Allowed

Noushad S. v. Kerala State Road Transport Corporation

Kerala HC5 Sept 2016WP(C)/17880/2016

Case brief

AI extract

What is this about?

The petitioner, a widower, sought family pension death benefits. The High Court held that under Rule 90, widowers are entitled to pension from the month following the deceased's death, not the application date. The 1992 Government Order restricting benefit start-date was struck down as inconsistent with superior service rules.

What did the court decide?

Petitioner directed to receive family pension from 17.8.2006; respondent to pay arrears from that date.

Noushad S. Vs Kerala State Road Transport… — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 5TH DAY OF SEPTEMBER 2016/14TH BHADRA, 1938

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WP(C).No. 17880 of 2016 (H)

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PETITIONER(S):

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NOUSHAD S., AGED 55 YEARS, TC.NO. 29/1311, HOUSE NO. CRA 97, PETTAH (PO), THIRUVANANTHAPURAM- 24.

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BY ADV. SRI.S.MOHANA KUMARAN NAIR.

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RESPONDENT(S):

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KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR, OFFICE OF THE CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT (PO), THIRUVANANTHAPURAM- 695 023.

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BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR, SC. DR.THUSHARA JAMES.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2016, THE COURT ON 05/09/2016 DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 17880 of 2016 (H)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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P1 COPY OF THE LETTER DATED 20.09.2006.

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P2 COPY OF THE REPRESENTATION BY THE 1ST PETITIONER'S MOTHER-IN-LAW DATED 23.03.2010.

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P3 COPY OF THE LETTER DATED 26.05.2013.

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P4 COPY OF THE LETTER DATED 04.10.2014.

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P5 COPY OF THE MEMORANDUM DATED 02.03.2015.

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P6 COPY OF THE ORDER NO. PA.2/002997/2014 DATED 27.07.2015..

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P7 COPY OF THE GO (P) NO. 437/92/FIN DATED 24.06.1992 GO.

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P8 COPY OF THE LETTER NO. P.I.O. NO. 1526/15 DATED 10.04.2015.

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P9 COPY OF THE LETTER DATED 14.10.2006 TO CI OF POLICE, MUSEUM POLICE STATION.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

SHAJI P. CHALY, J.

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W.P.(C). No.17880 of 2016 ----------------------------------------------Dated this the 5^th day of September, 2016

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JUDGMENT

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Petitioner, husband of one Minila Krishnan. K.G., who was in the service of the respondent Corporation, has filed this writ petition seeking to quash Ext.P6 order, whereby, the family pension was directed to be issued from 8.6.2015 whereas the employee died on 17.08.2006 and for other related reliefs.

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Material facts for the disposal of the writ petition are thus; petitioner is the husband of late Minila Krishnan. K.G., an employee of the respondent Corporation, working as Junior Assistant and died on 17.08.2006. Two minor children born out of the wedlock are being looked after by the petitioner. The deceased employee had 8 years of service in the respondent Corporation at the time of her death. Respondent Corporation was informed the death of the employee on 17.08.2006 and her colleagues and other officials of the

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W.P.(C). No.17880 of 2016

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respondent Corporation participated in the cremation and other ceremonies thereafter. Petitioner submitted an application for family pension to the respondent by letter dated 20.9.2006 and was pursuing the matter with the head office, evident from Ext.P1 application. While so, petitioner came to know that petitioner's mother-in-law had written to the respondent to block release of all retiral benefits payable to the petitioner till the disposal of the legal proceedings initiated against the petitioner. A copy of which is received by the petitioner under the RTI Act, 2005, evident from Ext.P2.

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According to the petitioner, the respondent's office informed the petitioner that, there is no application pending for family pension from the petitioner. Therefore, on 26.05.2013 petitioner submitted a fresh application for family pension to the respondent, evident from Ext.P3. According to the petitioner, respondent did not act upon Ext.P1 application within a reasonable period of time and by a letter dated 4.10.2014 requested the respondent to expedite the release of

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pensionary benefits after deducting the debts by way of loans etc., evident from Ext.P4. As per Ext.P5 dated 2.3.2015, petitioner was directed to produce documents enumerated therein and copies of the judgments in the cases registered against him along with indemnity bond in stamp paper. Petitioner complied with all the above directions of the respondent and thereupon Ext.P6 order is passed by the respondent sanctioning the family pension on and w.e.f. 8.6.2015. Even though, petitioner submitted an application requesting release of family pension from the date of eligibility i.e., following the month of the death of the employee, the same was rejected stating that, the family pension is paid from the date of submission of the application with all necessary documents, evident from Ext.P7.

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It is also contended that, as per Ext.P8 received under the RTI Act, it is stated that, it is the duty of the Unit Officer

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to get required documents from the legal heirs of the deceased and according to the petitioner, Ext.P5 letter was

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W.P.(C). No.17880 of 2016

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received by the petitioner after a delay of 9 years. According to the petitioner, there is no willful delay or laches on the part of the petitioner to make claim with respect to the family pension due to the petitioner consequent on the death of his wife. It is also stated that after the demise of petitioner's wife, his mother-in-law took away all his belongings including records and documents from his house and he had to seek the help of police, evident from Ext.P9. Petitioner was also implicated in a criminal case and was arrested and subsequently released on bail. Pursuant to the direction issued by this court, children took away by the mother-in-law of the petitioner, had given custody to the petitioner after the decision in O.P.(G&W) No.472/2008 dated 28.5.2008 of the Family Court. It is also contended that, as per rule 118(1) of Part III KSSR where death occurs while in service, imposes a duty on the Head of Office/Department or the Audit Officer, who is the custodian of the nomination, on receipt of the death report of the employee send to the nominee(s) a letter

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in Form 6A together with a copy Form 6 asking for necessary documents. Even though, the death occurred while the decease was in service, no such exercise was undertaken by the respondent. Therefore, according to the petitioner, petitioner is entitled to get the family pension from the month following the death of the employee after quashing Ext.P6 order to the extent it affects the petitioner. It is in this background, this writ petition is filed.

