AI Structured Summary
Not yet generated for this judgment
Judgment
M. Venugopal, J.—The Petitioner has filed the present writ petition seeking the relief of Writ of Certiorarified Mandamus to call for the records and proceedings of the second Respondent in Na.Ka. No. 4956/B2/06 dated 21.09.2006 and quash the same. Further, the Petitioner has sought for an issuance of a direction in directing the Respondents to grant the Family Pension with arrears and with interest within the period as stipulated by this Court.
The Petitioner has served as a Secondary Grade Teacher in T.D.T.A., K.G.M. High School, (Aided Minority School) Kailasapuram, Tuticorin. She has retired in the year 1985. She has two sons viz, Daniel Joseph who is married and living with his family and another son, Ebenezer Kingsly Diamond and one daughter who is married and living with her family.
The case of the Petitioner is that her son Ebenezer Kingsly Diamond has disappeared from 26.12.1986 and his whereabouts have not been known. Finally, a complaint has been lodged on 30.12.1997 and a criminal case has been registered in Cr. No. 231 of 1997. Later, the learned Judicial Magistrate No. I, Tuticorin, by order in R.C.S. No. 41 of 1999 dated 04.06.1999 disposed of the case as undetected.
According to the Petitioner, her husband struggled for more than 10 years and after his demise, she continues to struggle even today. However, the second Respondent/District Elementary Educational Officer, Tuticorin, passed the impugned order in Na.Ka. No. 4956/B2/06 dated 21.09.2006 rejecting her claim mentioning that as per G.O.Ms. No. 327 Finance (Pension) Department dated 30.08.2001, if an individual claimant''s income exceeds Rs. 2,550/- (Rupees Two Thousand Five Hundred and Fifty only) p.m., then he is not eligible to get the family pension. She is getting a monthly pension of Rs. 3,836/- (Rupees Three Thousand Eight Hundred and Thirty Six only).
The learned Counsel for the Petitioner urges before this Court that the order of the second Respondent in Na.Ka. No. 4956/B2/06 dated 21.09.2006 is an illegal and arbitrary one, besides being opposed to the principles of natural justice.
The learned Counsel for the Petitioner contends that the Petitioner''s right to claim family pension is recognised as per G.O.Ms. No. 478, Finance (Pension) dated 04.06.1987 and G.O.Ms. No. 43 Finance (Pension) dated 22.01.1991 and therefore, the reliance placed by the Respondents is an illegal one.
Advancing his arguments, the learned Counsel for the Petitioner submits that the tenor of the G.O.Ms. No. 327 Finance (Pension) Department dated 30.08.2001 is prospective in nature and the same is not applicable to those cases in which the right is accrued before the date of issuance of the above said Government Order and as such, the impugned order of the second Respondent dated 21.09.2006 is clearly hit by Articles 14 and 16 of the Constitution of India.
Expatiating his submissions, the learned Counsel for the Petitioner submits that the right to get the family pension is a statutory right and there is no such restriction or condition in the Tamil Nadu Pension Rules, 1978 and therefore, the impugned order of the second Respondent dated 21.09.2006 in informing the Petitioner that she is not entitled to receive the pension, is not a valid one in the eye of law.
The learned Standing Counsel for the first Respondent submits that the Government has issued G.O.Ms. No. 327 Finance (Pension) Department dated 30.08.2001 wherein it is mentioned that the dependant mother/father of an unmarried Government servant who died in harness, is eligible for family pension provided she/he is not in receipt of income exceeding Rs. 2,550/- (Rupees Two Thousand Five Hundred and Fifty only) p.m. and further that, they should produce the annual certificate to the effect that their earning is not more than Rs. 2,550/-(Rupees Two Thousand Five Hundred and Fifty only) p.m.
The learned Standing Counsel for the first Respondent takes a plea that the Petitioner''s income has exceeded the limit of Rs. 2,550/- (Rupees Two Thousand Five Hundred and Fifty only) p.m. as prescribed by G.O.Ms. No. 327 Finance (Pension) Department dated 30.08.2001 (the annual income of the Petitioner being Rs. 46,032/-) and as such, she is ineligible to receive the family pension as she has not satisfied one of the conditions imposed/specified therein. Also, the Petitioner cannot be said to be a person who wholly depended on the deceased Government servant for her living.
