Madras High Court
N.Jothilakshmi vs The Deputy Director – Benefits on 30 October, 2024
W.P. No.3322 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 26.07.2024 Pronounced on : 30.10.2024
CORAM :
THE HONOURABLE MR. JUSTICE MUMMINENI SUDHEER KUMAR
W.P.No.3322 of 2020
and
W.M.P.No.3854 of 2020
N.Jothilakshmi ... Petitioner
Vs.
1.The Deputy Director – Benefits,
Employees state Insurance Corporation (Sub regional Office),
No.1897, Trichy road,
Panchdeep Bhavan,
Ramanathapuram,
Coimbatore – 641 045.
2.The Branch Manager,
Branch office – Palladam,
ESI Corporation, Coimbatore. ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying for issuance of Writ of Certiorarified Mandamus calling for the entire
records of the order of rejection, dated 07.09.2018 passed by the 1 st
respondent in his proceedings bearing No.56/E/11/14/2016/PG/NON-MED-
III/SRO, based on the petitioner's representation dated 30.08.2018 and quash
the same and consequently direct the 1st respondent to reconsider the
petitioner's representation dated 30.08.2018 and grant dependent's benefit to
the petitioner.
Page No.1 of 24
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W.P. No.3322 of 2020
For Petitioner : Mr.K.R.Samratt
for Mr.H.Rajasekar
For Respondents : Ms.G.Narmadha
for Mr.G.Bharadwaj
ORDER
The brief facts that are relevant for disposal of this writ petition are as
under:
One Mr.Narayanaswamy worked as Ironer in M/s.Carloo Textile,
having its factory at Chennimalaipalayam, Karaipudur Village,
Ganapathipalayam Road, Tiruppur with employee I.D No.842 and he was
enrolled with the Employee State Insurance Corporation and necessary
contributions have been paid to by his employer and the petitioner. He was
married to the petitioner herein, on 23.06.1985 and out of wedlock, they have
two children namely, Sathya and Manikandan. It was thereafter, the
petitioner and the said Narayanaswamy obtained divorce by mutual consent
in H.M.O.P.No.61 of 2004, by an order dated 07.02.2006 passed by the
Court of Sub-ordinate Judge, Kovilpatti. It is thereafter, the said
Narayanaswamy died in an accident occurred during the course of his
employment on 02.12.2016. While, the said Narayanaswamy was alive, he
submitted a nominee form prescribed under Rule 93 of Tamil Nadu Factories
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Rules, 1950 nominating the petitioner herein, as his nominee in the capacity
of wife for payment of dues for the period of leave with wages and pending
payments/salaries to her and she was described as wife in the said nomination
form. After the demise of the said Narayanaswamy, the son of the petitioner
herein, made a claim for payment of dependent benefits, but the said request
was rejected by the respondent Corporation on the ground that the son of the
petitioner namely Manikandan had attained the age of 25 years and thereby,
cease to be a dependent of the deceased employee within the meaning of
Section 2(6-A) of the Employees' State Insurance (in short 'ESI') Act, 1948.
2. It was thereafter, the petitioner herein, submitted an application
on 30.08.2018 claiming for payment of the dependent benefits to her
claiming to be the wife of the deceased employee. In the said application, the
petitioner claimed that though there was a decree of divorce, the petitioner
again started living with the deceased employee from the year 2007 onwards
on the advice of elders and well wishers and she lived with the deceased
employee till the date of his demise. She also placed reliance on the
nomination form that was submitted by the deceased employee under the
Factories Act, 1948, during his life time. The said claim of the petitioner was
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considered by the Corporation and through the impugned proceedings dated
07.09.2018, the same was rejected on the ground that unless the petitioner
produce the remarriage certificate or favorable court ruling, dependent benefit
cannot be sanctioned to the petitioner. It is aggrieved by the said order dated
07.09.2018, the petitioner approached this Court by filing the present writ
petition.
