Madras High Court
Sornathai vs The Government Of Tamil Nadu on 12 February, 2018
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.02.2018 CORAM THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P.(MD).No.4925 of 2012 and M.P.(MD)No.2 of 2012 Sornathai .. Petitioner Vs.
1.The Government of Tamil Nadu, Rep. by it's Secretary, Transport Department, Fort St.George, Chennai.
2.The Administrator, Tamil Nadu State Transport Corporation Employees Pension Trust Fund Trust, Thiruvalluvar House, Pallavan Salai, Chennai-2.
3.The Manager,
Tamil Nadu State Transport Corporation,
Vannarpettai, Tirunelveli. .. Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order of the 2nd respondent herein in f.vz;.44gp2jmnghfCXepjpbgh/2011-9633 dated 28-10-2011 and quash the same and further direct the 2nd respondent herein to sanction and pay family pension to the petitioner (widow of the retired employee late Mr.S.Mariappan) with arrears and interest and continue to pay family pension.
!For Petitioner : Mr.D.Nallathambi
^For Respondents : Mr.R.Sethuraman (for R1)
Special Government Pleader
Mr.K.Sathya Singh(for R2 & R3)
:Order
The order of rejection dated 28.10.2011 in relation to grant of duel family pension to the petitioner is under challenge in this Writ Petition.
2. The husband of the petitioner late Mr.S.Mariappan, was an ex- service man, who served in the Indian Army from 18.12.1965 to 01.10.1981. After his retirement, Military Pension was sanctioned to him and he was receiving the same till his date of death. Soon after the retirement, the husband of the writ petitioner was appointed in the transport corporation as driver on 01.01.1985. he was appointed as fresh entrant in the transport corporation, under ex-service man quota. The husband of the writ petitioner retired from transport corporation on 31.07.2005 on attaining the age of 58 years.
3.The grievances of the writ petitioner is that the husband of the writ petitioner paid contribution to the Employees' Provident Fund and after his retirement he had received the Employees' Provident Fund from the Central Bank of India, Tirunelveli Junction till his date of death. The husband of the writ petitioner passed away on 13.09.2006. The petitioner filed O.S.No.94 of 2007 before the Proncipal District Munsif Court, Sanakarankoil and got a declaration that the petitioner and her children are the legal heirs of the deceased employee late Mr.S.Mariappan. Along with that details she made a request to sanction the family pensin to the transport corporation. However, the transport corporation had not sanctioned the same and the claim of the writ petitioner was rejected on the ground that there is no provision to grant duel family pension as per the rules. Thus, the writ petitioner is constrained to move the present Writ Petition.
4.The learned counsel appearing on behalf of the respondents opposed the contention by stating that there is no provision for grant of duel family pension. The writ petitioner is drawing the military family pension from the defence department and therefore the second family pension cannot be granted by the transport corporation. Further it is stated that all the contributions as applicable were disbursed in favour of the deceased employee and therefore the writ petitioner cannot seek any family pension.
5.This Court is of an opinion that the services rendered by the deceased employee as driver was from 01.01.1985 to 31.07.2005. He had completed almost 20 years of service and all the contributions were made by the deceased employee while he was in service. This apart the deceased employee has served the minimum period of 10 years for the purpose of grant of pension. When the deceased employee himself was eligible for pension based on the service rendered by him in the transport corporation, the family pension cannot be denied. Military pension is not amalgamated with the transport corporation pension. Military pension granted to the deceased employee based on the services rendered by him in the Indian Army. However, in the transport corporation, the employee served more that 20 years and therefore the family pension as applicable under the rules cannot be denied to the writ petitioner.
6.The learned counsel appearing on behalf of the writ petitioner sited a Judgment rendered by this Court in the case of Tamil Nadu Arasu Pokkuvarathu Vs. The Government of Tamil Nadu on 7 September, 2010. This Court relied upon a Judgement of the Hon'ble Supreme Court of India in the case of D.S.Nakara Vs. Union of India reported in (1983) 1 SCC 305, wherein in paragraph Nos.21, 22, 23, 25 and 26 has held as follows:-
21.. The Constitution Bench of the Supreme Court in the decision reported in (1983) 1 SCC 305 (D.S. Nakara v. Union of India) in para 29 described 'pension' as follows:
" 29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison detre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon."
