Smt. Rupali Sen vs The State Of West Bengal & Ors
2022 Latest Caselaw 2283 Cal

                 IN THE HIGH COURT AT CALCUTTA
                  CIVIL APPELLATE JURISDICTION
                         APPELLATE SIDE

PRESENT :

THE HON'BLE JUSTICE HARISH TANDON
            &
THE HON'BLE JUSTICE RABINDRANATH SAMANTA




                               WPST- 103 of 2021

                              SMT. RUPALI SEN
                                    VS.
                      THE STATE OF WEST BENGAL & ORS


Mr. Tarapada Das,
Mr. Chandan Dutta,
Ms. Jonaki Khan.                          ..... for the petitioner.


Mr. Biswabrata Basu Mallick,
Mr. Sayan Ganguly.                        ..... for the State.


Heard On                             : 14.03.2022

Judgment On                          : 22.04.2022

Rabindranath Samanta, J:-

      1. This writ petition has been preferred by the petitioner Rupali

         Sen being aggrieved by the order dated 06.02.2020 passed by

         the West Bengal Administrative Tribunal (hereinafter be referred

         to as the Tribunal) in Miscellaneous Application No. 68 of 2019

         arising out of O.A. No. 758 of 2018.


                                                                    Page 1 of 11
 2. The petitioner, in the tribunal application, sought for the

  following reliefs:-


          "A direction do issue, directing the
     respondent No. 4 to supply the Xerox copy or

duplicate service book of the deceased employee and issue the PPO as well as release the dues salary of the service period as well as death benefits of the deceased employee along with interest at the rate of 10% p.a. from the next date of death to the date of actual payment in terms of the application dated 17.06.2003 and 04.05.2018 and its prayer."

3. The Learned Tribunal by the impugned order rejected the prayer

on the following observations:-

"The respondents have brought the service book of the deceased employee and after perusal of the same, it is noted that the name of the applicant is not found as nominee in the service book. Since the name of the applicant is not available in the service book, therefore, the respondents have rightly raised the objection of the identity of the applicant. It is further, noted that the applicant has simply applied before the District Magistrate, Bankura, however, till date no legal heirship certificate has been issued in favour of her. Therefore, identity of the applicant has not been ascertained as a daughter of the said deceased employee. In this background, in our considered opinion the applicant has no locus standi at present to claim the retrial benefits of the deceased

employee as a daughter unless she can prove herself as a daughter of the said deceased employee. Therefore, we do not find any reason to entertain the application. Accordingly, both the M.A. & O.A. are dismissed with the above observation."

4. Shorn of details, the facts which are necessary for adjudication,

may be stated as under:

Santipada De, the father of the petitioner Rupali Sen was

an Amin under the office of the respondent No. 4, the District

Land and Land Reforms Officer, Bankura, and respondent No. 6,

the Sub Divisional Land and Land Reforms Officer, Bishnupur,

Bankura. From the records and papers as available it is found

that the father of the petitioner remained absent for a long time

due to his illness and in that regard he submitted medical

reports before the concerned authority, but the authority

concerned passed no order on such medical reports. Her father,

ultimately, died on 28.05.2003 at the age of 52 years. Before the

death of her father the petitioner got married with Bipad Taran

Sen on 01.05.2000.

After the death of her father, the petitioner made an

application on 17.06.2003 before the concerned authority for a

job under died-in- harness category, but to no effect. By the

same application the petitioner sought for release of the death

benefits of her deceased father to her as his sole legal heir. The

mother of the petitioner died before the death of her father.

5. Getting no reply to her representation dated 17.06.2003 the

petitioner made an another application before the concerned

respondent authority on 04.05.2018 seeking the same relief as

sought for by her in her representation dated 17.06.2003. But,

the concerned authority turned deaf ear to her representations.

Before hand, the petitioner made a prayer to the District

Magistrate, Bankura, for issuance of legal heir-ship certificate in

her favour on demise of her father and she is yet to receive the

certificate.

6. Being frustrated with the inaction on the part of the respondent

authorities, the petitioner preferred the aforesaid application

before the Tribunal.

7. The respondents by affirming affidavit-in-opposition, admit that

the father of the petitioner Santipada Dey was an employee

(Amin) under the respondent No.4, District Land and Land

Reforms Officer, Bankura and respondent No.5, District Land

and Land Reforms Officer, Burdwan and while he was in service

he died on 28.05.2003 at the age of 52 years. It is their

contention that Santipada Dey absented from duties

unauthorizedly from March 1983 till his death. He completed 9

years, 8 months and 14 days of service which is less than 10

years of qualifying service to enable him to get pensionary

benefits. The respondents deny that the petitioner is the

daughter and sole legal heir of the deceased and she is entitled

to get gratuity on the demise of the deceased. However, the

petitioner in her affidavit in reply denies the contention of the

answering respondents.

8. Admittedly what we find from the documents on record, the

father of the petitioner was an employee (Amin) under the

respondent Nos. 4 and 5 and while he was in service he died on

28.05.2003 at the age of 52 years. Undisputedly, the father of

the petitioner completed 9 years 8 months and 14 days of

service.

9. As rule 97 of West Bengal services (Death-cum-Retirement

Benefit) Rules, 1971 postulates, gratuity was admissible to the

aforesaid deceased employee considering the period of service

rendered by him.

