Allowed

Smt.Shashikala Kisan Awad v. Divisional Officer, Central Railway C.S.T. Mumbai.

Bombay HC1 Aug 2005NMS/2878/2003

Case brief

AI extract

What is this about?

The High Court made a notice of motion absolute directing the respondent railway authorities to accept a succession certificate and pay the deceased employee's dues with interest. The court rejected jurisdictional objections regarding the C.T. Act and held that a declaratory succession certificate is binding on the State authorities.

What did the court decide?

Direct the respondent to deposit Rs. 10,000 wrongly deducted and pay Rs. 1,71,000 plus interest @ 12% per annum from 30.7.2001 to March 2004.

Smt.Shashikala Kisan Awad Vs Divisional… — Pension and Retirement Benefits | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 O.O.C.J.

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 NOTICE OF MOTION NO. 2878 OF 2003

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IN

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 PETITION NO. 887 OF 2000

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 Smt. Shashikala A. Kisan Awad .. Petitioner.

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vs.

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 Divisional Office,

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 Central Railway,

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 Personnel Branch,

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 CST, Mumbai. .. Respondents.

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 Ms. Asha Mehta for petitioner.

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 Mr. S.C. Dhawan with T. J. Pandian

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 for respondents.

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 Mr. D.R. Mishra for second wife i.e. Petitioner

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 in MPT (L) No. 162 of 2003.

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 CORAM : S.U. KAMDAR, J.

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 DATE : 2nd August, 2005.

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 ORAL JUDGMENT :

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 . The present notice of motion has been taken
 out by the petitioner inter alia seeking direction
 that the respondents should accept the succession
 certificate granted by this Court on 29.6.2001 and

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 2
 consequently pay the dues of the deceased to the

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 petitioner who is the widow.

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 2. Some of the material facts in the present
 case are as under :-

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 3. One Shri Kisan Awad was working as the
 ex-Diesel Mechanic in the respondent railways. He
 died while in service on 29.12.1999. On his death,
 the petitioner being a widow made an application for
 the dues being paid over to her and a minor
 daughter. However, one Mrs. Mangala Kisan Awad
 also along with her son claimed to be the wife of
 the said deceased employee and filed a claim before
 the Railway Authorities. The Railway Authorities

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 directed the parties to obtain succession
 certificate from the Court of Competent

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 jurisdiction. Accordingly, the petitioner herein
 filed a petition for succession certificate being
 Testamentary Petition No. 887 of 2000. This Court
 by an order dated 29.6.2001 granted the petitioner
 the succession certificate.

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 4. After obtaining the succession certificate,

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 the petitioner filed a fresh claim on 16.7.2001 with
 the railway authorities for the payment of his dues
 on his death. However, the railway authorities
 though admitted the amount due and payable under

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 their letter dated 6.6.2002 being the amount of Rs.
 2,04,737/- but inspite of production of the
 succession certificate issued by this Court which is
 the Court of competent jurisdiction did not make
 payment of any amount to the petitioner herein.

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 5. In the aforesaid circumstances, the
 petitioner has taken out the present notice of
 motion in this Court for the aforesaid reliefs.

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 6. In the meantime it seems that the said

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 Mangala Kisan Awad filed Misc. Petition being Misc.
 Petition Lodging No. 162 of 2003. The said
 petition was lodged in this Court on 4.3.2003. The
 said petition was filed inter alia seeking
 cancellation and/or to revoke the said succession
 certificate issued in favour of the petitioner
 herein. After filing the said petition, the said
 Mangala Kisan Awad informed the railway authorities
 that such a petition has been filed and because of
 the same the respondent did not release the payment
 in favour of the petitioner though the petitioner
 was holding the succession certificate. It is an
 admitted position before me that this Court has not
 granted any stay. and succession certificate is in
 force. It is also an admitted position before me
 that the said miscellaneous petition is not even
 numbered even after two years have expired.

