Central Administrative Tribunal - Chandigarh
Kashmir Kaur vs D/O Post on 15 May, 2023
1- O.A. No. 060/1363/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/1363/2021
Pronounced on: 15.05.2023
(Reserved On: 15.03.2023)
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
Smt. Kashmir Kaur, aged 48 wife of Late Sh. Raj Kumar, R/o Ghahi
Majra, Tehsil Anandpur Sahib, District Ropar, Punjab -1 40001.
....Applicant
(By Advocate: Mr. Dhiraj Chawla)
Versus
1. Union of India through the Secretary (P) Government of India,
Ministry of Communication & Information Technology, Department of
Posts, Dak Bhawan, Sansad Marg, New Delhi - 110001.
2. The Controller of Communication Accounts, Punjab Telecom Circle,
Chandigarh through Senior Superintendent of Post Offices,
Chandigarh Division, Chandigarh -160022.
3. Director of Accounts, Postal, Kapurthala -144601.
4. Post Master, Head Post Office, Ropar - 140001.
... .Respondents
(By Advocate: Mr. B.B. Sharma)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
(i) To set aside the impugned order dated 11.10.2021 (Annexure A-1) whereby the respondent no. 2 has ordered recovery of family pension received by the applicant from 01.07.1992 to 31.12.2020 on the ground that she had remarried thus entitled to family 2- O.A. No. 060/1363/2021 pension despite the fact that the applicant married the real younger brother of her late husband and as such she continues to remain in the family only.
(ii) To further direct the Respondent No. 2 to restore the family pension which was stopped w.e.f. 01.02.2021 and to release the arrears thereof.
2. The factual matrix of the case is that the applicant‟s husband namely late Raj Kumar was working as Workman Telecommunication in the erstwhile Post and Telecom Department and expired on 16.03.1982. Out of the wedlock two daughter namely Binder and Nimo were born. The applicant married the younger brother Sh. Mohan Lal in the year 1992 . From this wedlock, the applicant was blessed with three c hildren namely Seema (daughter), Atma (daughter) and Satpal (son). The daughters born from the earlier wedlock with Late Sh. Raj Kumar got married. Subsequently, a complaint dated 29.10.2020 (Annexure A-2) was filed before Central Vigilance Officer, New Delhi by one Sh. Darshan Singh alleging that the applicant had remarried after the death of Sh. Raj Kumar and as such she is not entitled to receive widow pension. The said complaint was marked to the District Social Welfare Officer, Ropar who further marked it to CDPO, Nurpur Bedi, Ropar to enquire into the same , vide letter dated 07.12.2020. The applicant was asked to give her statement and she vide her reply dated 24.09.2021 (Annexure A-3) stated that she is not receiving any widow pension from their office and that she is only receiving family pension from the respondents upon death of her husband.
3- O.A. No. 060/1363/2021
3. It has been further submitted that the applicant was drawing the family pension @ Rs.11,779/- per month from the respondent No.3 till January,2021. However, since the family pension of the applicant was stopped, she wrote to the respondents for restoring the family pension vide her letter dated 08.02.2021 (Annexure A-4). Thereafter, she got served a legal notice dated 09.09.2021 (Annexure A-5) upon the respondents, which was replied by the respondents vide letter dated 26.10.2021 (Annexure A-6) informing the applicant that they had conducted the enquiry and because she had not reported the facts of her remarriage to the Pension Disbursing Authority, which is a violation of Rule 54 (6) of the Central Civil Services Pension Rules 1972. The relevant part of their reply is reproduced herein below:-
"Status and Action taken report of Chief Postmaster General Punjab Circle Chandigarh who has conducted enquiry through SSPO‟s Chandigarh reveals into the conclusion that Smt. Kashmir Kaur has solemnized marriage with Sh. Mohan Lal in the year 1992 after death of Late Sh. Raj Kumar and has not reported the facts about her remarriage to PDA (Pension Disbursing Authority).
