Geeta Devi Vs Damodar Valley Corporation Represented through Secretary

The present writ petition has been filed for issuance of direction upon the respondents to pay arrears of family pension as well as current family pension to them, which have been withheld by the respondents.

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Learned counsel for the petitioners submits that the father of petitioner No.1 was posted as Assistant Grade II in Accounts Office at Panchet Dam who died in harness on 28.6.1983. After his death, family pension was paid to the mother of petitioner no.1, who died on 5.3.1993 whereas the husband of the petitioner no.1 also died on 25.12.2009. Subsequently, the petitioner no.1 being the widowed daughter became entitled to get family pension and, accordingly, family pension payment order vide P.P.O. No.3331(F) was issued in her favour allowing family pension @ Rs.4204/- per month w.e.f. 26.12.2009 and thereafter, she was getting family pension regularly. However,

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her family pension has been withheld by the respondent authorities after 30.06.2017.

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It is further submitted that the father of petitioner No.2, namely, Ekkam Mullah was a permanent employee of respondent No.1 and was posted as Mazdoor. He superannuated from service on 31.5.1998 and died on 26.6.2005. The mother of the petitioner no.2 had already died on 12.01.2001 i.e. prior to the death of her father. The husband of the petitioner no.2 died on 2.8.2008 and thereafter she being widowed daughter of the deceased employee became entitled to get family pension. The pension payment order with respect to the petitioner no.2 was issued vide P.P.O. No.13233 (F) and Rs.3500/- per month was being paid to her as family pension, however, the respondent authorities have withheld her family pension after 30.06.2017.

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It is also submitted that the father of petitioner No.3 was a permanent employee of the respondents and he was posted as Messenger. He died in harness on 3.5.1988 and after his death, the family pension was paid to the mother of petitioner No.3 till her death on 20.06.2004. The husband of the petitioner no.3 also died on 25.12.2011 and, thereafter, family pension @ Rs.3500/- per month was being paid to her w.e.f. 26.12.2011 vide P.P.O. No.5500 (F) being widowed daughter of the deceased employee, however, the respondent authorities have withheld the payment of family pension after 30.06.2017.

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Learned counsel for the petitioners submits that the respondents have withheld family pension of the petitioners on the basis of instructions as contained in office memorandum dated 12.6.2014 issued by the respondent no.1, however, there is absolutely nothing under the said office memorandum authorising the respondents to withhold the family pension of the petitioners. The respondents ought to have considered that the provisions as mentioned in the office memorandum dated 12.6.2014 have no application in the case of the petitioners who are widowed daughters of the deceased employees. The provisions of family pension, compassionate appointment etc. have been made to provide assistance to the incapable and unemployed dependents of deceased employee by way of financial assistance so as to maintain their life. The petitioners have been facing serious monetary crisis as they have been illegally deprived of the benefits of family pension. The petitioners are entitled to get arrears of family pension in addition to current family pension along with statutory interest as well as penal interest.

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It is also contended that the petitioners were being regularly paid family pension till 30.06.2017, but the same has been withheld in arbitrary manner without issuance of any prior show cause notice to them so as to explain their cases with respect to entitlement of getting family pension. The said action of the respondent authorities is also against the principles of natural justice.

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On the contrary, learned counsel for the respondents submits that the family pension of the petitioners has been discontinued on the basis of Office Memorandum issued by Damodar Valley Corporation vide No.GL/26(a)/10/Pension Relief/2001/1219 dated 12.06.2014 whereby the Corporation adopted the office memorandum dated 11.09.2013 issued by the Ministry of Personnel, Public Grievances & Pension, Department of Pension and Pensioners' Welfare, Government of India. After issuance of clarification vide Office Memorandum No.GL/26(a)/10/Pension Relief/2001/1219 dated 12.06.2014 by the Additional Secretary, Damodar Vallery Corporation, Kolkata, the dependency criteria of the petitioners was examined and it was found that they did not fulfil the criteria as laid down in the clarification. Hence, their family pensions were discontinued in terms of the said clarification with due intimation to them.