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 7. By an ad-interim order dated 5.2.2005 this
 Court directed the respondent to deposit the amount
 due and payable in this Court and the amount is
 directed to be invested in the fixed deposit.
 Accordingly, the respondent has deposited a sum of
 Rs. 1,71,000/- admittedly due and payable after
 effecting various recoveries. The said amount is
 lying deposited in this Court.

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 8. The said amount has been deposited by the
 petitioner in this Court in March, 2004. It is
 during the period i.e. 16.7.2001 that the
 petitioner made an application for payment of the
 said amount after obtaining the succession
 certificate on 29.6.2001 till the date of deposit
 i.e. sometime in March 2005 the respondents

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 withheld the said amount for no reasons whatsoever.
 The petitioner has been wrongfully deprived of the
 said dues and the respondents in spite of having
 succession certificate in favour of the petitioner,
 refused to make payment on frivolous ground that
 there is another claimant known as Mrs. Mangala
 Kishan Awad.

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 9. In the present notice of motion the

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 respondents have filed an affidavit in reply and it
 has been inter alia contended that because of the
 pending petition being Petition Lodging No. 162 of
 2003, the respondents did not make payment to the

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 petitioner. It is further stated that the officer
 concerned was acting cautiously in not making
 payment even though the petitioner was holding a
 valid succession certificate. Various rules are
 also produced in support of the affidavit in reply
 inter alia contending that the recoveries sought to
 be effected are valid and justified.

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 10. In so far as the revocation petition Lodging

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 No. 162 of 2003 is concerned, it is very

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 significant to note that even though the petitioner
 has filed the same two years back, it has not been
 prosecuted at all. It is also surprising that the
 office of the Prothonotary and Senior Master, High
 Court, Bombay, did not take action for dismissal of
 the petition for non-removal of office objections
 under the provisions of High Court Rules for almost
 two years. This in-action on the part of the office
 has resulted in the said petition continued to
 remain on record and never came up for hearing
 before the Court since it was not numbered. This
 Petition (Lodging) No. 162 of 2003 is still pending
 on a lodging number. This motion was heard on
 earlier four occasions. None appeared for the
 petitioner in the said petition Lodging No. 162 of
 2003. However, today the learned Advocate appearing
 for the petitioner sought time to remove the office
 objection in the said Misc. Petition No. 162 of
 2003. I have declined to give time because the

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 process of the Court cannot be operated upon in such
 a manner that it defeats substantial justice in

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 favour of the party who is holding the succession
 certificate. If the said petitioner Smt. Mangala
 Awad was really genuine in prosecuting her claim she
 would have pressed that petition but she did not
 prosecute the same for the entire period of two
 years. I am dealing with a case where balance dues
 of the deceased which are payable to the widow are
 withheld for a long time. I therefore declined to
 grant time in the aforesaid circumstances and I
 dismiss the same for non-prosecution and for
 non-removal of office objections.

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 11. Now turning to the so called cautious
 approach of the railway authorities, I am of the
 opinion that the approach of the railway authorities
 is absolutely erroneous. The railway authorities
 being a State is required to obey and follow the
 orders issued by the Court of competent
 jurisdiction. It is not within their jurisdiction
 to ignore the orders of the Court on their own
 consideration when somebody else is claiming the
 right. It is well settled that the person claiming
 the rights contrary to the orders passed by the
 Court, is required to approach the concerned Court
 for modification, variation and/or for cancellation
 of the orders and not the authorities such as the
 respondents herein can take upon itself a

