Musmat Nila Devi vs The State Of Bihar And Ors
2023 Latest Caselaw 933 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.11290 of 2018
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Musmat Nila Devi, Widow of Late Pradeep Mistri, R/o Vishnupuri (Chitkohra), Near Shiv Mandir, P.O.- Anishabad, P.S.- Gardanibagh, District- Patna ... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Minor Water Resources Department, Bihar, Patna

2. The Deputy Secretary, Minor Water Resources Department, Bihar, Patna

3. The Chief Engineer, Minor Water Resources Department, Bihar, Patna

4. The Superintendent Engineer, Minor Irrigation Circle, Patna

5. The Executive Engineer, Minor Irrigation Division, Patna

6. The Accountant General of Bihar, Birchand Patel Path, Patna

7. The Treasury Officer, Patna (Collectorate).

8. The District Officer, Pension-Cell, Patna.

9. Sona Devi @ Sunaina Devi, W/o Sri Sapan Kumar Chatterjee R/o Mogalpura, Purani Chauki, Patna City.

10. The Treasury Officer, Patna City.

11. The Branch Manager, State Bank of India, Hajiganj, Patna City.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Ajay Kumar, Advocate For the Respondent/s : Mr. Sita Ram Yadav, GP-16 For the Respondent No.9: Mr. Kishore Kumar Thakur, with Mr. Kumar Chandrashekhar, Advocates For the Accountant General: Mrs. Ritika Rani, Advocate For Respondent No.11 : Mr. Satyendra Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR CAV JUDGMENT Date : 22-02-2023 Heard Mr. Ajay Kumar, learned counsel appearing on

behalf of the petitioner, Mr. Kishore Kumar Thakur, learned

counsel, duly assisted by Mr. Kumar Chandra Shekhar, learned

counsel for respondent no.9, Mr. Sita Ram Yadav, learned counsel Patna High Court CWJC No.11290 of 2018 dt. 22-02-2023

for the State and also perused the materials available on record

meticulously.

2. The petitioner is claiming herself to be wife of

deceased Pradeep Mistri, who superannuated on 28.02.2010 while

working as Helper in the Minor Irrigation Division, Patna and died

on 02.05.2013, filed the present writ application seeking direction

to the respondents to grant her full family pension and also

assailed the letter dated 28.03.2016, issued by the Treasury Officer,

Patna (Collectorate) by which it has been informed that since the

name of Sona Devi mentioned as wife of Pradeep Mistri in the

pension paper of the deceased employee, the family pension is

being paid to her after making deduction of Rs.4,000/- from the

payment of Sona Devi. She further prayed, inter alia, for a

direction upon the respondents to sanction the due 3 rd ACP to her

husband w.e.f. 01.01.2009 with all consequential benefits, apart

from due GPF for the period the deceased employee had worked

under the Work Charge Establishment. It is also prayed that

petitioner being first wife of the employee is entitled to receive

100% family pension in view of ratio laid down by this Court in

Most. Tara Devi Vs. The State of Bihar and Others (C.W.J.C.

No. 15986 of 2016).

Patna High Court CWJC No.11290 of 2018 dt. 22-02-2023

3. It is vehemently contended that the marriage of the

petitioner was solemnized with late Pradeep Mistri on 27.06.1986,

as per the Hindu rituals and from their wedlock five children were

born. Both the husband and the wife remained together for a pretty

long time. However, subsequently, petitioner's husband became

habitual drunkard due to which he came in contact with a married

woman, namely, Sona Devi @ Sunaina Devi, the respondent no.9

herein. After some time, the petitioner's husband left taking care of

the petitioner and the children, which resulted into filing of

Maintenance Case No. 211(M) of 2008 against the deceased

employee before the learned Family Court, Patna, which was

allowed by the learned Additional Principal Judge, Family Court,

Patna and after considering the income of the husband of the

petitioner, a sum of Rs.4,000/- per month was allowed for

maintenance of the petitioner and her children from the date of

order, the copy of which has been brought on record by way of

Annexure-4 to the writ application.

4. In support of the contention of the petitioner being

legally married wife to the deceased Pradeep Mistri, the copies of

certificates issued by School in favour of her children were

brought on record. It has also been submitted that respondent no.9

is wife of Sri Sapan Kumar Chatterjee, which fact would be Patna High Court CWJC No.11290 of 2018 dt. 22-02-2023

evident from the Municipal Tax receipts, wherein the name of the

husband of respondent no. 9 was entered in Municipal record as

Sapan Kumar Chatterjee. He also submits that even during the life

time the deceased employee had written a letter to the respondent

Executive Engineer on 28.07.1999 admitting the fact that he has

been living with his wife and children and Sunaina Devi is the

wife of Sapan Kumar Chatterjee, the copy of which has also been

annexed to the writ application. It is also contended that after the

retirement of the deceased employee, retiral benefits, including the

pension, gratuity and other dues were paid to him, though after

delay of two years. However, the respondent no.9 in connivance

with respondent Executive Engineer, Minor Irrigation Department

got her name approved as wife of deceased Pradeep Mistri and the

family pension was sanctioned in her favour on the basis of the

pension paper, which fraudulently shows the name of respondent

no.9, as his wife. Similar fraud has also been committed in GPF

book wherein the name of respondent no.9 has mentioned as wife

of the deceased employee. Various documents and papers have

been placed before this Court in order to impress upon the Court

showing the bona fide of the petitioner being wife of the deceased

employee.

