IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 WP(C).No. 19501 of 2004(V) ---------------------------------------- PETITIONER(S): ------------------------ K. KUNJULEKSHMI, W/O. LATE S. KUMARAN EX GS 096071 PIONEER RESIDING AT MUDEETHARA PADEETTATHIL HOUSE, PUTHIAVILA SOUTH PATTOLI MARKET P.O., ALAPPUZHA DISTRICT. BY ADVS. MR.R.RAJASEKHARAN PILLAI, SMT.SABINA JAYAN. RESPONDENT(S): --------------------------- 1. THE UNION OF INIDA, REPRESENTED BY THE SECRETARY MINISTRY OF ROADS AND HIGHWAYS, KASHMIR HOUSE, B. WING 4TH FLOOR, DHQ PO, NEW DELHI. 2. THE DIRECTOR GENERAL BORDER ROADS, SEEMS SADAK BHAVAN, RING ROADS, DELHI CANTT-NEW DELHI-10. 3. THE CHIEF ENGINEER PROJECT SEWAK, C/O.99 APO. 4. THE CONTROLLER OF DEFENCE ACCOUNTS (PENSION) DRAUPATHY GHAT, ALLAHABAD (U.P.) 5. THE OFFICER COMANDING, RECORD OFFICE, GREF RECORDS, DIGHI CAMP, PUNE. 6. THE OFFICE COMMANDING 1628 PNR COY (GREF) C/O. 99 APO. BY ADV. SRI.M.L.SURESH KUMAR, ACGC BYADV.MR.P.PARAMESWARAN NAIR,ASGI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2009, THE COURT ON 23/02/2010 DELIVERED THE FOLLOWING: Kss WPC.NO.19501/2004 V APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT IN WPC.NO.32264/03 DTD. 15/10/2003 OF THIS HON'BLE COURT. P2: COPY OF THE LETTER NO.LC/IV/WP.32264/03/C-1316 DTD. 27/05/2004 FROM THE 4TH RESPONDENT TO THE 2ND RESPONDENT. P3: COPY OF THE LR.NO.17303/1761/DGBR/155/LC UDK DTD. 03 JUNE 2004 FROM THE 2ND RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 19501 OF 2004 -------------------------- Dated this the 23rd of February, 2010 J U D G M E N T The petitioner is the wife of late S.Kumaran, who was appointed as Pioneer in the General Reserve Engineering Force on 13.12.1965. He was declared unfit for service by a duly constituted medical board and boarded out from service with effect from 10.4.1975 for the reason that he was suffering from Cirrhosis of Liver. Sri. S.Kumaran served as Pioneer in the General Reserve Engineering force for a period of 9 years, 3 months and 27 days. Since he did not have 10 years of service, he was not granted invalid pension upon discharge. He was however granted service gratuity and DCRG. Long after Sri. S.Kumaran passed away, the petitioner, his wife, moved the authorities claiming payment of family pension. She had also filed a representation dated 20.9.2002 before the Director General of the Border Roads Organisation claiming invalid pension. She thereafter filed W.P.(C) No. 32264 of 2003 in this Court. By Ext.P1 judgment delivered on 15.10.2003 this Court disposed of the said writ petition with a direction to the Director General of the Border Roads Organisation to consider her W.P.(C) No. 19501/04 2 request in the light of the relevant rules and to pass appropriate orders thereon within a period of three months from the date of receipt of a copy of the judgment. 2. The petitioner forwarded a copy of the said judgment to the Director General of the Border Roads Organisation and also to the fourth respondent. The fourth respondent considered the petitioner's request and thereafter sent Ext.P2 letter dated 27.5.2004 to the second respondent, informing him that as the petitioner's husband did not have the required length of service for grant of invalid pension and was not granted invalid pension, the petitioner is not eligible for payment of family pension. The second respondent thereafter considered the petitioner's request in her representation dated 20.9.2002 and sent Ext.P3 memorandum dated 3.6.2004 to her informing her that her claim for payment of family pension is not admissible. It was stated that as the petitioner's husband was not eligible for payment of invalid pension/payment of compensation under the Workmen's Compensation Act, the petitioner cannot claim payment of family pension. Exts.P2 and P3 are under challenge in this writ petition wherein the petitioner seeks a direction to the respondents to sanction and disburse invalid pension for her husband and family pension to her with effect from 1.8.1975. The W.P.