Paniben Chunilal Jivabhai ... vs State Of Gujarat
2021 Latest Caselaw 2282 Guj

        C/SCA/11604/2019                               IA ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


     MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
        In R/SPECIAL CIVIL APPLICATION NO. 11604 of 2019
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PANIBEN CHUNILAL JIVABHAI PUROHIT THROUGH BABUBHAI CHUNILAL PUROHIT Versus DIRECTOR - PENSION AND PROVIDENT FUND ========================================================== Appearance:

for the PETITIONER(s) No. MR SIKANDER SAIYED for the PETITIONER(s) No. ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the RESPONDENT(s) No. MR BHARAT T RAO for the RESPONDENT(s) No. ==========================================================

CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI

Date : 12/02/2021

IA ORDER

1 This Court on 18.12.2020 passed the following

order:

" 1. This Court vide its judgment dated 01.10.2019 in the matter of grant of benefit of gratuity, share amount investment of the late husband of the petitioner ordered thus: "5. This Court notices that the petitioner had made an application under Section 372 of the Indian Succession Act, in respect of security and assets of the deceased son worth Rs.2,58,040/(Rupees Two Lakh Fifty Eight Thousand Forty Only) lying with the Bank of India. In that proceedings, Exwife of the deceased was

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also joined, however, none remained present for and on behalf of her. After the public notice in the daily newspaper 'Divya Bhaskar' as there was no contesting party, the Court had granted succession certificate to the present petitioner.

6. As per the bank, this Succession Certificate is not valid in case of the respondent bank.

7. The Court on inquiring from the learned advocate Mr. Dhaval Vyas, who is an empanelled advocate of the respondent nos. 3 and 4 Bank finds that succession certificate will be necessary, as there was already an objection by the deceased wife. The Court also notices that in the past when the bank had objected, the petitioner could have obtained succession certificate for assets of the respondent no.3, where he (her son) was serving. The same has not been done on account of lack of clarity on the worth of the assets / postdeath benefits available to the nominees / her. Let those details be furnished to the petitioner by the respondent bank within a period of two weeks from the receipt of the copy of this order. It shall furnish the complete details with clarity of the amount to be recovered from the deceased and the amount which shall be due to be disbursed in favour of her.

Once having obtained the details unless the bank rules provide otherwise, the petitioner shall be entitled to move for succession certificate before the competent Court in relation to movable properties which shall determine on issuance of notice to all the concerned, and as early as possible, shall decide the same within 12 weeks from such filing of the application for Succession Certificate. The bank, if chooses not to furnish the details as directed above, the petitioner

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shall be at liberty to move this Court for contempt proceedings."

2. On account of non compliance of the directions, contempt application came to be filed, the Division Bench in Miscellaneous Civil Application No. No.1044 of 2019 on 07.08.2020 passed the judgement and order, the ratio of which is reproduced herein below; "7. Having heard both the sides and also having perused the material, which has been placed on record along with the affidavit-in-reply of the respondent-officer, we notice that the petitioner could not obtain the succession certificate of the deceased son for lack of clarity on the postdeath benefits to the nominee, and therefore, the opponent-bank had been directed to furnish all those details within the period of two weeks from the date of receipt of a copy of the order / communication dated 01.10.2019 and the applicant has been directed to obtain the succession certification from the competent Court in relation to the movable properties of her son. Once there is clarity with regard to the amount to be recovered from the opponent-Bank, without entering into the delay on the part of the Bank in furnishing the necessary documents. We also notice that at Annrexure-R1, the details with regard to the amounts accrued under PF, group insurance etc., have already been furnished to the Court and the 50% of the said amount, i.e. Rs.4,99,226.50/-, has already been paid to the present applicant, after retaining the remaining 50% amount, subject to the outcome of any litigation that may be initiated by the applicant or the divorced wife and her two daughters.

7.1 So far as the aspect of interest is concerned, we do not see any calculation of interest in the sheet

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provided by the Bank. However, since, it is ensured by the learned Advocate, Mr. Rao, appearing for the Bank that the same shall be calculated within the short-time, let the same be done within the period of TWO WEEKS, from the date of receipt of a copy of this order. Once the same is done, out of the total sum accrued as interest, 50% amount shall be paid to the applicant and the remaining 50% shall be retained by the bank along with the amount of PF and gratuity, in the fixed deposits. 7.2 The necessary documents shall be tendered to the bank within a period of TEN DAYS and within ONE WEEK, thereafter, and the needful shall be done within FOUR WEEKS, thereafter.

