Kerala High Court
Kerala State Electricity Board Ltd vs Leelavathy. K on 6 February, 2024
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 6TH DAY OF FEBRUARY 2024/17TH MAGHA, 1945
WA NO.2211 OF 2018
JUDGMENT IN WP(C) 7971/2018 OF HIGH COURT OF KERALA
DATED 11.4.2018
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APPELLANTS/RESPONDENTS 1 TO 4 :-
1 KERALA STATE ELECTRICITY BOARD LTD.,
VYDUTHIBHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004,
REPRESENTED BY ITS CHAIRMAN.
2 THE CHIEF ENGINEER(HRM),
KERALA STATE ELECTRICITY BOARD LTD., VYDUTHI BHAVAN,
PATTOM, THIRUVANANTHAPURAM-695 004.
3 THE EXECUTIVE ENGINEER,
KERALA STATE ELECTRICITY BOARD LTD., KANNUR-670 001.
4 ACCOUNTS OFFICER(PENSION AUTHORISATION),
KERALA STATE ELECTRICITY BOARD, PATTOM,
THIRUVANANTHAPURAM-695 004.
BY ADV SHRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY
BOARD LIMITED
RESPONDENTS/PETITIONER & 5TH RESPONDENT :-
1 LEELAVATHY. K.,
W/O.ANANDAKRISHNAN, KARIYATH HOUSE,
PERUVANGOOR P.O., MAYYIL, KANNUR-670 602.
2 THE PRINCIPAL SECRETARY,
FINANCE (PENSION DEPARTMENT),
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
BY ADVS.
SUBHASH CYRIAC
SHEEBA JOSEPH
ASHA JYOTHY
SRI.B.UNNIKRISHNA KAIMAL,SR. GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.1.2024, THE
COURT ON 6.2.2024 DELIVERED THE FOLLOWING:
WA NO. 2211 OF 2018
2
ANU SIVARAMAN, J. & C. PRATHEEP KUMAR, J.
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W.A. No.2211 of 2018
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Dated this the 6th day of February, 2024
JUDGMENT
Anu Sivaraman J.
1. The question raised in this appeal is whether the directions
issued by the learned single Judge to the respondents to pay the
arrears of pension due to the petitioner's husband from April
2008 to November, 2015 to the petitioner is justified in the
factual and legal situation available in the instant case.
2. The 1st respondent, who was the writ petitio ner was the wife of
Anandakrishnan, who was an employee of the 1 st appellant Board.
He retired from service and was drawing pension from August
1991 onwards. He went missing from April 2008 onwards. The
1st respondent approached the appellants in the year 2014
requesting payment of pensionary benefits. She was informed
that family pension can be released only from the date of expiry
of one year from the date of filing of an FIR. Thereafter, E xhibit
WA NO. 2211 OF 2018
P6 FIR was registered in respect of the 1 st respondent's husband
on 18.12.2014. Family pension was sanctioned on the basis of
Exhibit P8 from 28.12.2015. The writ petition was filed by the
1st respondent contending that since her husband has been
missing from 2008 onwards, she was entitled to family pension
from April 2008 onwards. It was further contended that the
restriction in Exhibit P10 and P11 Government Orders that the
Family Pension would be payable only after one year from the
date on which an FIR is filed is illegal. The prayer in the writ
petition was to call for Exhibits P10 and P11 communications
and to quash the same and to grant arrears of family pension
from April 2008 to December 2015, untrammelled by the
limitations prescribed in P10 and P11.
3. The learned single Judge considered the contentions raised in the
writ petition and found that Exhibits P9, P10 and P11 orders
liberalised the procedure for settlement of pensionary claims in
respect of man missing cases and had made family pension
payable on a man missing case being registered. It was found
that pension is the property of the pensioner and where the
WA NO. 2211 OF 2018
pension remains unclaimed by the pensioner, it would be the
entitlement of the family. Respondents 1 to 4 were directed to
pay the arrears of pension, which was due to the petitioner's
husband from April 2008 to November 2015, within four months.
