Madras High Court
The State Of Tamil Nadu vs M. Parvathy on 22 October, 2021
W.A. No. 2651 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.10.2021
CORAM
THE HONOURABLE MR. JUSTICE S. VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE R. VIJAYAKUMAR
W.A. No. 2651 of 2021
&
C.M.P. No. 17240 of 2021
1. The State of Tamil Nadu,
rep.by its Secretary to Government,
Home (Fire and Rescue Services)
Department,
Chennai – 9.
2. The Director of Fire and Rescue
Department,
Egmore,
Chennai – 600 008.
3. The Divisional Fire Officer,
South Chennai Region,
Chennai – 600 083. ..Appellants
Vs.
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1. M. Parvathy
2. Mrs. Radha
3. Mr. Ganesh
4. Mr. Suresh ..Respondents
Prayer: Writ Appeal as against the order dated 25.01.2021 passed in
W.P. No. 11945 of 2014.
For Appellants :: Mr.K. Tippu Sultan
Govt. Advocate
For Respondents :: No Appearance
JUDGMENT
(Judgment of the Court was delivered by S. VAIDYANATHAN,J.)
The writ appeal has been filed challenging the order dated 25.01.2021
in W.P. No. 11945 of 2014.
2. The 1st respondent herein/writ petitioner had approached this
Court seeking disposal of her representation dated 17.02.2014 with regard
to sanction of her husband’s terminal benefits and also to pay full family
pension as per the Pension Rules and pay arrears of pension with interest
within a stipulated time. The learned Single Judge, after considering the
materials on record and the rival submissions, disposed of the writ petition
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W.A. No. 2651 of 2021
directing the appellants herein to dispose of the representation of the writ
petitioner dated 17.02.2014 and pass appropriate orders with regard to
settlement of pensionary benefits to the writ petitioner in accordance with
law, within a stipulated time. Aggrieved by the said order, the Department is
before this Court in this writ appeal.
3. According to the appellants, one S. Mohan, while working as
Leading Fireman in Guindy Fire and Rescue Services Station had opted for
Voluntarily Retirement and he retired from service with effect from
31.05.1997 and thereafter, he died on 13.09.1997. The appellants would
further submit after his demise, M.Parvathy/the 1st respondent herein
submitted an application for settlement of all pensionary benefits along with
necessary certificates stating that she is the legally wedded wife of deceased
S. Mohan. According to the appellants, in case of any dispute with regard to
pension claim, as per Tamil Nadu Pension Rules, the original wife and
children and children born through second wife alone are eligible to receive
the pensionary benefits and as the names of respondents 2 to 4 were also
shown as legal heirs in the Service Book of S. Mohan , sanction was given
to disburse only 50% of the family pension in favour of the 1st respondent
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W.A. No. 2651 of 2021
herein and during the pendency of the writ proceedings, the same had also
been paid to the 1st respondent/writ petitioner. However, according to the
appellants, the learned Single Judge failed to appreciate the fact that only
due to rival claims and for want of valid documentary evidence, the
Department could not sanction the remaining 50% of pensionary benefits to
the 1st respondent/writ petitioner.
4. A perusal of the order under challenge reveals that the
learned Single Judge, after going through the records, came to the
conclusion that eventhough the deceased Government Servant mentioned
respondents 4 to 6 as legal heirs in the service book and DCRG nomination
form, thereafter, he had requested to cancel the names of legal heirs that was
furnished by him. Even assuming for the sake of argument, there is a
dispute, the writ petitioner/who is the 1st respondent herein has produced the
marriage certificate, legal heirship certificate, death certificate, family card
besides obtaining a decree from the Civil Court in her favour that she is the
legally wedded wife.
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W.A. No. 2651 of 2021
5. The contention of the Department is that a departmental
enquiry was conducted initially and both the parties had participated and
based on the understanding arrived at, which was not recorded, 50% of the
amount had been paid to the writ petitioner. Not satisfied with the same, the
remaining amount was claimed, which was also accepted by the learned
Single Judge.
6. As rightly observed by the learned Single Judge, before the
Civil Court, Radha and her children, who were respondents 4 to 6 in the
writ petition, were made as parties, but they did not choose to appear and
contest, hence, they were set ex parte. Even before this Court, they have
been made as parties and they have not chosen to contest the writ petition.
Though it has been stated by the Government Counsel Mr.K.V. Sajeev
Kumar that they have no objection for disposing of the representation dated
17.02.2014, the observation made in paragraph Nos 5 and 6 of the order
passed in the writ petition stares at them.
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W.A. No. 2651 of 2021
7. We are of the view that the learned Single Judge, instead of
directing the appellants herein to dispose of the representation, could have
straightaway ordered payment of the balance amount. Merely because, time
has been granted to the appellants to dispose of the representation, it does
not mean that the Department can sit as an Appellate Court over the order of
the learned Single Judge and set at nought the findings of the learned Single
Judge. We are of the view that Parvathy, the 1st respondent herein, who is
the writ petitioner has produced documentary evidence to establish her case
that she is the legally wedded wife by furnishing the Civil Court’s decree.
The relevant portion of the Civil Court’s judgment and decree is extracted
hereunder:
“1. That it is hereby declared, the plaintiffs
alone are the only legal heirs of the deceased Mr.S.
Mohan;
2. that the defendants 4 to 6 be and hereby
directed, by means of mandatory injunction, to pay
the entire terminal benefits, death benefits and other
benefits to the plaintiffs;
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W.A. No. 2651 of 2021
3. that the defendants 1 to 3 be and are
hereby restrained by means of permanent injunction
from receiving the terminal benefits, death benefits
and other benefits of the deceased Mr.S. Mohan from
the defendants 4 to 6 from the other officials….”
It is no doubt true that Civil Court has no jurisdiction to decide issues
(2) & (3) framed in the suit with regard to service benefits. However,the
Civil Court has got jurisdiction to decide the first issue and when there is a
specific finding in O.S. No. 706 of 1997 dated 29.04.2004 that the plaintiffs
in the suit alone are the legal heirs of deceased S. Mohan, administrative
decision cannot supersede the judgment and decree of a Civil Court, which
has become final and not challenged before the Appellate Court. That apart,
the appellants herein were defendants 5 and 6 before the Civil Court and
they are bound by the decree passed by the Civil Court. Hence, the
balance amount due to 1st respondent's/ writ petitioner’s husband has
got to be paid to her. Accordingly, the writ appeal fails and the same
is dismissed.
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W.A. No. 2651 of 2021
S. VAIDYANATHAN,J.
AND
R. VIJAYAKUMAR,J.
nv
8. As the time limit granted by the learned Single Judge has
already expired, we direct the appellants to, instead of disposing of the
representation dated 17.02.2014, pay the amount due to the 1st
respondent/writ petitioner within 8 weeks from the date of receipt of a copy
of this order. No costs. Connected C.M.P. is closed.
(S.V.N.J.) (R.V.J.)
nv 22.10.2021
W.A. No. 2651 of 2021
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