Central Administrative Tribunal - Delhi
Mrs. Sushila Devi vs General Manager on 28 January, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.2949 OF 2014 New Delhi, this the 28th day of January 2015 CORAM: HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER Mrs. Sushila Devi, w/o late Shri Ram Dulare Pandey, resident of colony Naya Usru, Tehsil and District Faizabad, Uttar Pradesh 242001 Applicant (By Advocate: Mr.Om Prakash) Vs. 1. General Manager, Mahanagar Telephone Nigam Limited, Nehru Place, Nehru Place, New Delhi 110099 2. Chairman and Managing Director, Mahanagar Telephone Nigam Limited, 5th Floor,Mahanagar Doorsanchar Sadan, 9 CGO Complex,Lodhi Road, New Delhi 1 Respondents (By Advocate: Ms.Neha Bhatnagar) . ORDER
In this Original Application filed by the applicant on 25.8.2014 under Section 19 of the Administrative Tribunals Act, 1985, she has prayed for the following relief(s):
a) Quash the rejection letter dated 03.07.2014 issued by Respondents which is violation of the Order dated 01.05.2013 passed by the Honble Delhi High Court in WPC NO.2825 of 2013 and which is also arbitrary, illegal and contrary the consent of respondents which their counsel shown before the Honble Delhi High Court on 01.05.2013.
b) Direct Respondents to pay the GPF, family pension and other payables to the applicant in accordance with the application on prescribed format which has been taken from applicant by respondents pursuant to the order dated 1.5.2013 passed by Honble High Court.
c) Nominate applicant as wife of late Shri Ram Dulare Pandey in service records who expired while in service of respondents and applicant is surviving wife of late Shri Ram Dulare Pandey.
d) Pass any other and/or direction, as this Honble Tribunal deem fit and proper in the facts and circumstances of the case.
2. Shorn of unnecessary details, the applicants case, as projected in the O.A., is as follows:
2.1 Applicant was married to Shri Ram Dulare Pandey, vide marriage certificate dated 19.2.1990 (Annexure A/2). Out of this wedlock, one son, namely, Mr.Aman Kumar Pandey was born on 13.9.1997. Shri Ram Dulare Pandey was working as a Telephone Mechanic in MTNL. The applicant was subjected to harassment by her husband. The ACJM, Faizabad, passed an order dated 19.4.2010 directing Shri Ram Dulare Pandey to pay her a sum of Rs.5000/- per month towards maintenance. The said sum of Rs.5000/- per month was regularly being recovered by the respondent-MTNL from the salary of Shri Shri Ram Dulare Pandey and credited to the Bank account of the applicant till the death of Shri Pandey, vide copy of statement of Bank account held by the applicant (Annexure A/3).
2.2 Shri Ram Dulare Pandey, while working as a Telephone Mechanic under GM, MTNL, Nehru Place, New Delhi, expired on 4.1.2013, to which effect a notification (Annexure A/4) was issued by the Assistant General Manager (Admn. II), MTNL, HQ.
2.3 On 25.2.2013, the applicant met the concerned officials of MTNL for payment of GPF, family pension and other benefits consequent upon death of her husband Shri Ram Dulare Pandey, but no heed was paid to her request.
2.4 The applicant filed W.P. (C) No.2825 of 2013 before the Honble High Court of Delhi praying for a direction to the respondents to pay her GPF, family pension, etc.. The said writ petition was disposed of by the Honble High Court, vide order dated 1.5.2013 (Annexure A/6).
2.5 While the matter stood thus, Mrs.Geeta, the first wife of Shri Ram Dulare Pandey expired on 16.5.2013.
2.6 In reply to the applicants RTI application, the respondents, vide letter dated 9.9.2013 (Annexure A/7), informed the applicant that a sum of Rs.98,899/- was available in the GPF account of Shri Ram Dulare Pandey.
2.7 The applicant obtained succession certificate dated 19.11.2013 (Annexure A/8) from the court of the Additional Civil Judge, (Senior Division), 3rd, Faizabad.
2.8 The applicant, vide letter dated 28.11.2013 (Annexure A/9), requested the respondents to pay her the GPF amount, family pension, etc..
2.9 The applicant submitted the required Affidavits (Annexure A/10 collectively) before the respondents for payment of GPF, family pension and other benefits to her.