Report further reveals that "Family Pensioner fails to comply with the instructions of Rule 54 (6) of CCS Pension Rules 1972. Moreover, while submitting information for Digital Life Certificate family Pensioner failed to submit correct information about her marital status. As per Report of APM (Accounts) Ropar "N" appears under column "Remarriage" whereas as per provisions of CCS Pension Rules family pensioner has to intimate/report to Pension Disbursing Authority about the event of her remarriage."
4. It has been further submitted that the respondent no.2 vide its letter dated 28.09.2021 directed the respondent no.4 to recover the family pension received by the applicant from 4- O.A. No. 060/1363/2021 01.07.1992 to 31.12.2020. Pursuant thereto, the respondent no.4 issued notice dated 11.10.2021(Annexure A-1) to the applicant seeking credit of whole amount of family pension received from 01.07.1992 to 31.12.2020 in the Government Account, which is under challenge in the present Original Application.
5. The applicant has referred to the provisions of the Central Civil Services (Extraordinary Pension) Rules, where an exception to the Rule 54(6) of CCS(Pension) Rules 1972 has been made and reads as under:-
"12A: Re-Marriage by widow:
Notwithstanding anything contained in Clause (i) of Sub Rule (3) of Rule 12, a widow or an employee who remarries her deceased husband's brother and continues to live a communal life with or contributes to the support of the other dependants of the deceased, shall not be disqualified for grant of extra ordinary pension, otherwise admissible to her under these Rules".
It has been contended by the applicant that the provision of Rule 12A of the Extra Ordinary Pension Rules, is an exception to the general rule of stoppage of the family pension consequent upon remarriage has been carved out under the Extra Ordinary Pension Rules and the family pension of widows entering into remarriage, has been allowed subject to the stipulation that she gets married to the younger brother of the deceased husband and continues a communal life with him or contributes to the support of the dependents of the deceased. In the present case there is no dispute on the issue of marriage of the applicant with the brother of her husband and the stoppage of pension in the back-drop of the statutory provisions is without sanction of law. The similar issue has been considered by the Hon‟ble High Court of 5- O.A. No. 060/1363/2021 Punjab and Haryana in CWP No.7313/2003 titled Kiran Kumar Vs. State of Haryana and Others decided on 19.08.2003 upholding the grant of family pension to widow upon remarriage with brother of her husband. It has also been contended that the impugned order deserves to be set aside being violative of the principles of natural justice as the applicant was not associated in the enquiry proceedings in any manner nor any notice before stopping her family pension was issued to her and therefore, the respondent had taken unilateral decision to stop the family pension without even following the principle of natural justice. It has been admitted that the only fault of the applicant is that she did not inform the respondents about her remarriage with the younger brother of her husband, which is only a curable irregularity and now the respondents know about the remarriage, therefore the said fact can be updated in their records but the family pension cannot be stopped. Reliance, in support of the claim has been placed upon the judgment of Hon‟ble High Court of Punjab and Haryana in the case of Kiran Kumar Vs. State of Haryana and Others, 2004 (1) SCT 650.
6. The respondents have filed written statement contesting the claim of the applicant. It has been submitted that after the death of the Government employee Sh. Raj Kumar on 16.03.1982, family pension was authorized to the applicant being the spouse of deceased employee, vide PPO dated 30.06.1982 and it was clearly mentioned in the said PPO that family pension is payable w.e.f 17.03.1982 till the date of her re- marriage or death whichever is earlier. According to para (VII) of consolidated instructions for PDAs to ensure smooth payment of pension/family pension issued by Government of India, MoPP&P, DoP&W 6- O.A. No. 060/1363/2021 OM dated 15.05.2020 (Annexure R-8), if the spouse is recipient of family pension, an undertaking will be obtained from him/her to the effect that in the event of his/her re-marriage he/she will report the fact to the pension disbursing bank promptly. The applicant has failed to comply with the instructions. While submitting information for DLC, the applicant has failed to submit correct information about her marital status. As per report of APM (Accounts Ropar „N‟ appears under column "Re-marriage". The applicant solemnized re- marriage with Sh. Mohan Lal in the year 1992 after the death of late Sh. Raj Kumar and she has not reported the facts about her re-marriage to PDA. On enquiry, the applicant deposed the fact about her re-marriage in the year 1992 and birth of three children from the new wedlock. Therefore, as per the provisions of Rule 54 (6) of Central Civil Services Pension Rules 1972, the Respondent No. 2 has ordered recovery of family pension received from 01.07.1992 to 31.12.2020. It has been contended that the Rule with regard to extraordinary pension is not applicable in the present case.
