UNION OF INDIA Vs. VISALAKSHI

JUDGEMENT

(1.) THE Union of India represented by the Secretary, Ministry of Defence, New Delhi , and the Controller of defence Accounts (Pension), Allahabad , and the officer-in-charge, Artillery Records, Maharashtra , are the appellants in this appeal. THE above appeal has been filed against the judgment of the learned Single Judge in O. P. No. 5169/ 1997 dated. 26. 5. 1997 allowing the Original Petition filed by the respondent to quash Ext. P5 and to direct the respondents 1 to 3 therein to grant family pension to the petitioner in the O. P. from 14. 4. 1987. THE case of the respondent is that she is a widow of late Subedar Madhavan Adiyodi who died on 13. 4. 1987 while he was working in the Food Corporation of India , kerala Region. He joined the Food Corporation of India as a Watchman on 8. 1. 1976. He was a member/ subscriber in the Employees Family Pension Scheme, 1971 at the time of his death. So the respondent was granted family pension under the above scheme by the authority concerned. Before joining the Food Corporation of India subedar Madhavan Adiyodi had served in the Indian Army for 28 years. He was discharged from the Army on 31. 5. 1975 and was granted Army pension which he had been drawing till his death. As such the respondent contended that she was entitled to get family pension from the Army after the death of her husband. She received a letter from the Officer-in-charge, Artillery Records, asking her to submit the family pension papers sent to her. She got a letter from the controller of Defence Accounts (Pension) informing her that there is no provision for grant of family pension from military side where family pension from civil side had been granted. THE Respondent again made a further representation. She was asked to re-submit the Army Pension Forms duly filled by the 4th respondent in the O. P. regarding the family pension payable by the 4th respondent. When the petitioner approached the 4th respondent for the above purpose, he refused to fill up Part IV of the Army Pension Form on the ground that the family pension under the P. F. Scheme is not a civil pension. On 16. 8. 1996, the Controller of Defence Accounts (Pension), Allahabad issued Ext. P5 letter stating that only one family pension either from Civil side or from army side is admissible under the Government orders. Challenging Ext. P5 the respondent approached this Court by filing O. P. 5169/1997. In Ext. P5 it is stated as follows: "jc-32283 sub Madhavan Adhiyodi was a military pensioner and he expired on 13. 4. 87. THE widow of the deceased would have been entitled to family pension from 14. 4. 1987 from Army side, had she not been sanctioned family pension under the Employees Provident Funds and Employees family Pension Scheme 1971 as only one Family Pension is admissible under rules. Para3: We do not agree that the amount drawn from provident Fund Scheme is not a civil pension for the reasons that the gran t is governed under family pension scheme 19 71. THE same is treated as a Civil family Pension. THE widow of No. 1230104 Late Gnr. Sivadas Venuhas been sanctioned Civil Family Pension in addition to Family Pension from Army side in pursuance of Kerala High Court judgment. That case was specific one and the same benefit cannot be granted in this case on the analogy of that specific case. Hence this office is of the opinion that only one family pension either from Civil side or from Army side is admissible under the government accords special sanction for grant of Family Pension from Army side in addition to Civil Family Pension sanctioned under E. P. P. S. 1971". THE respondent submitted that her husband served in the array for 28 years and died as early as in 1987 and since then she had been knocking the doors of the appellants requesting for family pension and even after so many years the appellants are not justified in not granting the pension. Itis further submitted that the family pension given under the provident Fund Scheme, 1971 is not civil Pension and therefore, the rejection on that ground is illegal and that the family pension under the Provident Fund scheme does not allow any dearness relief on the pension whereas the Army pension of Rs. 3 75/- allows the Dearness allowance and the Army Family Pension is far more than the other pension. When the matter was pending before the learned Single Judge, no counter was filed by the appellants herein. K. S. Radhakrishnan, J. passed the following order : "petitioner has approached this Court seeking a direction to respondents to grant family pension toner from 14. 4. 97 and other consequential reliefs. THE point raised by the petitioner has already been considered in O. P. No. 6920/89. THE case put up by the petitioner is also identical. Itisslatedthatdiedepartmenthasiiotfiledappealagainstuiesaiddecision. THErefore, there will be a direction to the respondents to extend the benefit of the petitioner as well on the basis of the principle laid down in O. P. No. 6920/89.

