Central Administrative Tribunal - Mumbai
Mandabai Tukaram Ghotkar vs Central Railway on 3 January, 2025
1 OA No.21/2024
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.21 OF 2024
Dated this Friday, the 03rd day of January, 2025
CORAM : HON'BLE MR. UMESH GAJANKUSH, MEMBER (J)
Smt. Mandabai Tukaram Ghotkar,
Age 57 yrs.,
W/o Late Shri Tukaram Goga Ghotkar,
Ex. T/Man under PWI, Sion,
R/o VTC Manjargaon,
Post Khadked,
Dist. Nashik,
Maharashtra 422 402. - Applicant
(By Advocate Shri Sameer Singh)
Versus
1. Union of India (Through) The General Manager,
Central Railway,
G.M. Office, C.S.M.T,
Mumbai - 400 001.
2. Sr. Divisional Personnel Officer,
Mumbai Division,
Central Railway, C.S.M.T.,
Mumbai 400 001. - Respondents
(By Advocate Shri Rishi Ashok proxy counsel for Shri
B.K.Ashok)
Reserved on 13.11.2024
Pronounced on _03.01.2025
2 OA No.21/2024
ORDER
The applicant before this Tribunal is challenging the rejection of the respondents in not disbursing "family pension"
under the Rule 75 of Railway Service (Pension) Rules, 1993 in favour of the applicant.
2. Brief facts stated in the Original Application are that the husband of the applicant Late Shri Tukaram Goga Ghotkar was married to Lankabai Tukaram Ghotkar (first wife) who expired on 13.01.2007. Thereafter, deceased employee got remarried with the applicant in the year 2008. The husband of the applicant and late employee expired on 12.07.2021 while in service. 2(a). It is stated that as per the direction of the respondents vide letter dated 17.01.2022 in respect of obtaining Legal Heirship Certificate from the Competent Court of Law for the disbursement of settlement and pensionary benefits of the late employee, appropriate proceedings were filed before the Joint Civil Judge Junior Division, Igatpuri vide Civil Miscellaneous Application No.17/2022, wherein the Hon'ble Civil Judge was pleased to declare the applicant as the widow and the legal heir of the deceased employee along with his two sons and one daughter. In pursuance of the aforesaid Legal Heirship Certificate, the respondents had made payment of settlement dues among the 3 OA No.21/2024 members of the late employee's family on 30.01.2023 as indicated in their statement dated 11.12.2023 (Annexure A-5). 2(b). It is stated that the applicant being the widow of the deceased employee and only surviving dependent of the late employee at the time of his death, the applicant falls under the ambit and definition of "family" as contemplated under 19(b)(iii) of the Railway Service (Pension) Rules, 1993 and, therefore, entitled under Rule 75 for family pension. Therefore, requested for compassionate appointment for her son namely Khandu Tukaram Ghotkar and family pension to the applicant vide representation dated 08.12.2023. However, no steps have been taken by the respondents for release of family pension in favour of the applicant and, therefore, the present Original Application has been filed.
3. After notice, the official respondents have filed reply and contested the OA. It is stated that as per the Legal Heirship Certificate dated 07.06.2022 settlement dues have already been passed in favour of the applicant and other family members. However, it is stated that the marriage of the applicant with the deceased employee is void marriage as she was already married to one Shri Uttam Narayan Varghade and never took legal divorce. As per RBE No.150/13, family pension shall only be paid to children from illegally wedded wife alongwith legally wedded wife. 4 OA No.21/2024 Hence, family pension will be paid to the children, if eligible as per the rules and if they apply for family pension.
3(a). It is stated that as per Staff and Welfare Inspector (for short "SW&I") investigation report dated 17.08.2021, late Smt. Lankabai Tukaram Ghotkar was the wife of late Shri Tukaram Goga. She passed away on 13.01.2007. Thereafter, the deceased employee had allegedly remarried the applicant on 30.08.2008, but at the relevant time, she was already married to Uttam Naryan Vargade and without taking a legal divorce, she married to the deceased employee. Hence, as per Hindu Marriage Act, 1955, the marriage of the applicant with deceased employee is void, therefore, on the basis of the reply, the official respondents have prayed for dismissal of the OA.
4. Thereafter, rejoinder was filed reiterating and elaborating the facts. It is submitted that the applicant by following her customary divorce, lawfully married with the deceased employee. Subsequent formal declaration of this marriage was informed to the respondents. The respondents duly recognized the applicant as the deceased employee's lawful wife in all the official records and communications. This recognition was unequivocal and the respondents by their conduct have uniformly treated the applicant as the legitimate spouse of the deceased 5 OA No.21/2024 employee. This acknowledgment was not merely a formality, it carried with the extension of all attendant spousal privileges and benefits to the applicant, including, but not limited to, travel concessions and comprehensive medical facilities. 4(a). To support the aforesaid contention, the applicant has placed on record, Annexure A-7, collectively are the copies of the Free Passage Tickets & Medical Card issued to the applicant establishing her status as the legally wedded wife of the late employee. In respect of Office Memorandum dated 27.07.2012, it is stated that a mere ex-facie reading of the subject under clarification in the instant OM would suffice to indicate that the reliance placed by the respondents on the said OM is outrightly misplaced.