2.10 On 30.1.2014, the applicant deposited the electricity dues and submitted no due certificate (Annexure A/11) to the respondents for processing her claim.
2.11 The respondents, vide letter dated 21.4.2014 (Annexure A/12), informed the applicant that her claim would be processed and paid after receipt of the Honble High Courts order and the succession certificate.
2.12 In spite of all the above, the respondents, vide letter dated 3.7.2014 (Annexure A/1), rejected the applicants claim.
2.13 Being dissatisfied with the respondents decision dated 3.7.2014 (Annexure A/1), the applicant again filed W.P. (C) No.5047 of 2014. The Honble High Court, vide order dated 13.8.2014 (Annexure A/13), dismissed the said writ petition as withdrawn, with permission to the applicant to approach this Tribunal for appropriate relief.
2.14 Hence, the applicant has filed the present O.A. with the prayers referred to earlier.
3. Opposing the O.A., the respondents have filed a counter reply wherein it is, inter alia, stated as follows:
3.1 Shri Ram Dulare Pandey was legally married to one Smt. Geeta and had two children, namely, Manoj and Saroj from the said wedlock. The names of the said legal heirs of Shri Pandey found mention in the declaration of family as also various nominations made by him in his service records.
3.2 The applicant, who is claiming to be the second wife of Shri Ram Dulare Pandey, is not the legally wedded wife of Shri Pandey. The applicant married Shri Ram Dulare Pandey during the life time of his first wife Smt. Geeta who had not been divorced.
3.3 There is no nomination by Shri Ram Dulare Pandey whatsoever in favour of the applicant for the release of GPF, gratuity and any other benefits in her favour.
3.4 Since the applicant is not the legally wedded wife of Shri Ram Dulare Pandey, she is not entitled to receive family pension.
3.5 The applicant fraudulently obtained succession certificate from the court of the Additional Civil Judge, 3rd, Faizabad.
3.6 The present O.A. is not maintainable on account of non-joinder of necessary parties.
3.7 In terms of Rule 54 of the CCS (Pension) Rules, 1972, a second wife, not being legally wedded wife is not entitled to family pension.
3.8 In T.Stella vs. Metropolitan Transport Corporation Ltd. and another, W.P. No.4828 of 2008, decided on 27.2.2013, the Honble Supreme Court held that a second wife, not being the legally wedded wife, is not entitled to family pension.
3.9 Disbursal of family pension is required to be made strictly in accordance with the provisions of the CCS (Pension) Rules, 1972. The said Rules do not require any nomination to be made in respect of disbursal of family pension and even if any such nomination is made by a Government servant in his service records, the same would be of no consequence.
3.10 In Smt. Violet Isac and others v. Union of India, (1991) 1 SCC 725, the Honble Supreme Court, while dealing with the CCS (Pension) Rules, 1972, has categorically observed that the Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no other person, except those designated under the Rules, is entitled to receive family pension.
3.11 After the death of Shri Ram Dulare Pandey, Smt. Geeta, Mr.Manoj Kumar, Mr.Aman Kumar, and the applicant applied to MTNL for the release of the said entitlements in their favour.
3.12 The respondents could not release any amount in favour of the applicant as she was not entitled to it.
4. In the rejoinder reply, the applicant has refuted the statements made by the respondents. It is, inter alia, stated by the applicant as follows:
4.1 There is no documentary evidence with the respondents to show that Shri Ram Dulare Pandey has made any nomination in favour of his so called wife Smt. Geeta Devi or to show that any nomination has been made by Shri Pandey in favour of any other person except in favour of Manoj Kumar and Aman Kumar.
4.2 Shri Ram Dulare Pandey has no such wife named Geeta Devi.
4.3 The applicant is the only legally wedded wife of Shri Ram Dulare Pandey.
4.4 The O.A. is not liable to be rejected on the ground of non-joinder of necessary parties.
4.5 Smt.Geeta Devi is not the legally wedded wife of late Shri Ram Dulare Mishra. She is also known by the name of Smt. Sursati Devi. One Shri Ram Pher Mishra has opened a joint account with her in the Bank situated in Local Delhi Bazar where her photograph is available with Shri Ram Pher Mishra.
4.6 So far as Manoj and Saroj are concerned, they are not the son and daughter of Shri Ram Dulare Pandey. They may be son and daughter of Smt. Sursati Devi alias Geeta Devi and therefore, they are not the legal heirs of late Sri Ram Dulare Pandey.
