Central Administrative Tribunal - Hyderabad
P Parvathi vs Bsnl on 29 August, 2023
OA No.21/626/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA/021/626/2022
Reserved on: 14.07.2023
Pronounced on: 29.08.2023
Hon'ble Mr. Sudhi Ranjan Mishra, Judicial Member
P. Parvathi, W/o. M. Upadhyayudu,
Aged about 62 years,
R/o. H. No. 15-17-348, Street No.3,
Vidyanagar Colony, Khammam - 507002.
.....Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. Union of India, Rep. by Secretary,
Department of Telecommunications,
Sanchar Bhavan, 20, Ashoka Road,
New Delhi - 110 001.
2. The Principal Controller of Communication Accounts,
Kawadiguda, Bholakpur, Hyderabad.
3. Bharat Sanchar Nigam Limited,
Rep. by Chairman cum Managing Director,
Sanchar Bhavan, Janpath, New Delhi - 110 001.
4. The Chief General Manager,
Bharat Sanchar Nigam Limited,
Door Sanchar Bhavan, Hyderabad - 500 001.
5. The General Manager Telecom District,
Nalgonda District, Nalgonda.
6. The Deputy Registrar for Cooperative Societies,
Khammam Division, Khammam.
....Respondents
(By Advocate: Mrs. B. Gayathri Varma, Sr. CGSC
Mrs. T. Balajayasree, SC for BSNL)
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ORDER
(As per Mr. Sudhi Ranjan Mishra, Judicial Member) The applicant filed the OA seeking the following relief:
"...to declare the inaction of the respondents in not finalizing the family pension and pensionary benefits of the applicant on the ground of pendency of Surcharge Order by the Deputy Registrar's Cooperative Societies, Khammam as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India and rules on the subject matter and law of the land and consequently direct the respondents to release family pension and pensionary benefit of the applicant forthwith..."
2. It is the case of the applicant that her husband was initially appointed as Lower Division Clerk in the erstwhile Dept of Telecommunications in 1985 and retired as Senior Section Supervisor (O) on attaining the age of superannuation on 30.06.2014. The husband of the applicant had functioned as President of the Cooperative Credit Society in BSNL from 2000 to 2010 and in that connection, certain proceedings were initiated against him on 28.06.2014 for recovery of Rs.31,00,461/- along with interest of 9% p.a. from 01.04.2011. Her husband also secured the interest of the Society by pledging his house property worth Rs.33,00,000/- at government rate. He also challenged the said proceedings dt.28.06.2014 before the Telangana State Cooperative Society, Warangal in CTA No. 04/2014 and the same is pending. It is further stated by the applicant that on pledging the property by her husband, the BSNL released provisional pension, which was continued till his demise on 14.04.2017 and thereafter, it was stopped. She approached various authorities for release of family pension and pensionary benefits. The respondents intimated on 05.02.2018 that family pension and pensionary benefits cannot be processed till the applicant gets clearance certificate from the Cooperative Authorities, Khammam. Page 2 of 12
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3. It is contended by the applicant that with the death of her husband, pending proceedings shall abate and no further action can be taken against the family members. It is also stated by her that, she also approached Pension Adalat on 12.02.2021 and the Principal Controller of Communications Accounts directed the GMTD Nalgonda to submit a detailed report. However, as nothing has been heard thereafter, the present OA is filed.
5. Respondents 3 to 5 i.e. BSNL filed reply stating that the husband of the applicant Sri M. Upadhyayudu, while functioning as President of Khammam District Telecom Employees Cooperative Credit Society Ltd, Khammam, was accused of misappropriation of society funds and the Dy. Registrar of Cooperative Societies, Khammam requested the GMTD, Khammam vide letter dt. 14.06.2013 not to release the pensionary benefits of the applicant. Thereafter, Surcharge Order was passed by the Dy. Registrar on 28.06.2014 for an amount of Rs.31,00,461/-. The retirement benefits payable to the applicant's husband were calculated as Rs.4,68,435/- towards commutation and Rs.6,50,717/- towards DCRG. It is stated that when a person dies, his legal representative is liable to pay any sum payable by the deceased. The factum of pledging of the house worth Frs.33,00,000/- by the applicant's husband is not known to them. CTA No. 04/2014 filed by the applicant's husband before the Telangana State Cooperative Society, Warangal challenging the surcharge order dt. 28.06.2014 is pending and that the District Cooperative Officer vide letter dt. 29.12.2020 intimated that it is not possible to issue NOC as the CTA is pending in Cooperative Tribunal.
