AI Structured Summary
Not yet generated for this judgment
Judgment
Per: Justice M.G. Sewlikar, Member (J)
By this application under Section 19 of the Administrative Tribunals Act, the applicant is claiming family pension from 30th April, 2020.
Facts leading to this application are that Bhagwan Yashwant Gabhale was the husband of the applicant. Bhagwan Yashwant Gabhale was appointed as Khalasi in Group “D” category with respondent no. 2 and was promoted to Group “C” as Guard (Train Manager). He took voluntary retirement on 31st July, 2019. The said Bhagwan Yashwant Gabhale expired on 29th April, 2020 leaving behind him following legal heir apart from the applicant:-
Smt. Manisha Bhagwan Gabhale, married daughter.
Shri Ghanshyam B. Gabhale, married son
Shri Sandeep B. Gabhale, married son.
It is further averred that the family pension is being paid to respondent no. 3, Smt. Sulochna who claims to be the wife of deceased Bhagwan Yashwant Gabhale. Respondent no. 3 had already married with one Shankar Gabhale from whom she has daughter by the name of Mangla. Respondent no. 3 married deceased Bhagwan Yashwant Gabhale during the subsistence of her marriage with Shankar Gabhale. Therefore, she being not a legally wedded wife, was not entitled to pension. Respondents have wrongly paid pension and pensionary benefits to her. The applicant being the legally wedded wife of the deceased Bhagwan Yashwant Gabhale, the respondents ought to have paid pension and pensionary benefits to the applicant. The applicant made several representations viz. 06th September, 2022, 07th October, 2022, 25th July, 2023 and 11th September, 2023 for releasing of family pension in favour of the applicant. The respondents did not pay any heed to her representations. Therefore, she has filed this OA seeking following reliefs:-
(a)The Hon'ble Tribunal will be graciously pleased to call for entire records of the case, go into subject matter of the case and legality and validity of the same and this Hon'ble Tribunal be pleased to direct the Respondents to grant the family pension to the Applicant from 30.04.2020 i.e. from the next day after the death of her husband dated 29.04.2020.
(b)The Hon'ble Tribunal will be pleased to pass the order for payment of arrears of family pension and dearness relief from the date death of her husband from 30.04.2020.
(c)The Hon'ble Tribunal will be pleased to pass the order to include the name of the Applicant as widow of the deceased employee in the PPO removing the name of Respondent No. 03.
(d)The Hon'ble Tribunal will be pleased to direct to the respondent No. 01 & 02 to issue family medical card and widow pass in favour of the Applicant.
(e)The Hon'ble Tribunal will be pleased to pass the order for payment of cost to the Applicant as the Applicant has been compelled to approach this Hon'ble Tribunal without any reason.
(f)The Hon'ble Tribunal will be graciously pleased to pass such order and further order as deem fit in the facts and circumstances of the case."
Respondent nos. 1 and 2 filed their reply. They contend that at the time of filing settlement papers, the deceased Bhagwan Yashwant Gabhale had given name of respondent no. 3 as his wife. And, therefore, family pension and pensionary benefits were paid by the respondent nos. 1 and 2 to the applicant.
They further contend that the Staff and Welfare Inspector was nominated to inspect the case, who submitted his report dated 01st July, 2024 wherein it was clearly stated that the applicant is the first wife of the deceased employee and respondent no. 3 had been married to one Shri Shankar Gabhale from whom she had not taken divorce through Court and during subsistence of marriage with Shankar Gabhale, she married the deceased Bhagwan Yashwant Gabhale. Applicant has not produced any document to show that she is the legally wedded wife of the deceased Bhagwan Yashwant Gabhale.
Respondent no. 3 filed her reply contending therein that the Original Application deserves to be rejected on the ground of laches. She contends that in settlement papers, the deceased Bhagwan Yashwant Gabhale had mentioned her name. Therefore, she was paid the family pension, thereby, her status of legally wedded wife was acknowledged. The applicant has not come to the Tribunal with clean hands. There is difference in identities in Annexure- A-8 and Annexure- A-9. There is mismatch in the surname, date of birth, age of the Adhar card and the proof of voting. She, therefore, has prayed for the dismissal of the application.
I have heard learned counsel for the applicant and learned counsel for the respondent nos. 1 and 2 and learned counsel for the respondent no. 3.