Added further, it is the plea of the learned Counsel for the first Respondent that as per G.O.Ms. No. 327 Finance (Pension) Department dated 30.08.2001, only past cases already settled need not be re-opened and that the orders shall take effect from the date of issuance of G.O namely the case settled/authorised after the date of issuance of the G.O. shall be bound by the aforesaid conditions.
The learned Government Advocate for the second Respondent contends that the family pension proposal of the Petitioner has been forwarded to the Accountant General, Chennai, by the Assistant Elementary Educational Officer, Ottapidaram, as per his letter dated 04.08.2005 and later, the said pension proposal has been resubmitted to Accountant General as per the letter of the Assistant Elementary Educational Officer dated 26.10.2005 with the income certificate of the Petitioner. Further, the Accountant General, Chennai, in his letter in PENSION 22/I/E21-997/FB/05-06/219 dated 12.12.2006, informed the Petitioner that she is not eligible to receive the family pension in respect of her son Ebezener Kingsly Diamond who disappeared from 26.12.1986 on the ground that the annual income of the Petitioner is Rs. 46,032/- which is exceeding Rs. 2,550/- (Rupees Two Thousand Five Hundred and Fifty only) p.m. As per the one of the conditions prescribed in G.O.Ms. No. 327 Finance (Pension) Department dated 30.08.2001, the income criteria in respect of the parents, ought not to exceed Rs. 2,550/- (Rupees Two Thousand Five Hundred and Fifty only) p.m.
Apart from the above, the learned Government Advocate for the second Respondent brings it to the notice of this Court that the second Respondent has informed the order passed by the first Respondent/Accountant General, Chennai, in letter dated 12.12.2006, which has already been served to the Petitioner during February 2006 and the order of the second Respondent in R.C. No. 4956/B2/06 dated 21.09.2006 is only a subsequent order after the order passed by the first Respondent/Accountant General, Chennai, who is the competent authority to sanction pension or reject the pension proposal in accordance with Rules and as per law.
It is not out of place for this Court to point out that the Petitioner has submitted her family pension proposal only during August 2005 after the G.O.Ms. No. 327 Finance (Pension) Department dated 30.08.2001 which has come into force from 30.08.2006. Interestingly, the Petitioner has not challenged the G.O.Ms. No. 327 Finance (Pension) Department dated 30.08.2001 and the refusal order dated 12.12.2006 of the first Respondent.
The prime contention advanced on behalf of the second Respondent is that the family pension cannot be sanctioned to the Petitioner in utter disregard to the Government Orders and Pension Rules that are in force from time to time and therefore, the order passed by the authorities are in accordance with the Government Order and hence, they are valid and legally sustainable one in law.
The learned Counsel for the Petitioner contends that the rules framed by the State must be reasonable and fair one and the same ought not to be an unjust one and to lend support to the same, relies on the decision of the Honourable Supreme Court in O.P. Gupta Vs. Union of India (UOI) and Others, , at page 2258, wherein it is held as follows:
The expression ''life'' does not merely connote animal existence or a continued drudgery through life. The expression ''life'' has a much wider meaning. Suspension in a case like the present where there was no question of inflicting any departmental punishment prima facie tantamounts to imposition of penalty which is manifestly repugnant to the principles of natural justice and fairplay in action. The conditions of service are within the executive power of the State or its legislative power under the proviso to Article 309 of the Constitution, but even so such rules have to be reasonable and fair and not grossly unjust. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the Executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration. It is fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case.
He also draws the attention of this Court to the order passed by this Court in W.P. (MD) No. 6868 of 2005 between Alagarsamy v. The Principal Accountant General, 361, Anna Salai, Chennai-18 and Anr. dated 18.11.2010, wherein at paragraphs 11 and 12, it is observed and held thus:
Nextly, the learned Counsel appearing for the Petitioner would submit that as per paragraph No. 4 of the Government Order, the same shall take effect only from 30.08.2001, whereas the Petitioner''s son died on 01.08.2001 and, therefore, the Government Order in question cannot have retrospective effect. For this proposition, the learned Counsel would rely on a judgment of the Hon''ble Supreme Court in K. Kuppusamy and Another Vs. State of T.N. and Others, , wherein in paragraph No. 3, the Hon''ble Supreme Court has held as follows:
The short point on which these appeals must succeed is that the Tribunal fell into an error in taking the view that since the Government had indicated its intention to amend the relevant rules, its action in proceeding on the assumption of such amendment could not be said to be irrational or arbitrary and, therefore, the consequential orders passed have to be upheld. We are afraid this line of approach cannot be countenanced. The relevant rules, it is admitted, were framed under the proviso to Article 309 of the Constitution. They are statutory rules. Statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken a decision to amend the rules does not mean that the rule stood obliterated. Till the rule is amended, the rule applies. Even today the amendment has not been effected. As and when it is effected ordinarily it would be prospective in nature unless expressly or by necessary implication found to be retrospective. The Tribunal was, therefore, wrong in ignoring the rule.
Now, it is too well settled by the Hon''ble Supreme Court that unless a Government Order, statute rule or regulation specifically states that it will have retrospective operation, it should be construed that it will have only prospective operation. That is the view taken by the Hon''ble Supreme Court in the above said judgment also. A close reading of G.O.Ms. No. 327 ipso facto clear that there is no specific direction that the said Government Order shall have retrospective operation from any date. Therefore, it shall be construed that the Government Order is only prospective in operation.
Also, in the aforesaid order, at paragraphs 14 to 16, it is observed as hereunder:
In my considered opinion, the said argument cannot be countenanced at all. As held by the Hon''ble Supreme Court in the above said judgment, a Government Order cannot be modified or cancelled by a letter. Otherwise, it will amount to allowing a Government Letter to override the Government Order or statutory rule or any statutory provision. Therefore, the clarification issued by the Government under letter dated 13.09.2004 cannot be considered at all. Therefore, now, it clearly emerges that as per paragraph No. 4 of the Government Order, the Government Order is prospective in operation and, therefore, it is applicable only in respect of the claims made on account of the demise of a Government servant, who died after 30.08.2001.
In such view of the matter, I find that the impugned order is liable to be interfered with.
In the result, the Writ Petition stands allowed and the impugned order is set aside and the matter is remitted back to the first Respondent, who shall grant family pension to the Petitioner, if he is otherwise eligible and if he satisfies the other conditions required under the relevant rules. Now, it is brought to the notice of this Court by the learned Counsel appearing for the first Respondent, the proposal has been sent back to the second Respondent after rejection. Therefore, the second Respondent is directed to re-submit the proposal to the first Respondent, within a period of four weeks from the date of receipt of a copy of this order and the first Respondent, in turn, is directed to pass final orders in this matter, within a period of eight weeks thereafter. No costs.
It is to be noted that in W.P. (MD) No. 6868 of 2005, the Petitioner''s son, a Government servant who worked as Secondary Grade Teacher in a Government School expired on 01.08.2001. However, in the instant case on hand, the Petitioner''s son said to have disappeared from 26.12.1986 and his whereabouts were not known. Only on 30.12.1997, a complaint has been lodged as to the disappearance of the Petitioner''s son Ebenezer Kingsly Diamond and a criminal case in Cr. No. 231 of 1997 has been registered. Later, the learned Judicial Magistrate No. I, Tuticorin, by order dated 04.06.1999 in R.C.S. No. 41 of 1999 has passed the following:
The above case was registered by Puthiamputhur Police. Now after due investigation, a final report was filed and the case as Un Report perused. There is no material to interfere give the finding of the investigating officer. So the report is accepted and the case is referred as UN.
At this stage, this Court pertinently points out that Section 107 of the Indian Evidence Act, 1872, refers to the burden of proving death of person known to have been alive within thirty years. As a matter of fact, the ingredients of Section 107 of the Indian Evidence Act, 1872 are as follows:
When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
Section 108 of the Indian Evidence Act, 1872, speaks of burden of proving that person is alive who has not been heard of for seven years and the same enjoins thus:
[Provided that when] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.
To put it precisely, Sections 107 of the Indian Evidence Act, 1872, deals with presumption of continuance of life, whereas Section 108 of the Indian Evidence Act, 1872, deals with the presumption of death.
If, when an individual''s existence is in doubt or question, he is shown to have been living at a given time within thirty years and there is nothing to suggest the probability of his death, the continuance of life will be presumed and the person who asserts the contrary has the burden to establish it.