3. In response to the notice issued by the Court, the respondent filed
detailed counter affidavit contending that the divorced wife cannot be treated
as dependent within the meaning of Section 2 (6-A) of ESI Act, 1948 once the
divorce was granted by the competent Court on 07.02.2006. It is further
stated that the presumption of marriage is not available to the petitioner on
the ground of continuous co-habitation for number of years, as the marriage
between the petitioner and the deceased employee was dissolved by the
decree of divorce and so long decree is in operation, the petitioner cannot
claim the status of wife of the deceased employee. The respondents also
disputed the legal heir certificate issued by Tahsildhar and the certificate
issued by the concerned Village Administrative Officer, Alampatti certifying
that the petitioner and the deceased employee lived together as wife and
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husband during the life time of the deceased employee. The respondents also
raised a ground contending that the present writ petition is filed belatedly,
after one and half years, after passing of the impugned order.
4. Heard Mr.K.R.Samratt for Mr.H.Rajasekar, learned counsel
appearing for the petitioner and Ms.G.Narmadha for Mr.G.Bharadwaj,
learned counsel appearing for the respondents.
5. The learned counsel for the petitioner while reiterating the
contentions raised in the writ petition, placed strong reliance on the
nomination form submitted by the deceased employee under the provisions of
Factories Act in Form 34 and contended that inspite of the decree of divorce
passed on 07.02.2006, the petitioner and the deceased employee lived
together as wife and husband till the date of death of the employee in question
and in view of the same, the deceased employee has already submitted a
nomination form wherein, the petitioner herein, was shown as his wife and
thereafter, notwithstanding the decree of divorce passed on 07.02.2006 by
virtue of continuous cohabitation from the year 2007 till the date of death of
deceased employee in the year 2016, there is presumption of marriage and the
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petitioner is bound to be treated as widow of the deceased employee on the
demise of the employee in question. He also placed reliance on a decision of
the learned Single Judge of this Court in W.P.No.34952 of 2019 dated
23.01.2020.
6. On the other hand, Ms.G.Narmadha, learned counsel appearing
for the respondents while reiterating the contentions raised in the counter
affidavit, further contended that the petitioner has an effective alternative
remedy under Section 75 of ESI Act, 1948 before the ESI Court where all the
issues including factual aspects can be gone into, but the petitioner instead of
availing effective alternative remedy which is available, approached this Court
by filing the present writ petition and therefore, raised preliminary objection
against the maintainability of the writ petition itself. The learned counsel also
further contended that the petitioner has got cause of action for making claim
on the date of demise of the employee on 02.12.2016 itself, but the petitioner
made a claim for the first time only on 30.08.2018 that is after a lapse of one
year eight months. She also further contended that the divorced wife cannot
be treated as widow of the deceased employee in question and therefore, the
petitioner does not come within the meaning of dependent under Section 2
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(6-A) of ESI Act, 1948. The learned counsel also disputed the genuineness of
the legal heir certificate issued by the Tahsildhar and the certificate issued by
the Village Administrative Office which are relied upon by the petitioner in
support of her case, and contended that the respondent Corporation will have
ample opportunity to disprove the said certificate before the ESI Court.
7. She also further contended that in terms of Section 77(1-A) of
ESI Act, 1948, the petitioner has to make a claim within a period of twelve
months after the claim became due and in terms of Regulation 83 of ESI
(General) Regulations 1950, the claim became due on death of deceased
employee, but the petitioner failed to make any claim within a period of
twelve months. Thus, it is contended that the claim of the petitioner is barred
by limitation. The learned counsel also further contended that, even if
presuming that the deceased employee has nominated the petitioner as his
nominee under the provisions of Factories Act, 1948, the same can be
distinguished as nominee in all circumstances cannot be treated as dependent
within the meaning of Section 2(6-A) of Act, 1948. She also further
contended that the decision relied upon by the learned counsel for the
petitioner in W.P.No.34952 of 2019 dated 23.01.2020 has no application to
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the case on hand as the petitioner has already obtained divorce by virtue of
decree passed by competent Court and the said decree is still in operation.
She also placed reliance on a decision of the Hight court of Chattisgarh,
Bilaspur in W.A.No.151 of 2018 and Nagpur Bench of High Court of
Bombay in First Appeal No.544 of 2013 to contend that the divorced wife
cannot be treated as widow after the demise of her former husband.
