Central Administrative Tribunal - Lucknow
Unknown vs Union Of India Through on 16 September, 2016
CENTRAL ADMINSTRATIVE TRIBUNAL
LCUKNOW BENCH, LUCKNOW
Original Application No. 480 of 2014
Order was reserved on 09.09.2016
Pronounced on 16.09.2016
Honble Mr. Justice V.C. Gupta, Member (J).
Smt. Geeta Tiwari, aged about 68 years, wife of Late D.N. Tiwari, resident of MDH-4/7, Sector-H, Jankipuram, Lucknow.
.Applicant
By Advocate: Sri P.K. Rai
Versus
1. Union of India through, Secretary, Ministry of Mines, Shastri Bhawan, New Delhi.
2. Director General, Geological Survey of India, 27 Jawahar Lal Nehru Road, Kolkata.
3. Deputy Director General, Geological Survey of India, Northern Region, 2nd Floor, Sector-E, Aliganj, Lucknow.
Respondents
By Advocate: Sri P.C. Rai.
ORDER
This OA has been filed by Smt. Geeta Tiwari who is wife of late D.N. Tiwari an employee of Hindustan Copper Limited. She was denied the benefit of family pension. Consequently, she claim the following relief(s) :
(i) to set aside the impugned order dated 23.04.2013 issued by the opposite parties, as contained in Annexure No.1 to this Original Application.
(ii) to direct the opposite parties to grant/sanction family pension to the petitioner and pay the same to the petitioner each and every month.
(iii) to direct the opposite parties to pay the arrears of the family pension with effect from the death of her husband i.e. 2709.2009 along with an interest at the rate of 18% per annum till the date of actual payment.
(iv) to pass such other which this Honble Tribunal may deem fit and proper under the circumstances of the case.
(v) award the cost of Original Application in favour of the Applicant.
2. The brief facts of the case are that the applicants husband was Assistant Chemist in Geological Survey of India (GSI), Lucknow. When he was in deputation in Hindustan Copper Limited (HCL). he was permanently absorbed on 10th December 1972. The terms of absorption was decided by the Ministry of Steel and Mines, Government of India vide its letter dated 22nd August 1979. In clause- (ii) of this letter it was provided that after the permanent absorption of Mr. Tiwari in HCL he shall be eligible for pro rata pension and Death-cum-Retirement Gratuity (DCRG) based of length of his qualifying service in the Government of India till his permanent absorption in the HCL under pro rata pension/ DCRG rules. The calculation of pro rata basis pension would be in accordance with rules 33 and 34 of CCS Pension Rules, 1972.
3. The amount of pro rata pension and DCRG would be disbursable to Mr. Tiwari in addition to his pay wherein he will draw from HCL from the date his permanent absorption. In Clause-(v) the officer had to exercise the option within 6 months from the date of issue of letter for providing pension & DCRG or for in alternative indicated therein. In clause (vi) it has been indicated that after permanent absorption of Mr. Tiwari in HCL the family of Mr. Tiwari will be eligible for family pension subject to provision of rule of 54 of CCS (Pension) Rule 1972 and other order issued by Government of India from time to time. For ready reference Clause- (ii), (iii), (iv), (v) & (vi) of letter dated 22.08.79 are reproduced herein below:
(ii) PENSION / GRATUITY : on his permanent absorption in the Hindustan Copper Limited Dr. D.N. Tiwari shall be eligible for pro-rata pension and death-cum-retirement gratuity based on the length of his qualifying service under the Government of India till the date of his permanent absorption in the HCL as admissible under the pro-rata pension/death-cum-retirement gratuity rules for officers of the Central Civil Service in force on the above mentioned date.
(iii) The pro-rata pension and death-cum-retirement gratuity will be calculated respectively on the basis of average emoluments and emoluments as calculated subject to the provision of Rules 33 and 34 of CCS (Pension) Rule, 1972.
