Central Administrative Tribunal - Ernakulam
Valsala. L vs Southern Railway Represented By The on 13 March, 2017
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 180/01081/2014
Monday, this the 13th day of March, 2017.
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
Valsala. L,
W/o. B. Sasidharan Pillai,
Cheppallil Puthen Veedu,
99, Kuruthikaman Nagar,
T.K.M.C. (P.O), Karikode, Kollam - 691 003. - Applicant
[By Advocate Mr. N. Unnikrishnan]
Versus
1. Southern Railway represented by the
General Manager, Chennai.
2. The Senior Divisional Personnel Officer,
Divisional Office, Southern Railway,
Thiruvananthapuram - 695 014.
3. The Chief Engineer (Construction),
Southern Railway, Thiruvananthapuram - 695 014.
4. The Deputy Chief Engineer (Construction),
Divisional Office Complex, Southern Railway,
Thycaud, Thiruvananthapuram - 695 014.
5. The Chief Administrative Officer (Construction),
Southern Railway, Ernakulam - 682 016.
6. Shri B. Sasidharan Pillai,
S/o. Balakrishnan Pillai,
Works Mate, JOW/CN/O/TVC, under the Deputy
Chief Engineer (Construction), Southern Railway,
Thiruvananthapuram - 695 014.
7. Smt Vijayakumari, Railway Quarters No. 184,
Titaniam (P.O), Madhavapuram
Kochuveli, Thiruvananthapuram - 695 020.
8. Miss. Surabhi, D/o. Vijayakumari,
Railway Quarters No. 184, Titaniam (P.O),
Thiruvananthapuram - 695 020.
9. Miss. Santhra, D/o. Vijayakumari,
Railway Quarters No. 184, Titaniam (P.O),
Kochuveli, Thiruvananthapuram - 695 020. - Respondents
[By Advocates: Mr. Thomas Mathew Nellimoottil for R-1 to 5
Mr. Ayyappan Pillai for R-6 to 9]
The application having been heard on 31.01.2017, the Tribunal
on 13.03.2017 delivered the following:
ORDER
Per: Mr. Justice N.K. Balakrishnan, Judicial Member Applicant seeks quashment of Annexure A-3 the family composition certificate issued on 13.05.2014 by which the 6th respondent has shown respondents 7 to 9 as his wife and children. The gist of the case pleaded by the applicant is as follows:
2. The applicant is the legally wedded wife of the 6th respondent.
6th respondent was then working as Works Mate, JOW/CN/O/TVC under the 3rd respondent. Marriage between the applicant and 6th respondent was solemnized on 24.01.1979 at the applicant's house. Annexure A-1 is the copy of the marriage certificate issued for that purpose. Annexure A-2 is the photograph taken at the time of marriage of the applicant with 6th respondent. The 6th respondent was due for superannuation on 30.11.2015. After marriage applicant and her husband were residing in Railway Quarters, Kollam. After 6 months they were shifted to Trivandrum as the 6th respondent was transferred to Trivandrum. There also they were living in Railway Quarters. In 1989 they came back to Kollam and settled there. In 1993 the 6th respondent was transferred again to Trivandrum. The applicant was sent to her native place along with her sister. The 6th respondent used to come on every Friday and Saturday. Later, the applicant came to know that the 6th respondent is addicted to liquor. In 1980 the applicant became pregnant but it resulted in miscarriage. After miscarriage the applicant did not conceive. Applicant was forced to quit and later shifted to a rented house. He used to send Rs. 2500/- per month to the applicant through her bank account. It was done upto December, 2013 but stopped thereafter. The applicant then made enquiries. Then she came to know that the 6th respondent is staying with respondents 7 to 9. The applicant also got information that her name in the nomination column was tampered with and changed to that of Vijayakumary, the 7th respondent. When applied under the Right to Information Act, the applicant was issued Annexure A-3 letter which is to the effect that the 6th respondent had made the 7th respondent as his nominee stating that she is his wife. It was done illegally. The applicant is unemployed. In the absence of maintenance being given by her husband she was forced to approach the JFCM Court, Kollam. The nomination made by the 6th respondent showing the 7th respondent as his wife and respondents 8 and 9 are his children is to be quashed.
