Central Administrative Tribunal - Chandigarh
Krishna Devi vs M/O Railways on 13 September, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH 0.A.NO.060/00815/2018 Orders pronounced on: 43°49: #9 (Orders reserved on: 27.08.2019) CORAM: HON'BLE MR. SANIEEV KAUSHIK, MEMBER (3) Krishna Devi W/o late Sh. Vijal Kumar, Group-D, aged 48 years, R/o 15, Dashmesh Nagar, Rajpura Distt. Patiala (Punjab)-140401. savas . | Applicant Versus fouch, . Union of India through General Manager, Northern Railway, Baroda House, New Delhi-110001. 2. DOlvisional Railway Manager, DRM Office Complex, Northern Railway, Ambala Cantt-133001. Financial Advisor and Chief Accounts Officer / Pensions, Northern Lee Railway, Baroda House, new Delhi-110001. Respondents Present: MR. KARNAIL SINGH, ADVOCATE, FOR APPLICANT. MR. YOGESH PUTNEY, ADVOCATE, FOR RESPONDENTS. - - papeeery< ORDER
(BY HON'BLE MR. SANJEEV KAUSHIK, MEMBER (3):
The applicant is aggrieved by the impugned orders dated 26.4.2017 and 7.6.2018 (Annexure A-i), vide which her claim for grant of family pension has been declined and she has prayed for issuance of direction to respondent no.3 to grant her family pension under rule 75 (a) of the Railway Services (pension) Rules, 1993, with interest.
2. The facts are not in dispute. One Vijay Kumar, was working as helper under respondents and expiredion' 30-920 The * applicant claims that she annexed as Annexure A-6. She claims that she lead a happy life and enjoyed all benefits like Railway Free pass, Free medical Facility etc, during life span of the deceased. On death OF . Vi jay Kumar 0 on 30.5 2014, the applicant approached the respondents for grant of pensionary benefits but to no avail and she was asked to obtain judgment from competent court of law declaring her wife. of deceased. On her application, the Civil judge, Ambala, has passed a decree declaring her wife of deceased Vijay Kumar, vide order dated 4.7.2018. However, ultimately her. claim for grant of family pension has been declined on the ground that she had not impleaded married daughters from earlier wife of Vijay Kumar and that since applicant had married Vijay Kumar during life time of earlier wife, so second marriage was null and void. The judgement presented by applicant is also disputed by respondents on the premise that applicant had not disclosed full facts to the court and she had not even imleaded department as a party respondent and cleverly she imleaded only her own son as & respondent, as such she cannot be granted any benefit. Terming this action of respondents as illegal, the applicant has approached this Tribunal challenging the impugned orders, Annexure A-1.
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3. The respondents have filed a detailed reply opposing the claim of the applicant, which is based on the stand taken by them in the impugned orders, that the judgement has been obtained by applicant by fraud and her marriage with ex-employee having been solemnized during life time of earlier wife was nullity and in any case, she has neither impleaded department nor the daughters of earlier wife of deceased employee as a party and as such she has not approached this Court with clean hands and as such O.A. deserves to be dismissed.
4, Heard learned counsel for the parties at length and examined the material on the file, with their able assistance.
5. The learned counsel for the applicant placed heavy rellance on rule 75 this rule, even if deceased "has left two widows, both of them are entitled to pension in equal shares. He submits that earlier wife of deceased employee had died a long, time back, and as such she does not have any claim on the family pension of the applicant. On the other hand, leatied counsel for respondents argued that as per report of Welfare inspector, deceased got first married with Smt. Pushpa, who has three daughters namely Jyoti, Pooja and Arti. First wife died on 23.9,.2004, «Since applicant married on 23.5.1989, apparently, her marriage was null and void being in violation of Section 11 of the Hindu Marriage Act, 1955, as second marriage cannot be solemnized if either party has a spouse living at the time of such marriage. The family pension is payable to legally wedded wife only and as such claim of applicant has rightly been rejected. It is reiterated that judgement produced by applicant has been obtained by playing a fraud as necessary, relevant and proper parties were not impleaded in the suit filled by her. They have thus prayed for dismissal of the case.