22. In the decision reported in 1985 (3) SCC 345 (Poonamal v. Union of India), the Supreme Court explained the object of family pension in para 7, which reads thus, " 7. It is not necessary to examine the concept of pension. As already held by this Court in numerous judgments pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right. (Deoki Nandan Prasad v. State of Bihar, State of Punjab v. Iqbal Singhand D.S. Nakara v. Union of India.) Where the Government servant rendered service, to compensate which a family pension scheme is devised, the widow and the dependent minors would equally be entitled to family pension as a matter of right. In fact we look upon pension not merely as a statutory right but as the fulfilment of a constitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, old- age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate. That is how pension has been looked upon in D.S. Nakara judgment. At the hearing of this group of matters we pointed out that since the family pension scheme has become non- contributory effective from September 22, 1977 any attempt at denying its benefit to widows and dependents of Government servants who had not taken advantage of the 1964 liberalisation scheme by making or agreeing to make necessary contribution would be denial of equality to persons similarly situated and hence violative of Article 14. If widows and dependents of deceased Government servants since after September 22, 1977 would be entitled to benefits of family pension scheme without the obligation of making contribution, those widows who were denied the benefits on the ground that the Government servants having not agreed to make the contribution, could not be differently treated because that would be introducing an invidious classification among those who would be entitled to similar treatment. When this glaring dissimilar treatment emerged in the course of hearing in the Court, Mr B. Dutta learned counsel appearing for the Union of India requested for a short adjournment to take further instructions."(Emphasis Supplied)
23. Denial of family pension by the High Court to an illiterate widow of a Gangman in the Railways for certain period on the ground of delay in approaching the Court was not approved by the Supreme Court. The Supreme Court allowed the claims of the widow with costs in the decision reported in 2003 (1) SCC 184 (S.K. Mastan Bee v. G.M., South Central Railway). In paragraphs 6 and 7, it is held thus:-
" 6. We notice that the appellants husband was working as a Gangman who died while in service. It is on record that the appellant is an illiterate who at that time did not know of her legal right and had no access to any information as to her right to family pension and to enforce her such right. On the death of the husband of the appellant, it was obligatory for her husbands employer viz. the Railways, in this case to have computed the family pension payable to the appellant and offered the same to her without her having to make a claim or without driving her to a litigation. The very denial of her right to family pension as held by the learned Single Judge as well as the Division Bench is an erroneous decision on the part of the Railways and in fact amounting to a violation of the guarantee assured to the appellant under Article 21 of the Constitution. The factum of the appellants lack of resources to approach the legal forum timely is not disputed by the Railways. The question then arises on facts and circumstances of this case, was the Appellate Bench justified in restricting the past arrears of pension to a period much subsequent to the death of the appellants husband on which date she had legally become entitled to the grant of pension? In this case as noticed by us hereinabove, the learned Single Judge had rejected the contention of delay put forth by the Railways and taking note of the appellants right to pension and the denial of the same by the Railways illegally considered it appropriate to grant the pension with retrospective effect from the date on which it became due to her. The Division Bench also while agreeing with the learned Single Judge observed that the delay in approaching the Railways by the appellant for the grant of family pension was not fatal, in spite of the same it restricted the payment of family pension from a date on which the appellant issued a legal notice to the Railways i.e. on 1-4-1992. We think on the facts of this case inasmuch as it was an obligation of the Railways to have computed the family pension and offered the same to the widow of its employee as soon as it became due to her and also in view of the fact that her husband was only a Gangman in the Railways who might not have left behind sufficient resources for the appellant to agitate her rights and also in view of the fact that the appellant is an illiterate, the learned Single Judge, in our opinion, was justified in granting the relief to the appellant from the date from which it became due to her, that is the date of the death of her husband. Consequently, we are of the considered opinion that the Division Bench fell in error in restricting that period to a date subsequent to 1-4-1992.