(C) No. 19501/04 3 petitioner also seeks payment of compensation under the Workmen's Compensation Act, 1923. The petitioner contends that the disease contracted by her husband was due to the hazardous nature of his employment and therefore he was entitled to payment of compensation under the Workmen's Compensation Act, 1923. The petitioner also contends that the respondents ought to have invoked Rule 88 of the Central Civil Services (Pension) Rules and granted invalid pension/family pension to her. 3. The respondents have filed a counter affidavit wherein it is contended that under Rule 49 of the Central Civil Services (Pension) Rules the petitioner's husband was not entitled to pension as he did not have 10 years of qualifying service. The respondents contend relying on Rule 52(2)(b) of the Central Civil Services (Pension) Rules that petitioner is not entitled to family pension. They also contend that as the petitioner's husband was invalidated out of service as he was suffering from cirrhosis of the liver, which is not an occupational disease, he was also not entitled for payment of compensation under the Workmen's Compensation Act, 1923. 4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The fact that the petitioner's husband did not have 10 years of service at the time of W.P.(C) No. 19501/04 4 his discharge is not in dispute. It is also not in dispute that he was invalidated out of service following the recommendations of the medical board as he was suffering from Cirrhosis of Liver. Under Rule 49 of the Central Civil Services (Pension) Rules a Government servant retiring before completing the qualifying service of ten years is entitled only to service gratuity and not to pension. The fact that late S.Kumaran was sanctioned and paid service gratuity is not in dispute. On the terms of Rule 49 of the Central Civil Services (Family Pension) Rules he was not entitled to invalid pension. Late S.Kumaran was discharged from service on 10.4.1975 and he died shortly thereafter on 1.8.1975. Before his death, he did not move for payment of invalid pension. The petitioner, his widow, moved the respondents claiming family pension/invalid pension only in the year 2002. That request was rejected by the respondents on the ground that her husband was not eligible for any compensation or invalid pension and therefore family pension cannot be paid to the her. Reliance is placed on Rule 54(2)(b) of the Central Civil Services (Pension) Rules to deny payment of family pension to the petitioner. 5. Rule 54(2)(b) of the Central Civil Services (Pension) Rules states that without prejudice to the provisions contained in sub-rule (3) thereof, where a Government servant dies after retirement from W.P.(C) No. 19501/04 5 service and was on the date of death in receipt of a pension, or compassionate allowance, referred to in Chapter V, other than the pension referred to in Rule 37, the family of the deceased shall be entitled to family pension. It is relying on this stipulation that the respondents contend that as the petitioner's husband was not in receipt of pension or compassionate allowance, the petitioner is not entitled to family pension. Sub-rule 2(a) of Rule 54 however stipulates that where a Government servant dies after completion of one year of continuous service, the family of the deceased shall be entitled to family pension, the amount of which shall be determined in accordance with the table. The said provision applies only to an employee who dies while in service. Therefore, Rule 2(a) does not apply to the case on hand. 6. From the materials placed on record, it is evident that the petitioner's husband was governed by the Workmen's Compensation Act, 1923. He had more than seven years of qualifying service. However compensation under the Workmen's Compensation Act, 1923 was denied to him for the reason that the disease which he was suffering from was Cirrhosis of Liver which is not a disease normally affected by service and he did not die while in service. Rule 54 3(b) (i) of Central Civil Services (Family Pension) Rules stipulates that W.P.(C) No. 19501/04 6 where a Government servant who is governed by the Workmen's Compensation Act, 1923 dies while in service after having rendered not less than seven years' continuous service, the rate of family pension payable to the family shall be equal to 50 per cent of the pay last drawn or one and a half times the family pension admissible under sub-rule (2) thereof, whichever is less. Since the petitioner's husband did not die while in service, she cannot claim payment of family pension under Rule 54(3)(b)(i). I am therefore of the opinion that the claim of the petitioner for family pension is not tenable. In such circumstances it cannot be said that the stand taken by the respondents in Exts.P2 and P3 is in any way illegal. I accordingly hold that no grounds have been made out to interfere with Exts.P2 and P3. The writ petition fails and is accordingly dismissed. No costs. P.N.RAVINDRAN, JUDGE vps