Patna High Court CWJC No.11290 of 2018 dt. 22-02-2023

5. A notice was issued to the respondent no.9. She

entered her appearance and filed counter affidavit disputing all the

averments and the submissions made on behalf of the petitioner. It

is submitted that the respondent no.9 does not have any alias name,

rather she is known as Sona Devi and she is the legally married

first wife of late Pradeep Mistri, the marriage of whom were

solemnized in the year 1978 itself. Submission has been made at

the bar that so far the Maintenance case is concerned, it is an ex-

parte order and the deceased employee was made the sole

respondent in the said Maintenance case, however, he could not

appear, hence no reliance can be placed upon the order dated

06.06.2012, passed by the learned Additional Principal Judge,

Family Court, Patna in Maintenance Case No. 211 (M) of 2008.

Further submission has been made that pension paper forwarded

by the Department of the deceased employee Pradeep Mistri, duly

signed by the competent authority of the Department, which has

also been annexed as Annexure-G to the counter affidavit filed on

behalf of respondent nos. 1 and 5 clearly suggests the relationship

of the respondent no.9 with the deceased employee. The other

document, such as the declaration of the lists of names of the

family members of late Pradeep Mistri, duly signed by the

deceased employee himself and verified by the competent Patna High Court CWJC No.11290 of 2018 dt. 22-02-2023

authority of the department makes it conclusively established that

the deceased Pradeep Mistri has recognized the respondent no.9, as

his legally married wife and the sons born out from the said

wedlock.

6. The aforesaid documents have been verified by the

department and recognizing the respondent no.9, as the legally

wedded wife of deceased Pradeep Mistri, issued authority letter for

payment of family pension to her. However, in spite of completion

of such formalities, the petitioner had submitted one application

before the respondent District Magistrate, Patna raising objection

regarding payment of family pension to respondent no.9 on the

ground of she being not the legally married wife of the deceased

employee, the family pension of respondent no.9 was withheld. On

being aggrieved, the respondent no.9 moved before this Court in

C.W.J.C. No. 8127 of 2014. The respondent State authorities

responding to the objection made by the petitioner apprise the fact

that respondent no.9 being nominee in the service book of the

deceased employee is only entitled to receive family pension after

the death of her husband and subsequently vide letter no. 1473

dated 14.11.2013, the Executive Engineer, Minor Irrigation

Department further indicated that at no point of time the petitioner

had raised any objection regarding nomination with respect to Patna High Court CWJC No.11290 of 2018 dt. 22-02-2023

payment of retiral benefits, including pension during the life time

of erstwhile employee and also at the time of payment of death-

cum-retiral benefits to the respondent no.9, which was payable to

her husband. In view of the aforesaid facts, during the pendency of

the said writ application, the payment of family pension to the

respondent no.9 has been restored and considering the fact that the

grievance of respondent no.9 has been redressed, the writ

application was disposed of having become infructuous. He also

submits that there is no alias name of respondent no.9, which finds

place, anywhere, and the petitioner has tried to mislead this Court

by furnishing an imaginary alias name of respondent no.9 only to

frustrate the legal right of respondent no.9. However, all the

payment was being made after due verification and ascertainment

of her identity and status.

7. The genuineness of the certificates/documents

brought on record by the petitioner has been disputed by

respondent no.9 and submission has been made that the same can

be verified and adjudicated upon only by a Civil Court of

competent jurisdiction after adducing the evidence in that regard.

8. The State was represented by Mr. Sita Ram Yadav,

learned GP-16, has also filed a counter affidavit and

supplementary counter affidavit and submitted on the basis of the Patna High Court CWJC No.11290 of 2018 dt. 22-02-2023

materials available on record that after retirement of the deceased

employee Pradeep Mistri, the office of the Accountant General,

Bihar, Patna issued pension payment order in favour of the retired

employee. The said pension payment order bearing PPO No.

201011082246 clearly mentioned that in the event of death of the

erstwhile employee, the family pension be paid to his nominee

Smt. Sona Devi, the legally married wife of Pradeep Mistri. The

aforesaid pension payment order was issued on the basis of the

entry made in the service book disclosing the respondent no.9 as

his nominee to receive family pension and other retiral-cum-death

benefits in the capacity of the legally married wife of the deceased

employee. Similar is the position in the G.P.F. nomination form.