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Heard the learned counsel for the parties and perused the materials available on record. The petitioners are aggrieved with the decision of the respondent authorities whereby the family pensions granted to them till 30.06.2017 being widowed daughter of the deceased employees, have been withheld.

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To justify the impugned decision, learned counsel for the respondents puts reliance on the Office Memorandum No.GL/26(a)/10/Pension Relief/2001/1219 dated 12.06.2014 issued by the Additional Secretary, DVC, Kolkata, whereby Office Memorandum No.1/13/09-P&PW(E) dated 11.09.2013 issued by the Ministry of Personnel, Public Grievances &

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Pensions, Department of Pension & Pensioners’ Welfare,

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Government of India has been adopted by the Corporation.

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This Court has perused the office memorandum dated

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11.09.2013, the relevant part of which reads as under: -

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“Provision for grant of family pension to a widowed/divorced daughter beyond the age of 25 years has been made vide OM dated 30.08.2004. This provision has been included in clause (iii) of sub-rule 54 (6) of the CCS (Pension), Rules, 1972. For settlement of old cases, it was clarified, vide OM dated 28.04.2011, that the family pension may be granted to eligible widowed/divorced daughters with effect from 30.08.2004, in case the death of the Govt. Servant/pensioner occurred before this date.

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2. This Department has been receiving communications from various Ministries/ Departments seeking clarification regarding eligibility of a daughter who became widowed/ divorced after the death of the employee/pensioner.

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3. As indicated in Rule 54(8) of the CCS (Pension) Rules, 1972, the turn of unmarried children below 25 years of age comes after the death or remarriage of their mother/father, i.e., the pensioner and his/her spouse. Thereafter, the family pension is payable to the disabled children for life and then to the unmarried/widowed/ divorced daughters above the age of 25 years.

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4. It is clarified that the family pension is payable to the children as they are considered to be dependent on the Government servant/pensioner or his/her spouse. A child who is not earning equal to or more than the sum of minimum family pension and dearness relief thereon is considered to be dependent on his/her parents. Therefore, only those children who are dependent and meet other conditions of eligibility for family pension at the time of death of the Government servant or his/her spouse, whichever is later, are eligible for family pension. If two or more children are eligible for family pension at that time, family pension will be payable to each child on his/her turn provided he/she is still eligible for family pension when the turn comes. Similarly, family pension to a widowed/divorced daughter is payable provided she fulfils all eligibility conditions at the time of death/ineligibility of her parents and on the date her turn to receive family pension comes.

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5. As regards opening of old cases, a daughter if eligible, as explained in the preceding paragraph, may be granted family pension with effect from 30th August, 2004. The position is illustrated through an example. Shri A, a pensioner, died in 1986. He was survived by his wife, Smt. B, a son, Shri C and a daughter, Kumari D, the daughter being the younger. Kumari D married in 1990 and got widowed in 1996. Smt. B died in 2001. Thereafter, Shri C was getting family pension, being disabled, and died in 2003. Thereafter, the family pension was stopped as Kumari D was not eligible for it at that time. She applied for family pension on the basis of O.M., dated 30th August, 2004. Since she was a widow and had no independent source of income at the time of death of her mother and on the date her turn came, she may be granted family pension. The family pension will continue only till she remarries or starts earning her livelihood the time of death of her mother and on the date her turn came, she may be granted family equal to or more than the sum of minimum family pension and dearness relief thereon.

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6. This is only a clarification and the entitlement of widowed/divorced daughters would continue to be determined in terms of O.M., dated 25/30th August, 2004, read with O.M., dated 28.04.2011.”