8. This Court has carefully considered the submissions made on
either side and also perused the entire material available on record.
9. The first objection raised by the learned counsel appearing for
the respondents is on the maintainability of the writ petition, in the light of
availability of alternative remedy under Section 75 of ESI Act, 1948 before
the Employees State Insurance Court. It is settled law that the power
conferred upon this Court under Article 226 is an unbridled power, however,
this Court itself has imposed certain self restrictions for exercising its
jurisdiction under Article 226 of the Constitution of India. There is no
absolute bar from entertaining a writ petition in case of availability of
alternative remedy also. Whether an alternative remedy that is available is an
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effective remedy or not is a matter to be considered basing upon the facts of
each case. Hence, the writ petition cannot be thrown out on mere availability
of alternative remedy under Section 75 of ESI Act, 1948.
10. In the instant case, the claim is for payment of the dependent
benefit consequent upon the death of workmen who was registered under the
provisions of ESI Act, 1948. The employee died on 02.12.2016 and the claim
for payment of dependent benefit was made by his son initially and thereafter,
the petitioner herein, claiming to be a widow of the deceased employee, made
a claim for payment of dependent benefits by submitting an application on
30.08.2018. The said claim was rejected by the respondent Corporation by
passing an order dated 07.09.2018. It is thereafter, the petitioner approached
this Court by filing the present writ petition in the year 2020 and the same is
pending before this Court for more than four years. No doubt, if there is any
factual dispute which cannot be adjudicated before this Court under Article
226, definitely, this Court would refrain from entertaining the writ petition
and ought to have relegated the petitioner to the forum as provided under
Section 75 of ESI Act, 1948. But that is not the case on hand. Hence, this
Court is not inclined to non-suit the petitioner on the ground of availability of
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an alternative remedy.
11. The petitioner herein, claiming to be a widow of the deceased
employee, having married to him on 23.06.1985 and admittedly, she gave
birth to two children through the deceased employee. It is also not in dispute
that the marriage of the petitioner with the deceased employee ended in
divorce on 07.02.2006. It is also not in dispute that the deceased employee
during his life time has submitted a nomination Form in Form 34 under
provisions of Factories Act, 1948 & the Tamil Nadu Factories Rules, 1950.
The submission of the said nomination Form is not in dispute. A perusal of
the said nomination Form shows that the petitioner herein was nominated to
receive the arrears of salary/wages, leave salary, etc in the event of death of
the employee. In the said nomination form, the deceased employee, while
nominating the petitioner herein, also described her as his wife. Either in the
counter affidavit filed by the respondent Corporation or in the elaborate
written arguments filed before this Court, the existence of the said nomination
form is not disputed. No doubt, the respondents have disputed the legal heir
certificate issued by the Tahsildhar concerned and the certificate issued by the
Village Administrative Officer certifying that the petitioner and the deceased
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employee lived together as wife and husband till the date of demise of the
deceased employee. In the absence of any dispute about the nomination form
submitted by the deceased employee during his life time which is also placed
before this Court coupled with contention raised by the petitioner that she has
been living with the deceased employee since the year 2007 onwards, till the
date of demise, as his wife especially in the absence of any serious dispute
about the same, her status cannot be allowed to be disputed. The respondent
Corporation also not disputed the co-habitation of the petitioner with the
deceased employee. Once that is established, whether such co-habitation of
the petitioner with the deceased employee from 2007 till 2016,
notwithstanding the decree dated 07.02.2006 would lead to presumption of
marriage or not, is the only question that required to be considered by this
Court. If same would given rise to presumption of marriage then, the
petitioner can be treated as wife of the deceased employee and consequently,
as a widow on the demise of the employee in question on 02.12.2016.
12. There is no serious dispute about the claim made by the
petitioner living with the deceased employee during the year 2007 till 2016.
