Gauhati High Court
Smti. Bela Rani Sarkar vs The Union Of India And 7 Ors on 14 September, 2020
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/7
GAHC010095442016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3094/2016
1:SMTI. BELA RANI SARKAR
D/O LT. KALI SANKAR SARKAR R/O G.B. COLONY, NEAR RAILWAY
QUARTER NO. 77/A, NEW BONGIGOAN, P.O. NEW BONGAIGAON, P.S.
BONGAIGAON, DIST. BONGAIGAON, ASSAM.
VERSUS
1:THE UNION OF INDIA and 7 ORS
REP. BY THE GENERAL MANAGER, NORTH EAST FRONTIER RAILWAY,
MALIGAON, GUWAHATI - 781011, DIST. TINSUKIA, ASSAM.
2:FINANCIAL ADVISER AND CHIEF ACCOUNTS OFFICER
NORTH EAST FRONTIER RAILWAY
MALIGAON
GUWAHATI - 781011
DIST. KAMRUP
ASSAM.
3:THE DIVISIONAL FINANCE MANAGER
NORTH EAST FRONTIER RAILWAY
ALIPURDUAR JUNCTION
P.O. and P.S. ALIPURDUAR PIN - 736132
DIST. ALIPURDUAR
WEST BENGAL.
4:THE MANAGER
STATE BANK OF INDIA
LINK BRANCH
BONGAIGON
PIN- 783380
DIST. BONGAIGAON
ASSAM.
5:SRI ANIRUDDHA SARKAR
Page No.# 2/7
S/O LATE KALI SANKAR SARKAR
R/O KATHALTOLA
ALIPURDUAR JUNCTION
P.O. ALIPURDUAR JUNCITON
P.S. ALIPURDUAR JUNCTION
DIST. JALPAIGURI
WEST BENGAL.
6:SRI ANJAN KUMAR SARKAR
S/O LATE KALI SANKAR SARKAR
R/O VILLAGE SOUTH JITPUR
PIN-736123
P.O. BHOLARDABRI
P.S. ALIPURDUAR
DIST. ALIPURDUAR
WEST BENGAL.
7:SMTI. BANDANA SARKAR
D/O LATE KALI SANKAR SARKAR
R/O VILLAGE SOUTH JITPUR
PIN-736123
P.O. BHOLARDABRI
P.S. ALIPURDUAR
DIST. ALIPURDUAR
WEST BENGAL.
8:SMTI. HELENA MANDAL @ ITIRANI MANDAL
W/O LATE SHYAMAL MANDAL
R/O VILLAGE SOUTH JITPUR
PIN-736123
P.O. BHOLARDABRI
P.S. ALIPURDUAR
DIST. ALIPURDUAR
WEST BENGAL
Advocate for the Petitioner : MR. M P CHOUDHURY
Advocate for the Respondent : MR. A K SARKAR (R1)
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
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ORDER
14.09.2020 (K.R. Surana, J.) Heard Mr. M.P. Choudhury, learned counsel for the petitioner. Also heard Mr. B. Sarma, standing counsel for NF Railway, representing respondent nos. 1 to 4 and Mr. B. Haldar, learned counsel representing respondent nos. 5 to 8.
2) The challenge in this writ petition filed under Article 226 of the Constitution of India is the order dated 07.04.2016, passed by the learned Central Administrative Tribunal, Guwahati Bench, Guwahati in O.A. No. 040/00075/2016, thereby dismissing the said original application in limine. The learned counsel for the petitioner submits that the said original application was dismissed at the motion stage.
3) The case of the petitioner in brief is that she is an unmarried woman without any source of income. On 31.01.1998, her father superannuated from the N.F. Railway as a driver and prior to his death on 22.11.2006, the petitioner's father was drawing his pension vide PPO No. 0307980686/APDJ/PEN/MECH/2299(R) dated 31.05.1998 through his account no. 10284485398 of State Bank of India, Bongaigaon Branch. The father of the petitioner was last posted as DR(G)/BNQ/N.F. Railway. In this writ petition, the petitioner has annexed the "pension payment order" of her father to project that her name is entered therein as daughter of Kali Sankar Sarkar. It is the case of the petitioner that her mother, namely, Smt. Mala Rani Sarkar was the second wife of her father. Having not received her share in the family pension, the petitioner submitted her representation dated 24.02.2016 to the N.F. Railway authorities and on not getting any benefit, she had approached the learned Central Administrative Tribunal. It is submitted by the learned counsel for the petitioner that apart from the petitioner, her father had left behind the following legal heirs, i.e. Malina Rani Sarkar (first wife, since deceased), Anirudha Sarkar (son; substituted respondent no.5), Anjan Kumar Sarkar, (son; respondent no.6), Smt. Bandana Sarkar (daughter; respondent no.7), Smt. Page No.# 4/7 Helena Mandal @ Itirani Mandal (daughter; respondent no.8). It is submitted that the respondent nos. 5 to 8 are the step brothers/ sisters of the petitioner.