10. Learned counsel appearing for the petitioner submits that the

respondent authorities turned down the prayer of the petitioner

on the ground that the deceased employee did not furnish any

nomination authorizing the petitioner to receive the retrial

benefits. Learned counsel by referring to a decision in the case of

Smt. Sarbati Devi & Another-Vs-Smt. Usha Devi reported in

(1984) 1 SCC 424 submits that the role of a nominee is to

receive the benefits accrued on the demise of the concerned

person, but he/she owes the obligation to distribute the benefits

among the legal heirs of the deceased according to the relevant

law of succession. Citing an another decision in the case of

Vishin N.Khanchandani & Another-Vs-Vidya Lachmandas

Khanchandani & Another reported in (2000) 6 SCC 724

learned counsel submits that the nominee is entitled to receive

the dues under the saving certificates on behalf of the persons

entitled to receive the amount under the relevant law of

succession. Placing reliance on an another decision in the case

of State of Chattisgarh & Ors-Vs- Dhirjo Kumar Sengar

reported in (2009) 13 SCC 600 learned lawyer points out that

succession certificate issued under the Indian Succession Act,

1925 does not confer any right or status on the certificate

holder, rather he only becomes trustee to distribute the

amounts, payable to the deceased, to his legal heirs or legal

representatives. In the light of the aforesaid decisions of the

Hon'ble Apex Court the learned counsel emphasizes that the

concerned authority may release the gratuity payable to the

deceased to his only legal heir, the petitioner herein in the

absence of any nomination or succession certificate.

11. In the decisions reported in (1984) 1 SCC 424 and (2000) 6

SCC 724 it has been held by the Hon'ble Apex Court that a

nominee as a trustee of the legal heirs of the deceased holds the

dues of the deceased on behalf of the legal heirs and it is his

legal obligation to distribute the dues amongst the legal heirs in

accordance with the law of succession. In the decision reported

in (2009) 13 SCC 600 it has been held that like a nominee a

certificate holder also owes the responsibility to distribute the

dues of the deceased among his/her legal heirs.

12. Per contra, learned counsel appearing for the state

respondents submits that the learned tribunal by the impugned

order has held that the petitioner failed to prove her identity as

the daughter and the legal heir of the deceased to get the retrial

benefits viz. the gratuity admissible to the deceased. Learned

counsel submits that as to disbursement of dues admissible to

the deceased employee, the West Bengal Services (Death-cum-

Retirement Benefit) Rules, 1971 occupies the field. Learned

Counsel drawing our attention to the definition of family under

Rule 7(e) of the Rules, 1971 submits that the petitioner as a

married daughter of the deceased employee does not come

within the definition of family of the deceased. Learned counsel

argues that in the absence of any nomination or succession

certificate as required under Rule 100, the concerned

respondent authorities cannot release the gratuity as payable to

the deceased to the petitioner.

13. Admittedly, gratuity was admissible to the deceased employee

considering the period of service rendered by him. Since the

deceased employee absented himself from discharging duties

from March, 1983 till his death on 28.05.2003, this fact

remains disputed whether any leave was due to his credit or not.

However, the petitioner has not sought for release of encashment

of leave salary.

14. Now the question is whether the respondents authorities may

be directed to release the gratuity payable to the deceased to the

petitioner as his sole legal heir.

15. Rule 100 of the West Bengal Services (Death-cum-Retirement

Benefit) Rules, 1971 postulates the mode on disbursement of

gratuity to a legal heir of the deceased. Rule 100 (1) provides

that any government servant to whom these rules apply may,

provided he has completed five years' qualifying service, make a

nomination conferring on one or more persons the right to

receive the death gratuity that may be sanctioned under Rule

98. A proviso to this Rule enjoins that the death gratuity payable

under Rule 98 shall be payable to the person in whose favour

succession certificate in respect of the gratuity in question has

been granted by a Court of Law.

16. What the legal principles enunciated by the Hon'ble Apex

Court in the decisions supra indicate, nominee or succession

certificate holder owes a legal responsibility to distribute the

dues payable to a deceased amongst his/her legal heirs. In the

absence of any statutory rule and in the absence of any

nomination or succession certificate, this Court in exercise of its

extraordinary power of judicial review may direct the authority

concerned to disburse or release the dues payable to a deceased

employee to his/ her legal heir if the Court is satisfied with the

identity of the legal heir. But, where the statutory rules enacted

under Article 309 of the Constitution prescribe the mode of

release of the dues payable to the deceased to his legal heir such

mode should strictly be adhered to.

17. The Learned Tribunal after scrutinizing the service book of

the deceased has observed that the deceased did not make any

nomination authorizing the petitioner to receive the retiral

benefits of him. On such observation and not being satisfied

with the identity of the petitioner the learned Tribunal turned

down the prayer of her.

18. Learned Counsel for the petitioner further submits that after

the amendment of Rule168 B of WBSR, Part- I a married

daughter who has been brought to the fold of definition of family

of the deceased is entitled to get the payment of the cash

equivalent of leave salary of her deceased father. That being so,

this Court in exercise of its discretionary power may direct the

authority concerned to release the gratuity payable to the

deceased to his daughter, the petitioner herein.

19. As indicated above, the law is very clear that in the absence of

nomination the death gratuity shall be payable to the person in

whose favour succession certificate in respect of the gratuity in

question has been granted by a Court of Law. The definition of

family under the West Bengal Services (Death-cum-Retirement

Benefits) Rules, 1971 does not include a married daughter of the

deceased. In such situation and as the statutory rules as above

clearly indicate, the petitioner, in order to get the dues payable

to her deceased father shall have to obtain the succession

certificate from the competent Court of Law.

20. In view of the above, we do not find any infirmity in the order

passed by the Learned Tribunal.

21. Accordingly, the writ petition is dismissed.

22. No order as to costs.

23. Urgent certified website copies of this judgment, if applied for,

be given to the parties upon compliance with all requisite

formalities.

(Rabindranath Samanta,J.)

I agree,

(Harish Tandon,J.)