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The aforesaid office memorandum has been issued in clarification with respect to eligibility of widowed/divorced daughters for grant of family pension after death of the employee/pensioner. It has been clarified in the said memorandum that only those children who are dependent and meet other conditions of eligibility for family pension at the time of death of the Government servant or his/her spouse, whichever is later, are eligible for family pension. It has further been clarified that family pension to a widowed/divorced daughter is payable provided she fulfils all eligibility conditions at the time of death/ineligibility of her parents and on the date her turn to receive family pension comes. An example has also been given in the said office memorandum to further clarify

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that a widowed daughter who after coming her turn at the time of death of her mother having no independent source of income, is entitled to be granted family pension and she will continue to get family pension till she remarries or starts earning her livelihood equal to or more than the sum of minimum family pension and dearness relief thereon.

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Thus, the relevant factor for grant of family pension to widowed daughter is that at the time of death of her parents and on the date when her turn comes to receive family pension, she should be dependent upon her parents. In the present case, so far as the petitioner nos.1 and 3 are concerned the turn of those petitioners to get family pension had come when their mothers had died since their father had died before their mothers. However, at that time, the husband of petitioner nos.1 and 3 were alive and they were not dependent upon their respective parents. As such, they were not entitled to get the family pension in view of Office memorandum dated 11.09.2013 which has been adopted by DVC vide office memorandum dated 12.06.2014. So far the case of the petitioner no.2 is concerned, her mother had died before her father and after the death of her father the turn of the petitioner to get family pension came, however at that time the husband of the petitioner no.2 was alive and as such she was also not entitled to get the family pension.

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One of the arguments of the learned counsel for the petitioners is that no opportunity of hearing has been given to the

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petitioners before withholding the family pension and on this score alone the impugned decision is liable to be vitiated.

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In the case of M.C. Mehta Vs. Union of India & Others,

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reported in (1999) 6 SCC 237, the Hon’ble Supreme Court has held as under:

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“20. It is true that in Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66, HL] it has been held that breach of the principles of natural justice is in itself sufficient to grant relief and that no further de facto prejudice need be shown. It is also true that the said principles have been followed by this Court in several cases but we might point out that this Court has not laid down any absolute rule. This is clear from the judgment of Chinnappa Reddy, J. in S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] . After stating (at SCC p. 395, para 24) that

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“principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed”

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and that “non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary”, Chinnappa Reddy, J. also laid down an important qualification as follows: (SCC p. 395, para 24) “As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs.”

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(emphasis supplied)

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21. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of the principles of natural justice.”

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In the case of Dharampal Satyapal Ltd. v. CCE, reported

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in (2015) 8 SCC 519 the Hon’ble Supreme Court has held as

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under: -

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“39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasising that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason—perhaps because the evidence against the individual is thought to be utterly compelling—it is felt that a fair hearing “would make no difference”— meaning that a hearing would not change the ultimate conclusion reached by the decision-maker—then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578 : (1971) 2 All ER 1278 (HL)] , who said that : (WLR p. 1595 : All ER p. 1294)

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“… A breach of procedure … cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.”

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Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority [(1980) 1 WLR 582 : (1980) 2 All ER 368 (CA)] that : (WLR p. 593 : All ER p. 377)

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“… no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing.” In such situations, fair procedures appear to serve no purpose since the “right” result can be secured without according such treatment to the individual.”

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Thus, the principle of natural justice is a flexible principle and the same cannot be applied in any straitjacket formula. It all depends upon the kind of functions being performed and the extent to which a person is likely to be affected. If on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of the principles of natural justice.

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In the case in hand, the action of the respondent authorities is in conformity with the office memorandums dated 11.09.2013 and 12.06.2014. Since the husband of the respective petitioners were alive at the time of death of their respective parents, they were not dependent upon their parents. Thus, this court is of the view that even after giving opportunity of hearing to the petitioners no fruitful purpose would be served.

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In view of the aforesaid discussions, this Court does not find any merit in the present writ petition and the same is, accordingly, dismissed.

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Sanjay/AFR

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(Rajesh Shankar, J.)

Geeta Devi v. Damodar Valley Corporation Represented through Secretary

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Geeta Devi v. Damodar Valley Corporation Represented through Secretary

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