Calcutta High Court (Appellete Side)
Smt. Alpana Biswas vs Calcutta Port Trust & Ors on 3 October, 2024
IN THE HIGH COURT AT CALCUTTA
(CONSTITUTIONAL WRIT JURISDICTION)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
WPA 10984 of 2011
Smt. Alpana Biswas
Vs.
Calcutta Port Trust & Ors.
For the Petitioner : Mr. Tulshi Das Ray,
Mr. Tapan Ray,
Mr. Tirthankar Roy.
For the Respondents : Mr. Saptangshu Basu, Sr. Adv.
Ms. Sujata Mukherjee.
Hearing concluded on : 26.09.2024
Judgment on : 03.10.2024
2
Shampa Dutt (Paul), J.:
1. The present writ has been preferred praying for family pension, being the
widow of Haripada Biswas since his death from April, 2007 till date along
with interest.
2. The petitioner's case is as follows:-
i) The petitioner is the legally married wife of Haripada Biswas (since
deceased) and their marriage took place on 13 Agrahayan 1383 BS
(1976) as per Hindu rights and custom.
ii) The husband of the petitioner was an employee with the Calcutta
Port Trust and working at Ship Wright Shop of the respondent. He
retired from service on and from 01.11.1981, on superannuation.
iii) After retirement from service the husband of the petitioner received
his pension through State Bank of India, Krishnaganj Branch.
iv) Out of the wedlock of the petitioner with Haripada Biswas, petitioner
gave birth one son on 08.01.1981, named Kanai Biswas and two
daughters namely Bulbuli Biswas and Anna Biswas.
v) After the demise of her husband in the year 2007, Haripada Biswas,
petitioner herein made representation before the concerned
respondents for granting family pension, but the respondents did
not pay the family pension to the petitioner for her survival though
the petitioner is entitled to get the same.
vi) The petitioner states that the name of the petitioner was recorded in
the nomination form of (contributory) provident fund which was
received by the concerned authority on 23.06.1979.
vii) The petitioner was wrongly advised to file an application before the
Consumer Disputes Redressal Forum-Nadia, when the petitioner
was asked to approach this Court.
3. Hence, the present writ as the respondents have not addressed the
grievance of the petitioner inspite of all supporting documents.
4. The Respondent, Kolkata Port Trust has produced the certain documents
as called for in original.
5. The Respondents have produced a nomination form (Non-Contributory)
which shows that in 1972, the deceased Haripada Biswas had filed a
nomination showing one "Tarubala Dasi" as wife and nominee.
6. There is no document to show change of such nomination (Non-
Contributory) by Haripada Biswas, though admittedly in the year 1993
Haripada Biswas was issued a duplicate pension book in which there is a
joint photograph of the petitioner with Haripada Biswas.
7. The Respondents in their opposition have stated as follows:-
i) That Late Haripada Biswas, was indeed an employee
under the Kolkata Port Trust and worked as a
carpenter under the Mechanical Engineering Department
and had upon attaining the age of superannuation, retired
from service of the respondent authorities with effect from
01.11.1981.
ii) That the deceased former employee was in receipt of
Provident Fund amount through his P.F. Account being No.
E/5506. The records maintained by the Provident Fund
Section of the respondent authority, represented by the
deponent herein, clearly states that there are no
documents at our disposal where any nomination or
declaration has been made relating to the marital status of
the writ petitioner vis-à-vis her relation with the deceased
former employee being Late Haripada Biswas.
iii) Upon reaching the normal age of superannuation, the said
former employee retired, and was granted pension under
pension case no. 9120 C/A, Pension Roll No. E/ 1041 and
the pension identity card was handed over to the said
deceased former employee on 11.10.1982. In the said
pension identity card there was neither any photograph of
the said deceased/former employee's wife nor was there
any mention in writing of the petitioner being the said
deceased/former employee's wife.
iv) The deceased/former employee Late Haripada
Biswas applied for a duplicate pension card and
hence submitted a photograph which contained a
joint photo of that of the deceased former employee
and of another woman, presumably his wife being
the writ petitioner herein, but such presumption is
also not beyond doubt or reasonable suspicion. Even
though if it is presumed that the writ petitioner is the
legally married wife of Late Haripada Biswas as claimed
by the writ petitioner, there is no proof to substantiate the
fact that such marriage was in existence at the time when
the former deceased employee superannuated from the
office of the respondent authority. In terms of the
provisions as contained in Calcutta Port Trust Employees'
(Pension) Regulations, 1988, as approved by the
Government of India and published in the official gazette,
a spousal relation emanating after retirement is not eligible
for family pension. Hence, presuming but not expressly
recognizing the writ petitioner as the wife of Late Haripada
Biswas, it needs to be mentioned that in terms of the
regulations as referred to above, the writ petitioner is not
entitled to any relief by way of receipt of family pension.