9. He submits that in terms of the pension payment

order dated 12.10.2010, the respondent no.9 started getting family

pension issued under the signature of Treasury Officer.

10. Pursuant to the order of this Court, the original

service book has been placed before this Court, which also

suggests the respondent no.9 shown as the wife and as such

nominee declared by the deceased employee, late Pradeep Mistri.

11. Having heard the parties at length, this Court finds

substance in the submissions made on behalf of the learned

counsel appearing on behalf of respondent no.9 and the State. The Patna High Court CWJC No.11290 of 2018 dt. 22-02-2023

very purpose of nomination is to enable the State to meet its

obligation and get a valid discharge in respect thereof. The

Hon'ble Supreme Court in the case of Smt. Violet Issac and Ors.

Vs. Union of India and Ors. [(1991) 1 SCC 725] held that no

other person except those designated under the Rules are entitled

to receive family pension. It further held that the employee has no

title nor any control over the family pension as he is not required

to make any contribution. The Family Pension Scheme is in the

nature of a welfare scheme. Therefore, it does not form part of the

estate of the deceased employee enabling him to dispose of the

same by testamentary disposition.

12. Undisputedly the family pension is admissible to a

widow in her capacity as widow and would never be subject

matter of testamentary disposition. The family pension is

admissible on account of status and the status is acquired on the

happening of certain event, namely, on becoming widow on the

death of the husband. There is no iota of doubt that the grant of

family pension is governed by statutory provision and the same

does not provide for family pension to the second wife.

13. The reliance made by the petitioner on a judgment

rendered by this Court in C.W.J.C. No. 15986 of 2016, as also the

judgment of the Apex Court in the case of G.L. Bhatia Vs. Union Patna High Court CWJC No.11290 of 2018 dt. 22-02-2023

of India and Another [(1999) 5 SCC 237] have been passed on

the premise of the admitted factual position that ignoring the claim

of 1st wife nomination was made in favour of second wife,

contrary to the provision of law. However, the case in hand, the

petitioner has failed to establish her claim of she being 1 st wife of

deceased employee.

14. The learned Division Bench of this Court while

considering the identical matter in the case of Ati Razia Devi Vs.

The State of Bihar and Others, reported in 2016 (1) PLJR 835

has been pleased to hold as follows:

"The very purpose of the nomination is to enable the State to meet its obligations and get a valid discharge in respect thereof. Once, the employee had nominated the other lady to receive the family pension, the State discharges its obligation lawfully by paying that lady i.e. the nominee. Now, if the appellant disputes this fact and claims to be the first lawfully wedded wife, and thus, in civil law, entitled to the family pension, then, it is for her to establish her right, title and interest in this regard in a court of competent jurisdiction and get an order to override the nomination made by the person/employee concerned. The nominee, in matters where the status and the right is disputed, is merely a trustee for the rightful owner thereof, but, of course, subject to the right of nominee to receive and give a valid Patna High Court CWJC No.11290 of 2018 dt. 22-02-2023

discharge. Nomination by itself, it is well settled, does not make the person the owner or the rightful recipient of the property, but holds it in trust for rightful and lawful recipient or person entitled therein. Thus, it is open for the appellant to go before a court of competent jurisdiction and establish her right, contrary to the nomination, and get judgment and order, in accordance thereof. It is only then that the State would be in a position to change and depart from the nomination."

15. Admittedly the facts of the present case

demonstrate that the name of respondent no.9 was duly mentioned

and nominated in the service book and pension papers/forms as

wife of Pradeep Mistri and the respondent authorities after making

verification of the same issued pension payment order and other

retiral benefits. On the contrary the petitioner, prima facie, failed

to establish her claim as she being first wife, hence in any view of

the matter, the petitioner may file an application before the

competent Court for Succession Certificate impleading respondent

no.9, as party respondent, if so desire. Thus, the competent court

would be able to decide the application after considering the

evidences led before it expeditiously.

16. Further, it is needless to observe that normally,

where there is disputed question of facts, which require evidences

to be adduced by the parties, the High Court should desist from Patna High Court CWJC No.11290 of 2018 dt. 22-02-2023

entertaining a writ petition under Article 226 of the Constitution of

India and the proper remedy available under the law is to

approach before the competent Civil Court.

17. In view of the aforenoted discussions, this Court

does not find any merit in the writ petition, accordingly, it is

dismissed, with the liberty aforesaid.

(Harish Kumar, J) uday/-

AFR/NAFR                NAFR
CAV DATE                15.12.2022
Uploading Date          24.02.2023
Transmission Date