7. I have gone through the pleadings, perused the cited judgments and considered the arguments of learned counsel for both the sides.
8. The issue for consideration in the present case is whether the applicant, who is a widow of deceased employee late Raj Kumar and has solemnized re-marriage with the deceased husband‟s brother, is entitled to extra ordinary family pension under Rule 12 A of CCS (Extraordinary Pension) Rules.
9. The facts are not in dispute. Learned counsel for the applicant staked her claim for family pension while referring to the provisions of 7- O.A. No. 060/1363/2021 Rule 12- A of CCS (Extra Ordinary Pension) Rules. He argued that since the applicant re-married with the brother of the deceased employee and continued to live a communal life, therefore, she is entitled to get extra ordinary family pension, as per the provisions of the Rule aforementioned. The respondents denied the applicability of the Rule stating that the extra ordinary family pension may be paid to the government servant/his family if disablement/death (or the aggravation of disablement/death) of the government servant during his service are attributed to the government service. As per the respondents, the applicant is entitled to ordinary family pension under Rule 54(6) of CCS (Pension) Rules, 1972 up to the date of death or re-marriage, whichever is earlier. The applicant has placed reliance upon judgment by the Hon‟ble High Court of Punjab and Haryana in the cases of Sukhjeet Kaur Vs. Union of India and Others (CWP 14372/2016 decided on 12.01.2023) and Kiran Kumar Vs. State of Haryana and Others (CWP NO. 7313 of 2003 decided on 19.08.2003) and Namrata Pandit Vs. Union of India and Others (CWP No. 12995/2016 decided on 07.04.2017). The judgments aforementioned directly deal with the issue in hand. I perused the judgments cited in support of the claim.
10. A similar issue came for adjudication before this Tribunal by way of O.A. No. 060/00361/2016 which was disposed of vide order dated 29.04.2016 holding that the applicant was not eligible for family pension under the CCS (Extraordinary Pension) Rules. The order dated 29.04.2016, passed by this Tribunal was assailed by the applicant therein by way of CWP No. 14372/2016 titled Sukhjeet Kaur Vs. Union of India and Others, which has recently been allowed by the 8- O.A. No. 060/1363/2021 Hon‟ble High Court of Punjab and Haryana vide order dated 12.01.2023, while agreeing with the principles laid down by the Hon‟ble High Court of Delhi and observed as under:-
"The Division Bench of the Delhi High Court considered the Army Pension Regulations, 1961 and held that the purpose of the provisions of granting family pension to widows of Army personnel is to provide succor to the family members of the deceased personnel who had been unfortunately snatched away in the middle of their services; such death would cause trauma to the family both mental or financial; only the financial trauma is sought to be remedied by providing pension to the legal heirs of the deceased serving personnel done under the said Rules; that although the Rules made a distinction between person who died while engaged in active military service, and a person, who dies in service on account of factors not attributable to or aggravated by military service; and in the case of former, special family pension is granted while in the case of the latter, only ordinary family pension which is almost half of the special family pension is granted; it is not permissible to make any distinction between a widow of a person who had died by reasons attributable to or aggravated by military service and a person who has died just in service. The Bench observed that the problems faced by the widows in both situations are identical and the difference in the cause of death cannot be made to result in the difference of the value of the pension. The Bench held that the object of maintaining widow in the commune of the family remains the same and that is why an exception was carved out in Regulation 219 making her eligible for grant of family pension even though she had remarried provided that such remarriage is to her deceased husband‟s brother if she continues to live communal life and contributes to the support of other living eligible heirs.
Further, the Hon‟ble High Court of Punjab and Haryana held as under:-
"The view of the Delhi High Court in the above decision that there ought not to be a distinction between a widow of a person who had died by reasons attributable to or aggravated by military service and a person who had died just in service, since the problems faced by the widows are identical, undoubtedly applies even in the instant case if we substitute the word „Government service‟ for the word „Military service‟ in the said judgment.
