Calcutta High Court (Appellete Side)
Kalpana Mondal vs Kolkata Port Trust & Ors on 28 January, 2021
28.01.2021
Item No. 01
Ct. No. 04
PG
M.A.T. 154 of 2020
with
I.A. No. CAN 1 of 2020 (Old No. CAN 1406 of 2020)
With
I.A. No. 2 of 2020( Old CAN 1407 of 2020)
r
Kalpana Mondal
Vs.
Kolkata Port Trust & Ors.
Mr. Indradeep Pal
Mr. Mustafizur Rahaman
Mrs. S. Pal.......for appellant
Ms. Sujata Mukherjee .......for respondents/
Kolkata Port Trust
One of the sons of the deceased employee
has been examined in Court. Court asked questions.
Thereafter Mr. Pal, learned advocate appearing on
behalf of appellant declined to put questions on
examination-in-chief. Ms. Mukherjee, learned
advocate appearing on behalf of Kolkata Port Trust
cross-examined the witness.
Mr. Pal had handed up a declaration bearing
particulars of the dependant family members of
deceased employee as on 25 th June 1983, obtained
from the deceased employee. He had also handed over
original admit card issued by West Bengal Board of
Secondary Education issued to the witness. Our
questions were put, inter alia, on the basis of those
documents.
We are satisfied that the witness deposed
truthfully. There have been lapses of memory, the
lapses being consistent.
By impugned order dated 1st October, 2018,
inter alia, following was said:
" ....I am of the view that in the present
state of confusion that the respondents have, it is
not possible for them to grant any family pension
in favour of the petitioner.
However, the petitioner will be at
liberty to obtain a declaration from a competent
Court of civil law about her relationship with the
deceased employee of the Kolkata Port Trust. In
case such declaration is obtained by a decree or
an order, as the case may be, the Port Trust
Authority shall be bound by the same. Thereafter,
the petitioner will be at liberty to make a fresh
application for the grant of family pension in her
favour and the Port Trust Authority shall dispose
of the same as early as possible, but positively
within a period of six weeks from the date of
receipt of any such application, if at all, in terms
of the Court's decree or the order."
The appeal is by widowed daughter of the
deceased employee. In said declaration her name does
not appear, we presume, as she was married on the
date of the declaration. Dependency had changed
from the father to the husband. She could not then
be included as a dependant of the deceased employee.
In order dated 13th January, 2021, we had
said as follows:
"........Submissions have been heard. It
appears appellant does not have resources to file
a suit, produce witnesses and obtain declaration
that she is daughter of the deceased employee.
According to her, the deceased employee was her
father. Family pension was being given to her
widowed mother. She also died and hence her
claim.
Respondents will consider whether
they will accept, as proof of identity, affidavits of
two persons, who were colleagues of the
deceased employee, to effect they knew appellant
to be daughter of the deceased employee. This is
one way, by which appellant can get the relief.
Otherwise, Court might consider this to be a
special case or an extraordinary one requiring
direction for production of witnesses and their
examination, to ascertain the truth."
On next date of hearing, we by our order dated 21 st
January, 2021 said, inter alia as follows:
".........With reference to our
th
observations in said order dated 13 January,
2021, we find from Babubhai Muljibhai Patel
(supra) that the civil appeal was against
judgment of the High Court, in which was
considered, inter alia, oral evidence of
deponents of affidavits filed in the writ petition.
In paragraph 10 Supreme Court said :
"10 ..........the High Court decides, as
in the present case, that it should go into a
disputed question of fact and the discretion
exercised by the High Court appears to be
sound and in conformity with judicial
principles, this Court would not interfere in
appeal with the order made by the High Court
in this respect."
Mr. Pal, on instructions submits,
brother of deceased employee will be produced
as witness by appellant for examination before
this Court. He prays for listing on 28 th January,
2021.
List on 28th January, 2021 marked at
10.45 A.M. under heading 'For Examination
of Witness'.
Above direction has been issued in
exercise of extraordinary power under article
226 of the Constitution of India read with rules
27 to 29 in order 41, Civil Procedure Code,
1908. Additional evidence will be on the point
of proof of appellant's claim to be daughter of
the deceased employee."