4.7 The applicant is the only legally wedded wife of late Shri Ram Dulare Pandey, and Shri Aman Kumar Pnadey is the only son of Shri Ram Dulare Pandey and therefore, they are the only legal heirs of late Shri Ram Dulare Pandey and entitled to get all the benefits.
4.8 No other person than the applicant had applied for the release of the aforesaid entitlements.
4.9 The Honble High Court directed the applicant to obtain succession certificate from the civil court and submit the same before the respondents for payment of the said entitlements to her.
5. I have heard Shri Om Prakash, learned counsel for the applicant, and Ms.Neha Bhatnagar, learned counsel for the respondents.
6. The learned counsel appearing for the applicant has filed a written note of submissions along with the copies of the order dated 1.5.2013 passed by the Honble High Court of Delhi in W.P. ( C ) No. 2825 of 2013; the succession certificate dated 19.11.2013 issued by the Additional Civil Judge (Senior Division), 3rd , Faizabad (UP); the marriage certificate issued in 1990; the extract from the family register; voter identity card; and the letter dated 17.9.2014 issued by the SDE (Building II), MTNL, permitting the applicant to retain the quarters allotted to Shri Ram Dulare Pandey for the period from 5.1.2013 to 4.1.2014.
7. The learned counsel appearing for the respondents has filed a written note of submissions along with copies of the bio data of Shri Ram Dulare Pandey countersigned/attested by the Assistant Divisional Engineer, Phones, Nehru Place Telephone Exchange on 21.10.1986, and nomination forms submitted by the Shri Ram Dulare Pandey in respect of GPF, DCRG and CGEIS. The learned counsel has also filed copies of the decisions of the Honble Supreme Court in S.P.Chengalvarya Naidu (dead) by LRs v. Jagannath (dead) by LRs and others, (1994) 1 SCC 1; T.Stella v. Metropolitan Transport Corporation Ltd. and another, W.P ( C ) No. 4828 of 2008; and Rameshwari Devi v. State of Bihar and others, 2000(2) SCC 431.
8. From the pleadings of the parties, the following issues arise for consideration:
(1) Whether the applicant has been able to substantiate her claim that she is the legally wedded wife of Shri Ram Dulare Pandey;
(2) Whether the applicant and her son Aman Kumar are the only legal heirs of late Shri Ram Dulare Pandey;
(3) Whether on the basis of the succession certificate produced before the respondents and Tribunal, the applicant is entitled to get family pension and other benefits on account of death of Shri Ram Dulare Pandey;
(4) Whether the O.A. is liable to be rejected for non-impleadment of necessary parties;
(5) Whether the respondents were justified in not releasing the GPF, DCRG, Family Pension, etc., in favour of the applicant; and Issue nos.1 & 2:
9. In the O.A. itself, the applicant has admitted to have married Shri Ram Dulare Pandey on 19.2.1990, vide marriage certificate dated 19.2.1990 (Annexure A/2). She has also admitted to have given birth to Mr.Aman Kumar Pandey on 13.9.1997. In paragraph 4(g) of the O.A., the applicant has stated that on 16.5.2013 Mrs. Geeta, the first wife expired. Thus, it is clear that Shri Ram Dulare Pandey had contracted the second marriage with the applicant. It is not the case of the applicant that Shri Ram Dulare Pandey had contracted the second marriage with the applicant after dissolution of the first marriage with Mrs. Geeta. Section 11 of the Hindu Marriage Act, 1955, stipulates that any marriage solemnized after the commencement of the Act shall be null and void if the same contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 of the Act. Section 5(i) of the Act stipulates that the marriage cannot be legally solemnized when either party has a spouse living at the time of such marriage. Therefore, any marriage by a Hindu male after the commencement of the Hindu Marriage Act, 1955 during the life time of his first wife will be a nullity and has no legal effect. Such marriage cannot be valid on the ground of any custom. In fact, a custom opposed to an expressed provision of law is of no legal effect.
