MAMTA SHARMA Vs. STATE OF M P

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution of India is directed against the order dated 12 -7 -2012, by which the petitioner, a widow of one Shri Ganesh Prasad Sharma, an Assistant Teacher who has died on 28 -5 -2012, has been asked to furnish a succession certificate for the purposes of grant of terminal dues of the said employee, on the ground that the petitioner was duly nominated as wife for the purposes of payment of all such claims of the said employee. This nomination was never cancelled or recalled, even modified. This being so, only the petitioner was entitled to receive the terminal benefits of her husband and there could not be any insistence for payment of such dues to the petitioner only after obtaining a succession certificate. In fact a dispute was raised by respondent No. 4, who was ex -wife of said late Shri Ganesh Prasad Sharma. A suit for divorce was filed under the Hindu Marriage Act by said Shri Ganesh Prasad Sharma in the Court of District Judge, Shahdol against the respondent No. 4, which suit was decreed on 18th November, 1987. Though a decree was granted ex parte, but there was no step taken by respondent No. 4, to get the ex parte judgment and decree set aside. After obtaining the decree said Shri Ganesh Prasad Sharma got married with the petitioner herein on 27 -6 -1989, and made nomination of his second wife in the service record. Only because a case was filed by respondent No. 4 for grant of maintenance against the husband of the petitioner under section 125 of Criminal Procedure Code along with her daughter and sons, and an order was passed on such an application by the Judicial Magistrate Class -I, Janjgir on 26 -11 -2002, the respondent No. 4 would not become entitle to claim any benefit with respect to the service dues of the husband of the petitioner ignoring the nomination already made. Thus, it is contended that the order impugned is bad in law. This Court has entertained the writ petition, has issued the notices to the respondents and the return has been filed by respondents. It is contended that since there is a dispute raised, unless a succession certificate is produced, it would not be proper to release the terminal dues in favour of the petitioner only. The respondent No. 4 has already approached the Civil Court seeking declaration that she is legally married wife of said Shri Ganesh Prasad Sharma, therefore, it would not be correct to say that no succession certificate could be demanded. These disputed facts are to be settled by the decisions of the Court and not by the authorities, therefore, such a claim made by the petitioner is misconceived. The respondent No. 4, though has not filed any return, but has adopted the stand taken by respondents No. 1 to 3 and contended that in view of the facts as have been stated by the respondents, a succession certificate is required to be produced. It is further contended that proceedings in this respect have been initiated by respondent No. 4 before the appropriate Forum and in case any direction is issued by this Court, the claim raised by respondent No. 4 for grant of succession certificate would be frustrated.

(2.) HEARD learned counsel for the parties at length and perused the record.

(3.) THE effect of nomination has to be examined. The nomination is not to be treated as a Will for a good reason that a Will is executed in altogether different manner and not just mentioning a name of person in the appropriate column, prescribed in any form for submitting service details before the concerning authority. However, the nomination has to be treated as wish of the employee or his request for the purposes of disbursement of his/her terminal dues in case of death to any particular person. The nomination will not supersede the statutory provision of right of inheritance prescribed in various enactments. A nominee may be an authorised person to receive the terminal dues of an employee, but will not become absolute owner thereof. The other legal representatives, successor of the deceased employees, being coparceners in estate would also be entitled to their share if there is no specific Will made by the employee concerned. The Apex Court in the case of Smt. Sarbati Devi vs. Usha Devi, : (1984) 1 SCC 424 has considered nominee's interest vis -a -vis the law of succession and has reached to the conclusion that a nominee may be entitled to receive the funds, but will retain the same as a trustee for other coparceners till their claims are decided by law in accordance to the law of succession governing them. Though the aforesaid decision is rendered in the case in respect of the claim made under the Life Insurance Act, 1938, but the statutory nomination has been considered by the Apex Court.