Central Administrative Tribunal - Kolkata
Arjema Bibi vs Employees State Insurance Corporation ... on 20 September, 2022
| - g | 1 O.A. 825 of 2022 CENTRAL ADMINISTRATIVE TRIBUNAL CALCUTTA BENCH, KOLKATA O.A. 350/00825/2022 Order dated: 20.09.2022 Coram : Hon'ble Ms. Bidisha Banerjee, Judicial Member Arjema Bibi W/o Lt. Sk Abdul Kader and residing at Vill. Dakshin Kolsur, P.O. Kolsur, P.S. Deganga, Dist. North 24 Parganas, Pin-743438. (M) 9733653549 email- ray nirmal 406 @gmail. com becaaeseee Applicant. Versus 1) Union of India through the Secretary Ministry of labour, & employment, Govt of India, ~ New-Delhi - 110001. 2) Director of Employee State Insurance Corporation, Panchadip Bhavan, 5/1 Grand Lane, Kolkata - 12. 3) Deputy Director (F) E.S.| Corporation, Panchadip Bhavan, 5/1 Grand Lane, Kolkata - 12. 4) The Assistant Director (P), E.S.1 Corporation, Panchadip Bhavan, 5/1 Grand Lane, Kolkata - 12. sesvseenaees Respondents. For the applicant : Mr. N. Roy, Counsel For the respondents : Mr. S. Banerjee, Counsel 2 0.A. 825 of 2022 ORDER
Per : Bidisha Banerjee, Judicial Member Heard Ld. Counsels.
2. This matter is taken up by Single Bench in view of the revised list dated 04.04.2000 issued under Sub-Section (6) of Section 5 of the Administrative Tribunals Act, 1985, and, as no complicated question of law is involved, this matter is taken up for disposal with the consent of both the parties. 3: This application has been preferred to seek the following reliefs:
"8.a) To issue direction upon the respondent to quash cancel set aside to impugned order dated 04.04.2022 regarding family pension forthwith.
b) To issue further direction upon the respondent to give family pension to the applicant forthwith.
c) To issue further direction upon the respondent to consider family pension to the applicant forthwith.
d) Any other order/orders as deem fit and proper.
e} To produce Connected Departmental Record at the time of Hearing."
4. The applicant is aggrieved as her prayer for family pension has been turned down vide order dated 04.04.2022 having said as under:
"The matter of eligibility of family pension in r/o Ajema Bibi, Second wife of Government Servant/Ex-employee was examined and it has been observed as follows:
1. That Sk. Abdul Kader was retired on superannuation on 31.07.1989. As per Form-3 (Details of Family) submitted by Sk. Kader on 12.02.1988, the name of family pensioner found as "SURIYA BEGUM".
2. That "SURIYA BEGUM" first/ legally wedded wife of Sk. Kader expired on 11.02.2004.
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3. That after the death of first/ legally weded wife, Sk. Kader (Ex- employee/Pensioner) vide his application dated 29.04.2004declared that "be married to AJEMA BIBI on 23.01.1988".
4, It is crystal clear the Sk. Abdul Kader, while in service, married to Ajema Bibi on 23.01.1988 and suppressed the factum af secant marriage to his Office, violating Rule 21 of CCS(Conduct) Rule, 1964.
5. It is evident that Sk. Abdul Kader married to Ajema Bibi on 23.01.1988 while his first/legally wedded wife "SURIYA BEGUM" was alive.
6. That No Declaration toward solemnized at Second Marriage Or Consent from first/legally wadded wife has been submitted by Sk Abdul Kader during his service tenure and/or upto the death of his legally sedded wife which attracts malafide intention on the part of the deceased Government Servant.
7. That after 15 years of retirement (approx), Sk. Abdul Kader, Ex Employee/Pensioner vide his letter dated 29.04.2004 disclosed his second marriage to Ajema Bibi to this Office.
8. This is not only violation of CCS(Conduct) Rules, 1964 but also Muslim Personal Law.
9. That As per Rule 21 or CCS (Conduct) Rules, it is clearly stated that
(i) No Government Servant shall enter into, or contract, a marriage with a person having a spouse living; and
(ii) | No Government Servant having a spouse living, shall enter into, or contract, a marriage with any person;
Provided that the Central Government may permit a Government Servant to enter into, or contract, any such marriage as is referred to in clause (i) or Clause (ii), if it is satisfied that --
(a) Such marriage is permissible under the Personal Law applicable to such Government Servant and the other party to the marriage; and
(b) There are other grounds for so doing.
|, Akshay Kala, Addl. Commissioner and Regional, Director, therefore in compliance with the order of the Forbie CAT Bench, Calcutta dated 27.01.2022 in O.A. No. 350/0094/2022 (Ajema Bibi Vs Union of India & Others) is of the considered view that the second marriage with Ajema Bibi and suppression of the fact by the then Government Servant are totally violation of the CCS Conduct) Rules, 1964 and NO permission obtained either from the legally wedded wife or from the Office for the second marriage in compliance of Personal Law. It is 4 0.A. 825 of 2022 -
also proved that Sk. Abdul Kader (at present expired) being a Government Servant failed to maintain absolute integrity and devotion to duty which is unbecoming from a Government Servant.