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 7
 jurisdiction to ignore the court orders as invalid.
 It is most unfortunate in the present case that the
 legal heirs of the deceased who was a government
 servant have not been paid the dues though he has
 expired almost more than five years ago. It is
 equally unfortunate that the widow like the
 petitioner is required to go from door to door and
 seek justice and even after obtaining the orders
 from Court of a competent jurisdiction, having
 succession certificate in her favour as well and
 production of the said order before the railway
 authorities and despite all this there is a failure
 on the part of the railway authorities to pay the
 dues. It is equally unfortunate that the government
 servants who are dealing with the matters of other
 government servants who are now deceased, forget the
 fact that they themselves being the government
 servant may face the same situation in their cases
 also. It is therefore important that the government
 servants must obey the orders passed by this Court,
 and should not withhold the amount wrongfully and
 illegally and refuse to make payment in spite of
 succession certificate being issued by the Court.
 In that light of the matter, in my view, it is
 necessary that the amount must be now permitted to
 be paid to the petitioner with interest at the rate
 of 12% per annum. To saddle the Union of India with
 such interest burden would be unjust because it is
 the wrongful inaction on the part of the officer

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 concerned which has resulted in the present
 situation. Therefore, in my opinion, it is

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 necessary that the interest claim be paid either by
 the concerned officers of the Union of India.

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 12. However, the learned counsel appearing for
 the Union of India has taken up the following pleas.
 The first plea he has taken is that the motion as
 originally filed against the Divisional Office,
 Central Railway, Personnel Branch CST, Mumbai, is
 not maintainable because the Divisional Office is
 not a legal entity and the motion ought to be in the
 name of Union of India. The second contention
 raised by the learned counsel for the respondent is
 that this Court has no jurisdiction to grant relief
 as prayed for in the motion because it is tantamount
 to execution of an order passed by this Court and
 the Testamentary Court did not have jurisdiction of
 executing the orders passed by this Court and motion
 for such relief is not maintainable and is liable to
 be dismissed. The third contention raised by the
 learned counsel for the respondents is that this
 Court has no jurisdiction in view of Section 28 of
 the Central Administrative Tribunals Act, 1985 as
 according to him, the Central Administrative
 Tribunal has an exclusive jurisdiction since the
 claim pertains to the service of the deceased
 government servant and in his opinion the same
 pertains to service matters and, therefore, this

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 Court has no jurisdiction. It is most unfortunate
 that the learned counsel appearing for the Union of
 India is seeking to raise such hyper-technical
 contentions to defeat the substantial justice in
 favour of the petitioner herein.

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 13. Now I shall deal with the said
 hyper-technical contentions. As far as the first
 contention is concerned, the same does not survive
 as the motion has been since amended and the Union
 of India has been added as a party respondent and
 the service having been waived by the learned
 counsel for the Union of India. I however gave a
 fresh opportunity to the learned counsel appearing
 for the Union of India to prosecute the matter and I
 heard him once again. Thus, the said objection does
 not survive and the same is accordingly overruled.

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 14. In so far as the second contention is
 concerned, I find that the same is equally
 misconceived. I am of the opinion that the motion
 is moved for a direction that the Union of India
 must accept the succession certificate which has
 been issued by this Court. The Union of India is
 duty bound to accept the said succession certificate
 and on failure to do so, the testamentary court who
 has issued the succession certificate is entitled to
 issue a direction to accept such a succession
 certificate and the consequence must follow

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 10
 accordingly. The argument that the motion

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 tantamounts to execution proceedings is totally
 unsustainable because it is not an application for
 execution of any decree which can be executed.
 There is difference between executable decree and
 declaratory decree as held by the Division Bench of
 this Court in Appeal No. 210 of 1990 in Writ
 Petition No. 1012 of 1989 that the issuance of
 succession certificate is a merely declaratory
 decree which is not executable. In view thereof, it
 is not possible for me to accept the contention of
 the learned counsel for the respondents herein.
 However, the learned counsel for the respondent has
 contended that if it is a declaratory decree then
 the remedy of the petitioner is to file a writ
 petition and not to move the present motion. I am
 not inclined to accept the contention of the learned

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 counsel for the respondent to relegate the
 petitioner to file a writ petition and perpetuate
 the injustice in the present case. It is well
 settled that the procedural law is made for
 advancement of substantial justice and not to
 obstruct the same. In my view, this Court having
 issued the succession certificate is empowered to
 issue directions to the authorities to obey the said
 succession certificate and comply with the same. It
 is unfortunate that such unjustified contentions are
 coming not from an individual but from a State which
 is supposed to be a Welfare State. In that view of

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 the matter, I am unable to accept the contention of
 the learned counsel for the respondents and I reject
 the same accordingly.