But the contention of the respondent Corporation is only on the ground that
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the said fact of living together would not give rise to the presumption of
marriage as the decree of divorce is staring at the petitioner and subsisting,
and there is no remarriage that took place between the petitioner and the
deceased employee. In this connection, it would be relevant to refer to a
decision relied upon by the learned counsel for the petitioner in
W.P.No.34952 of 2019 wherein, a coordinate bench of this Court by
following a decision of the Hon'ble Apex Court held as under:
“10. It is an admitted case that the petitioner got
married to Dr.A.Chinnasamy on 13.02.1975, when the
first marriage was in force. Therefore, there is no
difficulty in coming to the conclusion that the so called
marriage between the petitioner and the deceased
Dr.A.Chinnasamy is illegal and not recognized by Law.
The petitioner had given birth to three children through
the said Dr.A.Chinnasamy. The first wife fell sick and she
expired on 02.04.1997. Even thereafter, the petitioner
continued to live with the deceased Dr.A.Chinnasamy till
his death on 20.01.2009. Therefore, the petitioner has
lived with the deceased Dr.A.Chinnasamy for nearly 12
years even after the death of the first wife. In the
meantime, the deceased Dr.A.Chinnasamy had nominated
the petitioner on 11.05.1999 to receive the Family Pension
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after his death.
11. The only issue that requires consideration is
whether this long co- habitation will ennure to the benefit
of the petitioner and make her eligible to receive the
Family Pension. To decide this issue, the judgment that
was cited by the learned counsel for the petitioner
becomes very relevant. This Court, in S.Suseela @ Mary
Margaret Vs. The Superintendent of Police and another
made in WP.No.15806 of 2015 dated 18.06.2015, had
dealt with the similar issue. The relevant portions in the
judgment is extracted hereunder:-
"2.The husband of the petitioner one
K.M.Stanley was employed as a Head Constable in
the Police Department. While he was in service, he
married one Suganthi on 06.06.1973 and out of the
said wedlock, they have a female child namely, Rooth
Epsia. There were some difference of opinion
between K.M.Stanley and Suganthi and they lived
separately from 1975 onwards. While so,
K.M.Stanley married the petitioner herein on
23.06.1976, when the first marriage with Suganthi
was subsisting. Out of the wedlock, one male child
namely, Nakeeran was born and he is now aged
around 35 years.
3. The first wife namely Suganthi approached
the learned Principal District Judge, Erode, by filing
IDOP No.25 of 2001 seeking dissolution of marriage
and the District Judge allowed the said petition on
05.11.2003 and the marriage between K.M.Stanley
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and Suganthi was dissolved. Furthermore, the said
Suganthi died on 02.12.2005.
4. While so, K.M.Stanley retired from service
on 31.07.2001. After retirement, he has drawn
pension and he died on 28.10.2011. During his life
time, K.M.Stanley gave a representation dated
26.06.2007 to the first respondent to include the
name of the petitioner herein as his nominee for the
purpose of getting family pension.
5. The first respondent sent a proposal dated
04.09.2014 to the second respondent to sanction
family pension to the petitioner recognizing that the
petitioner is the wife of the deceased Government
servant. But, the second respondent passed the
impugned order dated 13.02.2015, rejecting the
proposal stating that since, the marriage between the
deceased Government servant and the petitioner
herein took place on 23.06.1976, when the marriage
between the deceased Government servant and his
first wife namely Suganthi was in subsistence, the
petitioner herein is not eligible for family pension.
6. The petitioner has now filed this writ
petition seeking to quash the impugned proceedings
of the second respondent in No.Pen.33/2/pt
11155/FP/14-15 dated 13.02.2015 and to direct the
second respondent to accord sanction for grant of
family pension to her.
10.At this juncture, the Juncture, the learned
counsel for the petitioner placed reliance on a
judgment of the Hon'ble Supreme Court in
Dhannulal and others v. Ganeshram and another
(ILC-2015-SC-civil), wherein in paragraph Nos.14
and 15, it has been held as follows:-
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“14.In the case of Gokal Chand vs. Parvin
Kumari, AIR 1952 SC 231, this Court observed that
continuous co-habitation of woman as husband and
wife and their treatment as such for a number of
years may raise the presumption of marriage, but the
presumption which may be drawn from long co-
habitation is rebuttable and if there are
circumstances which weaken and destroy that
presumption, the Court cannot ignore them.
