Raj Kumari vs State of Punjab and Others

Tejinder Singh Dhindsa, J.

CM No. 10347 of 2011

Civil Miscellaneous application is allowed as prayed for. The main case taken up on the Board today itself for final disposal.

CWP No. 1163 of 1994

Learned counsel for the parties have been heard at length.

The widow of late Shri Inderjit Sharma has filed the instant writ petition claiming the release of family pension along with interest @ 18% per annum from the date such pension became due to the petitioner.

Brief facts that would require notice are that the husband of the petitioner was working as a Mechanic with Punjab Roadways, Hoshiarpur. He died in harness during the course of his duties, on 23.6.1987. The husband of the petitioner during his life time was contributing to the Employees'' State Insurance Scheme (for short to be referred as ''ESI Scheme'') under the Employees'' State Insurance Act, 1948 (hereinafter to be referred as ''1948 Act''). As the employees of the State Government are entitled to family pension, accordingly, the General Manager, Punjab Roadways, Hoshiarpur submitted the family pension case pertaining to the husband of the petitioner to the Accountant General, Punjab. In pursuance thereof, Accountant General, Punjab-respondent No. 5 issued PPO No. 18780/S/PB dated 3.2.1988 to the Treasury Officer, Hoshiarpur-respondent No. 4 and a copy of the same was endorsed to the petitioner. Apparently, when the petitioner presented herself before respondent No. 4 to receive the family pension, the same was refused. Appended along with the petition is memo dated 18.3.1988, Annexure P2, issued by the Treasury Officer, Hoshiarpur and addressed to the Accountant General, Punjab wherein it has been intimated that the petitioner, holder of PPO No. 18780 is getting Rs. 28/- per day as disablement benefit from the office of Manager, ESI Corporation and, accordingly, a view was taken that one of the pensions was required to be stopped i.e. either pension from ESI or Punjab. Repeated representations submitted by the petitioner to the authorities for release of family pension did not bear any fruit and it is under such circumstances that the widow has been constrained to approach this Court by way of filing the instant petition.

Joint written statement on behalf of respondents No. 1, 2 and 3 was filed wherein reliance was placed upon Rule 2.8(a) contained in Chapter 2 of the Punjab Civil Services Rules, Vol. II to contend that a Government employee cannot earn two pensions in the same post.

A separate reply on behalf of Accountant General, Punjab-respondent No. 5 was also filed wherein a letter dated 19.7.1989 issued by the Government of Punjab, Department of Finance was appended. In terms thereof, it was recited in the following terms:

Widows of Punjab Roadways employees as are drawing benefit (family pension) under ESI are not entitled to get similar benefits admissible under provisions of any other enactment.

As such, the precise question that arises for consideration in the present writ petition is as to whether the benefit granted to the petitioner under the provisions of the 1948 Act would constitute a bar for grant of family pension?

Rule 2.8(a) contained in Chapter 2 relating to the General Provisions for Grant of Pension, under the Punjab Civil Services Rules, Volume II, reads in the following terms:

A Govt. employee cannot earn two pensions in the same post at the same time, or by the same continuous service.

Chapter V of the 1948 Act is in respect to the benefits, and Sections 46 and 52 read in the following terms:

Benefits-(1) Subject to the provisions of this Act, the insured persons or, (their dependants or the persons hereinafter mentioned, as the case may be), shall be entitled to the following benefits, namely:-

a) periodical payments to any insured person in case of his sickness certified by a duly appointed medical practitioner (or by any other person possessing such qualifications and experience as the Corporation may, by regulations, specify in this behalf) (hereinafter referred to as sickness benefit);

b) periodical payments to an insured woman in case of confinement or miscarriage, or sickness arising out of pregnancy, confinement, premature birth of child or miscarriage, such woman being certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as maternity benefit);

c) periodical payments to an insured person suffering from disablement as a result of an employment injury sustained as an employee under this Act and certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as disablement benefit);

d) periodical payments to such Dependents of an insured person who dies as a result of an employment injury sustained as an employee under this Act, as are entitled to compensation under this Act (hereinafter referred to as dependant''s benefit);

e) medical treatment for and attendance on insured persons (hereinafter referred to as medical benefit) (and)

f) payment to the eldest surviving member of the family of an insured person who has died, towards the expenditure on the funeral of the deceased insured person or, where the insured person did not have a family or was not living with his family at the time of his death, to the person who actually incurs the expenditure on the funeral of the deceased insured person (to be known as [funeral expenses]):

Provided that the amount of such payment shall not exceed (such amount as may be prescribed by the Central Government) and the claim for such payment shall be made within three months of the death of the insured person or within such extended period as the Corporation or any officer or authority authorized by it in this behalf may allow.

(2) The Corporation may, at the request of the appropriate Government, and subject to such conditions as may be laid down in the regulations, extend medical benefit to the family of an insured person.

Dependants'' benefit-(1) If an insured person dies as a result of an employment injury sustained as an employee under this Act (whether or not he was in receipt of any periodical payment for temporary disablement in respect of the injury) dependants'' benefit shall be payable (at such rates and for such period and subject to such conditions as may be prescribed by the Central Government) to his dependants specified (in sub-clause (i), and sub-clause (ia) and) sub-clause (ii) of clause (6A) of section 2.