Learned counsel for the applicant submitted that respondent no. 3 is not the legally wedded wife of the deceased Bhagwan Yashwant Gabhale. Respondent no. 3 had married Shankar Gabhale from whom she did not take divorce. Even if it is believed that she has married the deceased Bhagwan Yashwant Gabhale, the marriage cannot be said to be legal. The name of the applicant was shown as the wife of the deceased Bhagwan Yashwant Gabhale in the details of the family of the record of respondent nos. 1 and 2. He submitted that respondent no. 3 was residing at Pune whereas the deceased Bhagwan Yashwant Gabhale died at Igatpuri, Nashik and applicant is also the resident of Igatpuri, Nashik. He further submitted that in the Adhar Card, the name of the applicant is shown as Gabhale Radha. The deceased had got his vasectomy done for which he had got additional increment vide Annexure- A-11. Respondent no. 3 has no concern with the deceased employee even then, she is getting pension. Even in her reply, respondent no. 3 has not alleged that she has married the deceased employee. Therefore, the applicant being the legally wedded wife, ought to have got the entire pensionary benefits and pension.
Learned counsel for the respondent nos. 1 and 2 submitted that in the settlement papers, the deceased had mentioned the name of the respondent no. 3 as his wife and, therefore, the entire pensionary benefits and pension were paid to respondent no. 3. Applicant has not adduced any evidence to show that she is the legally wedded wife of the deceased employee. In the absence of any such proof, it was not proper on the part of the respondents to pay family pension to the applicant. He, therefore, prayed for dismissal of the applicant.
Learned counsel for the respondent no. 3 submitted that the applicant was not even aware of the death of the deceased employee. Had she been really married with the deceased employee, she would have in all probability, got to know the death of the deceased employee. She submitted that the deceased employee had taken VRS and the applicant was not even aware of it. Had she known about the death of the deceased employee, she would have certainly claimed the PF and other pensionary benefits and pension from the respondent nos. 1 and 2. Since she did not do it, it is clear proof of the fact that she had no relation with the deceased employee. She submitted that in Election Card, the name of the applicant and husband are differently written. The applicant has not adduced any evidence to show that she is the legally wedded wife of the deceased employee. There is discrepancy in the name of the applicant in Annexure- A-8 (Adhar Card) and Annexure- A-9 (Election Commission of India, Identity Card). Respondent no. 3 has, therefore, prayed for the dismissal of the application.
In reply, learned counsel for the applicant submitted that only the legally wedded wife is entitled to family pension as held in the case of Kamalbai vs. State of Maharashtra and Others, 2019 (3) Mh.L.J. 921.
I have given thoughtful consideration to the submissions made by the learned counsel for their respective parties. Perused the record with the assistance of learned counsel for the respective parties.
Neither the applicant nor respondent no. 3 has any proof of their marriage with the deceased Bhagwan Yashwant Gabhale. The applicant during his lifetime had given the declaration of members of the family which shows that the applicant was shown to be the wife of the deceased employee. This declaration was given on 03rd September, 1996 as is evident from Annexure- A-7. This shows that during the lifetime of the deceased employee, he had given the declaration that the applicant is his legally wedded wife. The respondents nos. 1 & 2 have contended in their reply that the Staff and Welfare Inspector was nominated to investigate the case who submitted his report on 01st July, 2024 in which he has stated that on spot visit, verifying various documents and statements of neighbours, it came to his notice that applicant is the first wife of the deceased employee and respondent no. 3 had already married Shankar Gabhale from whom she had not taken divorce through Court. In settlement papers, the deceased employee had mentioned the name of respondent no. 3 as his wife. Thus, from the pleadings of the parties and documents placed on record, it is revealed that the deceased Bhagwan Yashwant Gabhale had two wives namely, the applicant and respondent no. 3.
Learned counsel for the applicant submitted that as held in the case of Kamalbai (supra), only legally wedded wife is entitled to family pension. We do not find any substance in this submission.
In para 12 and 13 of the case of Kamalbai (supra), the Bombay High Court held thus:-
“12.The Maharashtra Civil Services (Pension) Rules, 1982 apply to the Government servants who are recruited on or before 31st October, 2005. Rule 6 of the Pension Rules provides that any claim to pension or family pension shall be regulated by the provisions of these rules in force at the time when a Government servant retires or is retired or discharged or dies as the case may be.