9.1 In the counter reply, the respondents have stated that Shri Ram Dulare Pandey was legally married to one Smt.Geeta and had two children, namely, Manoj and Saroj from the said wedlock. Rebutting the said statement of the respondents, it is stated by the applicant in paragraph 10(B) of the rejoinder reply as follows:
(B) That it is also admitted that Sri Ram Dulare Pandey have passed away on 4.01.2013 but the real contents of Para is baseless and false. Smt.Geeta Devi is not legally wedded wife of late Ram Dulare Mishra residing in village Perosariya, Tahsil Musafirkhana, Distt. Sultanpur. She was also known by name of Smt. Sursati Devi. One Ram Pher Mishra had opened a joint Account with her in the Bank situated in local Dehli-Bazar where her photograph is available with Ram Pher Mishra. So far as Manoj and Saroj is concerned they are not the son and daughter of late Sri Ram Dulare Pandey. They may be son and daughter of late Sri Sursati Devi alias Geeta Devi as such they are not legal heirs of late Sri Ram Dulare Pandey. 9.1.1 The above reply of the applicant not only contradicts her own statement made by her in the O.A., as mentioned earlier, but also is a cock and bull story and no reliance can be placed thereon. From the copies of the affidavits sworn by her on 17.1.2014 (Annexure A/10 collectively), the applicant has stated in paragraphs 1, 2 and 3 as follows:
1. That my husband late Sh.Ram Dulary Pandey son of Sh.Devi Dayal who was working as PM 3981 in the office of GM(MD) MTNL SDE Tehkhand RSV died at Hospital.
2. That I was married to my late husband Shri Ram Dulary Pandey on 1990 at Faizabad U.P. and my name before marriage was Sushila Devi.
3. That he has left behind the following heirs:
S.No. Name Date of Birth Relationship with deceased:
1. Mrs.Sushila Devi 01.01.1976 Wife
2. Mr.Aman Kumar Pandey 13.09.1997 Son
3. Mr.Manoj Kumar Pandey 01.09.1984 Son From the above statement made by the applicant in her affidavits, it is clear that Mr.Manoj Kumar Pandey was born on 1.9.1984 from the wedlock of the marriage between Shri Ram Dularey Pandey and Mrs.Geeta inasmuch as the applicant (Sushila Devi) could not have given birth to Manoj on 1.9.1984 when admittedly she had married Shri Ram Dulare Pandey on 19.2.1990. .
9.2 In support of her claim that she is the legally married wife of Shri Ram Dulare Pandey, the applicant has filed copies of the order dated 19.4.2010 passed by the ACJM(III), Faizabad, in Execution Petition No.1432 of 2010, asking MTNL to ensure regular payment of Rs.5000/- for maintenance of the applicant from the salary of Shri Ram Dulare Pandey to the applicants bank account. The applicant has also filed copy of the statement of Bank account showing that Rs.5000/- was regularly being credited to her Bank account from the salary of Shri Ram Dulare Pandey. The applicant has also filed a copy of the writ petition filed before the Honble High Court of Delhi, wherein it has been averred by her that order was passed by the ACJM(III), Faizabad, in Case No.365 of 2008 under Section 12 of the Protection of Women from Domestic Violence Act, 2005, directing Shri Ram Dulare Pandey to pay monthly maintenance of Rs.5000/- to the applicant. On the aforesaid basis, the applicant has claimed that she is the legally wedded wife of Shri Ram Dulare Pandey.
9.2.1 The copy of the order originally passed by the ACJM(III), Faizabad (UP), on the application filed by the applicant under Section 12 of the Protection of Women from Domestic Violence Act, 2005, directing payment of maintenance by Shri Ram Dulare Pandey to the applicant has not been produced before this Tribunal. Therefore, this Tribunal is not in a position to know the pleas of the respective parties before the said Magistrate and as to on what grounds the maintenance was awarded by the Magistrate in favour of the applicant. Be that as it may, there seems to be no provision in the said Act vesting jurisdiction, authority and power in the Magistrate, who is empowered to decide application under Section 12 of the said Act, to declare the validity, or otherwise, of any marriage between a man and woman. Therefore, although there was an order passed by the Magistrate under Section 12 of the said Act for payment of maintenance by Shri Ram Dulare Pandey to the applicant and monthly maintenance of Rs.5000/- was being paid by Shri Ram Dularey Pandey to the applicant till the formers death, yet on that basis it cannot be held that the applicant is the legally wedded wife of Shri Ram Dulare Pandey.