This is embodied u/s 107 of the Indian Evidence Act, 1872. It must be remembered that the presumption extends merely to the fact of death at the expiration of seven years; but not to the time of death at any particular period, viz., there is no presumption that the death took place after the end of the period of seven years or at any other particular time within that period. A person asserting that death occurred at any particular time must prove it like any other fact. The mere fact that a person has not been heard of for seven years does not raise the presumption of death where the circumstances are such that it is not likely that he would or could have communicated with his home even if he were alive. There is a presumption in favour or continuance of human life and this presumption of continuance of life is not of law but of fact, as opined by this Court.
This Court aptly recalls the decision in Lal Chand Marwari v. Mahant Ramrup Gir reported in AIR 1926 PC 9, wherein it is mentioned as follows:
There is only one presumption, and that is that when these suits were instituted in 1916 Bhawan Gir was no longer alive. There is no presumption at all as to when he died. That, like any other fact, is a matter of proof ...
Now, upon this question there is, their Lordships are satisfied, no difference between the law of India as declared in the Evidence Act and the Law of England (Rango Balaji v. Madiyeppa) persistent heresy, Their Lordships find it in the words in which the rule both in India and in England is usually expressed. These words taken originally from In re, Phene''s Trusts run as follows:
If a person has not been heard of for seven years, there is a presumption of law that he is dead: but at what time within that period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.'' Following these words, it is constantly assumed - not perhaps unnaturally - that where the period of disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. This, of course, is not so. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if, instead of speaking of a person who had not been heard of for seven years, it described the period of disappearance as one of not less than seven years.
Be that as it may, in M. Monir''s Principles and Digest of the Law of Evidence, Vol.2, 7th Edn. at page 1145, it is observed thus:
The only presumption enjoined by Section 108 of the Evidence Act being that a person who has not been heard of for seven years or more is dead at the time the question is raised, there can be no presumption of his being dead or alive at any particular time of the period for which he has not been heard of. There is neither any presumption of his being alive for a period of seven years from the time he was last heard of; nor any presumption of his having died immediately after his disappearance, nor any presumption of his being alive or dead at any particular time antecedent to the suit or proceeding in which the question of his being dead or alive arises. The result, therefore, is that where nothing more is shown than that a person has not been heard of for seven years or more, the party, on whom the burden of proving him to be alive or dead at any particular time during the period he has not been heard of lies, will fail.
In Sarkar on Evidence, 14th Edn., at page 1438, it is summarised as follows:
If a person is not heard of for seven years there is a presumption of the fact of death at the expiration of seven years, but the exact time of death is not a matter of presumption but of evidence and the onus of proving that death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential. There is no presumption that death took place at the close of seven years.
There is no presumption as per Section 108 of the Indian Evidence Act, 1872, that a person died on a particular date or on expiry of seven years as per the decision in N. Jayalakshmi Ammal and another Vs. R. Gopala Pathar and another, , at page 999.
Presumption of civil death or fictional death u/s 108 of the Indian Evidence Act, 1872, amounts to physical death in the eye of law for giving the widow a right to file a suit as per the decision in Parikhit Muduli and Others Vs. Champa Dei and Others, .
It is to be borne in mind that the revenue officials cannot issue certificate of death or widowhood based on the presumption, as per the decision in N. Prem Ananthi Vs. Tahsildar, Coimbatore and Others, , at page 251.
As far as the present case is concerned, even though on the side of the Petitioner, it is averred that on the disappearance of her son, Ebenezer Kingsly Diamond on 26.12.1986, her right has accrued and the cause of action has been arisen for the Petitioner and further that, a complaint has been lodged on 30.12.1997 on the basis of which, a criminal case in Cr. No. 231 of 1997 has been registered and later, an order in R.C.S. No. 41 of 1999 has been passed by the learned Judicial Magistrate No. I, Tuticorin on 04.06.1999 that the case has been undetected, this Court is of the considered view that the Petitioner has not obtained any declarative decree from the civil Court that her son Ebenezer Kingsly Diamond has been dead at a given date namely 26.12.1986, which certainly has to be decided on all the evidence available at the date of hearing and as such, this Court comes to an inevitable conclusion that although G.O.Ms. No. 327 Finance (Pension) Department dated 30.08.2001, is only prospective in nature, the Petitioner is not entitled to the relief sought for by her in this writ petition. Resultantly, the writ petition fails.
In the result, this writ petition is dismissed leaving the parties to bear their own costs.