15.It is well settled that the law presumes in
favour of marriage and against concubinage, when a
man and woman have cohabited continuously for a
long time. However, the presumption can be rebutted
by leading unimpeachable evidence. A heavy burden
lies on a party, who seeks to deprive the relationship
of legal origin. In the instant case, instead of
adducing unimpeachable evidence by the plaintiff, a
plea was taken that the defendant has failed to prove
the fact that phoolbasa Bai was the legally married
wife of Chahatrapati. The High Court, therefore,
came to a correct conclusive by recording a finding
that Phoolbasa Bai was the legally married wife of
Chhatrapati."
11.In these circumstances, the first respondent
thought it fit to send proposal for family pension to
the petitioner. However, the second respondent by
way of the impugned order rejected the same.
12.In view of the aforesaid facts, the second
respondent was not correct in rejecting the proposal
for family pension to the petitioner on the sole
ground that when the petitioner married the
deceased Government servant, the marriage between
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the Government servant and his first wife was
subsisting.
13.In view of all the above, I am of the view
that the second respondent while passing the
impugned order failed to take into account the entire
facts of the case, particularly, the dissolution of
marriage between the deceased Government servant
and his first wife in the year 2003; the death of the
first wife of the deceased Government servant in the
year 2005 and the continuous living together of the
deceased Government servant with the petitioner
from 1976 till the death of the deceased Government
servant in the year 2011. Hence, the first respondent
has rightly thought it fit to send proposal for family
pension to the petitioner. If it is so, I am of the view
that the second respondent is not correct in rejecting
the proposal for family pension. It is now accepted
that without the formal marriage, living together
relationship has conferred every right for the parties
aggrieved to claim for their legal rights. In the
aforesaid facts and circumstances of the case, the
order passed by the second respondent is liable to be
interfered with."
12. Even in the above judgment, the petitioner
therein had married the of DV Government Employee
during the subsistence of the first marriage. The only
difference is that in that case, the first marriage got
dissolved in the year 2003 and the first wife died in the
year 2005. This Court took into consideration the
judgment of the Hon'ble Supreme Court in Dhannulal's
case. The Hon'ble Supreme Court, in the said case has
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held that Law presumes in favour of marriage and against
concubinage, when a man and woman have co-habitated
continuously for a long time. By relying upon this
judgment, this Court held that after the dissolution of
marriage with the first wife and after her death, the
petitioner therein was living with the deceased
Government servant till his death. This was taken into
consideration by this Court and this Court held that the
petitioner therein must be considered to be the wife of the
deceased Government servant atleast after the dissolution
of the first marriage and the subsequent death of the first
wife.
13. This Court is in complete agreement with the
proposition of law that has been enunciated in the above
judgment. It is very easy to brand the petitioner as a
concubine and deprive her of her livelihood. However, the
fact remains that the petitioner lived with the deceased
Dr.A.Chinnasamy from the year 1975 up to his death in
the year 2009. This means that she lived with him for
nearly 34 years. The petitioner also gave birth to three
children. If the petitioner had made this claim when the
first wife is alive, then obviously the petitioner will not be
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entitled for Family Pension, since her relationship is not
recognized by law.
14. The march of law happens only while
considering the co-habitation that continues after the
death of the first wife. That is the most crucial factor that
was taken into consideration by this Court while granting
the Family Pension to the petitioner in the case cited
supra. Even in the present case, the first wife died on
02.04.1997. Thereafter, the petitioner lived with the
deceased Dr.A.Chinnasamy till his death on 20.01.2009.
During this period, it can always be construed that the
petitioner and the deceased Dr.A.Chinnasamy were living
as husband and wife and their long co-habitation itself
raises that presumption of marriage. Added to that the
deceased Dr.A.Chinnasamy had also nominated the
petitioner on 11.05.1999 to receive the Family Pension
after his death.
15. In the considered view of this Court, this Court
has to necessarily lean towards the presumption of
marriage rather than branding the petitioner as a
concubine. This will be the most appropriate way to deal
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with the facts of the present case, if justice has to be done
to the petitioner.”