5. I have heard both the learned counsels for the parties and perused the pleadings and documents available on record.
6. Learned counsel for the applicant Shri Sameer Singh vehemently argued that the applicant married with deceased employee after the death of his first wife Lankabai Tukaram Ghotkar on 13.01.2007, in the year 2008. It is further contended that as directed by the respondents, the Legal Heirship Certificate dated 07.06.2022 was provided to the respondents in which it has been categorically declared that the applicant is the legally 6 OA No.21/2024 wedded wife of the deceased employee. Based upon the aforesaid Certificate, the settlement dues have already been released in favour of the applicant and the other family members in the year 2023 itself.
6(a). It is further contended that the respondent department has extended the benefit of medical facility and free pass to the applicant recognizing her as a legally wedded wife. Under these circumstances, non-consideration of grant of release of family pension under Rule 75 of Railway Service (Pension) Rules, 1993 is illegal and arbitrary.
6(b). During the course of the arguments, the learned counsel has placed reliance on the order passed in the Original Application No.503/2021 in case of Laxmi Wd/o Arun Mahato Vs. The State of Maharashtra & Others by the Maharashtra State Tribunal, Nagpur Bench, Nagpur.
7. On the other hand, Shri Rishi Ashok, learned proxy counsel for the respondents, on the basis of reply, vehemently argued that the report of Staff and Welfare Inspector dated 17.08.2021 records that prior to marriage with deceased employee, the applicant had married with Shri Uttam Narayan Vargade and without taking any legal divorce from her earlier husband, if she married with the deceased employee than such 7 OA No.21/2024 marriage cannot be said to be a legal marriage and as per the provisions of Hindu Marriage Act, such marriage is a void marriage and since the applicant is not legally wedded wife of the deceased employee and, therefore, as per the Railway Services (Pension) Rules, 1993, she is not entitled to get family pension. 7(a). During the course of arguments, the learned proxy counsel has placed reliance on the judgment passed by the Hon'ble Supreme Court in Civil Appeal No.1811/2007 decided on 26.02.2015 in the case of Raj Kumari & Anr. Vs. Krishna & Ors. 7(b). Further, he has placed reliance on the judgment passed in the case of Kamalbai Wd/o Venkatrao Nipanikar Vs. The State of Maharashtra & Others in Writ Petition No.9933/2016 dated 28.10.2021 with other cases passed by the Hon'ble High Court of Judicature at Bombay Bench at Aurangabad in which it is held that "the Pension Rules cannot be read de hors the concept of legally wedded wife.
7(c). Further, he has placed reliance in the case of Smt. Nirmala Devi & Ors. Vs. Union of India & Others decided on 03.01.2023 in OA No.886/2011 by the Allahabad Bench of this Tribunal in which the Coordinate Bench upheld the action of family pension in favour of legally wedded wife.
7(d). On the basis of the aforesaid, the learned proxy 8 OA No.21/2024 counsel submits that the OA is liable to be dismissed.
8. After hearing both the learned counsels for the parties and after perusal of the record, it is not in dispute that the deceased employee Shri Tukaram Goga Ghotkar was working with the railways and had expired on 12.07.2021. It is also not in dispute that the first wife of the deceased employee was Smt. Lankabai Tukaram Ghotkar who expired on 13.01.2007. The factum of marriage by the deceased employee with the present applicant in the year 2008 is also not in dispute meaning thereby the deceased employee had not married with the applicant while surviving of first wife.
9. It is also not in dispute that the Legal Heirship Certificate which was granted by the Competent Civil Court recognizes the right of the applicant being the widow of the deceased employee and accepting the same, the settlement dues was released in favour of the applicant along with other family members.
10. However, based upon the report of Staff and Welfare Inspector dated 17.08.2021, the respondents are contesting the claim of the applicant in respect of family pension on the ground that in the said report, it has come on the record that the present applicant earlier married with one Shri Uttam Narayan Vargade 9 OA No.21/2024 and without taking any legal divorce from the said person, she has married with the deceased employee and, therefore, according to the respondents, the marriage with the deceased employee of the applicant is void under the Hindu Marriage Act, 1955 and, therefore, as per Rule 75 of the Railway Services (Pension) Rules, 1993, she is not entitled for family pension.
