Writ petition by widow of deceased Legislative Assembly member seeking pension under Goa Act, 2004. Court dismissed petition, holding statutory bar on pension for occupant of salaried post applies, especially as petitioner's salary exceeded pension limit.
None. Petitioner's application for pension dismissed; parties to bear own costs.
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Santosh
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.100 OF 2021
Smt. Aruna Vishnu Wagh…. Petitioner.
Versus
1. Chief Secretary, State of
Goa and another ….. Respondents.
Mr. Nihal Pramod Kamat, Advocate for the Petitioner.
Mr. D.J. Pangam, Advocate General with Mr. S.P. Munj, Additional
Govt. Advocate for the Respondents.
Coram:- DIPANKAR DATTA, CJ. &
M. S. SONAK, J.
Date:- 23rd March 2021
P.C.:-
The petitioner is the widow of late Vishnu Surya Wagh, former
member of the Legislative Assembly of Goa, as well as its Deputy
Speaker, during the period 19/03/2012 to 14/03/2017.
2.The husband of the petitioner passed away on 08/02/2019 in
Johannesburg, South Africa.
3.It is not in dispute that the petitioner is employed as an
Education Officer in the National Board for Worker Education and
Development, Ministry of Labour and Employment, Government of
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India and is presently posted at Ponda.
4. A legislation was enacted in 2004 titled as the “Goa Salary, Allowance and Pension of Members of Legislative Assembly Act, 2004” (hereafter referred to as the 2004 Act). The petitioner, being the widow of the deceased member of the Legislative Assembly, had applied for pension in terms of Section 11 of the 2004 Act. Such application has been spurned by the Assistant Accounts Officer, Goa Legislature Secretariat by an order contained in a communication dated 27/8/2019 addressed to her. The ground on which the Assistant Accounts Officer spurned such request of the petitioner is that Section 11(2)(iii) of the 2004 Act creates a bar on grant of pension to her owing to her employment as noted above, and drawal of a salary of 1,19,232/- per ₹ month. This communication forms the subject-matter of challenge in this writ petition.
5.Mr. Kamat, learned Advocate has appeared in support of the
writ petition. According to him, the Assistant Accounts Officer
misconstrued the provisions of the 2004 Act whilst spurning the request
of the petitioner for pension. According to him, notwithstanding the
petitioner's employment as an Education Officer, she is entitled to grant
of pension under Section 11 of the 2004 Act in view of absence of any
express bar. It is also submitted that the fact that the petitioner’s husband
was a former Deputy Speaker of the Legislative Assembly escaped the
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notice of the Assistant Accounts Officer. He has, accordingly, prayed that
the impugned communication be set aside and a direction given for
release of pension as admissible in terms of the 2004 Act.
6.Having heard Mr. Kamat and on perusal of Section 11 of the
2004 Act, we did not consider it necessary to call upon Mr. Pangam, the
learned Advocate General for the State to advance arguments although
an affidavit-in-reply has been filed by him in Court today on behalf of
the respondent no.2.
7.For facilitating appreciation of the contention of Mr. Kamat,
we consider it appropriate to reproduce hereinbelow Section 11 of the
2004 Act to the extent the same is relevant for the purpose of a decision
on this writ petition. It reads:
“11. Pension.— (1) Subject to the other provisions of this Act,
with effect from the 1st day of July, 2004, there shall be paid to
every person who has been a member, a pension of rupees five
thousand per mensem for the first year and one thousand
rupees per month for every successive year of his membership
in the Assembly subject to a maximum of rupees twenty seven
thousand per month and while reckoning the period of one
year, days exceeding 180 days in a calendar year shall be
counted as one year:
Provided....
Provided....
Provided...
Provided that after the death of the person as aforesaid, the
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pension shall be payable to his widow or her widower, as the
case may be, as long as she or he does not remarry and after the
death of the widow or widower, as the case may be, the
pension shall be payable to the dependent family members of
the person as aforesaid till they attain the age of 25 years + and
to unmarried dependent daughter till she gets married or till
her death, whichever is earlier, and such pension shall be
payable subject to the provisions in the succeeding sub-sections
of this section and the other provisions of this Act.
(2)The pension payable to a person under sub-section (1) in
case there be any outstanding amount or loan or any facilities
availed under this Act, it shall be first adjusted towards
repayment of such outstanding amount or loan or any facility
availed of, including interest payable thereon, till such entire
outstanding amount or loan or facility is cleared.