13. This Court is in complete agreement with the view taken in the
above decision. Even, if a decree of divorce is obtained by the petitioner is
subsisting and staring at the petitioner, that would not come in the way of
petitioner and the deceased employee to live together and lead life as wife and
husband or to remarriage. The decree of divorce need not be set aside or
modified or cancelled as a condition precedent for the petitioner and the
deceased employee to live together as husband and wife or for remarriage.
Therefore, the subsistence of decree of divorce by itself will not come in the
way of drawing a presumption of marriage between the petitioner and the
deceased employee. Once it is accepted that they lived together as husband
and wife till the date of his demise of the employee notwithstanding the
decree of divorce, coupled with the fact that the deceased employee during his
life has acknowledged a status of the petitioner as his wife by duly submitting
a nomination form after the date of decree of divorce, the subsistence of
decree of divorce is not a ground to refuse the draw presumption of marriage
between the petitioner and the deceased employee.
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14. Then, coming to the decision relied upon by the learned counsel
for the respondent of Hight Court of Chattisgarh, at Bilaspur in W.A.No.151
of 2018 and Nagpur Bench of High Court of Bombay in First Appeal No.544
of 2013, they are the cases where the case of divorced wife came up for
consideration and the issue was, as to whether the petitioner therein can be
treated as 'widow' after the demise of 'former husband' and the Courts have
come to conclusion that once the divorce took place, the relationship of wife
and husband severed and the question of divorced wife being declared as
'widow' of the 'former husband' does not arise. That is not the fact situation in
the case on hand. In the instant case, the specific case of the petitioner is that
notwithstanding decree of divorce, the petitioner and the deceased employee
lived as wife and husband throughout for about ten years prior to the demise
of the deceased employee. Therefore, decision relied upon by the learned
counsel for the respondents have no application to the facts of the case on
hand.
15. The Employees State Insurance Act, 1948 is Social Welfare and
beneficial legislation enacted for the benefit of the workmen and the
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dependents and therefore, while considering the claims of the workmen or the
dependents of the deceased workmen, the matter requires to be considered
liberally so as to achieve the object and purpose of the Act, but not, with a
view to prevent or avoid such benefits to the persons who are otherwise
entitled or eligible for such benefits.
16. The only reason furnished in the impugned order is, non-
production of remarriage certificate or favourable court ruling for payment of
the dependent benefits to the petitioner. In the light of law laid down by this
Court and the Hon'ble Apex Court dealing with presumption of marriage in
the matter of pro-longed co-habitation of men and women, non-production of
remarriage certificate cannot be a pre-condition for treating the petitioner as
wife/widow of the deceased employee.
17. Though a serious contention is raised on the ground of limitation,
the same has no application to the proceedings initiated under Article 226 of
the Constitution of India, and this Court, in the facts and circumstances of the
case, is of the considered view that it is a fit case to exercise the discretion of
this Court under Article 226 of the Constitution of India.
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18. In the light of the above, in the considered view of this Court, the
impugned order dated 07.09.2018 cannot be sustained and the same is
accordingly set aside. The respondents are directed to pay all the dependent
benefits, for which the petitioner being a widow of the deceased employee is
eligible, as expeditiously as possible at any rate within a period of six (6)
weeks from the date of receipt of a copy of this order.
19. Before parting with the case, this Court intend to acknowledge
and appreciate the able arguments, advanced by Ms.G.Narmadha, young
counsel, which made the job of this Court hard in rendering this Judgment.
20. Accordingly, the writ petition is allowed. The connected
miscellaneous petitions, if any shall stand closed. No costs.
30.10.2024
Index : Yes/No
Speaking Order : Yes/No
dpa
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To:
1.The Deputy Director – Benefits,
Employees state Insurance Corporation (Sub regional Office),
No.1897, Trichy road,
Panchdeep Bhavan,
Ramanathapuram,
Coimbatore – 641 045.
2.The Branch Manager,
Branch office – Palladam,
ESI Corporation, Coimbatore.
MUMMINENI SUDHEER KUMAR,J.
dpa
Pre-Delivery Order made in
and
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30.10.2024
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