7.3 If, the authority concerned requires any other and further documents, the opponent-Bank shall COORDINATE with them and if, those documents are available with the Bank, then, it shall SUPPLY the same to the concerned authority without waiting for the applicant to supply.

7.4 After the amount, as above, is distributed, if, the applicant still wants the remaining 50% amount retained by the Bank, it shall PROVIDE the succession certificate, as directed vide order dated 21.06.2004."

3. As there was non-compliance of the directions issued by this Court, the petitioner moved a Miscellaneous Civil Application No.690 of 2020 in Miscellaneous Civil Application No. 1044 of 2019 which came up for hearing before the Division Bench of this Court CORAM: Mr.R.M.Chhaya and Mr.Nirzar S. Desai J.J.) on 27.11.2020, the Court directed thus:

"1. Heard Mr. Sikander Saiyed, learned advocate for the petitioner and Ms. Vrunda Shah, learned advocate for

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respondent no.1.

2. By way of this petition, the applicant has alleged that there is a breach of the order dated 07.08.2020. The coordinate bench of this Court in the earlier application filed as Contempt Petition being Miscellaneous Civil Application No. No. 1044/19, after considering the submissions of both the sides has observed thus -

"6. Learned Advocate, Mr. Patel, appearing for the wife and the minor daughters of the deceased has urged that the details, pertaining to the daughters and the papers of divorce shall be supplied to the bank for the bank to forward the same to the concerned authority for the purpose of pension within ten days. He also has ensured all possible cooperation in the matter.

7. Having heard both the sides and also having perused the material, which has been placed on record along with the affidavit-in-reply of the respondent-officer, we notice that the petitioner could not obtain the succession certificate of the deceased son for lack of clarity on the postdeath benefits to the nominee, and therefore, the opponentbank had been directed to furnish all those details within the period of two weeks from the date of receipt of a copy of the order / communication dated 01.10.2019 and the applicant has been directed to obtain the succession certification from the competent Court in relation to the movable properties of her son. Once there is clarity with regard to the amount to be recovered from the opponent- Bank, without entering into the delay on the part of the Bank in furnishing the necessary documents. We also notice that at Annrexure-R1, the details with regard to the amounts accrued under PF, group insurance etc., have already been

C/SCA/11604/2019 IA ORDER

furnished to the Court and the 50% of the said amount, I.e. Rs.4,99,226.50/-, has already been paid to the present applicant, after retaining the remaining 50% amount, subject to the outcome of any litigation that may be initiated by the applicant or the divorced wife and her two daughters.

7.1 So far as the aspect of interest is concerned, we do not see any calculation of interest in the sheet provided by the Bank. However, since, it is ensured by the learned Advocate, Mr. Rao, appearing for the Bank that the same shall be calculated within the short-time, let the same be done within the period of TWO WEEKS, from the date of receipt of a copy of this order. Once the same is done, out of the total sum accrued as interest, 50% amount shall be paid to the applicant and the remaining 50% shall be retained by the bank along with the amount of PF and gratuity, in the fixed deposits. 7.2 The necessary documents shall be tendered to the bank within a period of TEN DAYS and within ONE WEEK, thereafter, and the needful shall be done within FOUR WEEKS, thereafter. 7.3 If, the authority concerned requires any other and further documents, the opponent-Bank shall COORDINATE with them and if, those documents are available with the Bank, then, it shall SUPPLY the same to the concerned authority without waiting for the applicant to supply.

7.4 After the amount, as above, is distributed, if, the applicant still wants the remaining 50% amount retained by the Bank, it shall PROVIDE the succession certificate, as directed vide order dated 21.06.2004.

8. This petition stands DISPOSED OF, in the above terms, accordingly. In the event of any difficulty, it shall be

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OPEN to the parties to approach this Court."

