Laxmibai Wd/O Shripat Kumare vs Chief Executive Officer And Ors.
2004 Latest Caselaw 655 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. Heard Shri Kalbande, learned counsel for the petitioner, Shri Thakre, learned counsel for respondent No. 1 and 2 and Smt. Dangre, learned AGP for respondent 2.

2. Rule. Rule is made returnable forthwith by consent of the parties, in view of order dated 30-1-2004.

3. By this petition, the petitioner, the widow of deceased Shripat Zita Kumare, is seeking relief of grant of full pension to her from the date of death of Smt. Nirmala i.e. 21-1-2001, the other widow of Shripat Zita Kumare and a further relief of declaration that the act of respondents in reducing amount of family pension from Rs. 1,760/- to Rs. 643/- per month from July 2001 is bad in law.

4. The brief facts are :

The petitioner, according to her, is the first wife of deceased Shripat Zita Kumare and her husband was working as Primary Teacher in Primary School run by Zilla Parishad, Nagpur at Pusda under the Panchayat Samiti, Ramtek. He expired after retirement from service on 13-9-1991 at Devlapar due to old age. She further contends that during the subsistence of her marriage with the deceased Shripat Zita Kumare, Shripat had kept another woman viz., Smt. Nirmala and said Nirmala was residing with Shripat as his second wife till his death. The deceased Nirmala was also serving with Zilla Parishad as Anganwadi Sevika and it is the fact on record that the said Nirmala died in road accident on 21-1-2001.

During the life time of Nirmala and after the death of Shripat, Zilla Parishad was giving family pension of Rs. 1,275/- per month each to both the widows. The contention of the petitioner is that the said Nirmala was not entitled to grant of any family pension and she alone ought to have been paid full amount of Rs. 2,550/- per month. She further contends that after the death of Nirmala, she alone is entitled to get the entire amount of family pension. She further states that therefore, she has issued legal notice through her counsel on 10-5-2002 and claimed her legitimate benefit i.e. 100% amount of family pension after the death of Nirmala. She further contends that after the receipt of notice, surprisingly the respondent Zilla Parishad brought down the pension amount of Rs. 1,760/- to Rs. 643/- per month without any information and notice to her from July 2001. She contends that she is entitled to claim full pension of Rs. 3,695/- per month.

Respondent No. 1 and 2 namely Chief Executive Officer Zilla Parishad, Nagpur and the Education Officer (Primary), Zilla Parishad, Nagpur, have filed their submissions on record on 23-1-2004 in response to Notice before admission. In the said submissions, respondents No. 1 and 2 pointed out that while Shripat Zita Kumare was in service he had submitted information about his family in Form No. 3 as required by Rule 116(14) of the Maharashtra Civil Services (Pension) Rules, 1982 (hereinafter referred to as Pension Rules, 1982) and in it, he has disclosed that he has two wives namely - Smt. Laxmibai and Late Smt. Nirmala. He also submitted joint photograph of his family members in which both his wives appear. It is further pointed out that after the death of Shripat Kumare on 13-9-1991, his both wives were given family pension @ Rs. 352/- per month each from 14-9-1991 till 6-5-1998 along with admissible allowances thereon. From 17-5-1998, both the widows were paid family pension @ Rs. 214/- per month each. After implementation of 5th Pay Commission, the said pension was fixed at Rs. 1,275/- and it was to be divided into two equal parts for payment to both the widows, however, inadvertently, each widow was paid @ Rs. 1,275/- per month i.e. total amount of Rs. 2,550/- per month from 1-1-1996 to 30-6-2001. The respondents have, therefore paid excess amount of family pension to both the widows. They further pointed out that the office of the Accountant General objected to this excess payment and therefore, pension was resettled and fixed @ Rs. 666/- per month each plus admissible allowances from 1-7-2001. The total amount of Rs. 48,068/- is paid in excess to both the widows. Smt. Nirmala expired on 21-1-2001 and therefore, her part of pension accumulated till 31-12-2003 is Rs. 33,958/-. It is further pointed out that the excess payment made to the petitioner has been recovered from her pension amount @ Rs. 300/- per month till 31-12-2003 and this total amount works out to Rs. 9,900/-. Thus, according to respondents, if the total accumulated pension of Late Nirmala is adjusted then total amount recovered by them towards this excess amount will be Rs. 43,858/-. They further contend that therefore, the balance amount of Rs. 4,210/- is still to be recovered in this pension case. They further contend that if the petitioner is ready to pay Rs. 4,210/- in lump sum, the excess payment will be wiped out and the petitioner can receive the entire sanctioned pension i.e. Rs. 1,334/- per month with admissible allowances i.e. approximately Rs. 2,068/-. In the alternative, the respondents state that the amount of Rs. 300/-shall be deducted every month from the pension paid to the petitioner, as per directions of the Accountant General.

In the said submissions filed by respondents No. 1 and 2, reference is also made to the fact that the deceased Nirmala left behind her a daughter namely Kum. Kalpana and according to Zilla Parishad, as per their records, the date of birth of Kalpana is 2-7-1984, therefore, she is eligible for pension till she attains the age of 24 years or till her date of marriage, whichever is earlier. The respondents have further stated that the details of marriage of Kum. Kalpana were not supplied to them therefore, controversy could not be solved but now they have learnt that Kum. Kalpana has already got married, therefore, the entire pension after deduction of excess amount will be paid to the petitioner regularly.

5. The learned counsel for respondents No. 1 and 2 and the learned Assistant Government Pleader were heard in this background.