(iv) The amounts of pro-rata pension and death-cum-retirement gratuity, which would be worked out and intimated to Dr. D.N. Tiwari as well as to the HCL would be disbursable to the officer in addition to his pay in HCL from the date of his permanent absorption, provided the officer gives an undertaking that in the event of the service the officer terminating at the instance of either HCL or the officer within a period of two years from the date of his retirement from Government of India service and permanent absorption in HCL the approval of the Government of India would be obtained by the Officer before he takes any private employment.
(v) The Officer will exercise an option, within six months of the date of issue of this letter, for either of the alternative indicated below:-
(a) Receiving the pro-rata monthly pension and Death-cum-retirement gratuity as admissible under clause (ii), (iii) and (iv) above, under the Government of India Rules:-
(b) Receiving the pro-rata Gratuity and a lump-sum amount in lieu of pension worked out with reference to commutation tables obtaining on the date from which pension will be admissible and payable under option orders.
(vi) On his permanent absorption in HCL Dr. D.N. Tewari family will be eligible for family pension subject to the provisions of Rule 54 of CCS (Pension) Rules, 1972 and any other orders issued by Government from time to time, provided is not covered by any other family pension scheme applicable to HCL staff.
4. The pension of Mr. Tiwari was fixed Rs. 77/- pm w.e.f. 10th December 1972. The copy of Payment of Pension Order (PPO) has been filed. Dr. Tiwari passed away on 27th December 2009 at Pune and she claimed the family pension after the death of her husband.
5. For in action of the respondents the applicant filed an OA No. 100 of 2013 (Geeta Tiwari Vs. U.O.I. & Others) before this Tribunal which was disposed of by order dated 15.03.2013 directing Director General, GSI to decide the claim of Family Pension of the applicant by passing a reasoned and speaking order. In pursuance there of impugned order dated 23.04.2013 has been passed. The claim of the applicant was declined by an order dated 23.04.2013. The impugned order dated 23.04.2013 is quoted herein below:
Government of India Geological Survey of India Northern Region, E/2, Aliganj.
No.----/PEN/GSI/NR/53/77 (DNT) Lucknow, 2013 Speaking order in pursuance of order dated 15.03.2013in OA No. 100 of 2013 (SB) passed by the Honble CAT, Lucknow Bench.
Smt. Geeta Tiwari wife of late Shri D.N. Tiwari has approached Honble CAT, Lucknow Bench, Lucknow and filed OA No. 100/13 Vrs. UOI & DG, GSI /DDG, NR for grant of family pension. In the above OA the Honble CAT, Lucknow Bench in its verdict dated 15.03.2013 has directed Director General, GSI to pass a reasoned and speaking order. The operational portion of the order dated 15.03.2013 is reproduced below:
2. In view of the above facts and submission of both the counsel, I deem it just and proper to direct the respondent no. 2 to decide the case, with respect to the representation moved by the applicant from time to time latest being of 24.09.2011 and pass a reasoned and speaking order within a period of 6 weeks from the date of certified copy of this order is received by him.
3. With the above direction, the OA is disposed of at the admission stage. No costs.
As a matter of fact Shri D. N. Tiwari, Asstt. Chemist, rendered service in GSI, NR wef 11.04.1962 to 10.12.1972. he was permanently absorbed with Hindustan Copper Ltd. w.e.f. 10.12.1972 in term of Ministry of Steel and mines letter : No. A-19011/13/79-M.2 dated 22.8.79. the pro-rata pension for services in GSI, amounting to Rs. 77/-pm was authroised to Shri D.N. Tiwari, vide PPOI No. PAO/GSI/NR/169. In inspite a clear instruction at para-iv of sanction letter, Shri D.N. Tiwari had not furnished his option for grant of family pension from the Central Government as required vide rule 54 (13B) of CCS (Pension) Rules 1972 reproduced below:-
(13B): Family pension admissible under this rule shall not be granted to a person who is already in receipt of family pension or is eligible therefore under any other rules of the Central Government or a State Government and or Public Sector undertaking/Autonomous Body/ Local fund under the Central or a State Government. In the absence of option as per above, there was no mention in Form-7 for entitlement of family pension at the time of his pension papers were forwarded to PAO, NR and PPO of Shri D.N. Tiwari does not contain the endorsement for payment of family pension.
