IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 8358/2008. Reserved on: 15.6.2010. Decided on:22.6. 2010 ______________________________________________ Smt. Suni Devi. …Petitioner. Versus Himachal Pradesh State Electricity Board. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Jeevesh Sharma, Advocate vice Mr. Raj Pal Thakur, Advocate. For the respondent : Mr. Rajesh Verma, Advocate vice Ms. Anjula Khajuria, Advocate. _____________________________________________________ Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that petitioner claimed herself to be the legally wedded wife of late Sh. Bishan Dass, Blacksmith, who was working with the respondent-Board at Nogli. He was granted pension, which was drawn by him against PPO No. 3745/HPSEB from State Bank of India, Rampur Bushahr. He expired on 3.2.2000. Petitioner made representation for the release of family pension. Naib Tehsildar, Rampur Bushahr, 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 District Shimla has issued legal heirs certificate. The certificate has been issued on the report of Patwari Halqua, Bahali. It is certified therein that the petitioner is wife of late Sh. Bishan Dass. Panchayat-cum-Development Officer, Bahali has also issued certificate vide Annexure P-4 certifying therein that petitioner is the wife of Sh. Bishan Dass. Case of the petitioner was turned down by respondent-Board on 28.3.2001 vide Annexure P-4/A. The sum and substance of letter Annexure P-4/A is that Sh. Bishan Dass had nominated Mr. David, grand-son, in form-3 and consequently petitioner’s case could not be considered for pension. Petitioner served a legal notice upon the respondent-Board vide Annexure P-5 dated 10.4.2001. The same was replied by the respondent- Board on 28.4.2001. Precise case of the respondent-Board is that late Sh. Bishan Dass had not nominated the petitioner in form-3 as his wife at the time of completion of pension papers before his retirement. According to the respondent-Board, petitioner is not the legally wedded wife as laid down in rules 53 of the Central Civil Services (Pension) Rules, 1972. According to the Board, Sh. Bishan Dass, while submitting the nomination papers has declared only Mr. David in form-3, as member of his family. It is stated in the reply by the respondent-Board that under rule 59(1) (C) and 61 (1) of the Central Civil Services (Pension) Rules, 1972, particulars are 3 obtained from the retiring employee eight months before the date of his retirement in form-5, wherein the details of the family are supplied. According to the reply, late Sh. Bishan Dass submitted the requisite information in the prescribed proforma on 28.1.1997 duly signed by him and countersigned by the Executive Engineer, HPSEB, Division Rampur Bushahr. According to the Board, late Sh. Bishan Dass had not disclosed the petitioner as his wife both in forms 3 and 5. It is also stated in the reply that the petitioner had filed a civil suit in the Court of learned Sub Judge, Rampur Bushahr, which was withdrawn on 1.3.2002. Mr. Jeevesh Sharma has strenuously argued that petitioner is legally wedded wife of late Sh. Bishan Dass. He has relied upon Annexures P-3 and P-4 to buttress his submission. According to him, pension is to be released strictly as per Central Civil Services (Pension) Rules, 1972 and even if the name of the petitioner has not been nominated, she is entitled to family pension after the death of Sh. Bishan Dass on 3.2.2000. Mr. Rajesh Verma appearing vice counsel on behalf of the respondent-Board has supported the decision of the respondent-Board denying the family pension to the petitioner by assailing the status of the petitioner being legally wedded wife of late Sh. Bishan Dass. 4 I have heard the learned counsel for the parties and have perused the pleadings carefully. It is not in dispute that late Sh. Bishan Dass was working as Blacksmith and after his retirement was being paid pension. He expired on 3.2.2000. Petitioner submitted application for the release of family pension vide application dated 22.1.2001. Case of the petitioner has been rejected primarily on the ground that Bishan Dass had nominated David, his grand-son, as nominee and petitioner’s name does not find mention in forms-3 and 5. The competent authority, i.e. Naib Tehsildar has issued legal heir certificate Annexure P-3 dated 24.1.2000. Petitioner has been shown the wife of late Bishan Dass. The Panchayat-cum-Development Officer has also issued certificate Annexure P-4 certifying therein that petitioner is wife of late Sh. Bishan Dass and she has not remarried. Respondent-Board while rejecting the case of the petitioner has not taken into consideration Annexures P-3 and P-4. It will be apt at this stage to take not of Rule 54 (14) (b) of the Central Civil Services (Pension) Rules, 1972, which defines family as under: “Wife in the case of a male Government servant, or husband in the case of a female Government servant.” 5 Sub-rule (8) of Rule 54 provides that except as provided in sub-rule (7), the family pension shall not be payable to more than one member of the family at the same time and if a deceased Government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child. Petitioner, as per Annexures P-3 and P-4, is the legally wedded wife of late Sh. Bishan Dass. She was entitled to family pension after the demise of her husband on 3.2.2000. Mr. Rajesh Verma has strenuously argued that since late Sh. Bishan Dass had not nominated the petitioner in the documents under the Central Civil Services (Pension) Rules, 1972, she is not entitled to family pension. It is true that late Sh. Bishan Dass has not nominated the petitioner, however, the nomination only entitles the person to collect the pension or retiral benefits and thereafter it has to be disbursed in accordance with law. A bare perusal of Rule 54 (8) (ii) reveals that the family pension is to be paid to the widow and thereafter to the child. The grand-son was not entitled to get the pension even though late Sh. Bishan Dass had nominated him. Similar question had arisen before the Hon’ble Supreme Court in G.L. Bhatia versus Union of India and another, 6 (1999) 5 SCC 237. Their Lordships of the Hon’ble Supreme Court have held that Government servant dying leaving behind widower, even though staying separately and even though excluded in the nomination, nonetheless entitled to family pension. Their Lordships have held as under: “2. The sole question that arises for consideration in this appeal is whether the appellant, who happens to be the husband of the deceased government servant, is entitled to family pension under the provisions of the Central Civil Services (Pension) Rules (for short "the rules") notwithstanding the fact that the deceased wife in her nomination did not include the husband. The forums below have taken the view agreeing with the authorities that since the nomination was not in favour of the husband and the husband was staying separate from the wife, the husband would not be entitled to family pension in question. This view cannot be sustained in view of the provisions contained in Rule 54 of the rules. It is too well settled that where rights of the parties are governed by statutory provisions, the individual nomination contrary to the statute will not operate. 