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6. It is contended by the Respondent BSNL that provisional pension was released to the deceased employee based on CCA (Pension) Rules, but not for the reason that he had pledged his property and after his death, provisional pension was stopped as the said Rules do not provide for provisional pension to the family of the deceased. It is stated that a clarification was sought from the District Cooperative Officer as to the latest status of the surcharge order and to issue NOC, if permissible, vide letter dt. 31.10.2020, which was replied on 29.12.2020 informing that the appeal of the deceased employee is pending and as such, it is not possible to issue NOC. On 05.04.2021, the applicant requested for early sanction of pension and other benefits, and the 5th respondent, vide letter dt. 03.08.2021, sent a detailed report to the 2nd respondent. The 2nd respondent vide letter dt. 30.09.2021 sought a clear cut recommendations along with legal opinion on the subject and thereon, the 5 th respondent submitted the legal opinion dt. 16.09.2022, which recommended to release the pensionary benefits freezed only after specific order form the Deputy Registrar of Cooperative Society or any higher court. Thus, it is stated that, as the surcharge proceedings would be handled by Society, clearance certificate is required from the said authorities to process the terminal benefits. Therefore, they prayed to dismiss the OA.
7. The 6th respondent i.e. the Dy. Registrar/ District Cooperative Officer, Khammam, filed a reply affidavit, wherein, while detailing the facts vis-à-vis the alleged misappropriation by the applicant's husband, it is clearly stated that learned Cooperative Tribunal vide order dt.21.08.2014 made in IA No. 26 of 2014 in CTA No. 4 of 2014, suspended the operation Page 4 of 12 OA No.21/626/2022 of the surcharge order dt. 28.06.2014 subject to furnishing security for the equal amount. It is also stated by the 6th respondent that the husband of the applicant had deposited the original document No.350/1996 relating to his property in the Hon'ble Cooperative Tribunal as security for the full amount of Rs.31,00,461/-, pending disposal of the appeal vide CTA No. 04/2014. It is also stated that the on the demise of the Sri M. Upadhyayudu, a petition was filed in the said CTA 04/2014 by the applicant with a prayer to bring herself and her son as legal heirs of the deceased appellant, which was not objected to by the respondent authorities. Since no orders were received from the Hon'ble Cooperative Tribunal, the 6th respondent directed the respondent BSNL not to release the pensionary benefits to the applicant.
8. Heard learned counsel for the parties and perused the material available on record.
9. The issue that arises for consideration is whether denial of family pension and pensionary benefits to the applicant consequent to the demise of her husband, on the pretext of Surcharge proceedings initiated by the Deputy Registrar, Cooperative Societies, Khammam is sustainable in law.
10. As seen from the pleadings and material, the husband of the applicant retired on superannuation on 30.06.2014 and just before his retirement, a Surcharge Order dt. 28.06.2014 in Rc. No. 46 of 2013-E got to be passed by the Deputy Registrar of the Cooperative Societies, Khammam ordering recovery of Rs.31,00,461/- along with interest of 9% p.a. from 01.04.2011 Page 5 of 12 OA No.21/626/2022 till realization from the movable and immovable properties of the applicant's husband to make good to the funds of the Society. On appeal before the Telangana Cooperative Tribunal at Warangal, vide order dt. 21.08.2014 in IA No. 26 of 2014 in CTA No. 4 of 2014, the operation of Surcharge Order dt. 28.06.2014 was suspended on furnishing security for the equal amount on or before 04.09.2014. As seen from the counter affidavit filed by the 6th respondent, in compliance of the order of the learned Cooperative Tribunal, the husband of the applicant had deposited the original document No. 350/1996 relating to his property as security for the full amount of Rs.31,00,461/-. He was sanctioned provisional pension from 01.07.2014 to 14.04.2017 i.e. till his death. Thereafter, it was stopped. In fact, the 2nd respondent vide letter dt. 30.09.2021 addressed to the 5th respondent opined that the Surcharge Order ordered for recovery of the amount from movable and immovable properties and in the absence of any order attaching pensionary benefits/pension/ family pension by any court of law, not granting the same will invite legal complications. Despite the same, no steps were taken for grant of family pension to the applicant.