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Learned counsel for the respondent Corporation submitted that as per Ext.P7 order dated 24.6.1992, family pension can be released to the applicant only from the date of application submitted to the Government with all necessary documents.

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Heard learned counsel for the petitioner and learned Standing Counsel for the Corporation in extenso and perused the documents on record and the pleadings put forth by the petitioner.

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According to the petitioner, petitioner is entitled to

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W.P.(C). No.17880 of 2016

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get family pension from the month following the death of the employee in terms of rule 90(6) and Note 5 thereto, which are extracted herein for the purpose of disposal of this writ petition.

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“90(6) 'Family' for purposes of these rules, means the following relatives of the employee, namely:-

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(a) Wife, in the case of a male

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employee;

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(b) Husband, in the case of a female employee;

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(c) Eldest eligible son/daughter (in the order of seniority) till marriage or till attaining the age of 25 years or till he/she gets employed

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whichever is earlier;

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(d) Children suffering from

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physical/mental disorder or disability.

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(e) Unmarried daughters above 25 years.

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(f) Son/daughter adopted legally before retirement.

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(g) Parents (in equal shares);

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(h) Judicially separated wife

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(i) Judicially separated husband;

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(j) Disabled divorced daughter;

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(k) Widowed disabled daughter.

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Note 5: Family pension shall be payable to the members specified in clauses (d), (e), (g) and (k) of sub-rule (6) of this rule from the date or first month following the date of death of the pensioner or family pensioner as the case may be, only if the application in Form 6 along with the Eligibility Certificate or Medical Certificate as the case may be, is submitted to the pension sanctioning authority within two years of death of the employee or pensioner or family pensioner. In cases where the application along with the eligibility Certificate or Medical certificate are submitted after two years of death of the employee or pensioner or family pensioner, as the case may be, family pension shall be payable with effect from the date of issue of Eligibility Certificate or Medical Certificate. Family pension shall be payable to the members specified in clauses (e), (g), (j) and (k) of sub-rule (6) of this rule only if their income is less than Rs.6,000 per annum, subject to the conditions specified in sub-rule (6A) and sub-rule (7) of this rule.”

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Note 5 thereto makes exception in respect of claimants under clause (d), (e), (g), (i) and (k) of sub-rule (6) to whom submission of application seeking family pension is to be made within a period of two years of death of the employee or pensioner or family pensioner, which period was extended to 3 years as per G.O.(P) No.322/2015/Fin. dated 28.7.2015. If the application is not so submitted, then the applicant is entitled to get the family pension from the date of the application alone. Therefore, on a consideration of the said Note vis-a-vis the persons mentioned under clause (a) to (c) of rule 90(6), it can be seen that, the category of persons mentioned under clauses (a) to (c) are entitled to get family pension from the month following the date of death of the employee. Which thus means, petitioner coming under clause (b) of rule 90(b) is entitled to get pension accordingly.

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Learned counsel for the petitioner has invited my attention to rule 118 of Part III KSSR and contended that by virtue of the provisions contained thereunder, if the

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Government employee has executed a nomination in the prescribed form and the nomination subsists, the Head of the Office/Department or the Audit Officer, who is the custodian of the nomination shall, on receipt of the death report of the employee, send to the nominee(s) a letter in Form 6 A together with a copy in Form 6 asking for necessary documents and on receipt of the same, shall process the same in accordance with law. Learned counsel also drew my attention to sub-rule (2) of the said rule, which reads, if the employee has not executed a nomination in the prescribed form or in cases where the nomination made does not subsist, the Head of Office or the Department has a duty to make necessary enquiry with respect to the surviving members of the family eligible to receive the death-cum-retirement gratuity and family pension and draw up the pension in accordance with the same. Therefore, it is clear from the said provision also, there was a duty cast upon the respondent Corporation to ensure the payment of family pension after

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making necessary enquiry in terms with the nomination or other wise and pay the pension in terms of the same. So also, I find that, in view of the mandatory requirement under the provisions of Part II Service Rules, which is not modified in any manner, Ext.P7 Government Order may not have any bearing to the issue in question. A learned Single Judge of this court had occasion to consider the question with respect to the payment of family pension in Aisha Kunju v. Deputy Director of Education [2004(2) KLT 174] and the Apex Court in S.K.Mastan Bee v. General Manager, South Central Railway and another [(2003) 1 SCC 184] and held that the issue with respect to family pension eminates from Article 21 of the Constitution of India and there is no justification in limiting the same to the date of submission of the application.

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Therefore, taking into account the relevant provisions of law and the judgments cited supra, I am of the considered opinion that, husband of the deceased employee is entitled to

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get the family pension from the month following the date of death of the employee viz.,17.8.2006. Therefore, the respondent is directed to modify Ext.P6 order accordingly and pay the arrears of family pension to the petitioner from the month following the date of death of the employee viz., wife of the petitioner.

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Writ petition is disposed of accordingly.

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Sd/- SHAJI P. CHALY

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smv 26.08.2016

Noushad S. v. Kerala State Road Transport Corporation

Case brief

What is this about?

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Noushad S. v. Kerala State Road Transport Corporation

Case brief

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