Therefore, the question of release of Family Pension to the applicant/second. wife/Ajema Bibi or the eligible children of the ' second wife does not arise as per CCS(Conduct) Rules, 1964 or Personal Law."
In the reply the respondents have disclosed the following:
"The prayer of Sk. Abdul Kader for inclusion of the name of "Ajema Bibi"
dated 29.04.2004 was rejected by this office based on the CCS(Conduct) Rules, 1964 and communicated vide letter No. C/Estt 16/396/56(Pen) dated 30.07.2004.
In view of the facts and evidences, the Respondent/ESIC may sought for quashing of the prayer of the applicant on the following grounds:
(iii)
(iv)
(v)
(vi)
(vii)
(viii) The deceased Govt. servant violated Rule 21 of the CCS(Conduct) Rules, 1964.
The deceased Govt. servant entered into second marriage despite having a living spouse and without taking prior permission from the office.
The deceased Govt. servant suppressed the factum of second marriage to this office till retirement.
Sk. Abdul Kader vide letter dated 29.04.2004 disclosed his second marriage, that too after the death of "Suriya Begurn" which attracts malafide intention onthe part of the deceased Govt. servant and violation the CCS(Conduct) Rules, 1964.
The prayer of Sk. Abdul Kader for inclusion of name of "Ajema Bibi dated 29.04.2004 was rejected as per CCS(Conduct) Rules vide letter No. C/Estt 16/395/55/(Pen) dated 30.07.2004.
The applicant's claim that the second marriage was solemnized after the death of first wife is totally false and far from truth.
The applicant's claim that the name of "Suriya Begum" is not mentioned in the Family declaration of the deceased Govt. servant is totally baseless and far from the truth.
The applicant or the deceased Govt. servant fails t substantiate any evidences which proves that marriage to "Ajema Bibi' solemnized with the consent of the first wife."
Ld. Counsel for the applicant would cite a decision as follows:
5 0.A. 825 of 2022 "In W.A,. No. 977 of 2817 and CMP No. 13600 of 2017, R. Rajathi Vs. The Superintendent Engineer & Ors. rendered by the High Court of Judicature at Madras on 05.06.2018.
Where an interesting question arose is as to whether, a second wife of a Hindu, whose marriage was contracted during the subsistence of the first marriage that too after the introduction of the Hindu Marriage Act, 1955, would be entitled to family pension under Sub Rule 7(a}{1) of Rule 49 of the Tamil Nadu Pension Rules 1978 which reads as follows:
(a)(i). Where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares."
Hon'ble Court observed:
"Law is settled that two Hindus cannot contract marriage after the enforcement of the Hindu Marriage Act and if any of them is having a living spouse, the marriage would be a nullity and would also not be protected under the Conduct Rules, as well as, the pension rules. Therefore, the second wife as referred to under the pension rules would only include second wife whose marriage is permissible under the Personal Law, but in the case of Hindus, the second wife will have no right, whatsoever, as the law prohibits second marriage, as long as, the Government-servant has a spouse who is alive. Thus for harmonious construction of the Rules governing pension, wherever, the rule provides for wives, it has to be interpreted _as_per the law governing marriage as applicable to the Government servant and in cases where the second marriage is void under the law, second wife will have no status of a widow of the Government servant.
XXX XXX , XXX We are, therefore, of the opinion that in order to enable a second wife to claim family pension the marriage should have been valid under the Personal Law applicable to the parties, to hold otherwise would be in violation of the law of the land, viz. the Personal Law of the parties as well as the Criminal Law, which prohibits bigqamous marriage."
The Hon'ble High Court held:
"43. We are, therefore, constrained to conclude that the judgments which conclude that _a second wife would be entitled to family pension, irrespective of her marriage being void, under the provisions of their relevant Personal Law is applicable to the parties do not reflect the correct _position of law and therefore will stand overruled. The applicability of Sub Rule 7(a){i) is confined only to cases where the second marriage is valid under the Personal Law applicable to the parties, only in such cases, widows of such marriages would be entitled to family pension."
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7. td. Counsel would also rely upon a decision of Hon'ble High Court at Madras in WP 5706 of 2021 rendered on 09.03.2021 that says --
"15 When the Rule specifically gives relief to more than one widow, taking into account Personal Law, the question of validity of the second marriage does not arise at all during the subsistence of the first marriage. | am of the view that, the second wife attains the deeming status of a wife from the date of demise_of the first wife, in case, the husband is alive on the date of demise of the first wife. Also, when unknown relationship comes to be known after the demise of the husband, such woman may not be entitled to any relief, unless Personal Law permits more than _one marriage or declaration is obtained from the competent Judicial Forum with regard to her https://www.mhc.tn.gov.in/judis/W.P.No.5706 of 2021 legal status, after making the first wife as a party, if she is alive."
8. The implications of the decisions are loud and clear. Where personal law permits more than one marriage and pension rules specifically give relief to more than one widow, the second widow can inarguably claim family pension in the light of the pension rules governing the employee.
9. Since the present applicant is governed by Mohammedan (Personal) Law the authorities shall duly reconsider her claim for family pension afresh in the light of decisions above and issue orders by 3 months untrammelled by any offer previous considerations.
10. The present O.A. accordingly stands disposed of. No costs. TN (Bidisha Banerjee) Judicial Member drh