieved by the same, applicant has approached this Tribunal praying to quash and set aside the impugned order dated 24.06.2021 (Annexure A/1) and direct the respondent to pay family pension.
3. Per contra, respondents have filed their reply denying the contentions raised by the applicant.
3.1 It is submitted that late Shri I H Pathan, Ex. CAO & IFA O/o CPMG, Ahmedabad retired on 31.10.1992 and expired on 27.11.2010 and his spouse also expired on 28.04.2021. Therefore, Ms. Faridunisa I Pathan - Applicant herein, the divorcee daughter submitted an application dated NIL (received on 20.05.2021 in Office of Chief PMG, Ahmedabad) to commence family pension, which was sent to Office of GM (F) Postal Accounts Office, Ahmedabad vide letter dated 07/09.06.2021 for authorization of family pension. However, the applicant had not submitted some required documents with her application.
3.2 It was also found that applicant had not submitted decree of divorce issued by the competent court of law as per DOP & PW OM dated 19.07.2017 (Annexure R/1). Accordingly, the applicant ::4 :: OA No.332/2021 was asked to submit the same vide letter dated 24.06.2021. It is further submitted that name of the applicant was mentioned in the Form-3 at the time of retirement of Ex-Officer as she was unmarried daughter at that time. As per documents submitted by her, she got married on 11.06.1998. Her name was also mentioned in the PPO half of pensioner copy by the AO (Pension), Ahmedabad with the condition that family pension will be payable to her on submitting the required claim papers. However, the applicant had not submitted required documents as required for authorization of family pension and directly filed the present Original application.
3.3 It is also submitted that applicant had not submitted decree of divorce issued by the competent court of law. As per OM dated 19.07.2017, family pension is to be granted to a divorced daughter in such cases where the divorce proceedings had been filed in a competent court during the life time of the employee/pensioner or his/her spouse but divorce took place after their death provided the claimant fulfill all conditions for grant of family pension under rule 54 of the CCS (Pension) Rules, 1972. Accordingly, the applicant was asked to submit the same vide letter dated 24.06.2021.
3.4 It is further submitted by the respondent that the endorsement was made Account Officer (Pension) Office of DA (P), ahmedabad instead of DA(P), Nagpur. Further, merely mentioning the name of applicant in the PPO does not make her eligible for family pension. It is further stated that eligibility of the applicant is to be decided on the basis of required documents at the time of claim only. The applicant has not submitted required documents. Moreover, issuance of CGHS card to the applicant has no relevancy with entitlement of family pension. Therefore, applicant has no legitimate right to claim for family pension without providing the requisite decree of divorce from competent court of law.
::5 :: OA No.332/20214. Heard learned counsel for the parties and perused the material available on record.
5. Learned counsel for the applicant submits that by the impugned communication dated 24.06.2021 (Annexure A/1) applicant is directed to produce the decree of divorce issued by the competent court during the lifetime of atleast one of the parents is arbitrary and illegal. It was submitted that during the lifetime of the deceased employee, the name of the applicant was recorded in the family pension case as a divorced daughter and at that relevant point of time the certified copy of Talaknama, certified translated copy of Nikahnama, amount fixed as per Mehr and amount paid to applicant at the time of divorce was submitted before the competent authority. Therefore, insistence of decree of divorce from the competent court is unsustainable. Learned counsel for the applicant also relied on orders passed by this Tribunal in OA No. 71/2021, OA No. 72/2019 and OA No. 393/2022 as well as orders passed by the Hon'ble High Court of Gujarat in similar cases. It is submitted that the proposition of law laid down by this Tribunal and the Hon'ble High Court consistently hold that if there is a customary divorce then decree of divorce from competent court cannot be insisted upon.
6. On the other hand, learned counsel for the respondents submits that looking to the impugned communication dated 24.06.2021 (Annexure A/1), it is clear that claim of the applicant was not rejected. Infact, applicant was directed to produce the copy of decree of divorce from the competent court during the lifetime of atleast one of the parents in terms of OM dated19.07.2017. Therefore, present Original Application is premature and based upon the stand taken in the reply, respondents have prayed for dismissal of the OA.
7. Countering the submission of learned counsel for the respondents, it is submitted by learned counsel for the applicant that vide ::6 :: OA No.332/2021 communication dated 24.06.2021 (Annexure A/1) is a deemed rejection and in view of the law laid down by Hon'ble High Court, applicant is entitled for family pension.
8. After hearing learned counsel for the parties and perusal of the record, it is clear that during the lifetime of the employee the name of the applicant was recorded based on the documents as mentioned in communication dated 09.06.2005 (Annexure A/2 and A/5). Under these circumstances, after the death of the mother of the applicant who was getting the family pension, after the death of the late Shri I K Pathan, issuance of impugned communication dated 24.06.2021 (Annexure A/1) and insisting on production of decree of divorce from the competent court is not proper.
9. So far as OM dated 19.07.2017 (Annexure R/1) which is relied upon by the learned counsel for the respondents is concerned, same argument is also not tenable in view of the fact that this Tribunal and the Hon'ble High Court of Gujarat have taken consistent view that the divorced daughter based upon the customary divorce are entitled to get family pension.