The pensioner Shri D.N. Tiwari died on 27.09.2009. Smt. Geeta Tewari, had requested for grant of family pension vide letter dated 04.05.2010 but a perusal of pension file reveals that Shri D.N. Tewari had not opted for payment of family pension under the Central Govt. the request of Smt. Geeta Tewari could not be acceded to & facts were intimated to her vide this office letter dated 11.06.2010.
Thereafter Smt. Geeta Tewari has approached Honble CAT, Lucknow Bench, Lucknow and filed OA 100/2013 Vrs UOI & DG.GSI/DDG, NR. The Honble CAT in his verdict dated 15.03.2013 has directed to pass a reasoned and speaking order as stated above.
In the absence of option as required vide Deptt. of Pension & Pensioners Welfare Office Memo. No. 1-18/86-P&PW (D) dated 22.1.90 Smt. Geeta Tewari wife of deceased pensioner is not eligible for grant of family pension under CCS (Pension) Rules 1972.
Sd/-
(A Sundarmoorthy) Director General, GSI
6. Aggrieved by the impugned order she filed a Writ Petition before the Honble High Court having No. 5018 (SS) of 2014 which was disposed on 10th December 2014 with direction to the applicant to take recourse which was available to her in the Central Administrative Tribunal. Consequently the present OA is filed.
7. The counter affidavit has been filed by the respondent and in para-13 they have taken a defence that Dr. Tiwari has not exercised the option for grant of family pension from the Central Government as required under Rule 54 of CCS Pension Rule 1972 despite clear instruction contained in clause (v) of the letter dated 22.08.1979, hence she will not be entitled to get family pension. Similar grounds were taken to decline to grant of family pension to the applicant in the counter affidavit.
8. RA has also been filed reiterating the allegation made in the OA.
9. Heard learned counsel for the applicant Sri P.K. Rai and Counsel for the respondents Sri P. C. Rai and perused the record.
10. The perusal of order impugned reveals that benefit of family pension was declined on two grounds.
(i) That Rule 54 sub rule 13 (B) of CCS (Pension) Rule 1972 provides the family pension admissible under this rule shall not be granted to a person who is already receiving family pension or is eligible therefore under any other rule of the Central Government or State Government/ Public Sector Undertaking / Autonomous Body / Local funds under the Central Government /State Government.
(ii) That Mr. Tiwari has rendered service in GSI w.e.f. 11.04.1962 to 09.12.1972. He was granted pro rata pension for the services in GSI but Mr. Tiwari inspite clear instruction at para-v of letter dated 22.08.1979 has not furnish option for grant of family pension from the Central Government as required under sub rule 13(B) of Rule 54 of CCS (Pension) Rules 1972, so she has not been granted family pension.
11. Learned counsel for the applicant submits that at the time of absorption in HCL it was clearly define in the letter dated 22.08.1979 that the applicant would be eligible for the benefit of family pension subject to provisions of Rule 54 of CCS (Pension) Rule 1972. It was further contended that sub rule 2(iii) of Rule 54 of CCS (Pension) Rule 1972 provides, where a government servant died after retirement of service and was on the date of death was in receipt of a pension or compassionate allowance the family of deceased shall be entitled to get family pension under 1964 scheme.
12. The family pension or pension is right and can not be curtailed without due process of law. Admittedly in this case no departmental or judicial proceeding was pending nor initiated against the deceased employee so the question of not granting of family pension does not arise.
Relevant part of Rule 54 of CCS (Pension) Rule 1972 [Rule 54 (1,2, 2-A, 2-B & 3)] deals with family pension are reproduced herein below.
(1) The provisions of this rule shall apply-
(a) to a Government servant entering service in a pensionable establishment on or after the 1st January, 1964; and
(b) to a Government servant who was in service on the 31st December, 1963 and came to be governed by the provisions of the family pension Scheme for Central Government Employees, 1964, contained in the Ministry of Finance, Office Memorandum No. 9 (16)-E V(A)/63, dated the 31st December, 1963, as in force immediately before the commencement of these rules.