13.In the present matters, we are concerned with the entitlement of the second wife to family pension upon the death of the Government employee. For the purpose of family pension the word "family" will have to be interpreted. Sub Rule 5 of Rule 111 of the Pension Rules defines "family" in relation to the Government servant. Rule 111(5)(i) initially read as "wife or including judicially separated wife or wives in the case of male government servants". Under notification dated 18.01.2016 clause (i) has been amended and the word "wife" is substituted with the word, "legally wedded wife". The provision now is read as legally wedded wife or wives. Rule 111 deals with Retirement Gratuity/Death Gratuity. Rule 115 enables the Government servant to nominate one or more persons to receive the retirement gratuity/death gratuity. Proviso (I) to Sub Rule (I) of Rule 115 restricts the right of the Government servant to nominate any person other than a member of his family in case he has family. The provision would make it clear that unless wife is legally wedded wife as provided under Rule 111(5)(i) of the Pension Rules, the government servant has no right to nominate such a person. Rule 111(5) of the Pension Rules excludes a wife that is not a legally wedded wife from the definition of family. If the marriage is not legal and valid, the said woman would not be brought within contour of the definition "Family". Proviso (ii) to Rule 115(I) enables the Government servant to nominate any other person if he has no family, but sub Rule 4 of Rule 115 of the Pension Rules further prescribes that if at the time the government servant had made nomination who had no "family" at the time of making it, same shall become invalid in the event of the government servant subsequently acquiring the "family". Reading Rules 111 and 115 of the Pension Rules con-jointly the only irresistible conclusion that can be drawn is that a nomination can be made by a government servant only of a person who is member of the family, if the said Government servant has a family. The definition of family embodied in Rule 111(5)(i) specifically provides that legally wedded wife or wives only would be a member of the family. The one that is not a legally wedded wife is excluded from the definition of the term "family".
This shows that there is amendment in Rule 111(5)(i) of the Maharashtra Civil Services (Pension) Rules and the word "wife" has been substituted with words "legally wedded wife". In the Railway Service (Pension) Rules, there is no such amendment. In Rule 75 Sub-Rule (b) "family" in relation to railway servant means-
"(i)wife in the case of a male railway servant or husband in the case of a female railway servant;
(ii)a judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was not held guilty of committing adultery;
(iii)unmarried son who has not attained the age of twenty-five years and unmarried or widowed or divorced daughter, including such son and daughter adopted legally;
(iv)dependent parents;
(v)dependent disabled siblings (i.e. brother or sister) of a railway servants (Authority: Railway Board's letter No. 2011/F (E) III/1(1)9dated 23.09.13)"
Having regard to this, it is clear that there is no such amendment in the Indian Railway Services (Pension) Rules, 1993. This clearly shows that the judgment of Bombay High Court is not applicable to the facts of the case at hand. The applicant is, therefore, entitled to family pension.
Rule 75(7)(i) of Railway Services (Pension) Rules reads thus:-
“ “(7) (i) (a) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares.
(b)On the death of a widow, her share of the family pension, shall become payable to her eligible child:
Provided that if the widow is not survived by any child, her share of the family pension shall not lapse but shall be payable to the other widows in equal share, or if there is only one such other widow, in full, to her.
(ii)Where the deceased railway servant or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the railway servant or pensioner:
Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares not lapse but shall be payable to the other widow or widows or the other child or children otherwise eligible in equal shares, or if there is only one widow or child, in full, to such widow or child.
(iii)Where the deceased railway servant or pensioner is survived by widow but has left behind child or children from a divorced wife or wives, such child or children if they satisfy other conditions of the eligibility for payment of family pension shall be entitled to the share of family pension which the mother would have received at the time of death of the railway servant or pensioner had she not been so divorced: Provided on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse but shall be payable to the other widow or widows or to the child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child.
(iv)where the family pension is payable to twin children, it shall be paid to such children in equal shares:
Provided that when one such child ceases to be eligible, his or her share shall revert to the other child and when both of them cease to be eligible the family pension shall be payable to the next eligible single or twin children as the case may be. (Authority: Railway Board's letter No. 2011/F (E) III/1(1)9 dated 23.09.13)"
From the above Rule, it is seen that this Rule deals with family pension to more than one widow of the deceased railway servant. Rule 75(7)(i)(a) clearly states that where the family pension is payable to more than one, the family pension shall be paid to the widows in equal share.
In the case of Smt. Shanta Sadani wife of late Sh. S.Joseph vs. General Manager, South Western Railway and others, WP No.111260/2017 decided on 1st July, 2020, Karnataka High Court held thus:-
"13.In the present case on hand, the contention of the respondents that the petitioner being the second wife is not entitled for family pension cannot be accepted and the same has to be rejected in the light of the amendment brought to Rule 75 of the Railway Services (Pension) Rules, 1993. The relevant amendment for the purpose of better understanding is culled out hereunder:
"75(7)(i)(a) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares."