6. Shri Kalbande, learned counsel for respondents No. 1 and 2 relied upon the provisions of Rule 117(6) of the Family Pension Rules, 1982, and contended that as per said sub-rule, the pension was payable to the eldest surviving widow and the petitioner was the eldest surviving widow, she ought to have been paid full pension and half of family pension paid to the deceased Nirmala was totally wrong and erroneous. However, in view of prayer clause in the petition, the said argument need not be considered as no such relief has been claimed in the petition. Further, neither the deceased Nirmala was a party to the petition nor her daughter Kum. Kalpana is a party to this petition. From the arguments advanced and also from the pleadings of parties, it is apparent that the petitioner permitted 50% pension to be paid to the deceased Nirmala and never objected to it during life time of Nirmala. On the contrary, even in her petition, full pension is claimed only after the death of Nirmala i.e. from 21-1-2001. In such situation, the provisions of Rule 117 are not at all attracted in this case and the matter is squarely covered by Rule 116 of Pension Rules, 1982. Rule 116 deals with Family Pension as per 1964 Scheme and as per Sub-rule (6)(a)(i) of Rule 116 -where the Family Pension is payable to more widows than one, the Family Pension shall be paid to the widows in equal shares. It is apparent that Respondents No. 1 and 2 have acted as per this sub-rule and both the widows were paid family pension after the death of Shripat Kumare in equal shares and nobody objected in the life time of another widow Nirmala. It is further clear that as per provisions of Sub-rule (5)(iii) of Rule 116 - if there is an unmarried daughter, the Family Pension is payable to her till she attains the age of twenty-four years or until she gets married, whichever is earlier.

7. In this case, though the respondent -- Zilla Parisha has placed on record the date of birth of Kalpana as 2-7-1984, the date on which she married is not brought on record. Only it is mentioned that she is already married and therefore, the entire family pension should be paid to the petitioner. The controversy needs to be resolved in this background.

8. A perusal of Sub-rule (6)(a)(ii) shows that after the death of a widow, her share of the Family Pension shall become payable to her eligible child. In this case, on death of Nirmala on 21-1-2001, her share could have been paid to Kum. Kalpana if Kum. Kalpana was not married on 21-1-2001. The proviso of this rule states 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 shares, or if there is only one such other widow, in full to her. In this case, therefore, after 21-1-2001, as per this proviso, the petitioner Laxmibai is entitled to payment of full family pension i.e. she is also entitled to the share of family pension which respondents No. 1 and 2 were paying to Nirmala during her life time.

9. In this background, as the date of marriage of Kum. Kalpana is not on record and as Kum. Kalpana is not a party respondent in this petition, we direct Respondents No. 1 and 2 to verify the date on which Kum. Kalpana got married and to adjust the payment of share of pension amount of Nirmala accordingly as per provisions of Rule 116(6)(a)(ii). Further, after the date of marriage of Kum. Kalpana, the petitioner -- Laxmibai becomes entitled to payment of full pension amount and hence after that date, the respondents are directed to take action in accordance with proviso to Sub-rule (6)(a)(ii) and to pay full pension to Laxmibai, in accordance with law.

10. Coming to the second grievance made by the petitioner about the reduction in her pension amount to Rs. 643/- per month from July 2001, the petitioner has stated that she was not given any opportunity or show cause notice before taking this action. The counsel for the petitioner has relied upon the judgment of the Apex Court in the case of Bhagwan Shukla s/o Sarabjit Shukla v. Union of India and Ors. reported in 1994 (II) CLR 645, In this judgment, delivered by the Apex Court, the Apex Court in para 3 has considered the act of reducing the basic pay payable to the petitioner and has observed that if the petitioner's basic pay is reduced, it visits the petitioner with civil consequences and he must be granted opportunity to show cause against the reduction of his basic pay. The Apex Court has held that such a step could not have been taken behind his back and without following any procedure known to law. The Apex Court has, therefore, quashed and set aside the said action. Here also, on the ground of alleged excess payment made to the petitioner and the deceased Smt. Nirmala, respondent Nos. 1 and 2 have unilaterally effected recoveries without giving any notice to the petitioner and therefore, acted in breach of principles of natural justice. The petitioner has made this grievance in legal notice dated 10-5-2002 and also in her representation dated 12-8-2002. Both these representations of the petitioner have gone unattended and respondents No. 1 and 2 have not made any amends thereof. In this background, the action of respondents in reducing the family pension amount of the petitioner for alleged adjustment cannot be sustained. The said acts of the petitioner are against the principles of natural justice and hence the same are quashed and set aside.

11. Respondents No. 1 and 2 in their submissions stated that there has been excess payment made to the petitioner and to the deceased Smt. Nirmala. They have only made reference to the office of the Accountant General and objection raised by that office. Hence, the respondents are restrained from effecting any recoveries from pension amount payable to the petitioner towards alleged excess payment without following the process of law.

12. Writ Petition is, therefore allowed. The respondents are directed to pay full family pension to the petitioner from the date of death of Nirmala i.e. 21-1-2001 if Kum. Kalpana is already married by that date or from the date of marriage of Kum. Kalpana, if Kalpana was not married by 21-1-2001. Similarly, action of respondents in reducing the family pension payable to the petitioner from July 2001 is also quashed and set aside. The respondents are restrained from effecting any recoveries from the pension payable to the petitioner, without following the due process of law.

13. The rule is made absolute in the above terms. There shall be no order as to costs.