11. At this stage, the arguments of the learned counsel for the respondents based upon the judgments passed by the Hon'ble Supreme Court, Hon'ble High Court and the Allahabad Bench of this Tribunal needs consideration. The Hon'ble Supreme Court in the case of Raj Kumari & Ors. (supra) in paragraph No.14 was pleased to observe as under :
"14. Normally, pension is given to the legally wedded wife of a deceased employee. By no stretch of imagination one can say that the plaintiff, Smt. Krishna was the legally wedded wife of late Shri Atam Prakash, especially when he had a wife, who was alive when he married to another woman in Arya Samaj temple, as submitted by the learned counsel appearing for the appellants. We are, therefore, of the view that the High Court should not have modified the findings arrived at and the decree passed by the trial court in relation to the pensionary benefits. The pensionary benefits shall be given by the employer of late Shri Atam Prakash to the present appellants in accordance with the rules and regulations governing service conditions of late Shri Atam Prakash".
12. Further, the Hon'ble High Court of Bombay Bench of Judicature at Aurangabad in Kamalbai Venkatrao Nipanikar (supra) in paragraph Nos.12 and 13 observed as under : 10 OA No.21/2024
"12. The Hon'ble Full Bench has, while interpreting rule 116 (6) (a) (i) of the Pension Rules, "where the family pension payable to more widows, than one" shall have to be read and interpreted Rule 116 (6) (a) (i) of the Pension Rules cannot be read dehors the concept of legally wedded wife. The interpretation of the term "family" for the purpose of gratuity and family pension cannot be different. The words and phrases appearing in a statute or rule ought to be given same meaning." Interpreting rule 116 (6) (a) (i) of Pension Rules, the Hon'ble Full Bench has specifically answered the question in the reference that only the legally wedded wife is entitled to the family pension. The law on the right of a widow, not legally wedded is no more res integra.
13. The Hindu Marriage Act governs the marriage of the petitioners. The law is settled that a Hindu cannot perform second marriage during the subsistence of his first marriage.
The same rule is also applicable to the public servant unless the custom or his religion permits. The Hon'ble Full Bench has considered all the relevant laws and pension rules that prohibit the public servant from performing second marriage during the subsistence of his first marriage. It is the positive case of the petitioners that they got married to their husbands during the subsistence of their husbands' first marriage. Therefore, their marriage is void ab initio.
13. The Hon'ble Supreme Court has categorically held that "normally pension is given to the legally wedded wife of the deceased" and also observed that family pension should be given in accordance with the rules and regulations governing service condition. The Hon'ble High Court of Bombay of Judicature at Aurangabad in paragraph No.13 specifically observed that "the same rule is also applicable to the public servant unless the custom or his religion permits".
14. In the present case, in the rejoinder, it is specifically submitted by the applicant that her divorce with earlier husband 11 OA No.21/2024 Shri Uttam Narayan Vargade was customary divorce and only thereafter she had married with the deceased employee. However, to support the aforesaid contention/averments, no documents has been placed by the applicant before this Tribunal or it appears before the authority who is contesting the case on the ground that the applicant is not legally wedded wife of the deceased employee. The department is contesting the case only on the basis of report dated 17.08.2021 of the Staff and Welfare Inspector. Although the said report was not placed by the respondents along with their reply, however, during the course of their arguments, the same was produced. In this report, the date of death of Smt. Lankabai Tukaram Ghotkar was shown to be 15.01.2021 whereas Death Certificate of Smt. Lankabai Tukaram Ghotkar (Annexure A-1) shows her date of death is 13.01.2007 and even in the reply, the said date was not controverted.
15. Further, the date of the marriage of the present applicant with the deceased employee was 30.08.2008 as per paragraph No.5.2 of the reply of the respondents. Therefore, it appears that there are some discrepancies in the report dated 17.08.2021. Under these circumstances, since there is no documentary material produced before this Tribunal or before the authority in respect of customary divorce of the applicant with Shri 12 OA No.21/2024 Uttam Narayan Vargade, therefore, the present OA is disposed of with liberty to the applicant to support her averments submitted in the rejoinder in respect of customary divorce and lawful marriage with the deceased employee within a period of 30 days from the date of receipt of a certified copy of this order.
16. In case, any such documentary material is submitted by the applicant to the respondent No.2, the same shall be considered by the respondent No.2 in accordance with the rules governing the field and if the applicant found entitled, family pension shall be released with arrears i.e. from the date of her entitlement. In case, authority comes to the conclusion that the applicant is not entitled for family pension then reasoned and speaking order shall be passed within a further period of 60 days from the submission of aforesaid material/documents by the applicant.
17. With the aforesaid, OA is disposed of.
18. Any pending MAs, if any, stands disposed of. No order as to costs.
(Umesh Gajankush) Member (J) Digitally signed by Khushboo Mittal Gupta Khushboo Mittal DN: C=IN, O=Personal, OID.2.5.4.65=6dbe5c2d6885491895b4fb8ef3642a0b, Phone= 8985c11fad2960cfbb159f98c2764347c7a4ffbc50d436d4fe5701484c759b92, PostalCode=411060, S =Maharashtra, SERIALNUMBER= 870759ef2f1952335c4269bf3698e2204e6521bc46faf0d3fefceadf0c12c639, CN=Khushboo Mittal Gupta Gupta Reason: I am the author of this document Location:
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