14.The Division Bench of High Court of Bombay at Nagpur while interpreting the amended provisions to Rule 75 to the Railway Services (Pension) Rules, 1993 was of the view that the provisions of amended Rule 75 made by the Indian Railways is not in conflict or interdiction with Section 11 of the Hindu Marriage Act. The Division Bench expressed that respondents-railways for having brought in the amendment was of the view that this amendment would ultimately achieve the constitutional goal and would protect an unfortunate wife/widow and the amended provision would enable even the second wife to seek pension for survival. The Division Bench while examining the above said amendment also observed the payment of pension to two widows is required to be made in equal share and this would no way burden the treasury or the Indian Railways by inserting the said noble ideal. This judgment is confirmed by the Hon'ble Apex Court in Civil Appeal No.11491/2015 by judgment dated 08.05.2015. In this background, I am of the view that insofar as the second wife seeking pension in the light of the amendment to the Railway Services (Pension) Rules, 1993 has to be treated as a widow and thereby she is entitled for pension. Though scheme of pension rules in respect of employees did not permit a second wife from seeking family pension, but however, in the present case on hand since the petitioner's husband was an employee of respondent-railways, she has to be treated as widow, in the light of the amendment brought in by the respondent-railways to Rule 75 of the Railway Services (Pension) Rules, 1993.
15.Having examined the documents and rival contentions of the parties, this Court is of the view that the respondents-Authorities are require to examine the petitioner's case for grant of family pension in terms of the amended provisions of Rule 75(7)(i)(a) of Railway Services (Pension) Rules, 1993 and also the judgment rendered by the Division Bench of High Court of Bombay at Nagapur in the case of Union of India through General Manager, South East Centre Railway and another Vs. Jayawantabai.”
In the case of Davalbi w/o DavalsabKalenavar vs. Smt. Shamshad Begum w/o DavalsabKalenavar and others, RSA No.100321/2020 decided on 22nd September, 2020 (Karnataka High Court), it has been held thus:-
“24.xxx xxx xxx
9.Article 15 of the Constitution prohibits discrimination on the ground of sex, while Article 39(a) provides for securing adequate means of livelihood for men and women equally. Article 39(e) provides for ensuring health and strength for women. Keeping in mind the "Laxman Rekha" in the matter of interpretation of provisions of Personal Laws - qua the Constitution, we find that the above constitutional provisions obligate the State for uplifting the women and secure descent living for them. What we find is that Rule 75 provides for grant of pension even to the second wife/widow of a deceased railway servant along with first wife. In our opinion, this provision of Rule 75 made by the Indian Railways cannot be held to be in conflict or interdiction with Section 11 of the Hindu Marriage Act. On the contrary, in our opinion, for achieving the constitutional goal, as aforesaid, even for the unfortunate second wife/widow, Rule 75 provides for grant of pension to her for her survival in life. At any rate, it must be seen that by virtue of Rule 75, the payment of pension to the two widows is required to be made in equal share, which clearly shows that there is no burden on the treasury or the Indian Railways by inserting the said noble idea. There is no reason for us to hold that Rule 75 violates Section 11 of the Hindu Marriage Act, or that it is contrary to the Hindu Marriage Act, since it does not even remotely provides for any contradiction or interdiction therewith. We, therefore, hold that Rule 75 has been brought in the Rule book by the Indian Railways fully in consonance with the aforesaid constitutional provision. In our opinion, Indian Railways must be complimented for making such a provision for such type of women-widows who unfortunately fall in the trap of males in performing with them what is called "illegal or void marriage" within the meaning of Section 11 of the Hindu Marriage Act. The Indian Railways deserve applauds for incorporating such a rule which is seldom found in Service/Pension Rules of en number of Organizations and the Governments. In our opinion, the Central Administrative Tribunal has rightly found that the object of Rule 75 is nothing but to provide relief to such a woman who is ensnared in void marriage. We find that such an unfortunate woman is provided minimum food and shelter and that too not at the cost of Indian Railways or the taxpayers, but the pension is equally divided amongst the widows by virtue of the said Rule 75. To repeat, provision of Rule 75 is a step in furtherance of the revolution for emancipation of women. xxx xxx xxx
This judgment of the High Court of Bombay was challenged by respondent No.3 herein before the Apex Court in SLP NO.11491/2015, in the case of Union of India and Another Vs Yayawanta Bai. The Apex Court by order dated 08.05.2015 dismissed the petition by the following order:
"We have perused this petition and heard learned Counsel for the Petitioner. It appears that the so called Second wife-Smt. Jaywantabai has prayed for half pension since at the material time "the first wife-Saraswatibai" was still living. The Impugned Order finds no error in this request of "the Second wife-Smt. Jaywantabai". We are not inclined to interfere in the matter at all however it now appears that "the first wife-Saraswatibai" has passed away and from that matrimony no children are alive. In these circumstances "the Second wife-Smt. Jaywantabai" would prima facie be entitled to the entire pensionary benefits. Special Leave Petition is dismissed with these observations leaving the question of law open as to whether a Second wife can lay claim to the pensionary benefits or any part thereof, despite Rule 21 of the Railway Services (Conduct) Rules, 1966." xxx xxx xxx
In terms of the afore-extracted Rules and its interpretation, if the facts of the subject lis are noticed, it becomes unmistakably clear that plaintiff and defendant No.1 who are wives of the deceased employee would be entitled to 50% share of the pension and other service benefits of the deceased employee. The trial Court has rightly held on the basis of cogent evidence and analysis of the same that the plaintiff is also entitled to a share in the pensionary benefits of the deceased employee.
