This Writ Petition Is Filed vs "There Is A String Of Judgments Of ...
2023 Latest Caselaw 234 AP

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        THE HON'BLE DR.JUSTICE K. MANMADHA RAO

               WRIT PETITION (A.T) No.879 of 2021

ORDER:

This Writ Petition is filed, seeking the following relief:

".....to issue a Writ, Order or direction to direct the respondent No.2 to take necessary action to cancel the Family Pension granted to the Respondent No.4 vide P.P.O.No.23-012826 SP and STO and PPO ID 0103-22381 and consequently grant the Family Pension to the petitioner, who is the legally wedded wife of the said Late Jayanandam and pass such other orders."

2. Heard Mr. Swati Guda, learned counsel for the petitioner;

learned Government Pleader, Services-I; Mr. K. Swarna Seshu and

Mr. S. Harinatha Reddy, learned counsel appearing for the

respective respondents.

3. The brief facts of the case are that the petitioner is the

legally wedded wife of Late Yandava Jayanandam, who worked as

Mandal Praja Parishad Development Officer, Itchapuram and

retired from service in the month of July, 2011. The petitioner and

late Jayanandam got married as per Christian Customs and rights

on 07.06.1990. Out of legal wedlock, they blessed a daughter by

name Sanjana on 04.05.1994. Subsequently the late Jayanandam

developed illicit intimacy with 4th respondent and took her to his

house and left the conjugal society of the petitioner in the year

2006. The marriage between the petitioner and late Jayanandam

subsisted till his death as the marriage was not dissolved at any

point of time. The husband of the petitioner was died on

20.06.2016, leaving behind him, the petitioner and her daughter

Sanjana as his Class-I legal heirs, who are legally entitled for all

the pensionery benefits of the deceased husband. The petitioner's

daughter filed F.C.M.C.No.11 of 2014 on the file of the Court of the

Family Judge-cum- Additional District Judge, Vizianagaram

against her father Late Jayanandam and the Family Court also

directed to pay an amount of Rs. 7,500/- per month towards the

maintenance of the petitioner's daughter and also holding that the

petitioner and Sanjana are the wife and daughter of the Late

Jayanandam. Even in the recovery petitioner claiming arrears of

the maintenance, the said Jayanandam paid the amounts to the

daughter of the petitioner and at that stage unfortunately he died

suddenly. After death of said Jayanandam, the 4th respondent

applied for Family Member Certificate before the Tahsildar, who

rejected the same and questioning her relationship with deceased.

But the respondents sanctioned the family pension to the 4th

respondent by keeping the petitioner aside, inspite of receiving the

legal notice also, which is illegal and arbitrary. Hence the writ

petition came to be filed.

4. Per contra, the 1st respondent filed counter-affidavit

denying material averments made in the affidavit and mainly

contended that as per documents i.e FMC/ Nomination attached

to the pension proposals the 4th respondent was noted as wife and

the date of marriage is noted as 22.11.1992. The descriptive rolls

were also enclosed with the joint photos of the petitioner and 4th

respondent with her specimen signature. The pension was

authorized to Y. Jayanandam, pensioner with Family Pension

beneficiary in the name of Y. Ratna Kumari/ 4th respondent vide

proceedings dated 18.10.2011 as she was nominated in the

pension papers. Further this respondent is only Pension

Authorizing Authority and not Pension Sanctioning Authority.

Therefore it is the Department that has to take action either to set

right the pension papers or to decide to whom the Family Pension

shall have to be paid. This respondent will implement the orders

from Pension Sanctioning Authority or any Court orders in this

regard and release authorization orders for drawing of Pension.

Therefore, requested to dismiss the writ petition.

5. The 2nd respondent filed counter-affidavit denying all

material averments made in the affidavit and mainly contended

that the deceased employee has registered the name of 4th

respondent in all office records as his nominee and submitted his

pension proposals for sanction of Family Pension in the event of

his death. Further as could be verified with the Sterilisation

Certificate pasted in the Service Register, the Medical Officer, PPP

Unit, Parvatipuram has certified that he had conducted Tubectomy

operation on 29.09.2007 to Smt. Yandava Ratnam, wife of

Jayanandam with two living children vide Reg.No.9/362. The

petitioner is claiming as the wife of the deceased, consequent on

his death on 20.06.2016. The petitioner has kept silent all these

years i.e from 2011 to 2016 i.e from the date of retirement and till

the date of death of the deceased and now claiming that the

petitioner is the wedded wife of the deceased employee. Therefore

the writ petition deserves to be dismissed.

6. The 4th respondent filed counter-affidavit denying all

material averments made in the affidavit and mainly contended

that the marriage between 4th respondent and deceased employee

was performed as per Hindu customs on 10.02.1989 at Sri

Satyanarayana Swamivari Devasthanam, Parvathipuram,

Vizianagaram District. Out of legal wedlock, they blessed four

children. The 4th respondent was declared as nominee and the

same was entered in the service register as well as pension

proposals. The husband of the 4th petitioner was retired from

service on attaining the superannuation on 30.06.2011.

Subsequently he was died on 20.06.2016. After death of her

husband, the pension is paying to her. The petitioner is a Retired

Government Servant and drawing pension. The relation of the

petitioner is being running the Church, who issued marriage

Certificate to the petitioner alleging that their marriage performed

at Church. Therefore the said Certificate is a fabricated and

cooked up one. The petitioner even did not attend the last funeral

rites of husband of the 4th respondent and that there is no

relationship between them as husband and wife as claimed by the

petitioner. Therefore the writ petition is liable to be dismissed.