3. Under Rule 54 sub-rule (14()(;) the expression "family" has been defined thus: "54. (14(Z)(i) Wife in the case of a male government servant, or husband in the case of a female government servant...." 4. Sub-Rule (8(r) of Rule 54 states that: "54. (8(r) If a deceased government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child." 5. In the light of the aforesaid provisions and there being no divorce between the husband and wife even though they might be staying separately, the appellant husband would be entitled to the family pension in terms of the rules as noted aforesaid and the authorities, therefore, committed 7 error in not granting family pension to the appellant relying upon the nomination made by the deceased wife of the appellant. The impugned order is, accordingly, set aside and this appeal stands allowed.” Their Lordships of the Hon’ble Supreme Court in Smt. Sarbati Devi and another versus Smt. Usha Devi, AIR 1984 SC 346 have held that nominee of life insurance policy does not get absolute right to the amount due. Their Lordships have held as under: “12. Moreover there is one other strong circumstance in this case which dissuades us from taking a view contrary to the decisions of all other High Courts and accepting the view expressed by the Delhi High Court in the two recent judgments delivered in the year 1978 and in the year 1982. The Act has been in force from the year 1938 and all along almost all the High Courts in India have taken the view that a mere nomination effected under Section 39 does not deprive the heirs of their rights in the amount payable under a life insurance policy. Yet Parliament has not chosen to make any amendment to the Act. In such a situation unless there are strong and compelling reasons to hold that all these decisions are wholly erroneous, the Court should be slow to take a different view. The reasons given by the Delhi High Court are unconvincing. We, therefore, hold that the judgments of the Delhi High Court in Fauja Singh's case (AIR 1978 Delhi 276) (supra) and in Mrs. Uma Sehgal's case (AIR 1982 Delhi 36) (supra) do not lay down the law correctly. They are, therefore, overruled. We approve the views expressed by the other High Courts on the meaning of Section 39 of the Act and hold that a mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the 8 amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.” Mr. Rajesh Verma towards the fag end of his arguments has argued that petitioner had earlier filed a civil suit for getting her status, as wife, determined from the court of learned Sub Judge, Rampur Bushahr. The copy of the plaint is marked as Annexure R-IV. The relief prayed for in the civil suit, which was though withdrawn on 1.3.2002, is to the following effect: “It is therefore, prayed that the plaintiff, being legally wedded wife of the deceased Bishan Dass, Blacksmith (retired and expired) be declared entitled for the family pension and other financial benefits arising out of the death of the retired employee of the defendant No.2 by passing a decree for declaration in favour of the plaintiff and against the defendants and further the defendant No.2 be directed to release the arrear pension in favour of the plaintiff with effect from 3.2.2000 alongwith other benefits for which she is legally entitled till her life. Cost of the suit be also granted in favour of the plaintiff against the defendants. Any other relief which this Hon’ble Court deem just and proper under the facts and circumstances of the case be also granted in favour of the plaintiff against the defendant No.2, in the interest of justice and fair play.” Petitioner had not filed the civil suit for getting her status determined as legally wedded wife of late Sh. Bishan 9 Dass. She has only prayed for the release of pension after the death of late Sh. Bishan Dass. The suit was not maintainable before the learned Sub Judge in view of the provisions of Administrative Tribunals Act, 1985. Only remedy available to the petitioner to seek pension after the death of her husband was through the present original application. It is evident from the record that late Sh. Bishan Dass was an illiterate person. Case of the respondent-Board is that late Sh. Bishan Dass has furnished the particulars as per rule 59 (I) (C) and 61 (I) of the Central Civil Services (Pension) Rules, 1972 in form-5. It is further averred that Sh. Bishan Dass has supplied the information in the prescribed proforma on 28.1.1997, which was duly signed by him and countersigned by the Executive Engineer of HPSEB, Division Rampur Bushahr. The Executive Engineer knew being a responsible officer that a grand-son could not get pension under Central Civil Services (Pension) Rules, 1972, particularly when the petitioner was alive. Forms-3 and 5 have been filled in English, however, Sh. Bishan Dass has singed these forms in Hindi. He did not understand the English language. It was duty cast upon the Executive Engineer to make him understand that the grand-son could not be nominated and it was his wife only, who was entitled to get the pension. 10 Accordingly, in view of the observations made hereinabove, the petition is allowed. Respondent is directed to release the pension to the petitioner with effect from 3.2.2000 with interest @ 6% per annum. Needful be done within a period of six weeks from today. No costs. (Rajiv Sharma), Judge 22.6. 2010 *awasthi*