(2.) RESPONDENTS will disburse the family pension within a period of two months from the date of receipt of a copy of tin's judgment. With regard to the interest, since there is delay on the part of the respondents, respondents disburse interest as per the rate ordered by this Court in the other writ petition. " 2. Aggrieved by the above judgment, the appellants have filed the above appeal. It was admitted on 15. 7. 1998. We have heard Mr. Krishnamoorthy for the appellants and Mr. M. Rajagopal for the respondent. Mr. Rajapgopalan submitted that the observation of the learned judge and the points raised by the respondent herein has already been considered in O. P. No. 6920/1989 and the case put forward by the respondents identical and, as a matter of fact, there is no substantial difference between these two judgments. It is to be noted that against the judgment in O. P. 6920/1989 the Department had not gone in appeal. Mr. Krishnamoorthy submitted that the appellants have not been given sufficient opportunity in this case to file a detailed counter controverting the averments and defence case and that the learned single judge disposed of the original petition granting the claim of the respondent without affirm an opportunity. my. Kmymainoorfhy further contended that the respondent's husband who had retired from the Army was re-employed in the Food corporation of India and as per the existing rules, family pension is admissible from only one source and even under the Employees Family Pension scheme, Government contribution has been made at the rate of 1. 16% of the employee's salary and in case family pension is paid from two sources, it would amount as expenditure from the Consolidated Fund of India twice for the same purpose. He would further submit that the dearness relief on pension/ family pension remains suspended if a pensioner/family pensioner is re-employed under the Central or State Government or a Corporation/company/body/bank under them in India or abroad and that this is on the ground that if the Dearness Relief is allowed on pension/family pension during the course of employment/re-employment, the employee concerned will enjoy double benefits for the same price in the price index. Therefore, he contended, it is not justifiable to allow family pension to the same person from the military side in addition to the family pension permissible under the Employees Family Pension Scheme as it would tantamount to give the double benefits. As already noticed the learned judge has allowed the writ petition filed by the respondent following the judgment in o. P. 6920/1989 on the ground that the case put forward by the respondent herein is identical. At the time of hearing, the judgment of the learned Single Judge justice Mathews P. Mathew was placed before us. In the said case the petitioner is the widow of an ex-service man who was discharged from the Army on 1. 4. 1979 after 15 years of service in the Army and on his discharge he was granted military pension and had been drawing his pension from the Pension Pay Master till his death. In the year 1980 the petitioner's husband joined the service of the Cochin Refineries and continued there till his death on 25. 12. 1982. On receipt of information of the death of the petitioner's husband, the Commanding officer, Artillery Records, directed her to report the matter to the Zilla sainik Welfare Officer and to forward to him the necessary papers for the grant of family pension. As such necessary papers were forwarded as per Ext. P1. The defence authorities instead of granting family pension to the petitioner therein, issued Ext. P2 whereby the Assistant Provident Fund Commissioner, cochin was directed to furnish certain details to decide whether the pension from the Army side or from the civil side is more beneficial to the claimant. It is further mentioned in Ext. P2 that the petitioner is entitled only to one pension, either from the Army side or from the civil side. Evidently the amounts paid under the Employees Family Pension Scheme, 1971 under the employees' Provident Funds and Miscellaneous Provisions Act, 1952 by the 4th respondent therein was treated by the Army authorities as civil pension. The petitioner submitted a representation to the Commanding Officer, Artillery records stating that her later husband was employed in the Cochin Refineries ltd. and that is not a re-employment for any purpose and the benefits given by the Cochin Refineries have nothing to do with her claim for family pension from the Army. However, the 4th respondent, without reference to Ext. P2, sanctioned family pension under the Employees' Provident Fund and Miscellaneous Provisions act to the petitioner as evidenced from Ext. P3. The petitioner was informed that her claim for Army pension had been declined and treated as closed by the controller of Defence Accounts (Pension), Allahabad, in view of the fact that the petitioner is in receipt of family pension from the civil side which is more beneficial than family pension from military side. The petitioner was further informed by Ext. P8 that her case for grant of family pension from military side cannot be reconsidered as she has been receiving family pension from the civil side which is more beneficial. Exts. P6 and P8 were challenged by the petitioner in the above O. P. There was also a prayer for a declaration to the effect that she is entitled to family pension from the military side as well as the benefits under the Employees Provident Funds and Miscellaneous provisions Act family pension scheme. Before the learned judge it was submitted on behalf of the petitioner that the pension under the family pension scheme under the Employees Provident Funds and Miscellaneous Provisions Act is much less beneficial than the pension due under the Army Regulations and, as a matter of fact, it is*much less than the minimum pension paid to any section of the Central Government employees. Even otherwise it is for the claimant to decide as to which is more beneficial to him rather than any one of the authorities who are obliged in law to pay the benefit. The learned judge, on a detailed consideration of the materials placed before him, came to the conclusion that the petitioner is entitled for the relief asked for in the petition. Paragraphs 8 and 11 of the judgment can be usefully extracted herein for the purpose of appreciating the facts and circumstances of the case on hand: "8. In the instant case respondents 1 to 4 have no case that the petitioner is not entitled to pension as per the Army family pension regulations. The only objection is the grant of family pension by the 4th respondent under the family pension scheme. There is no case for the respondents that the deceased husband of the petitioner was a civil servant or employed in any civil service before the age of superannuation after leaving the Army and in the absence of any other objection regarding the claim put forward by the petitioner for family pension under the Army regulations, she cannot be denied the benefit of family pension under the Army Regulations. XXX XXX XXX 11. It is made clear that the entitlement of the petitioner to receive family pension under the Army regulations shall not stand in the way of the petitioner receiving any other benefit under the family pension scheme in traduced under the Employees Provident Funds and miscellaneous Provisions Act, 1952, particularly in view of the stand taken by the 4th respondent and the additional 5th respondent that the payment of benefit under the said scheme is in addition to any other benefit for which the employees or claimants under the mare entitled to from previous employment including military service. Itis to be remembered that itis based on such a definite understanding that deductions were made from the wages of employees including the deceased husband of the petitioner. As such the 4th respondent is estopped in law from denying the petitioner the benefit under the family pension scheme under the Employees Provident Funds and Miscellaneous Provisions act".