1[Note- The provisions of this rule will also extend, from 22nd September, 1977, to Government servants on pensionable establishments who retire/died before 31-12-1963, as also to those who were alive on 31-12-1963, but had opted out of 1964 Scheme.] 2(2) Subject to the provisions of sub-rule 13-B and without prejudice to the provisions contained in sub-rule (3), where a Government servant dies_
(i) after completion of one year of continuous service; or
(ii) before completion of one year of continuous service, provided the deceased Government servant concerned immediately prior to his appointment to the service or post was examined by the appropriate medical authority and declared fit by that authority for Government service; or
(iii) after retirement from service and was on the date of death in receipt of a pension, or compassionate allowance, referred to in these rules, the family of the deceased shall be entitled to Family Pension(hereinafter in this rule referred to as Family Pension) under the Family Pension Scheme for Central Government Employee, 1964, the amount of which shall be determined at a uniform rate of 30% of basic pay subject to a minimum of three thousand and five hundred rupees per mensem and a maximum of twenty-seven thousand rupees per mensem.
EXPLANATION.- The expression one year of continuous service wherever it occurs in this rule shall be construed to include less than one year of continuous service as defined in Clause (ii);] (2-A) The amount of family pension shall be fixed at monthly rates and be expressed in whole rupees and where the family pension contains a fraction of a rupee, it shall be rounded off to the next higher rupee:
Provided that in no case a family pension in excess of the maximum prescribed under this rule shall be allowed.
3[(2-B) In addition to family pension admissible in accordance with sub-rule (2), (2-A) and (3), after completion of eighty years of age or above, additional family pension shall be payable in the following manner.
Age of family pensioner Additional family pension From 80 years to less than 85 years From 85 years to less than 90 years From 90 years to less than 95 years From 95 years to less than 100 years 100 years or more 20% of basic family pension.
30% of basic family pension.
40% of basic family pension.
50% of basic family pension.
100% of basic family pension.
1. Inserted by G.I. Dept. of P. & P.W. Notification No. 2/18/87-P.&P.W.(PIC), dated the 20th July, 1988 published as S.O. No. 2388 in the Gazette of India, dated the 6th August, 1988.
1. Substituted
2. Inserted Vide G.I. Dept. of P.&P.W. Notification NO. 38/80/2008-P.&P.W. (A) (Part-II) dated the 8th June, 2011, Published as GSR 176 in the Gazette of India dated the 8th June, 2011)
3. (a) (i) Where a Government servant, who is not governed by the Workmens Compensation Act, 1923 (8 of 1923), dies while in service after having rendered not less than seven years continuous service, the rate of family pension payable to the family shall be equal to 50 percent of the pay last drawn and the amount so admissible shall be payable from the date following the date of death of the Government servant for a period of ten years.
(ii) In the event of death of a Government servant after retirement, the family pension as determined under sub-clause (i) shall be payable for a period of seven years, or for a period up to the date on which the retired deceased Government servant would have attained the age of 67 years had he survived, whichever is less:
Provided that in no case the amount of family pension determined under sub-clause (ii) shall exceed the pension authorized on retirement from Government service:
Provided further that where the amount of pension authorized on retirement is less than the amount of family pension admissible under sub-rule (2), the amount of family pension determined under this clause shall be limited to the amount of family pension admissible under sub-rule (2).
(b) (i) Where a Government servant, who is governed by the Workmens Compensation Act, 1923 (8 of 1923), dies while in service after having rendered not less than seven years continuous service, the rate of family pension payable to the family shall be equal to 50 per cent of the pay last drawn or one and a half times the family pension admissible under sub-rule (2), whichever is less.