3. The nomination given by the 6th respondent is invalid. The 7th respondent cannot be treated as the wife and so she cannot claim any service benefits accrued to the 6th respondent. The applicant is the legally wedded wife and so her right cannot be taken away. Respondent No. 6 cannot contract 2nd marriage while the first wife is alive. It is a misconduct also. Hence the applicant seeks the reliefs as mentioned earlier.
4. Respondents 1 to 5 filed reply statement contending as follows:
The details of composition of family members is being furnished by the employee through declaration in the respective cases, duly signed by the employee. The burden is on the employees to furnish the details of the family members properly. The Railway used to take suitable action on the matter as per the substantive provisions of the relevant rules. The Railway Department does not interfere in the marriage of the employees and connected subjects. The name of wife as furnished by the 6th respondent in 1989 was L. Valsalakumari, i.e the applicant herein. In 2008 a declaration duly signed by the 6th respondent, furnishing the name of the 7th respondent Mrs. Vijayalakshmi as his wife was given. From 2008 onwards the name of Vijayakumari the 7th respondent is continuing as the wife of the 6th respondent as per the Railway records. The Railway Department was not aware of the matter regarding the dispute. The case was pending before the Majistrate Court. Hence the Railway did not take any action in the matter.
5. The composition of family members and connected details were furnished by the 6th respondent in 1989. But it is seen that the name has been changed to that of the 7th respondent (Vijayakumari) from 2008.
6. Respondents 6 to 9 filed reply statement. The 6th respondent married Vijayakumari, the 7th respondent on 26.06.1990 as per the custom and religious ceremony prevailing in the Hindu community. The marriage was registered before the Grama Panchayat, Cherinniyoor on 28.06.1990 vide Annexure R-1. They are living together as husband and wife from 26.06.1990 onwards and in the wedlock two female children were born on 15.09.1993 and 09.05.1997. They are respondents 8 and 9. Annexure A-3 is the family declaration of the 6th respondent given to his employer. No marriage between the applicant and 6th respondent had taken place as alleged. Annexure A-1 and A-2 are false documents.
7. A rejoinder has been filed refuting the averments in the reply filed by respondents 1 to 5. Contracting second marriage while the first wife is alive attracts not only a criminal action against such employee but also attracts disciplinary action because it violates the Conduct Rules. After getting Annexure A-4 and A-7 representations, no action was taken by respondents 1 to 5. They are bound to conduct inquiry and find out truthfulness of the allegation made by the applicant. Respondents 1 to 5 shirked their responsibility as the employer, to conduct inquiry and take action based on the complaint given by the applicant. The Ration Card No. 315795 issued by the Civil Supplies Office, Kollam also shows that the 6th respondent and applicant are described as husband and wife. In the second page of the same the 6th respondent is shown as the husband of the applicant. Annexure A-10 is the true copy of the bank account of the applicant which would show that the 6th respondent had been remitting amount, to the credit of the applicant through this account.
8. The point for consideration is whether Annexure A-3 the family composition given by the 6th respondent is liable to be quashed?
9. We have heard the learned counsel for the parties and gone through the pleadings and documents.
10. The applicant contends that she was married by the 6th respondent on 24.01.1979 in accordance with the customary rites. Annexure A-1 is the Marriage Certificate issued for that purpose. No action was taken by the 6th respondent or by the other respondents to contend that Annexure A-1 is false or fabricated. It is true that it is not issued under the Registration of Marriage Rules. Annexure A-2 is the copy of the marriage photograph of the applicant and 6th respondent which shows that she was married by the 6th respondent.