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6. I have considered the arguments of both si a -- citely. Th is nat in dispute that the applicant had married during existence of first wife of deceased employee, on 23.5.1989. It is also not in dispute that out of first marriage, the deceased had three daughters. It is a different matter that first wife died on 23.9.2004. The respondents claim that second marriage of applicant with deceased employee was null and void in view of pleadings on record that it was solemnized during subsistence of first marriage. The question, as to whether in such like cases, the second widow would be entitied to pension or not, has been answered by Hon'ble High Court of -
Judicature at Madras in W.A.NO.977 of 2017 and CMP No.13600 of 2017 -
R.RAJATHI VS. THE SUPERINTENDENT ENGINEER ETC. in the negative holding that in such like cases, the second widow would riot be entitled to any benefit. In that case, rule 49 (7)(a)(i) of Tamil Nadu Pension Rules, which is on similar terms as rule 75 (7){a) of Railway Services (Pension) Rules, 1993, was considered. After examination of the facts, rule position and law, the Court held that the second widow was entitied to pension, in the following terms :-
"41, A substantially similar view has been expressed by another learned Judge of this Court in P.Velammalv, The Additional Assistant Elementary Educational Office, "Sivagangai District in WP (MB) Ne.3096 of 2016, wherein, after taking note af the-provisions of-Section 5 (1) of the Hindu Marriage Act, 1955, as well as the explanation added to Sub Rule 7 of Rule 49, the learned Single Judge has held as follows:
'42. Law is settled that two Hindus cannot cantract marriage after the enforcement of the Hindu Marriage Act and if any of them is having a Jiving 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 iaw 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 flaw 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 and relying on protection of Women from Domestic Violence Act, 2005, in the opinion of this Court, is only taking a shelter.' 42, We have discussed the basis on which the various judgments, of course conflicting views, have been rendered. Insofar as the view that the second wife of the Government Servant, who died prior to 02.06.1992 as held in Tamilselvi's case, referred to supra, and the view that a widow of an invalid { second marriage that had taken place prior to 14.10.1991, as held in Pushpavalli's case, have given our reasons, as to why, we are unable to subscribe to the said conclusions of the learned Single Judge. We are, therefore, of the apinion 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 viclatlan of the Jaw of the Jand, viz. the Personal Law of the parties as well as the Criminal Law, which prohibits blgamous marriage.
43, We are, therefore, constrained to conclude that the judgments which canclude that a second wife wauld be entitled to family pension, irrespective of her marriage being void, under the provisions of their ralevant Personal Lawl s applicable to the parties do nat reflect the correct position of law and therefore will stand overruled. The applicability of Sub Rule 7(aj}Gi} is confined anly 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."
7. In view of the aforesaid discussion, it is clear that the applicant had married the deceased during subsistence of earlier wife and as such her marriage was null and void and it was also net covered under any Personal law and as such she would not be entitled to any. benefit of family pension, as claimed by her. In view ofvindicated dé@cision, which. clichés the issue exhaustively, the decision relied upon by applicant in. CWP No. 16834 of 2000 titled NASIB KAUR VS. STA] EOF PUNJAB, rendered on 9.10.2013, does not help her at all, = : in that case the issue was as to whether surviving widow is entitled to fill. pension or half only, despite first wife having died earlier. The legality of second marriage was not an Issue in that case, Even decision dated 28.1.2014 of Bombay Bench of this Tribunal in O.A.No. 2094/2006 ~ SMT. JAVAWANTAB AI VS. UNION OF INDIA ETC.
wa does not help the applicant in view of the observations made by Hon'ble Madras High Court, In the indicated case.
8. In the wake of aforesaid discussion, this Original Application is found to be devoid of any merit and is dismissed. The parties are, however, left to bear their own costs.
(SANJEEV KAUSHIK) MEMBER (3) PLACE: CHANDIGARH DATED: /8-5. 20/5 HC* eet van