9.3 The learned counsel appearing for the applicant has also filed copies of the relevant extracts from the Family Register, Voter Identity Card, and letter dated 17.9.2014 issued by the Sub Divisional Engineer (Bldg.II) in support of the applicants claim that she is the legally married wife of Shri Ram Dulare Pandey. The Family Register and Voter Identity Card are prepared by the concerned authorities on the declarations made by the individuals. The letter dated 17.9.2014 issued by the Sub Divisional Engineer (Building II), MTNL, to the applicant is on the subject of retention of Quarter No.C-307, Rohini, Delhi (which had been allotted to Shri Ram Dulare Pandey) for the period from 5.1.2013 to 4.2.2014 on payment of normal license fee and market rent. From this letter, it transpires that the applicant made an application on 11.4.2014, i.e., after more than one year of the death of Shri Ram Dulare Pandey, for retention of the quarters beyond 4.1.2013, i.e., the date of death of Shri Pandey. On the basis of these documents, it cannot be held that the applicant is the legally wedded wife of Shri Ram Dulare Pandey.
9.4 Considering the entire materials available on record, I do not find any substance in the submission of the learned counsel appearing for the applicant that due to typographical mistakes occurring in the Original Application and the Affidavits sworn by the applicant on 14.1.2014, there were averments about Smt. Geeta, the first wife of Shri Ram Dulare Pandey and her death 16.5.2013 in the O.A. and also about Mr.Manoj Kumar Pandey as one of the legal heirs of Shri Ram Dulare Pandey in the said Affidavits.
9.5 In the light of the above discussions, I have no hesitation to hold that the applicant has not been able to substantiate her claim that she is the legally wedded wife of Shri Ram Dulare Pandey, and that the applicant and her son Aman Kumar Pandey are the only legal heirs of late Shri Ram Dulare Pandey. Hence, both issue nos. 1 and 2 are decided against the applicant.
Issue No.3:
10. It is the contention of the applicant that the respondent-MTNL ought to have released the GPF, DCRG, Family Pension, etc., on the basis of Succession Certificate (Annexure A/8), as directed by the Honble High Court of Delhi, vide order dated 1.5.2013 passed in W.P. (C) No.2825 of 2013.
10.1 The typed copy of the Succession Certificate dated 19.11.2013 (Annexure A/8) reads thus:
COURT OF ADDITIONAL CIVIL JUDGE 3rd (Sr.Division) FAIZABAD Present: Avinash Chandra Mishra, U.P.Judicial Service.
Application dated 16.5.2013 under Section 372 of Indian Succession Act.
Succession Certificate Number - 20/2013 Non Miscellaneous Suit Number - 76/2013
1. Smt. Sushila, aged about 38 years widow of Shri Ram Dulare Pandey
2. Aman Kumar aged about 17 years minor s/o lateRam Dulare Pandey all resident of Vishnu Nagar Colony (Usru) Pargana Haweli Awadh Tehsil & Dist.Faizabad.....Applicant Detailed particulars of amount lying in name of late Ram Dulare Pandey is as under:
G.P.F.Amount Rs.98889.00 (Rs.Ninety-eight thousand eight hundred and ninety-nine only) Hereby this certificate of Succession in favour of Smt. Sushila Devi is being issued with respect to amount of Rs.98899.00 (Rs.Ninety eight thousand eight hundred and ninety nine only), and she is hereby made authorized to receive this amount. Since applicant no.2 Aman is presently minor so till he becomes major his share, the half of this amount shall have to kept in the fixed deposit.
This Succession certificate is issued today under my signature and seal of this court.
Note-In the event of any dispute if arises anytime in future the applicant shall have to surrender entire amount with interest in this court. The undertaking of this effect may also be given by the Applicant.
Date 19.11.2013 Sd/ (Avinash Chandra Mishra) Additional Civil Judge (Senior Division) 3rd Faizabad.
10.2 The applicant has not filed the certified copy of the succession certificate. From the typed copy of the said certificate, it transpires that Smt. Geeta (the first wife of Shri Ram Dulare Pandey) and Manoj and Saroj (the son and daughter of the said Shri Ram Dulare Pandey) were not impleaded as party-respondents in the proceedings before the said Additional Civil Judge.
10.3 In S.P.Changalvaraya Naidus case (supra), the Honble Supreme Court held thus:
1. Fraud avoids all judicial acts, ecclesiastical or temporal observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and honest in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.
xx xx
7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence. The principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find thecourt-0process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any state of the litigation.
8. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. 10.4 In view of the fact that the applicant had not impleaded Mrs.Geeta (the first wife of Shri Ram Dulare Pandey) and Manoj and Saroj (the son and daughter of Shri Ram Dulare Pandey born through Mrs.Geeta), as party-respondents and that the applicant had suppressed material facts in the proceedings under Section 372 of the Indian Succession Act, this Tribunal finds it difficult to accept the succession certificate in its entirety in support of the applicants case.
10.5 Assuming for a moment that the succession certificate produced by the applicant is lawful and acceptable, it is found that the same pertains only to the GPF amount of Rs.98899/- standing to the credit of the GPF account of Shri Ram Dulare Pandey and not for payment of family pension, DCRG, CGEIS, leave encashment, etc. on account of death of Shri Ram Dulare Pandey.
10.6 In the writ petition filed before the Honble High Court of Delhi, copy of which has been filed by the applicant as Annexure A/5, the applicant has nowhere whispered about the first marriage of Shri Ram Dulare Pandey with Smt. Geeta, and about Manoj and Saroj who were born to them from the said wedlock. She has only averred that she is the legally married wife of Shri Ram Dulare Pandey and Aman is the son of Shri Pandey who are entitled to receive the terminal benefits on account of death of the deceased employee Shri Pandey. She has also mentioned about the maintenance order passed by the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The order dated 1.5.2013 passed by the Honble High Court of Delhi in W.P.( C ) No.2825 of 2013 reads thus:
1. The writ petition seeks direction against the respondents to pay all the service benefits of late husband of the petitioner to the petitioner inasmuch as, the husband Sh.Ram Dulare Pandey is stated to have expired.
2. Admittedly, there were legal proceedings between the petitioner and her late husband during the life time and petitioner can only get the amounts from the respondent-employer if the petitioner is successful in obtaining an order for representation of the estate of the deceased either by means of a probate or succession certificate or by final judgment of the civil court.
3. Counsel for the petitioner states that petitioner will obtain appropriate orders from the civil court, and on obtaining of such orders and serving of the same to the respondents, in case those orders entitle the petitioner to the properties and estate of deceased Sh.Ram Dulare Pandey, the respondents will give the amounts including the family pension to the petitioner.
4. The writ petition is disposed of with the aforesaid observations. Though the respondent-MTNL appeared before the Honble High Court of Delhi, yet the stand taken by the MTNL is not discernible from the order dated 1.5.2013 passed by the Honble Court.
10.7 On the facts and in the circumstances of the case and in view of the decision of the Honble Supreme Court in S.P.Changalvaraya Naidus case (supra), the Tribunal finds it difficult to accept the contention of the applicant that on the basis of the succession certificate ibid, the respondents ought to have paid to her the GPF, Family Pension, Gratuity, etc.. Therefore, issue no.3 is decided against the applicant.
Issue No.4:
11. In the present proceedings before the Tribunal, the applicant has not impleaded Smt. Geeta, the first wife, and Manoj and Saroj, the children, born through her, of Shri Ram Dulare Pandey, as party respondents, in whose absence it would be unjust and improper to decide the claim of the applicant. Besides, any order passed by the Tribunal in the absence of the said persons cannot be effectively executed.
11.1 After the hearing was concluded and order was reserved, the matter was again taken up under the heading For Being Spoken To. Though the learned counsel representing the applicant was asked by the Tribunal to implead those persons as party-respondents in the present proceedings, yet he declined to do so.
11.2 In the above view of the matter, I hold that the O.A. is liable to be rejected for non-impleadment of necessary parties. Accordingly, issue no.4 is decided against the applicant.
Issue No.5:
12. In view of the findings arrived at by this Tribunal on issue nos. 1 to 4, the respondents cannot be held to have acted unjustifiably in not releasing the GPF, Gratuity, Family Pension, etc., in favour of applicant. Thus, issue no.5 is decided against the applicant.
13. In paragraphs 2 and 10 (D) of the counter reply, the respondents have stated as follows:
2. That at the outset, it is humbly submitted that late Shri Ram Dulare Pandey was legally married to late Smt. Geeta and had two children, namely, Manoj and Saroj from the said wedlock.
