Central Administrative Tribunal - Delhi
K K Sharma vs Govt. Of Nctd on 3 June, 2016
Central Administrative Tribunal
Principal Bench
New Delhi
O.A.No.4083/2012
Order Reserved on: 20.05.2016
Order pronounced on 03.06.2016
Hon'ble Shri V. Ajay Kumar, Member (J)
Hon'ble Dr. Birendra Kumar Sinha, Member (A)
Shri Kamlesh Kumar Sharma
S/o Late S.R.Sharma
R/o WZ-632/G, Sri Nagar
Street No.2, Shakurbasti
Delhi - 110 034. ... Applicant
(By Advocate: Shri Manjeet Singh Reen)
Versus
Govt. of NCT of Delhi & Others: through
1. The Chief Secretary
Govt. of NCT of Delhi
Delhi Secretariat
I.P.Estate
New Delhi.
2. The Director
Directorate of Education
Govt. of NCT of Delhi
Old Secretariat
Delhi.
3. The Dy. Director of Education
Govt. of NCT of Delhi
District North-East
B-Block, Yamuna Vihar
Delhi - 110 053.
O.A.No.4083/2012
2
4. The Principal
Government Girls Sr. Sec. School No.1
B-Block, Yamuna Vihar
Delhi - 110 053. ... Respondents
5. Shri Ram Nath
R/o House No.G-3
Gali No.3
Sangam Vihar
Wazirabad, Delhi.
Office Address:
O/o Executive Engineer
North-1, Delhi Jal Board
Mukherjee Nagar, Delhi.
6. Ms. Nikita
Daughter of Shri Ram Nath
R/o House No G-3
Gali No.3
Sangam Vihar
Wazirabad, Delhi.
7. Shri Vishal
S/o Shri Ram Nath
R/o House No.G-3
Gali No.3
Sangam Vihar
Wazirabad, Delhi. ... Newly impleaded respondents
(By Advocate: Mrs. P.K. Gupta for Respondents No.1 to 4 and
none for Respondents 5 to 7)
ORDER
By V. Ajay Kumar, Member (J):
The claim of the applicant for the retiral/death benefits of his wife Late Mrs. Sudha Sharma, who retired as TGT (Hindi) on 31.05.2009 and died on 07.11.2009, such as Family Pension, Gratuity, Bonus, O.A.No.4083/2012 3 arrears of Pay and Pension, etc., was rejected by the respondents on the ground that his name was not shown as a family member in the family declaration submitted by Late Mrs. Sudha Sharma during her service period/life.
2. The respondents in their counter also stated that Late Mrs. Sudha Sharma during her life time submitted notarized affidavits stating that she is living separately from his Husband and a divorce petition is under process and that she is having no connection of any type with her Husband, i.e., the applicant, and on the other hand she nominated the respondents 5 to 7 as her family members and hence, the applicant is not entitled for the retiral/death benefits of Late Mrs. Sudha Sharma.
3. Heard Shri Manjeet Singh Reen, the learned counsel for the applicant and Mrs. P.K.Gupta, the learned counsel for the official respondents, and none for the respondents 5 to 7 and perused the pleadings on record.
4. After the counter in the OA was filed by the official respondents, wherein it was mentioned that the deceased employee Late Mrs. Sudha Sharma, nominated the private respondents 5 to 7 as her family members, the applicant got them impleaded as respondents in the OA. Though notices in the OA were also issued and served by Dasti on them, they neither filed any counter nor contested the OA. O.A.No.4083/2012 4
5. It is not in dispute that in the records maintained by the official respondents pertaining to the deceased, the name of the applicant was shown as her Husband. The applicant filed the following documents wherein it is shown that the applicant is the Husband of the deceased Late Mrs. Sudha Sharma:
i) Annexure A3 (Service Book of the deceased).
ii) Annexure A5 (Death Certificate of the deceased).
iii) Annexure A11 (colly.) (Election Commission of India -
Identity Card of the deceased).
iv) In the application form, made in the year 1981, for the post of Teacher in MCD, the name of her Husband has been shown at Sl.No.6 as Shri Kamlesh Kumar Sharma.
v) Pension Payment Order of the applicant [Annexure A11 (colly.)].
vi) Order of Discharge of the applicant in FIR No.102 of 2003 dated 25.07.2008 of the Metropolitan Magistrate, Karkardooma Courts, Delhi.
vii) Order in Criminal Revision No.166 of 2008 dated 16.01.2009 of the Additional Sessions Judge, Karkardooma Courts, Delhi.
viii) Order dated 31.03.2004 in Suit No.119/2003 of the Civil Judge, Karkardooma Courts, Delhi.
ix) Relieving order No.D.6073, issued by Municipal Corporation Primary School, Dilshad Garden, at Annexure R4.
x) Copy of the order of confirmation in service at Annexure R5, issued by Department of Education, MCD dated 31.03.1989.
xi) Releasing certificate, issued by the PS Bhajanpura Delhi dated 09.1.2009, after Post Mortem of the dead body of Mrs. Sudha Sharma.
xii) Receipt for post-mortem dated 09.11.2009 issued by PS, Bhajanpura, Delhi.