11. The main reason cited by the respondents for not granting provisional family pension to the applicant is that there is no provision for payment of the same. In case a Government servant dies while in service, provisional family pension is paid to the spouse of the Government servant under Rule 80-A of CCS (Pension) Rules, pending issue of the Pension Payment Order. OM dt. 29.07.2020 issued by the DOP & PW, provides for sanction of provisional family pension immediately on receipt of a claim for family Page 6 of 12 OA No.21/626/2022 pension and death certificate from the eligible family member, without waiting for forwarding of the family pension case to PAO. Subsequently, OM dt. 03.06.2021 was issued by the said Department requesting all the Ministries/ Departments and their attached and subordinate offices to strictly comply with the rules/ instructions and ensure payment of provisional family pension is done immediately on receipt of the claim with death certificate from the eligible family and also to ensure that PPO for family pension is issued within one month. Such is the importance given to the payment of family pension to the family member of a deceased employee. Though the above Rules/OMs deal with a situation of government employee dying while in service, the object and purpose behind the same has to be seen. As such, not extending at least provisional family pension to the applicant from 2017 onwards after the demise of her husband would cause serious hardship to her.
12. The other ground taken by the respondents is that the proceedings are pending before the Cooperative Tribunal. It is stated by the respondents that surcharge order dt.28.06.2014 was issued for recovery of Rs.31,00,461/- against the applicant's husband. They further state that they were not aware of the pledging the house property by the husband of the applicant and since the appeal is pending and no NOC was issued by the Cooperative Department, the case of the applicant was not processed for payment of family pension. In this regard, it is to be noted that the very surcharge order dt. 28.06.2014 shows that recovery has to be done from the movable and immovable properties of the deceased husband of the Page 7 of 12 OA No.21/626/2022 applicant. As already referred to above, the said order was suspended by the Hon'ble Cooperative Tribunal subject to furnishing security for equal amount and in compliance thereof, he deposited the original document pertaining to his house property i.e. immovable property worth the equal amount sought to be recovered and the said appeal is pending.
13. Thus, this Tribunal is of the view that the amount allegedly misappropriated, for which a surcharge order has been passed against the applicant's husband is safeguarded even if eventually the amount will have to be recovered on conclusion of the proceedings before the Hon'ble Tribunal. On the same count, the family pension and other pensionary benefits, payable to the applicant cannot be stopped any further. The applicant, being a widow and is a senior citizen, it is difficult to manage without any amount paid to her. No pensionary benefits were paid to her husband also, except provisional pension and while receiving the provisional pension, he died in 2017. The applicant's husband retired in 2014 and for almost 9 years from the date of retirement of the applicant's husband, the benefits, which, otherwise, would have been payable to the applicant's husband/ applicant, have been withheld.
14. It is settled law that right to pension is equated to right to property guaranteed under the Constitution of India. Undisputedly, the applicant is entitled for family pension and other pensionary benefits consequent to demise of her husband and the livelihood of the applicant is at stake in the absence of any income in the form of family pension. There is no dispute, whatsoever, about the entitlement of the applicant for family pension and Page 8 of 12 OA No.21/626/2022 pensionary benefits. In Bhagwanti v. UOI, AIR 1989 SC 2088 (2090) ::
(1989) 4 SCC 397, Hon'ble Supreme Court held that "Pension is payable, as pointed out in several judgments of this Court, on the consideration of past service rendered by the Government servant. Payability of the family pension is basically on the self-same consideration." In Violet Issacc v. Union of India, 1991(1) SCC 725, Hon'ble Supreme Court observed that the Family Pension Scheme is in the nature of a Welfare Scheme framed to provide relief to the widow and minor children of the deceased employee.
15. Recently, basing on the law laid down by the Hon'ble Apex Court, Hon'ble High Court of Punjab & Haryana at Chandigarh, in the matter of Kaushalya Devi alias Kushaliya Devi v. State of Punjab & Others, in CWP-1781-2023, vide its judgment dt. 11.04.2023 [2023:PHHC:049022] observed as under:
"15. The right to receive pension and pensionary benefits is a Constitutional Right within the domain of Right to Property under Article 300-A of the Constitution of India. It is not only a Constitutional Right but it has been so held by the Hon'ble Supreme Court that it is also a Human Right. Therefore, considering the facts of this case where the petitioner is a widow and her husband had died 8 years ago, this Court is of the considered view that it is not only that Article 300-A has been violated but even Article 21 of the Constitution of India has also been infringed wherein the State has tried to take away the Right to Life of a widow.