7. In the said view of the matter, we allow this appeal, set aside the impugned order of the Division Bench to the extent that it restricts the right of the appellant to receive family pension only from 1-4-1992 and restore that right of the appellant as conferred on her by the learned Single Judge, that is from the date 21-11-1969. The Railways will take steps forthwith to compute the arrears of pension payable to the appellant w.e.f. 21-11-1969 and pay the entire arrears within three months from the date of the receipt of this order and continue to pay her future pension."
25. In this case, the pensioners, while living, were granted Transport Corporation pension without counting their military service. The said position is not in dispute. The widows or other persons are getting family pension from the Central Government for the military service rendered by the pensioners. For the services rendered to the Transport Corporations, their widows and eligible wards are entitled to get family pension from the Transport Corporation also.
26. Bearing the above said principles and payment of family pension to the widows of the pensioners being not a charity, and the pensioners were paid both military pension and service pension during their lifetime, the respondents are bound to pay family pension to the petitioners herein, even though they are receiving military family pension after the demise of the pensioners. However, the family pensioners are eligible to get Dearness Allowance only for one pension (either for Military Family Pension or for Transport Corporation Pension) in terms of the Supreme Court judgments reported in 1995 (2) SCC 32 (Union of India vs. G. Vasudevan Pillay) and in 2000 (2) SCC 227 (Haryana S.E.B., vs. Azad Kaur).
7.Apart from the Judgement of this Court, recently the Government of Tamil Nadu issued G.O.Ms.No.290, Public (EX-Servicemen) Department, dated 05.04.2017 the Government based announcement of the Hon'ble Chief Minister of India for sanction of duel family pension for the families of Defence personnel issued the following order:
4.After careful examination, the Governance has decided to accept the proposal of the Joint Director (i/c), Directorate of Ex-Servicemen's Welfare and accordingly order for the sanction of Duel Family Pension to those families of Ex-Servicemen who have been re-employed in Civil (i.e.) State Government Service and earned a pension out of the re-employment prior to 01.04.2003 (i.e.) before the introduction of Contributory Pension Scheme, in addition to Military Family Pension already drawn by them.?
8.The said G.O.Ms.No.290 was adopted by the Tamil Nadu Generation And Ditribution Corporation LTD., (TANGEDCO). Paragraph Nos.2 and 3 are as under:-
?2.Accordingly, it is hereby ordered that Duel Family Pension be sanctioned to those families of Ex-Servicemen who have been re-employed in Civil (i.e.) State Government Service, Tamil Nadu Generation and Distribution Corporation etc., and earned a pension out of the re-employment prior to 01.04.2003 (i.e.) before the introduction of Contributory Pension Scheme, in addition to Military Family Pension already drawn by them.
3.This order shall take effect from 02.09.2016.?
9.Thus, it is clear that the policy regarding grant of duel family pension was also accepted by the Government as policy. The Transport corporation being the state owned organization cannot deny the same to the similarly placed persons. When the state adopted a policy for granting of duel family pension to the families of the defence personnel, then the same cannot be denied and any such denial will amount to discrimination.
10.This being the factum of the case, this Court is inclined to consider the present writ petition. Accordingly, the impugned order passed by the second respondent in proceedings f.vz;.44gp2jmnghfCXepjpbgh/2011-9633 dated 28.10.2011 is quashed and the respondents are directed to sanction family pension to the writ petitioner from the date of death of the deceased employee and pay the arrears of family pension within a period of twelve weeks from the date of receipt of a copy of this order.
11.Accordingly, this Writ Petition stands allowed. No costs.
Consequently, M.P.(MD)No.2 of 2012 is closed.
To The Secretary, The Government of Tamil Nadu, Transport Department, Fort St.George, Chennai.
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