As a matter of fact, since the ex-employee is having no
spouse at the time of retirement there was no declaration
about the petitioner in retiral document the deceased or the
pension card issued to the deceased.
v) That the writ petitioner admittedly got married to
the deceased/former employee of the respondents,
Late Haripada Biswas, on 13 Aghrayan, 1383, (1976)
Bangiya Shakabdo- such date is in accordance with
Bengali Almanac. Presently, according to Bengali
Almanac the year is 1418 Bangiya Shakabdo, hence,
simple calculation indicates that the writ petitioner
got married to the deceased former employee, Late
Haripada Biswas, at least 35 years ago. Even when a
Pension Card in duplicate has been sought for and the
same was granted, merely a joint photograph was affixed
sans any mention of the name of the writ petitioner. As a
result, it is extremely difficult to establish the bonafide of
the writ petitioner by the respondents.
vi) That the document is merely a nomination form for
(Contributory) Provident Fund, and it needs to be stated
that any entry made in the nomination form for
Contributory Provident Fund does not automatically entitle
the writ petitioner for receipt of family pension. For
claiming family pension, there is a separate procedural
officialese, which needs to be adhered to for the purpose of
receiving and/or claiming family pension. As regards
payment of gratuity or provident fund money, nominee
could be anybody and such person may or may not be the
wife of the deceased employee, but for the purpose of
family pension, it has to be proved or declared bona fide
that the person in receipt of family pension is the wife of
the deceased employee.
8. In reply, the petitioner has reiterated her case as in the writ petition,
denying the claim of the respondents.
9. The petitioner, Alpana Biswas, claiming to be the wife of Haripada
Biswas has produced the following documents:-
a) Nomination form received by the respondent on 23/06/79
(contributory) provident fund, showing the petitioner as the wife of
Haripada Biswas and nominee.
b) Residential Certificate issued by the Joyghata Gram Panchayat,
Swarnakhali, Nadia in favour of the petitioner and her husband
Haripada Biswas and also a certificate stating that Haripada Biswas
had married Alpana Biswas (Petitioner) and they had three children.
c) Copy of pension book dated 26.05.93 of Haripada Biswas bearing Roll
No. E/1041/9120C/A, showing address as Vill & P.O. -Swarnakhali
Dist. Nadia. Haripada's Designation at the time of retirement was
Carpenter, C.M.E. Date of Retirement:- 01.11.81. It is duly signed by
the Sr. Accounts Officer, Cash & Pay and also bears the signature of
Haripada Biswas. The book bears the Joint photograph of the petitioner
and Haripada Biswas.
d) Copy of Ration Card shows the name of the petitioner as the wife of
Haripada Biswas.
e) Copy of pension account with SBI of Haripada Biswas showing the
address as that of the Petitioner and that Haripada used to receive
pension from the respondents.
f) The Voter I.C and of the petitioner (WB/ 11/ 074/ 408 239) , dated
21.03.2006 shows her husband's name as Haripada Biswas, who died
in 2007.
g) Aadhar Card of the petitioner also shows Haripada Biswas as her
husband.
10. The following Judgments have been relied upon by the petitioner:-
a) Badri Prasad v. Dy. Director of Consolidation & Ors., (1978) 3
SCC 527, wherein the Supreme Court held:-
"Evidence Act, 1872- Sections 114 and 101-103-
For a man and women living together for 50
years, held, a strong presumption of marriage
between them arises-Heavy burden lies on
anyone seeking to rebut such presumption- No
burden on them to bring forward witnesses to
ceremonies of their marriage."
b) Smt. Bhagwanti v. Union of India, (1989) 4 SCC 397, wherein the
Supreme Court held:-
"9. Pension is payable, as pointed out in several
judgments of this Court, on the consideration of past
service rendered by the government servant.
