Murtaja Khan vs Kolkata Port Trust & Ors

Amrita Sinha, J

The petitioner claims to be a physically handicapped son of one late Ejahar Khan who was employed with the Kolkata Port Trust and retired from service on attaining his normal age of superannuation on 3rd November, 1986. After retirement the employee was paid his terminal benefits including pension. The employee expired on 9th July, 1993.

After the death of his father, the mother of the petitioner received family pension. The mother of the petitioner expired on 12th April, 2018.

The petitioner claims that as he is physically challenged he is entitled to receive family pension on the death of his mother.

On 1st April, 2011 the petitioner's mother made application for grant of family pension in favour of the petitioner on her death.

After the death of his mother the petitioner applied for grant of family pension in his favour on 29th October, 2018.

On receipt of the application from the petitioner, the respondent No. 3 by a letter dated 8th December, 2018 intimated the petitioner that on scrutiny of the office records available in the office, it appears that the ex-employee did not declare his name as son in any of the official documents.

The petitioner was directed to submit copies of the nomination papers/family declaration card, if any, by the ex-employee declaring him to be his son during his lifetime.

It was further intimated that in the event no nomination papers/family declaration card being available with him, he may submit a declaratory order from the competent Court of law regarding entitlement of family pension.

A similar intimation was also given to the petitioner by a communication dated 27th March, 2019. On receipt of the aforesaid communication the petitioner applied before the office of the District Magistrate & Collector, Purba Medinipur and obtained a legal heirs certificate on 26th August, 2019 wherefrom it appears that the petitioner is one of the legal heirs of the deceased employee.

The petitioner submitted the aforesaid legal heirs certificate in the office of the respondent authorities in September 2019 and renewed his prayer for grant of family pension in his favour.

The Senior Accounts Officer, Pension Section by a further communication dated 9th September, 2019 reiterated that the petitioner was required to submit copies of the nomination papers/family declaration card or a declaratory order from the competent Court of law regarding entitlement of family pension.

Finding no other alternative the petitioner filed the instant writ petition praying for necessary orders for grant of family pension in his favour.

The petitioner submits that since he is a physically disabled child of the deceased employee, he is entitled to receive family pension as per the service regulation of the deceased employee.

The learned advocate appearing for the Kolkata Port Trust relies upon Sub Regulation 5 of Regulation 37 of the Calcutta Port Trust Employees' Pension Regulations, 1988 which mentions that the person receiving the family pension as guardian of such son or daughter shall produce every three years a certificate from the Chief Medical Officer of the Board to the effect that he or she continues to suffer from disorder or disability of mind or continues to be physically crippled or disabled.

Explanation (a) of the aforesaid Sub-regulation mentions that only that disability which manifest itself before the retirement or death of the employee while in service shall be taken into account for the purpose of grant of family pension under this sub-regulation.

It has been submitted that as the employee did not disclose the name of the petitioner as his legal heir accordingly, the petitioner will not be entitled to receive any family pension. The employer is not obliged to pay family pension to any person whose name has not been recorded as heir in the service records of the employee.

It has further been submitted that the disability of the petitioner has not been verified by the employer. It is only those disabilities which were present prior to the death of the employee which could be taken into consideration for the purpose of grant of family pension in case of a physically challenged heir. As there is no document on record in support of the disability of the petitioner and nothing to show that the said disability existed when the employee was in service accordingly, there is no scope for payment of family pension in favour of the petitioner on the ground of his physical disablement.

After hearing the submissions made on behalf of both the parties, it appears from records that the employee did not disclose the names of any of his heirs in his service book. The legal heirs certificate that was issued from the office of the District Magistrate & Collector, Purba Medinipur on 26th October, 2019 indicates that there are as many as 20 heirs and legal representatives of the deceased employee.

It seems that the employee was not properly advised and guided to fill up his service book with correct and up to date details by incorporating the names of his heirs and legal representatives and as such the same remained incomplete till his death. Even though the service book of the employee did not contain the particulars of his heirs the same does not imply that the employee did not leave any heir(s) behind him.

The service regulation of the employee provided for grant of pension and family pension. It is the bounden duty and obligation of the employer to pay pension to the employee on his retirement and to pay family pension to the eligible heir as and when the same becomes payable. Grant of pension and family pension are beneficial legislation which acts as financial security to the employee after superannuation and to the family of the employee after his demise. It is a type of social security which the legislation extends to the employees and their family members.

It is incumbent for the employer to extend the service benefits to the heirs of the employee as and when the same becomes due and payable in accordance with law on verification of the service records maintained by the employer. In the event the service book of the employee is incomplete and there is a claim from the heir of the employee, the employer ought to verify the claim with supporting documents prior to rejecting the claim mechanically without application of mind.

It is also not proper to advise the concerned party to approach the Court at each and every stage if the issue can be resolved in-house upon production and verification of necessary documents. If there is any discrepancy or there exists doubt about the genuinity or veracity of the documents relied upon by a party then certainly, the Court is the ultimate forum to decide the issue. Prior to referring a party to Court the authority should be convinced that the matter cannot be sorted out by them and then only the question of approaching the Court will arise.

In the instant case the employer has not verified the legal heirship certificate that was submitted by the petitioner in his support. As the petitioner claims that he is a physically challenged child of the employee and as there is a provision for payment of family pension in the service regulation governing the employee, the claim of the petitioner ought not to be rejected solely on the ground of non-recording of his name in the service book of the employee.

Kolkata Port Trust being a model employer and a 'State' within the scope of Article 12 of the Constitution of India, without adopting a mechanical approach, ought to verify the documents in support of the petitioner and come to a definite conclusion as to whether he is an heir of the deceased employee or not. The physical disablement of the petitioner is also liable to be taken into consideration.

In view of the facts and circumstances stated hereinabove, the instant writ petition is disposed of by directing the respondent No. 3 being the Senior Accounts Officer, Pension Section to conduct an enquiry with regard to the legal heirs certificate relied upon by the petitioner. The respondent No. 3 shall take the assistance of the District Magistrate & Collector, Purba Medinipur in this regard.

The respondent No. 3 shall conduct the enquiry with regard to the legal heirship certificate within a period of eight weeks from the date of receipt of a copy of this order.

If the respondent No. 3 is of the opinion that the petitioner is not the legal heir of the deceased employee the said respondent shall inform the same to the petitioner immediately.

In the event the respondent No.3 is satisfied that the petitioner is the legal heir of the deceased employee then only the question of verifying his disability certificate will arise. The respondent No. 3 shall take necessary steps to verify the disability of the petitioner as per the norms of the employer and check whether the said disability is covered under the pension regulation of the deceased employee.

In the event the disability of the petitioner is covered by the pension regulation, the respondent No. 3 shall proceed to disburse the family pension in favour of the petitioner within a period of twelve weeks thereafter.

If the alleged disability of the petitioner is not included in the list of disabilities covered by the regulation the said respondent shall intimate the same to the petitioner immediately thereafter.

The petitioner is directed to cooperate with the respondent for the purpose of the enquiry and comply with the necessary formalities as and when required.

The District Magistrate and Collector, Purba Medinipur is directed to render necessary assistance to the respondent in ascertaining the heirship of the petitioner.

It is expected that the respondent shall conclude the entire exercise within the aforesaid time period, in default, positively within a period of six months from the date of receipt of a copy of this order.

W.P. No. 22179 (W) of 2019 is disposed of.

Urgent photostat certified copy of this order be supplied to the parties, if applied for, as early as possible.