IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 WP(C).No. 3977 of 2008(W) ------------------------- PETITIONER: ------------ S.MEHERUNISSA, MUGAPPURA VEEDU, BEACH NORTH, PALLITHOTTAM P.O., KOLLAM-6. BY ADV. SRI.BRIJESH MOHAN SMT.RESMI G. NAIR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, PLANNING & ECONOMICS AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. 2. THE DIRECTOR OF ECONOMICS & STATISTICS, DIRECTORATE OF ECONOMICS & STATISTICS, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM. 4. THE DIRECTOR, TREASURY DIRECTORATE, THIRUVANANTHAPURAM. 5. THE DISTRICT TREASURY OFFICER, KOLLAM. 6. SMT.MYMOONA, PADIPPURAKKALLU VEEDU, EDAVANAKKAD, KOCHI. BY GOVERNMENT PLEADER SRI.BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No. 3977 of 2008 -------------------------- Dated this the 18th February, 2008 J U D G M E N T The petitioner is a widow of late Abdul Shukoor, who left the services of the Government on compulsory retirement on 5.5.1989. He later died on 9.8.2003 in a motor accident. Apparently, there was a dispute regarding the retirement benefits due under the account of late Abdul Shukoor. This led to O.P 873 of 2005 before the Family Court, Thiruvananthapuram filed by the petitioner and her son with the Government Officials as also the 6th respondent herein arrayed as defendants. Petitioner sought for a declaration that she is the legally wedded wife of late Abdul Shukkoor and also sought for a decree to the effect that they are entitled to get the family pension and other benefits due to the deceased. They further prayed for recovery of an amount of Rs.50,000/- stated to be the amount received by the 6th respondent herein (4th respondent in O.P. 873 of 2005) by way of family pension. O.P. No.873 of 2005 was decreed in part. The following is the decretal portion of Exhibit P1. W.P ( C) No. 3977 of 2008 2 “In the result, a decree is passed declaring that the 1st petitioner is the legally wedded wife of deceased Abdul Shukkoor and the 2nd petitioner is their son and they are entitled to get family pension and other benefits due to the deceased employee as his wife and son. The prayer for realisation of an amount of Rs.50,000/- from the respondents is disallowed. Parties will bear their respective costs. 2. The reason given by the Family Court for declining the prayer for recovery of an amount of Rs.50,000/- is that there were no materials before the Court to show that the amount received by the 6th respondent was by way of family pension. The court also found that no attempt was made by the petitioner herein to prove the same. In other words, the Family Court dismissed the suit in so far as it related to the claim for an amount of Rs.50,000/-, sought to be recovered by the petitioner herein, from the 6th respondent, allegedly received by the 6th respondent by way of family pension due under the account of late Abdul Shukkoor. 3. Taking note of Exhibit P1, Exhibit P2 order was passed sanctioning family pension in favour of the petitioner. It is stated in Exhibit P2 that sanction accorded earlier in favour of the 6th respondent for family pension stands cancelled in view of Exhibit P1 judgment. Accordingly, orders have been issued for W.P ( C) No. 3977 of 2008 3 the payment of family pension in favour of the petitioner with effect from 1.2.2007 and it is being received as per Exhibit P1. Petitioner claims that family pension should have been sanctioned and disbursed to her with effect from 9.8.2003, when her husband expired and not with effect from 1.2.2007. 4. I heard the Learned counsel for the petitioner and the learned Government Pleader. It is true that under Exhibit P1, the competent Civil Court has declared the petitioner’s entitlement for family pension under the account of late Abdul Shukkoor. But the earlier receipt of family pension by the 6th respondent was on account of an order which was issued in favour of the 6th respondent. The said order has been cancelled under Exhibit P2. Going by Exhibit P1, the petitioner’s right to receive the family pension is no longer in doubt. Learned counsel for the petitioner submits that in such circumstances, the authority should have made it clear the petitioner is entitled to family pension with effect from the date of death of Abdul Shukkoor and not with effect from 1.2.2007. It is further submitted that accordingly the amount which has been already paid to the 6th respondent should have been recovered from her W.P ( C) No. 3977 of 2008 4 and paid over to the petitioner. 5. I would have considered the contentions on merit, but for the reason that the petitioner had made the same prayer before the Family Court in O.P.873 of 2005, no doubt as an auxiliary one to the prayer for a declaration that she is the legally wedded wife of Abdhul shukkoor and therefore she is entitled to the family pension due under the account of late Abdul Shukkoor. Unfortunately for the petitioner the said relief was declined under Exhibit P1. The decree under Exhibit P1 is an inter parte one with the petitioner, Government Officials and the 6th respondent on the party array. Going by Exhibit P2, the petitioner is not entitled to recover the amount, which allegedly had been received by the 6th respondent herein, as family pension due under the account of late Abdul Shukkoor, which amount was probably quantified on the date of institution of O.P.873 of 2005. If the petitioner seeks recovery of the said amount, she will have to pursue a remedy against Exhibit P1. 6. In the circumstances, I do not think it is justified to issue a direction to the Government to recover the amount already paid as family pension to the 4th respondent, in the W.P ( C) No. 3977 of 2008 5 present proceedings. Petitioner’s remedy is to challenge against Exhibit P1 in so far the Family Court has declined a decree against the 4th respondent therein. 7. Learned counsel for the petitioner relies on a judgment of this Court in Moidu Vs. State of Kerala and Others [2008 (1) ILR KER.418] wherein it was held that payment received by any person contrary to law from public funds has to be returned. Obviously there cannot be any quarrel for the said proposition. What stands in the way of the petitioner in this case is that she had prayed for a decree before the Family Court for recovering the amount from the 4th respondent and rightly or wrongly the Family Court has declined the same. In such circumstances, in my view, remedy of the petitioner is to take appropriate steps in relation to Exhibit P1. For all these, the writ petition is bereft of merit and hence it is dismissed, without prejudice to the right of the petitioner to take appropriate steps in relation to Exhibit P1 in so far as it has declined a relief prayed for therein. (V.GIRI, JUDGE) ma W.P ( C) No. 3977 of 2008 6 K.THANKAPPAN,J CRL.A. NO.92 OF 1999 W.P ( C) No. 3977 of 2008 7 ORDER 25th May, 2007