The contention of the learned counsel for the appellant that, both the Courts have concurrently erred in decreeing the suit and confirming the same, as it is contrary to Rule 74 of the said Rules, is unacceptable. Rule 74 deals with Nominations, where nominations have to be made, forms in which nominations are to be made but does not deal with disbursement of family pension. Family pension for railway servants is dealt with under Rule 75 (supra), and Rule 75 (7)(i)(a) clearly mandates that the family pension shall be paid to the wives in equal shares where pension becomes payable to the widows more than one. xxx xxx xxx
I am also fortified by the judgment and of a coordinate Bench of this Court dated 01.07.2020 in W.P.NO.111260/2017 between Smt. Shanta Sadani Vs. General Manager, Sought Western Railway, Gadag, whereby this Court by its erudite judgment, after considering the law laid down by the Apex Court, declared that second wife of the deceased employee has to be treated as a widow and would consequently be entitled to pension and other service benefits of the deceased employee, in terms of afore-extracted mandate of Rule 75 of the said Rules."
In this judgment, Karnataka High Court has complimented the Indian Railways for making this provision for women -widows, who unfortunately fall in the trap of males in performing second marriage without dissolving the first marriage. It has further observed that provision of Rule 75 is a step in furtherance of revolution for emancipation of women.
In the case of Smt. Jayawantabai wd/o Ramrao Kewoo vs Union of India and others, 2014 SCC OnLine CAT 3390, Mumbai Bench of this Tribunal in para 8 and 9, it is held thus:-
“8.Rule 75 deals with Family Pension Scheme for Railway Servants, 1964. Sub-rule (7)(i)(a) of Rule 75 stipulates that where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares. Therefore, from these rules, it appears that rule making authorities made provision for the second wife, being aware of the situation where the railway employee may perform a second marriage during the lifetime of the first wife. Sub-rule (7)(i)(a) stipulates that where there are more widows of a deceased railway employee, family pension shall be paid to the widows in equal share.
9.In view of the admitted position that the first wife of the child begotten from the said first wife were no more surviving and there is no other claimant for the family pension. I direct the respondent to release the family pension to the applicant within eight weeks from the date of receipt of a copy of the order.”
This judgment of Bombay High Court in the case of Smt. Jayawantabai (supra), clearly states that when there are more than one widows, family pension shall be paid to the widows in equal share. In these circumstances, it was not proper on the part of the respondents to pay the entire family pension to respondent no. 3 when there was report of the Welfare Inspector showing that the applicant was the first wife and the respondent no. 3 was the second wife of the deceased Bhagwan Yashwant Gabhale. Learned counsel for the applicant placed reliance on the case of Smt. Violet Issac and Ors. vs Union of India and Ors., 1991 SCR (1) 282 in which it is held that the Rules do not provide for nomination of any person by the deceased employee during his lifetime for the payment of family pension, he has no title to the same. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition. i.e. will. It was held that the widow was entitled to receive the family pension, notwithstanding the will alleged to have been executed by the deceased on 9.9.1984 in favour of his brother.
The case of Smt. Violet Issac (supra) has no application to the facts of the case at hand because the will was executed in favour of brother of the deceased employee. It was not a case of two widows claiming family pension. Having regard to this, application will have to be allowed. Application is accordingly, partly allowed as under:-
The applicant is entitled to family pension to the extent of half and respondent no. 3 is entitled to family pension to the extent of remaining half.
Accordingly, PPO be issued in the name of the applicant and respondent no. 3.
Respondent nos. 1 and 2 shall pay the family pension with arrears to applicant in terms of her half share.
This exercise shall be done within a period of four months from the date of receipt of a certified copy of this order.
Pending MAs, if any, stand disposed of. No costs.