11. It is important to note that respondents 1 to 5 themselves admitted the fact that the 6th respondent had submitted the details regarding the family composition in 1989 wherein the applicant was shown as the wife of the 6th respondent. It is further stated in para 7 of the reply statement by the official respondents that the name of the applicant whose name stood as the wife of the 6th respondent was changed to that of Vijayakumari (7th respondent) only in 2008. It is inconceivable how the official respondents could straight away change the family composition when the name of the applicant was shown as the wife in the family composition already furnished to the official respondents. The 6th respondent should have either produced document to show that the marriage between himself and the applicant was divorced through a competent Court of Law. As long as the applicant was alive and as there was no document to show that the marriage between the applicant and the 6th respondent got dissolved through a Court of Law the presumption is that the marital relationship between the applicant and the 6th respondent continues; the learned counsel for the applicant rightly contends.
12. Respondents 6 to 8 would strongly contend that there was no marriage at all between the applicant and the 6th respondent. There is absolutely no explanation as how the name of the applicant happened to be in the service record or the register maintained by the official respondents, where the name of the applicant was entered as the wife of the 6th respondent; that too in 1989 and how it continued to be so till 2008. Even if the applicant had married the 7th respondent subsequently that will not alter the position since there is no document to show that the marriage between the applicant and the 6th respondent was got dissolved through a competent Court of Law.
13. It is also pointed out by the learned counsel for the applicant that the complaint under the PW(DV) Act was filed before JFMC-1, Kollam. Against the order of granting interim maintenance @ Rs. 3000/- an appeal was filed by the 6th respondent. Annexure A-8 is the copy of the judgment in that case passed by the learned Additional Sessions Judge, Kollam. The monthly interim maintenance granted by the learned Magistrate @ Rs. 3000/- was reduced to Rs. 1500/-. That means prima facie the Criminal Courts were convinced of the fact that the applicant was the legally wedded wife of the 6th respondent.
14. It is pertinent to note that the 6th respondent had not approached the competent Family Court for determination of the marital status of the 6th respondent and 7th respondent or to contend that the applicant is not the legally wedded wife of the 6th respondent. As stated earlier since the marital tie between the applicant and the 6th respondent was not legally snapped, 7th respondent cannot be treated as the legally wedded wife of of Respondent No.6.
15. Annexure A-9 is the copy of the Ration Card issued in the name of the 6th respondent while he was residing in the Railway Colony, Kollam in House No. 932 of Ward No. 8. There the head of the family was shown as the 6th respondent. His age was 35 years and the applicant has been shown as his wife and her age was 31 years. That is another circumstance probabilising the contention raised by the applicant that she was married by the 6th respondent and she continues to be the legally wedded wife of the 6th respondent. If it is established that the 6th respondent had married the applicant and unless and until it is proved that the marital tie was snapped through a process of law, the marital relationship between the applicant and 6th respondent must continue to exist.
16. The learned counsel for the applicant would submit that the official respondents had shirked the responsibility by not taking any action against the 6th respondent who has violated the Conduct Rules by contracting a second marriage during the subsistence of the first marriage between the applicant and the 6th respondent. It appears that the official respondents kept quiet to enable the 6th respondent to superannuate. Of course, the applicant also might not be pressing for any disciplinary action against the 6th respondent lest it should affect her also as she would not get the family benefit as the wife of the 6th respondent if respondent No. 6 suffered order of dismissal from service.
17. The question for consideration is whether there is sufficient material to show that the 6th respondent had married the applicant. The very fact that the 6th respondent had furnished the name of the applicant in the family composition describing her as his wife in 1989 itself would prove positively that if he has recognised and approved the applicant as his wife. Coupled with that there is the marriage certificate issued by the Community to which the applicant and 6th respondent belonged. As stated earlier no action whatsoever was taken to challenge the same. The said certificate coupled with Annexure A-3 photograph and Annexure A-5 the order passed by the learned Magistrate confirmed by the learned Sessions Judge by Annexure A-8 (though the quantum was reduced to Rs. 1500/-) would prima facie prove that the 6th respondent had cohabited with the applicant and treated her as his wife for quite long time. Long cohabitation as husband and wife itself would lead to the presumption that the parties were husband and wife unless it is proved to be otherwise. Not only that the Ration Card and other documents would also show that the 6th respondent had proclaimed and recognised the applicant as his wife. The family composition statement furnished by him to the Department in 1989 and all other records referred to above would clearly show that the applicant was the legally wedded wife of the 6th respondent.