10. At this juncture it is relevant here to reproduce paragraph no. 15 to 17 of order dated 10.02.2020 in R/SCA No. 4792 of 2019 passed by Ho'ble High Court of Gujarat: -
"Para 15 The provision of Rule 75 of the Family Pension Rules, in fact, is a benevolent piece of subordinate legislation and therefore it needs to be governed by the principles which required to be pressed into service for extending the benefit of the family pension to those who are in need thereof, as it is intended to benefit those family members who needs support. Bearing this proposition of law in mind, if one examines Rule 75 which is also in pari -materia with Rule 54 of the said Rules, would indicate that the family pension is available to the divorced daughter. The Rule does not recognized any further or other requirement to be eligible for receiving the family pension. The device in the form of guideline developed by the authorities and incorporated in Office Memorandum are, therefore, to be viewed as only facilitating tools to assess gauge and examine the cases of the divorced daughter to receive family ::7 :: OA No.332/2021 pension on the basis of the eligibility. When the factum of customary divorce is well recognized by the provision of the Hindu Marriage Act with special emphasis upon Section 29 (2), then perhaps rightly the author of Rule 54 and/or Rule 75 have not thought it fit to qualify the word "divorced daughter" by making it conditional that the divorce has to be declared by the competent Court, else it would perhaps amounted to improve upon the provision of Hindu Marriage Act, which unequivocally recognizes the customary divorce as a valid divorce provided the same is permissible under the community and the circumstances. The question, therefore, arises as to whether the respondents in the instant case, were having any justification to insist upon the divorce decree from the competent Court and were they justified in declining to act upon the customary divorce factum which have remain unchallenged before the authority and which have been recorded by the tribunal in its orders at length and elaborately. Section 29 (2) of the Hindu Marriage Act, reads as under:
"Section 29(2):-Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act."
Para -16 In other words, it can well be said that when the factum of customary divorce I both the cases have not been challenged by the authorities. Their insistence for divorce decree only from the competent Court indicating valid dissolution of marriage would not be justified. The Court hasten to add here that this proposition on the valid premise that there exist no dispute qua customary divorce, in other words, the factum of applicants having a valid customary divorce deed when not under challenge and has accepted, then its mere authentication in the from of dissolution of marriage by the decree of the competent Court, in our view, would be improving the provision of the Hindu Marriage Act without any authority of law and the benefit, therefore, which are enuring under Rule 54 and Rule 75 when it is not qualified in any other manner would have to be accorded to the divorced daughter also.
Para-17 As Bombay High Court has observed rightly in its judgment the important factor is the family in which the daughter is residing when the pensioner/recipient of the family pension dies. When the said factum has not been disputed in both the cases ad when it is clearly recorded by the Tribunal as a fact that both the applicants were residing with pensioner/recipient of the family pension, then the insistence for dissolution of marriage by the competent Court only by way of decree, in our view, was not justified."
::8 :: OA No.332/2021Hon'ble High Court of Gujarat held that once there is no dispute in respect of customary divorce and that the applicant concerned was residing with the pensioner during their life time denial of claim of the applicant is not sustainable. So far as, contentions of the respondent by placing reliance upon OM dated 19.07.2017 is concerned, the order dated 14.12.2018 passed in OA No. 331/2017 this Tribunal in paragraph no. 12, itself has taken note of the aforesaid memorandum which is a clarification of earlier Office Memorandum dated 11.09.2013. Reoelvant para 12 is reproduced as under: -
12. In decision titled Union of India &Ors. v. Smt. Usha Eknath Patil (cited supra, relied upon by counsel for applicant) Hon'ble High Court of Bombay (Nagpur Bench) in almost similar facts holds that when the provision entitles unmarried or a divorced or a widowed daughter to family pension, applicant Usha is definitely covered thereunder. Para 19 to 22 of said decision, being quote worthy, for sake of brevity are reproduce herein below:-
"19. Here, fact of customary divorce is not in dispute. The competent civil Court has on 29/11/2010 in recognition of customary divorce and separate stay from 21/7/1992 dissolved marriage. Thus, fact that daughter - Usha was not residing with her husband since 21/7/1992 has been accepted by competent Court. The Central Administrative Tribunal in Original Application on 27/11/2015 has accepted this finding of civil Court. The petitioner - railways could not displace that finding even during review proceedings.
20. Today, our attention has been drawn to office memorandum dated 19/7/2017. This memorandum clarifies the earlier office memorandum dated 11/9/2013 mentioned supra. The office memorandum stipulates that daughter, if eligible may be granted family pension, provided she fulfils all eligibility conditions at the time of death/ineligibility of her parents.
21. There cannot be any debate about this proposition. Here, Clause 19 (b), mentioned supra, includes not only a widowed or divorced daughter but also unmarried daughter. The said clause also entitles adopted son or daughter to family pension. Clause therefore is wide and ::9 :: OA No.332/2021 looks after welfare of family of deceased employee. Clauses 4 and 5 (highlighted portion, supra) of office memorandum dated 11/09/2013 show the intention of Railways not to leave a destitute woman without any means of livelihood. This object and intention cannot be defeated in present facts. 22. In present facts, though customary divorce on 21.7.1992 may not be legally recognised, facts show that from said date, Usha was not residing with her husband and was therefore, member of family of her deceased father. She was therefore, a destitute residing with her mother Vatsala who expired on 28.12.1999. When the provision entitles unmarried or a divorced or a widowed daughter to family pension, we find that Usha is definitely covered thereunder."
Therefore, the contention raised by the official respondents on that basis is not tenable.
11. Thus, in view of the aforesaid, impugned communication dated 24.06.2021 (Annexure A/1) is quashed and applicant is entitled for family pension. Respondents are directed to pass appropriate order for grant of family pension to the applicant and this exercise shall be completed within 90 days from the date of receipt of copy of this order.
Umesh Gajankush Member(J) PA