The names of the said legal heirs of Shri Ram Dulare Pandey find mention in the declaration of family as also the various nominations made by him in his service records during his life time.
xx xx D. That after the demise of late Shri Ram Dulare Pandey, Smt. Geeta, Mr.Manoj Kumar, Mr.Aman Kumar and the Applicant applied to MTNL for the release of the said entitlements in their favour. 13.1 The respondents have not filed any documents, along with their counter reply, in support of the aforesaid statement. At the time of hearing, the learned counsel for the respondents has filed copies of (i) the bio data submitted by Shri Ram Dulare Pandey; (ii) the declaration of details of family made by Shri Ram Dulare Pandey; (iii) the nomination submitted by Shri Ram Dulare Pandey for GPF; (iv) the nomination made by Shri Ram Dulare Pandey for DCRG; and (v) the nomination for benefits under CGEIS. All these documents have been carefully perused. In the nomination forms for payment of GPF, DCRG and CGEIS, Shri Ram Dulare Pandey is stated to have nominated (1) Manoj Kumar Pandey, son, born on 1.9.1984 (50% share) and (2) Aman Kumar Pandey, son, born on 13.9.1995 (50% share) 13.2 The bio data, which is claimed to have been submitted by Shri Ram Dulare Pandey and countersigned/attested by Assistant Divisional Engineer, Phones, Nehru Place Telephone Exchange, New Delhi, on 21.10.1986, does not bear the signature and left hand thumb impression of Shri Ram Dulare Pandey. As regards the details of family, Shri Ram Dulare Pandey is stated to have made the said declaration of details of family as on 10.2.1986. If this is so, how could he mention the name of Aman Kumar Pandey as his son who was born on 13.9.1995 (at sl.no.2). The said family declaration form appears to have been countersigned by the Sub Divisional Officer, MTNL. Besides, in the declaration form neither Shri Ram Dulare Pandey nor the officer countersigning/attesting the same has given the date. Similarly, in the nomination forms for GPF, DCRG and CGEIS, neither Shri Ram Dulare Pandey nor the officer countersigning/attesting the particulars given in the said nomination forms has given any date. Therefore, the possibility of fabricating all these documents cannot easily be ruled out.
14. Considering all the above aspects of the matter, I have no hesitation to hold that both the applicant and the respondents have not approached the Tribunal with clean hands. It also appears that the officers of the respondents at the helm of affairs have attempted to mislead the Tribunal by producing fabricated documents at the time of hearing.
15. In the light of the above discussions, I hold that the applicant has not been able to make out a case for the reliefs claimed by her in the O.A.
16. However, on the facts and in the circumstances of the case, I issue the following directions:
(1) The respondents shall hold appropriate enquiry into the matter of settlement of the terminal benefits of Shri Ram Dulare Pandey, the deceased employee.
(2) During the enquiry, the respondents shall ensure attendance of Smt. Geeta (the first wife), Mr. Manoj Kumar Pandey (son of first wife), Ms.Saroj (daughter of first wife), Smt. Sushila Devi(the applicant), and Mr.Aman Kumar Pandey.
(3) During the enquiry, their statements should be recorded.
(4) If necessary, the respondents shall depute a responsible officer to the permanent residence of Shri Ram Dulare Pandey and permanent residences of the aforesaid persons for the purpose of recording their statements and the statements of relatives of Shri Pandey. The respondents are also free to collect any other relevant information from the local authorities.
(5) The respondents shall give opportunity to all concerned to produce relevant documents before them in support of their respective claims.
(6) Thereafter, the respondents shall examine the Service Book and personal file and other relevant files in respect of Shri Ram Dulare Pandey right from the date of his joining the organization till the date of death. On the basis of all the records and evidence, both documentary and oral, to be laid by all concerned, the respondents shall record their findings and take appropriate decision as to the entitlement of any member/members of the family to the terminal benefits of Shri Pandey and thereafter make payment of the same strictly in accordance with the relevant rules. The respondents shall pass a reasoned and speaking order containing their findings and decision, and shall also communicate the same to all concerned.
(7) After taking the decision in the aforesaid manner, the respondents shall ensure prompt payment of all the dues to the member/members of the family of Shri Ram Dulare Pandey, who is/are found to be entitled to the same.
(8) The entire exercise shall be completed within three months from today.
17. With the aforesaid observations and directions, the O.A. is dismissed. No costs.
18. Copies of this order shall be handed over to the learned counsel appearing for the parties and shall also be sent to the Respondents by Speed Post by the Registry of the Tribunal in course of the day.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN