Mahalakshmi Tikoo vs State Bank of India and Others

Nirmal Singh, J.—The short question which arises for consideration in this petition is whether the 'mother' who falls in the category of Class

(I) under the Jammu & Kashmir Hindu Succession Act, 1956 (hereinafter called the Act), can be denied the family pension.

The brief facts for the disposal of this petitioner are that son of the petitioner late Virender Kumar Tikoo, who was working as Senior Manager

in the respondent Bank and remained unmarried during his life time, died on 28th December, 2002. Petitioner being the sole legal heir was

dependent upon him. The further fact is that the respondent Bank in exercise of power u/s 50 of the State Bank of India Act, (23 of 1955), framed

Regulations for establishment and maintenance of Pension fund under the State Bank of India Pension Fund Rules, which prescribed for the

payment of family pension in case of death of an employee of the Bank to his/her legal heirs.

After the death of son of the petitioner who had become a qualified member for the purpose of pension on the date of his death, the petitioner

being the sole dependent upon her son, applied for grant of the benefit of family tension to respondent No. 3 vide representation dated 18th of

November, 2003. The claim of the petitioner was rejected on the ground that under the rules, only a widow/widower or the surviving children of

the deceased employee is entitled to this benefit. Petitioner represented before the Chairman of the Bank also but vide impugned order dt. 11th of

February, 2004, the representation of the petitioner has been rejected. It is this order, which is the subject matter of challenge in the present

petition.

The grievance projected by the petitioner is that in terms of the Pension Scheme adopted by the respondent Bank, the son of the petitioner had

become a qualified member for the purpose of pension and after his death the petitioner who is the sole legal heir and dependent upon her son

cannot be denied the family pension. It is stated that for the purposes of succession, the petitioner is governed by the provisions of the Act and so

far as maintenance is concerned, she is governed by the provision of Hindu Options & Maintenance Act, 1960 and in terms of Sections 20 and 21

of the said Act, she being the dependent could claim maintenance from her son during his life time and after his death, she is entitled to, family

pension from the amount which has become due to his deceased son being a qualified member of the respondent Bank for the purpose of pension.

It is a stated that claim of the petitioner should not have been rejected by the respondent Bank.

Respondents in their counter have pleaded that the Bank has introduced the Scheme of family pension w.e.f. 1st of January, 1987 by way of

framing Rule 23(5) in the State Bank of India Employees Pension Fund Rules. It is stated that in terms of the said Rules, the mother of a deceased

employee is not entitled to claim the benefit of family pension. It is further stated that the deceased Virender Kumar Tikoo had not even nominated

the petitioner for grant of terminal benefits like Provident Fund and gratuity. It is thus stated that the petitioner is not entitled to family pension.

I have heard learned Counsel for the parties and perused the record.

u/s 6 of the Act, the property of a male Hindu who has died intestate is to devolve according to the provisions of Chapter II firstly upon the

heirs, being the relatives specified in Class I of the Schedule attached to the Act, and in case, there is no heir of Class I, then upon the heirs being

the relatives as specified in Class II of the Schedule. Class I of the Schedule is relevant and is being re-produced below:

CLASS I

Son; daughter; widow; mother; son of pre-deceased son; daughter of a predeceased son; son of a pre-deceased daughter of a pre-deceased

daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased

son; widow of a pre-deceased son.

A perusal of the above schedule shows that 'mother' has been kept on the same footing as that of son, daughter, widow and other relatives

shown above in the schedule.

Under Sub-clause (3) of Section 20 of the Hindu Adoptions and Maintenance Act, 1960, there is an obligation on the part of a person to

maintain his aged or infirm parents or a daughter. This provision is also relevant and reads as under:

Maintenance of children and aged parents

...

...

The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the

unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Explanation-In this section ""parent"" includes a childless stepmother.

Under Section 21 of the said Act, the dependants have been defined. This Section in so far as relevant is also being reproduced below:

Dependents defined

For the purposes of this Chapter, ""dependants"" means the following relatives of the deceased:

(i) his or her father;

(ii) his or her mother. ...

Even u/s 488 of the Criminal Procedure Code, Svt 1989, the parents are entitled to maintenance from their children in case they are unable to

maintain themselves.

Thus, under the above provisions, a male Hindu has to maintain his/her parents and in case a Hindu dies intestate, then his property will be

inherited by his/her legal, heirs as per the provisions of the Act and Schedule attached thereto noticed above.

The contention of the learned Counsel for the respondent Bank is that no doubt, the property of a Hindu who has died intestate can devolve as

per the provisions of the Act but the pension is not covered by the term property, and as such, in case, the mother who has been shown to be one

of the legal heir as per the Act, but not included as such in the rules governing the field, cannot seek the benefit of family pension. It is contended

that the family pension is in the nature of a welfare scheme adopted by the Bank and is to be granted in favour a legal heir of the deceased

employee only as per the terms and conditions of the Rules formulated in this regard. It is stated that if the pension is held to be a property then the

employee has a right to transfer that property in favour of anyone by executing no instrument.