4. The learned counsel appearing for the appellants submits that
the Government Orders in question are not with regard to any
presumption of life or death of the pensioner. It is stated that the
Government Orders produced are only pieces of beneficial
legislation in cases where the pensioner was missing after the
pension becomes payable. It is contended that the requirement of
a complaint being filed before the police is the only requirement
to ascertain that the pensioner is actually missing and that the
orders therefore grant a relaxation from the time period required
for presumption of death. It is submitted that there is absolutely
no illegality in the requirement of an FIR being registered since
it is only to verify that the petitioner is actually missing.
5. We have considered the contentions advanced. Exhibit P9
Government Order specifically states that the presumption as to
WA NO. 2211 OF 2018
death of a person would arise under Section 108 of the Indian
Evidence Act only after a period of seven years from the date of
his disappearance. However, the Government of India had, by
their O.M.dated 29.8.1986, liberalised the settlement of
pensionary claims in respect of man missing cases. The
Government of Kerala, therefore, issued instructions to the effect
that when an employee disappears leaving his family, the family
will be paid in the first instance, the amount of salary due, leave
encashment due and amount of general provident fund having
regard to the nomination. After the elapse of the period of one
year from the date of disappearance, pensionary benefits will
also be granted to such employee. Clause 2 of Exhibit P9 also
specifically stated that such cases should be forwarded to the
Government through Head of the departments with documents
including the certificate from the concerned police station to the
effect that the employee could not be traced out after all efforts
as well as an indemnity bond in stamped paper from the legal
heir stating that all payments will be adjusted against the
payments due to the employee in case he appears and make a
claim.
WA NO. 2211 OF 2018
6. Thereafter, Exhibit P10 order was passed on 23.9.1989 further
relaxing the conditions and stating that when a pensioner
disappears leaving his family, family pension is to be sanctioned
within one year after the serving employee is reported missing,
reckoning the said period from the date of First Information
Report. The further requirement in the earlier order that the
certificate to the effect that the employee could not be traced out
is to be forwarded was omitted. Thereafter, Exhibit P11 was
issued on 13.12.2011. It was made clear that the family pension
in man missing cases will continue to be sanctioned and paid one
year after the date of lodging of the FIR but it will accrue from
the date of lodging of the FIR or registering the crime, whichever
is later. It is, therefore, clear that there is no question with
regard to waiting for seven years from the date of disappearance
of the employee. However, the Government Orders which
provided a relaxation in the said waiting period of seven years in
the case of pensionary benefits, specifically provided that there
must be a report with the police that the employee or pensioner
concerned is missing. From a reading of Exhibits P9, P10 and
P11, it is clear that the liberalised orders also provided that
WA NO. 2211 OF 2018
there must be a report before the police that the person is
missing. It is only on the basis of Exhibits P9 and P10 orders
that the employee's wife became entitled to family pension within
a year of reporting the person missing.
7. In the above circumstances, we are unable to accept the
contention of the learned counsel for the respondent that the
condition contained in Exhibits P10 and P11 that there should
be a report before the police was illegal in any manner. In
view of the fact that the pensioner was, admittedly, missing
from April, 2008 onwards, we are of the opinion that the
directions contained in the judgment to the appellant to pay
arrears of pension was completely unjustified since the
payment of pension is subject to several formalities as
contained in the service rules including the production of life
certificate of the pensioner concerned, We are, therefore, of
the opinion that this appeal is liable to succeed. The writ
appeal is, therefore, allowed. The judgment of the learned
single Judge is set aside. The respondents shall be paid family
pension in accordance with Exhibits P10 and P11. Any arrears
WA NO. 2211 OF 2018
found due shall be calculated and disbursed within a period of
three months from the date of receipt of a copy of this
judgment.
Sd/-
Anu Sivaraman, Judge
Sd/-
C. Pratheep Kumar, Judge
sj19/1