(ii) The family pension so determined under sub-clause (i) shall be payable for the period mentioned in Clause (a):
Provided that where a compensation is not payable under the aforesaid Act, the Head of Office shall send a certificate to the Accounts Officer to the effect that the family of the deceased Government servant is not eligible for any compensation under the aforesaid Act and the family shall be paid family pension on the scale, and for the period, mentioned in Clause (a)
(c) After the expiry of the period referred to in Clause (a), the family, in receipt of family pension under that clause or Clause (b) shall be entitled to family pension at the rate admissible under sub-rule (2).
13. The perusal of the aforesaid rules make its evidently clear that family of the government servants who was in service on 23th December 1963 and came to be govern by family pension scheme for Central Government employee 1964 contained in OM dated 31st December 1963 would be entitled after the death of the government servant subject to sub rule 13(B) and without prejudice provisions contained in sub rule (3). Sub Rule 13-B was deleted w.e.f. 27th December 2012 but was in existence at the time when husband of the applicant was died on 2009. Rule 13(B) as mentioned in the impugned order reveals that family pension admissible under this rule shall not be granted to a person who is already in receipt of family pension or eligible therefore under any rule of Central Government / State Government / Public Sector undertaking / Autonomous body / local fund under Central Government or state government. Admittedly in this case the case of the respondents is not that the applicant was receiving any family pension under any other scheme under any rule of Central Government / State Government / Public Sector undertaking / Autonomous body / local fund under Central Government or state government. How Rule 13 (B) shall not come in the way for getting family pension by the applicant.
14. So far as question of giving option is concerned as contained in Clause-v of the letter dated 22.08.1979, firstly the option may be exercised for receiving the pro rata pension and DCRG as admissible under clause- (ii), (iii) & (iv) of the aforesaid letter under the government of India rules, and secondly for receiving of pro rata gratuity and lump sum amount in lieu of pension worked out with reference to commutation table obtaining on the date from which pension will be admissible and payable.
15. It is not the case of the applicant that Dr. Tiwari is not getting any pension rather it is categorically mentioned in the impugned order itself that he was getting pro rata monthly pension of Rs. 77/- for the services rendered by him under the GSI. When the husband of applicant was getting the pension it shall be presumed that he opted for pension. It would be incumbent upon the HCL to make payment of pension in addition to the salary to Dr. Tiwari who was entitled to get from the HCL. The amount of pension has been paid by the respondents to Dr. Tiwari apart from salary payable to him from HCL, the respondents are now estopped to plead that the Dr. Tiwari has not opted to pro rata monthly pension.
16. For the sake of arguments if it is presumed that Dr. Tiwari had not given any option then under what circumstance the HCL paid the monthly pro rata pension to Dr. Tiwari. Clause-iv of the letter dated 22.08.1979 makes it clear that the HCL bound to disburse the amount of pro rata pension and DCRG to Mr. Tiwari in addition to his pay in HCL from the date of his absorption. If the respondents were making the payment of pro rata monthly pension to Mr. Tiwari ignoring the option as contained in clause-v of the aforesaid letter even than the respondents would be under legal obligation under Rule of 54 of CCS (Pension) Rule, 1972 for granting the family pension to wife of the deceased employee on the basis of pro rata pension which was payable to Dr. Tiwari under Rule 54 of CCS (Pension) Rules 1972.
17. Hence this Tribunal is of the firm view that neither sub rule 13 (B) of Rule 54 of CCS (Pension) Rule 1972 nor Clause-v of letter dated 22.08.1979 creates any impediment for grant of family pension to the applicant because admittedly late Dr. Tiwari was getting the pro rata pension for service rendered by him in GSI at the time of his death. Consequently, after his death wife certainly be entitled to family pension as contained under Rule 54 of CCS (Pension) Rule 1972.
18. Accordingly this OA is allowed with cost. The impugned order dated 23.04.2013 is set aside. The respondents are directed to grant/sanctioned family pension to the applicant and pay the same to the applicant each and every month with all the arrears upto date from the date of death of her husband alongwith simple rate of interest @ 12% per annum till the actual date of payment within three months from the date of communication of this order.
(Justice V.C. Gupta) Member (J) JNS/-
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