Rule 12-A of the CCS (Extraordinary Pension) Rules specifically permits a widow of an employee who remarries deceased husband‟s brother and continues to live communal life and contributes to the support of other family dependents of the deceased to get extraordinary pension like Regulation 219 of the Army Pension Regulations, 1961 which was considered by the Delhi High Court in Smt. Kashmiro Devi (Supra).
So Rule 12-A of the CCS (Extraordinary Pension) Rules ought to be given to the petitioner ignoring the cause of death of her first husband Sh. Mohinder Singh and even though his death was not attributable to Government service.
The contention of the counsel for the respondents that laches on the part of the petitioner disentitles her to any relief cannot also be countenanced because admittedly when the petitioner had earlier filed O.A. No.60/372/2014 before respondent No.4/Tribunal, no such plea was taken by the respondents. Therefore, they had waived the said plea and so are barred by application of principle of constructive res judicata from raising the said plea in the instant Writ Petition, and they ought not to have been allowed to raise the said plea by respondent No.4/Tribunal , and it ought not to have accepted it and dismissed on 29.04.2016 in OA No. 060/00361/2016.
9- O.A. No. 060/1363/2021 Accordingly, the order dt.29.04.2016 of respondent No.4/Tribunal in OA No.060/00361/2016 is set aside; the said OA is allowed and respondent Nos.1 to 3 are directed to restore pension to the petitioner from 29.04.2011 (i.e. 3 years prior to the date of filing of OA No.060/00372/2014 before the Central Administrative Tribunal, Chandigarh) with interest @ 6% from the said date till the date of payment. The respondents Nos. 1 to 3 shall make payment of arrears to petitioner under Rule 12-A of the CCS (Extraordinary Pension) Rules within three months from the date of receipt of the certified copy of this order and shall continue to pay the same to her during her lifetime.
Accordingly, this Writ Petition is allowed."
11. In the case of Kiran Kumar (supra), the Hon‟ble High Court of Punjab and Haryana while allowing the petition of a widow has held that a widow who continues to live common life with or contributes to support other living eligible heirs of family after remarriage is entitled to family pension while observing as under:-
"Firstly, there is no rule which prohibits grant of family pension to the widow of the deceased who has remarried and particularly in the same family. The object of the rule is not to deny benefit of family pension to the dependent of the deceased, but, obviously provides an exception to that concept by postulating a situation where the widow remarried independently and her economic dependence upon the deceased is disintegrated, from the need of the family. In the present case, both such situations exists. Admittedly, the daughter of the deceased is living with the petitioner, who has remarried with the younger brother of the deceased. The economic dependence of the family, thus, continues in its entirety and ingredient of an exception seems to be satisfied in the present case."
12. Learned counsel for the respondents has not been able to distinguish the facts of the present case from that in cases relied upon by the applicant in support of her claim. The respondents have also failed to cite any law contrary to one established in the aforesaid judgments.
13. Moreover, the impugned order dated 11.10.2021 (Annexure A-1) passed by the respondents ordering recovery is a non-speaking, unreasoned one and also the principles of natural justice have not been followed before issuance thereof. The applicant has not been issued any show cause notice before effecting recovery from her pension. On this ground also, the impugned order is not sustainable and deserves to be quashed.
10- O.A. No. 060/1363/2021
14. After perusing the judgment mentioned hereinabove passed by the Hon‟ble Jurisdictional High Court in the case of Sukhjeet Kaur (supra), I am of the opinion that the facts and the issue in the present case is similar to the one involved in the case aforementioned wherein after considering the provisions of CCS (Pension) Rules, 1972 and CCS (Extra ordinary) Pension Rules, it has been held that such widow, who remarries the younger brother of the deceased and continues to live common life, is entitled to family pension. For the reasoning given in the aforesaid judgment, the applicant herein is held entitled to the family pension. The impugned order dated 11.10.2021 is hereby quashed and set aside. The respondents are directed to restore her family pension and release the arrears accrued to her, within a period of two months from the date of receipt of a certified copy of this order. No costs.
(SURESH KUMAR BATRA) MEMBER (J) „mw‟