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 15. In my opinion, the provisions of section 28
 of the Central Administrative Tribunals Act, 1985 do
 not apply to the facts of the present case. The
 same apply to the master servant relationship. The
 employee is dead. The master servant relationship
 has come to an end. In my opinion, the widow is
 neither a person employed nor an ex-employee and,
 therefore, her rights can be enforced by filing
 appropriate proceedings in the Court of appropriate
 jurisdiction. Thus, reliance placed on section 28
 is misplaced and without any merit.

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 16. Now, this takes me to the next contention
 that the respondents were acting very cautiously in
 not paying the money. As I have stated above such
 an overcautiousness is not permissible once there is
 an order passed by the competent court. This court
 having issued a succession certificate the railway
 authorities were bound to obey and comply with the
 same. The contention that the succession
 certificate was issued without impleading Mrs.
 Mangala Awad as a party is equally unsustainable
 because Mrs. Mangala Awad having known that such
 succession certificate having been issued, could
 have approached this Court and in fact approached

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 this Court but did not prosecute the said misc.
 petition. In view thereof, the contention of the
 learned counsel for the respondent that the railway
 authorities were very cautious is without any merit
 and is required to be rejected accordingly.

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 17. Coming to the amount, I am of the opinion
 that the amount which has been deducted as per the
 letter dated 6.6.2002 is correct and the petitioner
 is entitled only to the balance amount. However,
 the learned counsel has deposited in this Court the
 amount of Rs. 1,71,000/- in place of Rs.
 1,81,000/-. After taking into consideration the
 recovery set out in the said letter dated 6.6.2002,
 the learned counsel has contended that the said
 amount of Rs. 10,000/- was further deducted towards
 estimated electricity charges. I have gone through
 the Rules which are referred to before me by the
 learned counsel for the respondents herein. I do
 not find any rule under which the respondents are
 entitled to deduct any electricity charges from the
 dues of the deceased. The learned counsel for the
 respondents states that the amount has been deducted
 as ad hoc. I, therefore, direct the respondent to
 deposit the sum of Rs. 10,000/- wrongly deducted in
 this Court within a period of two weeks from today.
 I also direct the Union of India to deposit interest
 @ 12 % per annum on the aforesaid amount of Rs.
 1,81,000/- from 30.7.2001 to March 2004 during which

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 period the amount payable to the petitioner has been
 wrongfully withheld. The amount of interest also
 shall be deposited within a period of two weeks from
 today. The Union of India will be at liberty to
 effect recoveries of such interest amount from the
 concerned officers who have committed defaults in
 releasing the payment in spite of production of the
 succession certificate of this Court in accordance
 with law.

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 18. In view of the fact that this matter was
 heard on number of occasions and the Union of India
 in place of accepting the fact that the payment
 ought to have been effected, the Union of India has
 raised most hyper-technical issues pertaining to the
 maintainability of the motion and jurisdiction of
 this Court. In my opinion, such issues which are
 raised are not only frivolous but without any merit
 but were with further intention to defeat the
 rightful claim of the petitioner. In the aforesaid
 circumstances, I am of the opinion that the present
 notice of motion is required to be made absolute. I
 make the motion absolute in the aforesaid terms. On
 such entire deposit being made, the petitioner will
 be entitled to withdraw the said amount with
 interest accrued, if any, and the respondents are
 directed to pay the costs of the present notice of
 motion quantified at Rs. 10,000/- to the petitioner
 herein.

Smt.Shashikala Kisan Awad v. Divisional Officer, Central Railway C.S.T. Mumbai.

Case brief

What is this about?

What did the court decide?

Smt.Shashikala Kisan Awad v. Divisional Officer, Central Railway C.S.T. Mumbai.

Case brief

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What did the court decide?

What the court decided

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