(3) Where any person entitled to pension under sub-section (1)
—
(i) is elected to the office of the President or Vice-President or
is appointed to the office of the Governor of any State or the
Administrator of any Union Territory; or
(ii) becomes a member of the Council of States or the House
of the People or any Legislative Assembly of a State or Union
Territory or any Legislative Council of a State; or
(iii) is employed on a salary under the Central Government, or
any State Government or any Corporation owned or
controlled by the Central Government or by any State
Government or any local authority or becomes otherwise
entitled to any remuneration from such Government,
Corporation or local authority,
such person shall not be entitled to any pension under sub-
section (1) for the period during which he continues to hold
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such office or as such member, or is so employed, or continues
to be entitled to such remuneration:
Provided that where the salary payable to such person for
holding such office or being such member or so employed or
whom the remuneration referred to in clause (iii) payable to
such person is, in either case, less than the pension payable to
him under sub-section (1), such person shall be entitled only
to receive the balance as pension under that sub- -section.
(4) Where any person entitled to pension under sub-section (1)
is also entitled to any pension from the Central Government or
any State Government, or any corporation owned or controlled
by the Central Government or any State Government, or any
local authority under any law or otherwise, then,
(a) where the amount of pension to which he is entitled under
such law or otherwise, is equal to or in excess of that to which
he is entitled under sub-section (1), such person shall not be
entitled to any pension under that sub-section; and (b) where
the amount of pension to which he is entitled under such law
or otherwise, is less than that to which he is entitled under sub-
section (1), such person shall be entitled to pension under that
sub-section only of an amount which falls short of the amount
of pension to which he is otherwise entitled under that sub-
section:
Provided....”
8.Reading of Section 11 of the 2004 Act would make it clear as
crystal that reference to clause (iii) of sub-section (2) of Section 11 of the
Act by the Assistant Accounts Officer in the impugned communication is
a patent mistake. Clause (iii) appears under sub-section (3), and not
under clause (ii). Regard being had to the settled position of law that
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mere erroneous reference to a statute would not vitiate an order, if the
power therefor is otherwise traceable in the relevant statute, the order of
the Assistant Accounts Officer does not call for an invalidation because
of such erroneous reference. To be fair to Mr. Kamat, he did not urge us
to do so.
9.Sub-section (3) of Section 11 of 2004 Act ordains that any
person entitled to pension under sub-section (1) acquires a
disqualification to grant of pension in case of occurrence of any one of
the contingencies stipulated in clauses (i), (ii) and (iii). The word
“person”, wherever it occurs in Section 11, although is not defined in the
2004 Act, it takes colour from “a member” as referred to in sub-section
(1) of Section 11. The word “member” as defined in clause (g) of Section
2 of the 2004 Act means a member of the Assembly. The contention of
Mr. Kamat that the petitioner's husband was a Deputy Speaker of the
Assembly and that the Assistant Accounts Officer failed to notice it, in
our opinion, does not make any difference in view of the fact that the
petitioner’s husband held the position of Deputy Speaker, obviously
because he was a member of the Assembly first. In fact, neither have we
found any special provision relating to a Deputy Speaker in the 2004
Act, nor can we assume that the family members of a member of the
Legislative Assembly, who was also a Deputy Speaker (since deceased),
would be entitled to a preferential treatment over and above what is
available to the widow/widower/dependent family member of a deceased
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member of the Assembly.
10.Next, although the focus of Mr. Kamat has been on the first
part of the fourth proviso to sub-section (1) of Section 11 of the 2004
Act, his argument appears to us to be devoid of any merit, having regard
to the second part of such proviso, which mandates that pension to a
deceased member’s widow/widower and in case of her/his death the
dependent family member, shall be payable subject to the provisions of
the sub-sections succeeding sub-section (1) of Section 11 of the 2004 Act
and the other provisions thereof. There can be no manner of doubt that
the bar created by the provision in clause (iii) of sub-section (3) of
Section 11 is attracted qua the petitioner and spurning of the application
for pension citing such provision does not suffer from any legal infirmity
warranting interference.
11. While reading Section 11 entirely, we had noted from the first proviso to sub-section (3) that mere employment or drawing of salary by any widow/widower/dependent family member of the deceased member would not ipso facto create a disqualification and that if the salary receivable is less than the pension payable, the balance amount would be payable to such widow/widower/dependent family member. In the present case, the maximum amount of pension per month that is payable under the 2004 Act is 70,000/-, which is less than the salary of the ₹ petitioner that she has been receiving on account of her employment as
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an Education Officer. Considered from this angle too, the
communication of the Assistant Accounts Officer, impugned in this writ
petition, does not call for any interference.
12.For the reasons discussed above, the writ petition fails and is
dismissed. However, the parties shall bear their own costs.
M.S. Sonak, J. Chief Justice
SANTOSH S MHAMAL Digitally signed by SANTOSH S MHAMAL Date: 2021.03.30 11:26:55 +05'30'
2 issues framed by the court
Whether a widow of a deceased MLA is debarred from receiving pension under Section 11(3) when she is currently employed on a state government salary.
Whether the widow's employment salary being higher than the pension amount creates a bar to the grant of pension.
1 provisions across 1 enactments
Smt. Aruna Vishnu Wagh
Chief Secretary, State of Goa
another
DIPANKAR DATTA
M. S. SONAK
As recorded by the court registry
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