O.A.No.4083/20125
6. The only ground of the respondent for denying the death/retirement benefits of the deceased Mrs. Sudha Sharma, is that she has given Sworn Affidavits that she filed a divorce petition against the applicant and she has no connection or relation with him and that she has nominated the private respondents 5 to 7 as her family members.
7. Admittedly, Mrs. Sudha Sharma, during her life time has not submitted any valid decree of divorce, dissolving the marriage between her and the applicant. As per the provisions of the relevant marriage and succession laws, unless and until a Hindu Marriage is dissolved, by way of a valid decree of divorce, of a competent Court of Law, the relationship of wife and husband subsists irrespective of the fact that the wife and husband are living together or any petitions for divorce are pending or any maintenance was granted to the wife against the applicant, etc. Hence, the Sworn Affidavit of the deceased Mrs. Sudha Sharma cannot validly sever the relationship of wife and husband between her and the applicant. Since admittedly the only daughter born out of the wedlock of the applicant and the deceased Mrs. Sudha Sharma, predeceased her, the applicant alone is the only surviving legal heir of the deceased Mrs. Sudha Sharma. O.A.No.4083/2012 6
8. In Union of India & Others v. Janki Devi, W.P(C) No.1353/2015 of the Hon'ble High Court of Delhi, dated 21.05.2015, while considering somewhat identical issue, it was held as under:
"2. We have heard learned counsel for the petitioners and learned counsel for the respondent. The Tribunal has threadbare gone into all these issues and we need not reiterate the reasoning given by the Tribunal in our order. The Tribunal has also placed reliance on the judgment of the Apex Court in G.L. Bhatia v. Union of India, 1999 (5) SCC 237 where in almost identical facts the employee had not disclosed the name of her husband on the relevant form and after the death of the employee the husband had approached the employer claiming his entitlement to the grant of family pension and the view taken by the Apex Court was that the rights of the parties are governed by the statutory provision and the individual lapse in not nominating his/her family member as nominee do not deprive the nominee to the grant of the family pension. The relevant para of the said judgment although referred to in the impugned order is again reproduced here for better appreciation:-
"2. The sole question that arises for consideration in this appeal is whether the appellant, who happens to be the husband of the deceased government servant, is entitled to family pension under the provisions of the Central Civil Services (Pension) Rules (for short "the rules") notwithstanding the fact that the deceased wife in her nomination did not include the husband. The forums below have taken the view agreeing with the authorities that since the nomination was not in favour of the husband and the husband was staying separate from the wife, the husband would not be entitled to family pension in question. This view cannot be sustained in view of the provisions contained in Rule 54 of the rules. It is too well settled that where rights of the parties are governed by statutory provisions, the individual nomination contrary to the statute will not operate. 3. Under Rule 54 sub-rule (14(b)(i) the expression "family" has been defined thus: "54. (14(b)(i) Wife in the case of a male government servant, or husband in the case of a female government servant...." 4. Sub-Rule (8(r) of Rule 54 states that: "54. (8(r) If a deceased government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child." 5. In the light of the aforesaid provisions and there being no divorce between the husband and wife even though they might be staying separately, the appellant husband would be entitled to the family pension in terms of the rules as noted aforesaid and the authorities, therefore, committed error in not granting family pension to the appellant relying upon the nomination made by the deceased wife of the appellant. The impugned order is, accordingly, set aside and this appeal stands allowed."
3. Indisputably, this respondent had produced various documents to establish her claim of being a legally wedded wife of the deceased employee and one of the proofs was the election card. We find no reason for the petitioners to have raised any suspicion over such documents which are coming from the source of Government departments and in the present case from the office of Election Commission of India........"
O.A.No.4083/20127
9. In Karoleen Sodhi v. State of Punjab & Another, CWP No.11661/2009 of the Hon'ble Punjab and Haryana High Court, dated 29.04.2013, the brief facts are that the sister of the petitioner namely Saroj Sodhi was working as a Lecturer in the Education Department, Government of Punjab, since 1992. She was unmarried and was staying with the petitioner. She unfortunately died on 20.10.2008. Prior to her death, she executed a Registered Will dated 14.09.2006 in favour of the petitioner in which she bequeathed all her service benefits including retiral benefits in favour of the petitioner. Petitioner on the basis of the Will has been released the amount of GPF, General Insurance Scheme benefits and leave encashment of the deceased- Saroj Sodhi. An amount of `50,000/- as ex-gratia has also been released to her. The benefit of the death cum retirement gratuity and family pension has not been released to the petitioner only on the ground that she is a married sister of the deceased and does not fall within the definition of 'family' as laid down under Rule 6.16-B and 6.17 of the Punjab Civil Service Rules, Volume II (hereinafter referred to 'Rules'). Rule 6.16-B(2) deals with the situation where nomination can be made and if such a nomination is made, the same shall be treated as equal to that of sub-rule (2) and (4) of rule 6.16-A. This would entitle the nominee to release the gratuity under sub-rule (1) of 6.16. On this basis, it has been contended by the counsel for the petitioner that a Registered Will having been executed, the same should be treated as a nomination under Rule 6.16- B(2). Merely O.A.No.4083/2012 8 because the petitioner does not fall within the definition of Rule 6.16-B (1) would not dis-entitle the petitioner to claim gratuity and other retiral benefits. To support this contention, counsel for the petitioner has placed reliance upon observations made by this Court in para 8 of the judgment in Mrs. Manju Malhotra Versus State of Haryana etc. 2006 (3) S.C.T. 538, it has been mentioned that a Will has been executed and that would have an effect of substituting the nomination which has been prescribed under the rules. Prayer has, therefore, on this basis, been made to release the benefits as has been claimed by the petitioner in the present writ petition.