3. It is the case of the petitioner that though documents have been supplied more than once, total amount is not paid. Considering the observations made in para 7.3 of the order dated 07.08.2020, the bank was to coordinate with the parties. We find from the record and as pointed out fairly by Mr. Saiyed, learned advocate appearing for the applicant that the principal amount is already received by the applicant. The controversy which now remains is regarding entitlement of the amount which is lying in the Bank from the pensionary benefits. Be that it may be so, in view of the fact that it is a matter of calculation, which can also be culled out from the communication addressed by the Bank dated 04/05.09.2020, which is forming part of the record of this petition. In such circumstances, in order to decide the dispute, it would be appropriate for the petitioner to file appropriate application in the writ petition being Special Civil Application No. No. 11604 of 2019. With the said liberty, the petition is disposed Of."

4. Therefore, the petitioner once again approached this Court with the following prayer:

"a) Your Lordship may be pleased to kindly admit and allow this application.

b) Your Lordship may be pleased to kindly issue necessary direction to the present opponents no. 2 to 4 to immediately release the pension amount as directed by the Hon'ble'ble Court in the order dated 07.08.2020 at Annexure A to the petition.

c)Your Lordship may be further pleased to kindly impose exemplary cost against the respondents for not obeying the command of the Hon'ble'ble Court and compelling old aged widow lady to approach this

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Hon'ble'ble Court time and again.

d) Your Lordship may be further pleased to grant such other reliefs to the applicant that may be deemed just and proper in the matter and in the interest of justice."

5. Learned advocate Mr.Sikandar Saiyed is heard with learned advocate Ms.Rashida Bazi.

6. NOTICE returnable on 23.12.2020. Learned Assistant Public Prosecutor waives service of notice on behalf of the respondents no.1 and 2, he ensures to get the details from the respondent no.2, respondents no.3 and 4 to be served through e-mode or at the best by speed post and official e-mail id will be shared by the learned Assistant Public Prosecutor Mr.Utkarsh Sharma with learned advocate Ms.Rashida Bazi."

2 On issuance of notice, Ms.E.Shailaja, learned

advocate for the newly joined respondent No.5-

EPFO, has filed affidavit-in-reply and urged that

Gujarat State Co-Op. Agriculture & Rural

Development Bank Ltd. ("the Co-operative

Bank" for short) is exempted from operation of

Provident Fund Scheme. Office of respondent

No.5 looks after compliance and settlement of

pension and EDLI Scheme belonging to the Co-

operative Bank. Late Sohanlal Purohit was having

EPS Account No.GJ/AHD/4674-E/2591. As per

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the information shared by the Co-operative Bank,

the member late Shri Sohanlal Purohit was

dismissed from the service and thereafter, he

expired on 10.04.2017.

3 The Co-operative bank has been submitted

pension claim of the applicant, who is the mother

of the late member and in respect of two

daughters, namely, Zeel Purohit and Dhara

Purohit aged 20 years and 13 years respectively.

4 The definition of "Family", as provided under para

2(vii) of the Employees Pension Scheme, 1995,

includes wife in case of male member of the

Employees' Pension Fund. It is only in absence of

any of these persons existing that the parents

would have opportunity of getting pension. It is

further submitted that the wife of late member

and his daughters preferred CMA

No./DC/296/2020 and it has been urged that

the parents have not been separated as per

Hindu Marriage Act. Therefore, the claim of the

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Co-operative Bank in respect of the mother has

not been entertained and it needed to verify all

other details and the decree of divorce issued by

the competent Court and there are certain

queries, without which it cannot be decided.

5 The Court has heard extensively Ms. E. Shailaja,

learned advocate for respondent No.5. This Court

has considered the affidavit-in-reply of EPFO and

the Inheritance Miscellaneous Application being

CMA No.DC/296/2020 and also considered the

pension scheme and the rules in this regard.

6 Present application is not being entertained, at

this stage. The authority concerned shall decide

the pending application within three to four

months considering the advanced age of the

mother of the deceased. In the event of the

daughters not found eligible and the mother of

the deceased employee being found entitled as

per the rules, her non-existence at a future date

shall not come in the way of the heirs of

hers to claim this amount as

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that may have accrued till her existence.

7 Application stands disposed of accordingly.

(MS. SONIA GOKANI, J. ) SUDHIR