(2) In case the insured person dies without leaving behind him the Dependents as aforesaid, the Dependents'' benefit shall be paid to the other Dependents of the deceased (at such rates and for such period and subject to such conditions as may be prescribed by the Central Government).

A perusal of the statutory provisions re-produced hereinabove would make it apparent that dependant would be entitled to a periodical payment in respect of an insured person who dies as a result of an employment injury sustained as an employee under this Act. Still further, u/s 52, if an insured person dies as a result of an employment injury sustained as an employee under this Act, the dependant''s benefit is payable at such rates and for such period and subject to such conditions, as may be prescribed by the Central Government. The payment being made to the petitioner is in the nature of an insurance benefit being derived under the beneficial provisions of the 1948 Act which was clearly enacted as a social legislation intended to confer certain benefits on workmen as also the dependants as the case may be. Clearly, the benefit being paid to the petitioner under the ESI Scheme cannot be construed as a pension. Such benefit had been granted to the petitioner in the shape of compensation on account of the employment injury and resultant death of the husband of the petitioner who during his life time had made contributions under the ESI Scheme. Family pension, on the other hand, would be a benefit granted to the dependant of the deceased employee on account of the service rendered by such employee. The reliance placed by the learned counsel appearing for the State upon the letter dated 19.7.1989 appended as Annexure ''A'' along with the reply filed on behalf of respondent No. 5 is clearly mis-conceived and mis-placed, inasmuch as the view taken therein is that widows of Punjab Government employees who were drawing a benefit (family pension) under ESI Scheme, would not be entitled to get similar benefits from the State.

Having held the benefits being released to the petitioner under the ESI Scheme to be not a pension/family pension under the provisions of the 1948 Act, the bar contemplated under Rule 2.8(a) of the Punjab Civil Services Rules, Volume II, does not apply to the petitioner. It is, accordingly, held that the petitioner has been wrongfully denied the release of benefits towards family pension inspite of PPO No. 18780/S/Punjab dated 18.3.1988 having been issued by respondent No. 5.

The claim of family pension as raised by the petitioner warrants acceptance on yet another ground. In para 18 of the petition, it had been specifically pleaded in terms of citing instances of Shri Mehar Singh, Driver and Shri Dev Raj, Conductor wherein family pension had been granted to their respective widows inspite of them also enjoying benefits under the ESI Scheme.

In the joint reply filed on behalf of respondents No. 1 to 3, the grant of benefit to the widow of Shri Mehar Singh, Driver was not specifically denied and rather, it was stated that the same was to be disclosed by the Treasury Officer, Hoshiarpur. As regards the widow of Shri Dev Raj was concerned, it was admitted that a Civil Suit for grant of family pension had been decreed in her favour by the learned Sub Judge, Hoshiarpur and the first appeal preferred by the State against the judgment and decree of the trial Court was pending in the District Courts, Hoshiarpur.

The Treasury Officer, Hoshiarpur-respondent No. 4 has chosen not to file reply. It would be taken that the categoric averments contained in para 18 of the petition relating to Mehar Singh, Driver have gone unrebutted and are, as such, factually correct. Insofar as the widow of Shri Dev Raj is concerned, it is not a matter of dispute that the first appeal preferred by the State against the judgment and decree dated 5.10.1992 passed by the trial Court has been dismissed by the District Judge, Hoshiarpur vide judgment dated 14.11.1994. Counsel for the parties are ad idem that even the Regular Second Appeal preferred by the State against the same, has since been dismissed by this Court. Resultantly, the claim of the widow of Shri Dev Raj who is identically situated as the present petitioner as regards the claim for family pension has attained finality and the regular benefit has since been released in favour of Smt. Harjit Kaur widow of Shri Dev Raj. As such, the petitioner has even been able to make out a clear case of discrimination and even on this count, it is held that the action of the State in denying to the present petitioner the benefit of family pension clearly smacks of arbitrariness and is violative of Article 14 of the Constitution of India.

It would also be apposite to refer to the contents of letter No. 6024/LO dated 23.8.2012 of the General Manager, Punjab Roadways, Hoshiarpur-respondent No. 3 which was produced in Court today and the same had been taken on record. Paras 5 and 6 of the said letter read in the following terms:

In view of the PPO No. petitioner received the payment of the gratuity and leave encashment and GPF and the payment of the family pension was ordered to be made to the petitioner.

So keeping in view of the proceedings against respondent Nos. 1 and 3 is liable to be dropped in the interest of the justice on respondent No. 4 is responsible for this lapse.

Even in terms of such communication, the State Government is virtually admitting the claim of the petitioner as regards payment of family pension and is pointing a finger at the Treasury Officer, Hoshiarpur-respondent No. 4 to be responsible for such lapse.

For the reasons recorded above, the present writ petition is allowed. The respondents are directed to release the payment of family pension to the petitioner in the light of PPO No. 18780/S/Punjab dated 18.3.1988, Annexure P2, along with arrears within a period of eight weeks from the date of receipt of a certified copy of this order. Keeping in view the fact that the hands of the present petitioner i.e. widow of late Shri Inderjit Sharma were forced to approach this Court in terms of filing the present petition, coupled with the fact that the State Government had denied the release of family pension to her without any justifiable reasons, it is held that the petitioner be also granted interest @ 6% per annum from the date of issuance of the Pension Payment Order dated 18.3.1988 till the date of actual disbursement of family pension. Petition allowed in the aforesaid terms.