10. The Hon'ble Punjab & Haryana High Court, in the said case, by following the decision of a Hon'ble Apex Court in Mrs. Manju Malhotra v. State of Haryana, 2006 (3) SCT 538, it was held as under:
"3. On the other hand, counsel for the respondents has stated that the benefits as claimed by the petitioner being statutory rights will be considered within the framework of the rules itself but if there is no provision for granting the said benefits, the same cannot be released. While referring to the judgment in the case of Mrs. Manju Malhotra, she contends that Will which was registered in favour of the person, fell within the definition of family, it is under those circumstances that the said observations has been made by this Court. Prayer has, accordingly, been made for dismissal of the writ petition.
4. I have considered the submissions made by counsel for the parties and with their assistance have gone through the record of the case . Rule 6.16-B(1) and (2) reads as follows:-
"6.16-B(1); For the purpose of this rule:-
(a) "Family" shall include the following relatives of the officer:-
(i) wife or wives including judicially separated wife or wives in the case of male officer;
(ii) husband including judicially separated husband, in case of female officer;O.A.No.4083/2012 9
(iii) sons; (including step-children and adopted children)
(iv) unmarried and widowed daughters.
(v) brothers below the age of 18 years and un-
married or widow sisters, including step brothers and sisters;
(vi) father;
(vii) mother; (including adopted parents in case of individuals whose personal law permits adoption)
(viii) married daughters; and
(ix) children of a pre-deceased son;
(b) "Persons" for the purpose of this rule shall include any company or association or body of individuals, whether incorporated or not.
(2) An officer shall, at any time after confirmation, make a nomination conferring on one or more persons, the right to receive any gratuity that may be sanctioned under sub-rule (2) and (4) of rule 6.16- A and any gratuity which having become admissible to him under sub- rule (1) of that rule and rule 6.16 has not been paid to him before death.
Provided that if, at the time of making the nomination, the officer has a family, the nomination shall not be in favour of any person or persons other than members of his family."
5. Perusal of the above rules would show that a person to be entitled for the grant of gratuity has to either fall within the definition of a 'family' as prescribed under Rule 6.16-B(1) or has to be a nominee as provided under Rule 6.16-B(2). Petitioner is neither of them. The claim of the petitioner is only based upon the registered Will in her favour and reliance has been placed upon the observations made by this Court in Mrs. Manju Malhotra's case (supra). Perusal of the said judgment would show that Will was in favour of the person who would fall within the definition of 'family' as has been laid down in Rule 6.16- B(1) and, therefore, the question before the Court was as to who within the definition of 'family' would be eligible for grant of retiral benefits i.e. the Will holder or the nominee. The dispute was primarily a claim inter-se between the members of the family, which dispute was resolved on the basis of registered Will.
6. Present is the case where there is no nomination made nor does the petitioner fall within the family laid down in statutory rules. In these circumstances, the claim as made by the petitioner in the present writ petition cannot be gone into in these proceedings. However, it is open to the petitioner to avail of the alternate remedy which would be available to the petitioner in the light of the registered Will in her 0favour as per succession law.
The petition stands disposed of accordingly."
11. Admittedly, there was no document to show that the private respondent No.5, i.e., Shri Ram Nath, was the natural Son or a legally adopted Son of the deceased Mrs. Sudha Sharma. On the other hand, vide the Judgement dated 31.03.2004 in Suit No.119/2003 between O.A.No.4083/2012 10 the applicant and Mrs. Sudha Sharma and the said 5th Respondent- Ram Nath, it was declared that the alleged adoption of the said Ram Nath by the deceased Mrs. Sudha Sharma is null and void. Admittedly, the private respondents 5 to 7, who were declared as family members by the deceased Mrs. Sudha Sharma, neither claimed for her death/retirement benefits, nor opposed the OA averments.
12. In the circumstances and for the aforesaid reasons, the OA is allowed and the impugned orders are quashed and the respondents are directed to grant the death/retirement benefits of the deceased Mrs. Sudha Sharma to the applicant with all consequential benefits, however, without any interest, within a period of 90 days from the date of receipt of a copy of this order. No costs.
(Dr. Birendra Kumar Sinha) (V. Ajay Kumar)
Member (A) Member (J)
/nsnrvak/