I have given my thoughtful consideration to the submission made by the learned Counsel for the respondent Bank but find the same without any

substance.

In Deokinandan Prasad Vs. The State of Bihar and Others, , the Apex Court has held that pension is a right to property 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 anyone's discretion. It is only for the purpose of quantifying the

amount having regard to service and other allied matters that it may be necessary for the authority to pass an to that effect but the right to receive

pension follows to the officer not because of any such order by virtue of the rules.

In D.S. Nakara and Others Vs. Union of India (UOI), , the Apex Court has observed as under:

From the discussion three things emerge : (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the

employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers

conferred by the proviso to Article 309 and Clause (5) of the Article 148 of the Constitution, (ii) that the pension is not an ex gratia payment but it

is a payment for the past service rendered, and (iii) it is a sowal welfare measure rendering socio-economic justice to those who in the hey day of

their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch....

From the legal position above noticed, it can be said that the pension is not a bounty payable on the sweet will and wishes of the employer but

it is just like a property to be governed under the pension rules. In the present case, the deceased admittedly had a qualifying service for the

purpose of pension and in case he would have been married, his widow or children as mentioned in the rules would have been entitled to the family

pension but he being unmarried during his life time, at the time of his death left behind the petitioner being the sole surviving heir as per the Schedule

I of the Act noticed above. The respondent Bank, however, in their rules for family pension have excluded the mother from getting this benefit. The

policy adopted in this regard excluding the mother from the list of legal heirs so far as grant of pensionary benefits are concerned has been thrown

to challenge by the petitioner being violative of Article 14 of the Constitution. When any Statute/Policy/Rule is challenged, then it is necessary for

the Court to ascertain the reasonableness, of the said Policy/Rule and the object intended to be achived. The Court is also to see as to whether the

classification is rational and based upon intelligible differentia which distinguish persons or things that are grouped together from others that are left

out of the group and whether the basis of differentiation has any rational nexus or relation with its avowed policy and object. In the instant case,

there is no ground to make a reasonable classification between the Class I legal heirs. The Policy in question has been framed keeping in view the

social welfare aspects and also to see that an employee after retirement is able to meet the living expenses and the purpose of family pension is to

see that the legal heirs and the dependents of the employee may not starve after his/her death. Keeping in view this fact admittedly, all the

rationalised Banks of the country have formulated a Pension Scheme and have made the rules for the purpose of granting family revision in which,

the mother has been included as one of the legal heir. The respondent Bank herein which is also a nationalised Bank has framed this policy for

grant of family pension excluding the mother from the list of legal heirs. When it was pointed out to the learned Counsel for the respondent Bank

that why the Policy famed by the Bank herein is not in line with the policy framed by other nationalised Banks, he failed to reply in this regard. In

my view, there is no rational in excluding mother from the said list and denying her the benefit of family pension when she is Class I legal heir under

the Act. Thus, the rule framed by the respondent Bank in this regard is held to be discriminatory and violative of Article 14 of the Constitution and

the provisions of the Act and Schedule attached thereto.

The further contention raised by the learned Counsel for the respondent Bank, as noticed above, is that the petitioner has not been nominated

by the deceased employee even for receiving Provident Fund and gratuity and instead he has nominated his niece for getting said benefits, and

therefore, the petitioner has no right to claim the family pension.

In this regard, it be seen that the nomination of the niece by the deceased employee would not affect the right of the petitioner so far as getting

the family pension is concerned because a nominee is only authorised to receive the amount for which he/she has been nominated. What has been

observed in this regard by the Apex Court in the case of Smt. Sarbati Devi and Another Vs. Smt. Usha Devi, , be noticed as under:

A mere nomination made under Sector 39 does not have the effect of conferring on the nominee any beneficial interests in the amount payable

under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the

payment of which the insurer gets a valid discharge of its liability and the policy. The amount, however, can be claimed by the heirs of the assured

in accordance with the law of succession governing them.

For the reasons mentioned above, this petition is disposed of with the following directions.

That the rules framed by the respondent Bank under the Family Pension Scheme, so far as these relate to non-inclusion of 'mother' in the list of

legal heirs for the purpose of family pension are held to the violative of Article 14 of the Constitution as also the provisions of Act and Schedule

attached thereto and are struck down.

The mother shall be included in the rules as one of the legal heir for the purpose of family pension.

The petitioner being the mother and sole surviving heir and dependent on the deceased employee shall be entitled to family pension and other

retiral benefits which shall be released in her favour within period of two months from the date, a copy of this order is made available to the

respondent Bank by the petitioner.

That the petitioner shall also be entitled to the arrears of family pension along with interest at the rate which is being paid by the respondent Bank

on fixed deposits under the five year interest payable Scheme. The same rate of interest shall be payable on the amount of gratuity and other retiral

benefits.

That in case the family pension and other retiral benefits along with interest as mentioned above are not released in favour of the petitioner within

the stipulated period aforestated, then the petitioner shall be entitled to interest on the amount due to her at the rate of 18% per annum and this

enhanced interest shall be payable by the person whose account the delay occurs.

Disposed of accordingly along with connected CMPs, if any.