7. It is observed by this Court that there is a rival claim

between the petitioner and 4th respondent and disputing the very

relationship with deceased employee. Further the Marriage

Certificate as produced by the petitioner is a cooked up documents

for the purpose of claiming benefits as the said certificate issued

by the relations of the petitioner, who is running the Church as

alleged by the petitioner. However, learned counsel for the

petitioner points out that the Family Court directed the deceased

employee to pay the maintenance to the daughter of the petitioner

in F.C.M.C.No.11 of 2014, which shows that the Court below also

observed that the petitioner and one Sanajana are the wife and

daughters of the deceased employee. Therefore it is sufficient to

prove the relationship between them. Hence the petitioner is

entitled for the pensionary benefits of the deceased employee.

8. To rebut the same, learned counsel for the 4th respondent

would contend that except relationship with the petitioner, the

deceased denied all the averments and contentions in the

Maintenance Petition filed before the Family Court and that at no

point time, declared the petitioner was the wife of the deceased

employee. The petitioner cannot take the shelter of the orders

passed by the Family Court for declaring her to be a legally

wedded wife.

9. Learned counsel for the petitioner placed on record the

decision of Hon'ble Apex Court in "Rameshwari Devi Vs. State of

Bihar and Others"1 wherein the Hon'ble Division Bench

discussed the Judgment passed earlier vide SCC P.457, Para 3

which reads as follows:

"11......

"There is a string of judgments of this Court whereunder strict proof of solemnization of the second marriage, with due observance of rituals and ceremonies, he has been insisted upon. The prosecution evidence in the criminal complaint may have fallen short of those standards but that does not mean that the State was in any way debarred from invoking Rule 28 of the Karnataka Civil Service Rules, which forbids a government servant to marry a second time without the permission of the Government. But, here the respondent being a Hindu, could never have been granted permission by the Government to marry a second time because of his personal law forbidding such marriage., It was thus beyond the ken of the Tribunal to have scuttled the departmental proceedings against the respondent on the footing that such question of bigamy should normally not be taken up for decision in departmental enquiries, as the decisions of competent courts tending to be decisions in rem would stand at the highest pedestal. There was a clear fallacy in such view because for purpose of Rule 28, such strict standards, as would

(2000) 2 SCC 431

warrant a conviction for bigamy under Section 494 IPC, may not, to begin with, be necessary".

12....

13. But then it is not necessary for us to consider if Narain Lal could have been charged of misconduct having contracted a second marriage when his first wife was living as no disciplinary proceedings were held against him during his life time. In the present case, we are concerned only with the question as to who is entitled to the family pension and death- cum-retirement gratuity on the death of Narain La. When there are two claimants to the pensionary benefits of a deceased employee and there is no nomination wherever required the State Government has to hold an inquiry as to the rightful claimant. Disbursement of pension cannot wait till a civil court pronounces upon the respective rights of the parties., That would certainly be a long-drawn affair. The doors of civil courts are always open to any party after and even before a decision is reached by the State Government as to who is entitled to pensionary benefits. Of course, inquiry conducted by the State Government cannot be a sham affair and it could also not be arbitrary. The decision has to be taken in a bonafide, reasonable and rational manner......."

Therefore, learned counsel for the petitioner vehemently

argued that in view of ratio laid down by the Hon'ble Apex Court

cited supra, the 4th respondent cannot claim the retiral and

pension benefits of the deceased employee by false representation.

When there is a rival claim between the parties, it has to be proved

on enquiry, but in this case no enquiry has been conducted by the

respondent authorities or no Civil Court passed an order stating

that the petitioner and the deceased employee is wife and

husband. In such circumstances, the claim of the 4th respondent

is highly illegal and arbitrary.

10. No doubt, there is a dispute with regard to relationship

between the parties as contended by the petitioner, it requires

elaborate enquiry while processing the pension to the parties.

Though the petitioner has raised objection after long elapse of

several years and that the respondent authorities might have

sanctioned the pension to the 4th respondent basing on the

material on record. Therefore, it cannot be said that the

respondents allotted the pension to the 4th respondent illegally

without considering the request of the petitioner. The issue

involved in this writ petition is squarely applies to the ratio as laid

down by the Hon'ble Apex Court cited supra and in the instant

case, it requires elaborate trial to declare the relationship between

the parties. Further the petitioner is drawing pension and she is a

retired employee, which is undisputed fact.

11. This Court finds that there were several disputed facts

arisen in deciding the issue, which this Court cannot be looked

into on the point of jurisdiction and it has to be decided by

competent Fora. In the absence of any order to declare the

petitioner and deceased employee as wife and husband from the

competent civil court, the claim of the petitioner cannot be granted

as prayed for.

12. Under these circumstances, This Court is inclined to

disposed of the writ petition, while granting liberty to the either of

the parties to approach competent civil court of law to work out

their grievance, if any, for grant of pension and other benefits

relating to the deceased employee to them, which is binding on the

result of the said claim.

13. With the above direction, the Writ Petition is disposed of.

There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall also stand closed.

___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 19.01.2023

KK

THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

WRIT PETITION (AT) No.879 of 2021

Date: 19.01.2023

KK