Payability of the family pension is basically on the
selfsame consideration. Since pension is linked with
past service and the avowed purpose of the Pension
Rules is to provide sustenance in old age, distinction
between marriage during service and marriage after
retirement appears to be indeed arbitrary. There are
instances where a government servant contracts his
first marriage after retirement. In these two cases
before us, retirement had been at an early age. In the
Subedar case he had retired after putting in 18 years
of service and the railway employee had retired
prematurely at the age of 44. Premature or early
retirement has indeed no relevance for deciding the
point at issue. It is not the case of the Union of India
and, perhaps there would have been no force in such
contention if raised, that family pension is admissible
on account of the fact that the spouse contributed to
the efficiency of the government servant during his
service career. In most cases, marriage after
retirement is done to provide protection, secure
companionship and to secure support in old age. The
considerations upon which pension proper is
admissible or the benefit of the family pension
has been extended do not justify the distinction
envisaged in the definition of "family" by
keeping the post-retiral spouse out of it.
12. In clause (ii) of the definition son or daughter born
after retirement even out of wedlock (sic entered) prior
to retirement have been excluded from the definition.
No plausible explanation has been placed for our
consideration for this exclusion. The purpose for
which family pension is provided, as indicated in
Poonamal case [(1985) 3 SCC 345 : 1985 SCC (L&S)
802 : (1985) 3 SCR 1042] is frustrated if children born
after retirement are excluded from the benefit of the
family pension. Prospect of children being born at
such advanced age (keeping the age of normal
superannuation in view) is minimal but for the few
that may be born after the retirement, family pension
would be most necessary as in the absence thereof,
in the event of death of the government servant such
minor children would go without support. The social
purpose which was noticed in some pension cases by
this Court would not justify the stand taken by the
Union of India in the counter-affidavit. It is not the
case of the Union Government that as a matter of
public policy to contain the growth of population, the
definition has been so modified. Even if such a
contention had been advanced it would not have
stood logical scrutiny on account of the position that
the government servant may not have any child prior
to retirement and in view of the accepted public policy
that a couple could have children up to two, the only
child born after superannuation should not be denied
family pension.
13. Considered from any angle, we are of the
view that the two limitations incorporated in
the definition of "family" suffer from the vice of
arbitrariness and discrimination and cannot be
supported by nexus or reasonable classification.
The words "provided the marriage took place
before retirement of the government servant" in
clause (i) and "but shall not include son or
daughter born after retirement" in clause (ii) are
thus ultra vires Article 14 of the Constitution
and cannot be sustained."
c) Rameshwari Devi Vs State of Bihar and Ors., (2002) 2 SCC 431
11. The Respondents have admitted the following:-
a) Haripada Biswas was their employee. He retired in 1981 and received
pension till his death in 2007 at the same address as the petitioner
herein.
b) No claim for family pension has been made till date by any other
person other than the petitioner.
c) A duplicate pension book was issued to Haripada Biswas, which
bears the joint photograph of Haripada and the petitioner, though not
by name.
d) The documents filed show that the petitioner married Haripada in
1976, that is long before his death in 2007.
e) All important documents show the petitioner's husband's name as
Haripada Biswas.
f) The petitioner's marriage with Haripada Biswas (pensioner) in 1976 has
been prima facie proved. The birth of their children too has been
proved.
12. An employer is also the guardian of his employee and has the duty to look
after his welfare which includes an employee's family. An employee who
has a happy family is an asset to the company. It is really unfortunate
that in spite of there being a duplicate pension book with a joint
photograph of the petitioner and Haripada Biswas, duly signed by the
concerned authority, who having to sign the document, on
completion of all formalities, did not do his duty/job of noting the
name of the lady in the photograph.
13. The authorities concerned in a detached manner have not extended their
hand to help the family, whose head had provided service to the company
for several years.
14. An employee, who worked as a carpenter, his family would definitely need
assistance in official procedures, which the Respondent/Company has
failed to do.
15. Thus, relying the judgments in Badri Prasad v. Dy. Director of
Consolidation & Ors., (Supra) and Smt. Bhagwanti v. Union of India,
(Supra), this court holds that the petitioner being the lawfully wedded wife
of Haripada Biswas since 1976 is entitled to family pension from 2007,
when her husband died.
16. The entry in the name of Tarubala (whose where about admittedly is
not known) in 1972 stood waived, when the duplicate pension book
was issued by the authorities concerned/respondents with the joint
photograph of the petitioner & Haripada Biswas. There has been no
claim of family pension either by Tarubala or any other person other than
the petitioner herein who has produced more than sufficient documents in
support of her claim.
17. The Writ Petition being WPA 10984 of 2011 is thus allowed.
18. The Respondents are directed to pay family pension to the petitioner
from May, 2007 till October, 2024 with interest at the applicable rate
within two months from the date of this order. The family pension
from the month of November, 2024 be paid, as in respect of all
pensioners.
19. All connected applications, if any, stand disposed of.
20. Interim order, if any, stands vacated.
21. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)