4) It is seen that the learned Tribunal, while dismissing the original application had recorded that after the death of petitioner's father, her mother was receiving pension for some time, but on the complaint made by the first wife (i.e. original respondent no.5), the same was stopped by the authorities. It was also recorded that the mother of the petitioner herein had approached the learned Tribunal to settle the family pension in her name by O.A. 262/2013, which was dismissed by the learned Tribunal on the ground that it was not satisfied with the marriage of Late Kali Sankar Sarkar with the mother of the petitioner herein during the lifetime of his first wife. Although the learned Tribunal had referred to Sub- Rule 6(iii) of Rule 75 of the Family Pension Scheme for Railway Servants, 1964 which provides for an unmarried daughter of the pensioner to have a share in family pension, but the petition was dismissed on the ground that when the mother of the petitioner was not found eligible for family pension, learned counsel could not satisfy the Tribunal as to how daughter, Bela Rani Sarkar can claim a share of the family pension. It was held that as the first wife was alive, as per the decision of the Tribunal in OA 262/2013, the petitioner herein had no case. It was also held that the family pension issue had been decided in OA 262/2013, the same cannot be agitated on the basis of fresh application by the daughter of the second wife. Accordingly, by holding that the learned counsel for the petitioner had failed to show any law which supports the case of the petitioner herein, the case of the petitioner was dismissed.
5) Heard the submissions made by the learned counsel for the parties. The counsel for the respondents have supported the impugned order and contend that the issue relating to family pension was already decided in OA 262/2013, as such, the petitioner, who was the daughter of the petitioner in OA 262/2013, is also bound by the decision of dismissal of the said original application. It is also urged by the learned standing counsel for the N.F. Railways that they have annexed to their affidavit- in- opposition a copy of will of the father of the petitioner, which was submitted by the mother of the applicant before them, wherein Page No.# 5/7 the petitioner was described as married daughter. Accordingly, it is submitted that the applicable Rules disqualified the petitioner to be entitled to any share in the family pension. In support of his submissions, the learned counsel for the petitioner has relied on (1) Section 16 of the Hindu Marriage Act, 1955; (2) Rule 75 of Railway Services (Pension) Rules 1993, under the heading "Family Pension Scheme for Railway Servants, 1964"; and (3) Rameshwari Devi Vs. State of Bihar & Ors., (2000) 2 SCC 431.
6) From section 16 of the Hindu Marriage Act, 1955, we find that the said provisions gives the umbrella of legitimacy to the child born out of marriage that is null and void under section 11 thereof, despite violation of the conditions prescribed under section 5(i) of the said Act. Moreover, the Hindu Succession Act, 1956 does not debar an illegitimate child of a null and void marriage to succeed to the estate left behind by the deceased. Therefore, even if the original application, being OA 262/2013 filed by the mother of the petitioner was dismissed by the learned Central Administrative Tribunal, the order of dismissal would not operate as a res judicata for the claim of the petitioner to be maintainable in respect of her personal claim of share of family pension on the death of her father. There is nothing in the impugned order from which we can infer that the petitioner was also one of the parties in the said OA 262/2013. Hence, we are constrained to hold that the impugned order, thereby dismissing the original application filed by the petitioner is not found sustainable on facts and in law.
7) In this regard, we find support from the ratio laid down in the case of Rameshwari Devi (supra). para-14 thereof is quoted below:-
"14. It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of Clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get shares (see Sections 8, 10 Page No.# 6/7 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death- cum-retirement gratuity payments which is governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment."
8) While the petitioner contents that she is unmarried, the respondents No. 1 to 4 have taken a stand that the petitioner is married and, as such, Rule 75 of the Railway Servants (Pension) Rules, 1993 disentitle married daughters from the benefit of family pension. We need not delve into this issue as there was no occasion for the learned Central Administrative Tribunal to decide such an issue. Similarly, the learned counsel for respondent nos. 5 to 8 has disputed the marriage of their father with the mother of the petitioner, but we need not delve into it for the same reason that there was no occasion for the learned Central Administrative Tribunal to decide such an issue. Therefore, if this Court goes into this disputed question, raised for the first time by the respondents in this writ petition, either of the parties are bound to be prejudiced by our finding thereon.
9) Therefore, in view of the discussions above, we are inclined to set aside the order dated 07.04.2016, passed by the learned Central Administrative Tribunal, Guwahati Bench, Guwahati in O.A. No. 040/00075/2016, thereby dismissing the said original application in limine. The OA No. 040/00075/2016 is remanded back for being decided on merit on any issues that may be raised before it. It is needless to mention that the said original application is heard and decided afresh without being influenced by any observations made herein.
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10) The parties, who are duly represented by their respective counsel are directed to appear before the learned Central Administrative Tribunal on 08.10.2020 and seek further instructions from the said learned Tribunal. The petitioner is permitted to produce a certified copy of this order before the learned Central Administrative Tribunal along with a prayer to restore the proceeding of OA No. 040/00075/2016 to file.
11) This writ petition stands allowed to the extent as indicated above.
JUDGE JUDGE Comparing Assistant