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17. The law with regard to the right to receive the pension and pensionary benefits which are not a bounty of the State also need to be considered in the present case. Way back in the year 1971, a Constitution Bench of Hon'ble Supreme Court in "Deokinandan Prasad Vs. State of Bihar", 1971(2) SCC 330, held that pension is not a bounty of the State and is rather a Fundamental Right under Article 31(1) of the Constitution of India. However, later on by virtue of 44th Amendment of the Constitution of India, Right to Property became a Constitutional Right under Article 300-A of the Constitution of India instead of a Fundamental Right The relevant portion of the aforesaid judgment is reproduced as under:-Page 9 of 12
OA No.21/626/2022 "32. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. The State of Punjab, ILR (1967)1 Punj and Har 278 (FB). The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet-
will and pleasure of the Government and the right to superannuation pension including its amount is a valuable right vesting in a Government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet-will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
33. This Court in State of Madhya Pradesh v. Ranojirao Shinde and another, 1968-3 SCR 489 had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property".
18. Thereafter, in "State of Kerala Vs. M. Padmanabhan Nair", AIR 1985 Supreme Court 356, the Hon'ble Supreme Court observed that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but are valuable rights and property, in their hands. The aforesaid authoritative law was thereafter reiterated by the Hon'ble Supreme Court in "Dr. Uma Agrawal Vs. State of U.P. and another", 1999(2) SCT 347 (SC).
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19. Thereafter, Hon'ble Supreme Court in another authoritative judgment passed in "State of Jharkhand and others Vs. Jitendra Kumar Srivastava and another", 2013(12) SCC 210 again discussed the entire law pertaining to the valuable rights pertaining to the grant of pensionary benefits. Para Nos.8 and 16 of the aforesaid judgment is reproduced as under:-
"8. It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Conceptually it is so lucidly described in D.S. Nakara and Ors. Vs. Union of India; (1983) 1 SCC 305 by Justice D.A. Desai, who spoke for the Bench, in his inimitable style, in the following words:
"18. The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service?
19. What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.
20. The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors. [1971] Su. S.C.R. 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Another Vs. Iqbal Singh(6)".
It is thus hard earned benefit which accrues to an employee and is in the nature of "property". This right to property cannot be taken away without the due process of law as per the provisions of Article 300-A of the Constitution of India."
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24. Consequently, the present petition is allowed. The impugned order (Annexure P-3) dated 29.07.2019 is hereby set aside. The State is directed to fix the pension of the husband of the petitioner and on the basis of the same, fix the family pension of the petitioner and pay to her along with interest @6% per annum from the date of its accrual till the date of its disbursement within a period of three months from today. All the other retiral benefits, which accrued to the husband of the petitioner which has not been paid to the husband of the petitioner shall also be paid to the petitioner along with interest @ 6% per annum within three months from today. In case, the aforesaid amount is not paid to the petitioner within a period of 3 months from today, then the petitioner shall be entitled for future interest @ 9% per annum instead of 6% per annum.
25. Considering the aforesaid circumstances where the petitioner is a widow and is stated to be bed-ridden whose husband died in the year 2015 which is 8 years ago and she had to knock the doors of this Court twice and now for the second time, through a legal aid counsel because of paucity of money, the petitioner shall also be entitled for exemplary costs which are assessed at Rs.2 lacs which shall also be paid to the petitioner within a period of 3 months from today."
15. In view of the above position of law and as the amount sought to be recovered from the applicant's husband is already safeguarded by way of a house property pledged by the applicant's husband and the same is clearly stated by the Hon'ble Cooperative Tribunal, this Tribunal does not see any justification on the part of the respondents in withholding family pension and other pensionary benefits, which are payable to the applicant.
16. In the result, the OA is allowed with a direction to the respondents to settle family pension and pensionary benefits payable to the applicant consequent to the death of her husband, within a period of three months from the date of receipt of copy of this order. There shall be no order as to costs.
(SUDHI RANJAN MISHRA) JUDICIAL MEMBER //evr// Page 12 of 12