The deposition of the witness is set out
below:
M.A.T. 154 of 2020
with
I.A. No. CAN 1 of 2020 (Old No. CAN 1406 of 2020)
With
I.A. No. 2 of 2020( Old CAN 1407 of 2020)
Appellate Side
r
Kalpana Mondal
Vs.
Kolkata Port Trust & Ors.
PRESENT:
The Hon'ble Justice Arindam Sinha
And
The Hon'ble Justice Suvra Ghosh
Mr. Subhash Naru being sworn/solemnly
affirmed by Asamanya Sarkar and examined as a
witness on behalf of appellant on this Twenty Eighth
Day of January, 2021.
Interpreted by:
Mr. Asamanya Sarkar
My Name is Subhash Naru
My father's name is Late Prafulla Kumar
Naru.
Occupation : Driving
My Age is about 44+ years
I reside at Village- Balarampur (Narupara),
P.O.-Bonhooghly, P.S.-Narendrapur, South 24-
Parganas.
To Court:
1. What is the name of your father ?/ My father's
name is Late Prafulla Kumar Naru.
2. When did your father die ?/ He died in 2003.
3. Do you not remember the date of death ?/ I do not
remember the exact date of my father's death.
4. Did you perform the last rites of your father ?/
Yes, I have done along with my brother.
5. What is the name of school where you studied ? /
Balarampur Nimna Buniyadi Vidyalaya.
6. How many brothers and sisters are you ?/ We are
three brothers and four sisters. The eldest brother
has died.
7. Give the names of your brothers and sisters in
order of age./ (1) Late Bibhash Chandra Naru, (2)
Prabhash Chandra Naru, I am third (3) Subhash
Naru, (4) Kalpana Mondal, (5) Alpana Mondal, (6)
Swapna Naru and (6) Krishna Barui.
8. Kalpana Mondal is your sister?/ Yes, she is my
elder sister.
9. Is her husband alive ?/ He is not alive. He is dead.
10. When did he die ?/ It has been quite some time in
2008.
Mr. Pal, learned advocate for the appellant submits,
he has no question to ask. The witness is offered to
Ms. Mukherjee, learned advocate appearing for
Kolkata Port Trust.
To Ms. Sujata Mukherjee, in cross-examination.
11. What is your name ?/ Subhash Naru.
12. Please tell once again in the chronological way the
name of your all the sisters and brothers./ (1) Late
Bibhash Chandra naru, (2) Prabash Chandra
Naru, (3) Subhash Naru, sisters (4) Kalpana
Mondal, (5) Alpana Mondal, (6) Swapna Naru and
(7) Krishna Barui.
13. Is this on the basis of the date of birth ?/ Yes, I
have said according to chronological order.
14. Do you know Kalpana Mondal ?/ Yes, she is my
elder sister.
15. Is she elder than you ?/ Yes, she is elder than me.
16. Kindly tell their Lordships the name of your other
sisters/ (1) Alpana Mondal, (2) Swapna Naru and
(3) Krishna Barui.
17. When your father died ?/ He died in 2003.
18. Where your father worked ?/ He used to work at
Kolkata Port Trust.
19. When he was retired ?/ Probably he retired in
between 1999 and 2000.
20. Under which post he was employed ?/ He used to
work at saw mill of Kolkata Port Trust.
21. When husband of Kalpana Mondal died ?/ He
died in 2008.
22. Which year he has died ?/ In 2008.
23. Where he has worked ?/ He was a farmer.
24. Please tell the address of the in-laws house of
your sister./Village-Jhanjra, P.O.- Amgachia, P.S.-
Bishnupur., South 24- Parganas.
25. After the death of your father, did your mother
receive family pension or widow pension ?/ Yes,
she used to get the pension.
We are satisfied that appellant is widowed
daughter of the deceased employee. Kolkata Port
Trust will once again deal with her application on the
rejection of it, set aside and quashed by us. Decision
is to be taken within three weeks from date of
communication of this order. Consequential action
should be taken forthwith thereafter.
Ms. Mukherjee submits, this order should
not be seen as precedent on her client dealing with
claims of family pension. All we have done above is
exercise of extraordinary power to ascertain the truth
for a genuine claimant being granted the benefit,
available as per law and procedure applicable.
The appeal and connected applications are
disposed of, as above. The documents are handed
back.
(Arindam Sinha, J.)
(Suvra Ghosh, J.)