18. Even if the 6th respondent had married the 7th respondent subsequently that would be invalid in the eye of law since there is no case for the 6th respondent that marriage between him and the applicant was got dissolved through a competent Civil Court or Family Court. If the 6th respondent wanted to have a declaration regarding the marital status he should have moved the competent Family Court for getting a decree to that effect. He did not do so. The Official Respondents cannot simply erase or change the name of the applicant (whose name was shown as the wife of the employee) from the service records. That too without giving notice to that woman (the applicant). It is not necessary to delve deep into the complaint filed by the applicant against the 6th respondent and others under 494 IPC read with 109 IPC or the decisions rendered by the Criminal Court. To attract the offence under Section 494 IPC the complainant has not only to prove that the first marriage between the applicant and the accused husband was in accordance with the customary rites, but it must also be proved that the alleged second marriage was also conducted by the husband with the other woman in accordance with the customary rites. Therefore, even if they were acquitted by the Criminal Court for the offence under 494 IPC that will not come to the rescue of the 6th respondent to contend that the marriage between himself and the 7th respondent was legal so long as the marriage between the 6th respondent and the applicant was not dissolved. The official respondents cannot simply change the family composition deleting or erasing the name of the applicant and adding the name of the 7th respondent in the family composition.
19. Annexure R-6 would show that the 6th respondent had married the 7th respondent in 1990 and two children were born to them in that wedlock. Though the parties were asked to settle the matter out of Court so as to avoid unnecessary hardship to the children born through that wedlock it was stated that the 6th respondent was adamant and he does not think it wise to settle the matter. It is also pointed out by the learned counsel for the applicant that the 6th respondent was crediting amount to the account of the applicant in her bank account towards monthly maintenance. The contention that the amount must have been credited by somebody else, cannot, in the circumstance of the case, be believed at all. The very fact that even the Additional Session Judge has directed the 6th respondent to pay maintenance to the applicant would prima facie show that the case pleaded by the applicant is true and acceptable.
20. The upshot of our discussion is that there are sufficient materials to show that the applicant was married by the 6th respondent and she was recognised and proclaimed as his wife by submitting the family composition declaration before the competent authority (Railway Department) in 1989 itself and it continued to be so till 2008. The Ration Card, photograph, the certificates issued by the Sabha and other factors referred to earlier would show that the applicant is the legally wedded wife of the 6th respondent. If the 6th respondent wanted to prove otherwise he has to move the competent Family Court.
21. The short question which the Tribunal is to consider is whether respondents 1 to 5 are competent or are legally justified in issuing the family composition certificate showing the name of the 7th respondent as wife of the 6th respondent after deleting or erasing the name of the applicant. The other question is whether the respondents 1 to 5 were legally competent or justified in altering the name of the applicant in the family composition furnished by the Department in 1989 and which continued till 2008. We have no hesitation to hold that the action taken by respondents 1 to 5 in changing the name of the applicant as legally wedded wife of the 6th respondent is absolutely illegal and as such Annexure A-3 is liable to be quashed. We do so. The name of the applicant shall be entered again in the family composition as the wife of the 6th respondent, as it originally stood in 1989.
22. This Original Application is thus allowed directing respondents 1 to 5 to show the name of the applicant as the legally wedded wife of the 6th respondent in the family composition as it stood in 1989 and to that extent Annexure A-3 will stand quashed. No order as to costs.
(Dated, this the 13th March, 2017.)
(Mrs. P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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