IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 OP.No. 29070 of 1999(I) ----------------------- PETITIONERS: ---------------------- 1. PADMAKUMARY, 37 YEARS, W/O. LATE GOPINATHAN NAIR, MOOZHIKKULAM, PALLIPPATTU HOUSE, KURUMASSERY P.O. 2. KUMARY REMYA, 10 YEARS, REPRESENTED BY THE MOTHER 1ST PETITIONER. BY ADV. SRI.A.VIJAYAKUMAR RESPONDENTS: ----------------------- 1. UNION OF INDIA REPRESENTED BY CABINET SECRETARY, CENTRAL SECRETARIATE, NEW DELHI -1. 2. REGIONAL PROVIDENT FUND COMMISSIONER, SUB REGIONAL OFFICE, KALOOR, COCHIN - 17 BY ADVS. SRI.P.S.SREEDHARAN PILLAI, SCGSC SRI.JOHN VARGHESE, ASSISTANT SG FOR R1 & R2 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1 & 2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO. 29070/1999 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : COPY OF DEATH CERTIFICATE NO. A3-103/70 OF SRI. K.K. GOPINATAN NAIR. EXHIBIT P2 : ORDER NO. KR/KC/P.CELL/II/PPO/4671 DT. 3.8.99 OF ASST. PROVIDENT COMMISSIONER SANCTIONING PENSION. EXHIBIT P3 : REPRESENTATION DTD. 28.9.99 BY THE PETITIONER FOR FULL PENSION. /TRUE COPY/ P.A. TO JUDGE. vkm S. SIRI JAGAN, J. ------------------------------------ O.P.No.29070 OF 1999 ---------------------------------------- Dated this the 17th day of September, 2008 JUDGMENT The petitioners are the widow and minor child of a deceased employee, who was entitled to pension under the Employees' Pension Scheme under the Employees Provident Funds and Miscellaneous Provisions Act. The 1st petitioner's husband applied for pension under the Scheme. But before commencement of the pension payment, he died. The petitioners thereafter applied for family pension. The family pension has been sanctioned only at the rate of 50% of the monthly member's pension payable. The petitioners' contention is that since the authority under the Employees Pension Scheme did not commence pension payment to the deceased employee before the death of the employee, the 1st petitioner is entitled to full monthly member's pension instead of 50%, in view of Clause 16 of the Employees' Pension Scheme. The petitioners therefore, seek the following reliefs: “(i) Issue a Writ of Mandamus directing the respondents to extend the benefits available to the petitioners under clause 2(ii) of para 16 of the O.P.No.29070/1999 2 Scheme 95 and sanction full pension cancelling Ext.P2 orders. (ii) award the costs of this Original petition. (iii) Pass any other writ, order, or direction deems fit and proper in the nature and circumstances of the case”. 2. A counter affidavit has been filed by the respondents in which the contention taken is as follows: The 1st petitioner's husband died on 10th January, 1999. Before death, he applied for monthly pension in December 1998. That application was processed and monthly pension of Rs.465/- has been granted with effect from 1.8.1998. Since the deceased employee had applied for pension and was granted pension, the 1st petitioner is entitled to only 50% of the monthly members pension. 3. I have considered the rival contentions in detail. The issue involved has to be decided on the basis of Clause 16 of the Employees' Pension Scheme, the relevant portions of which are extracted below: “16. Benefits to the family on the death of a member.- (1) [Pension to the Family] shall be admissible from the date following the date of death of the member, if the member dies:- (a) while in service, provided that at least one O.P.No.29070/1999 3 month's contribution has been paid into the Employees' Pension Fund, or (b) after the date of exit but before attaining the age of 58 years, from the employment having rendered service entitling him/her to monthly members' pension but[before the commencement of pension payment, or] (c) after commencement of payment of the monthly members pension. Note.-The cases where a member has rendered less than 10 years eligible service on the date of exit but has retained the membership of the Pension Fund, and dies before attaining the age of 58 years, shall be regulated under sub-paragraph (8) of paragraph 12. (2) (a) The monthly widow pension shall be- (i) in the cases covered by clause (a) of sub- paragraph (1) equal to the monthly member's pension, which would have been admissible as if the member had retired on the date of death or Rs.450 or the amount indicated in Table C whichever is more, (ii) in the cases covered by clause (b) of sub- paragraph (1) equal to the monthly members pension which would have been admissible as if the member had retired on the date of exit or [Rs.450/- per month] or the amount indicated in Table C whichever is more, (iii) in the cases covered by clause (c)of sub- paragraph (1), equal to 50 per cent of the monthly members pension payable to the member on the date of his death subject to a minimum of [Rs.450 per month], [(iv) in all the cases, where the amount of family pension sanctioned under the Ceased Family Pension Scheme, 1971, and is paid/payable under this scheme is less than Rs.450 per month, the amount of family pension in such cases shall be enhanced to Rs.450 per month;] (b) the monthly widow pension shall be payable O.P.No.29070/1999 4 upto the date of death of the widow or re-marriage whichever is earlier”. Note.-In cases where there are two or more widows, family pension shall be payable to the eldest surviving widow. On her death it shall be payable to the next surviving widow, if any. The term “eldest” would mean seniority with reference to the date of marriage. (3) Monthly children pension- (a) If there are any surviving children of the deceased member, falling within the definition of family, they shall be entitled to a monthly children pension in addition to the monthly widow/widower pension. (b) Monthly children pension for each child shall be equal to 25 per cent of the amount admissible to the widow/widower of the deceased member as monthly widow pension payable under sub-paragraph (2)(a)(i) provided that minimum monthly children pension for each child of the deceased member shall not be less than [Rs.150 per month] [(c) Monthly children pension shall be payable until the child attains the age of 25 years.] (d) The monthly children pension shall be admissible to the maximum of two children at a time and will run from the oldest to the youngest child in that order. [(e) If a member dies leaving behind a family having son or daughter who is permanently and totally disable such son or daughter shall be entitled to payment of monthly children pension or orphan pension, as the case may be, irrespective of age and number of children in the family in addition to the pension provided under clause(d).] The said Clause contemplates three types of situations for payment of family pension. First is that when the employee O.P.No.29070/1999 5 dies while in service. The second is that when the employee dies after retirement but before commencement of pension payment. The third is when the employee dies after commencement of payment of monthly member's pension. Here, admittedly, although pension was sanctioned to the deceased employee, the pension payment had not commenced. Therefore, the claim of the petitioners is clearly covered by sub clause (b) of Clause 16(1) i.e., a situation where the employee dies before commencement of pension payment. Rate of payment of family pension in that situation is squarely covered by sub Clause 2(a)(ii), which stipulates that in cases covered by Clause (b) of Sub Clause (1) of Clause 16, the amount of family pension payable is equal to the monthly member's pension. 4. The rule maker has taken pains to specifically stipulate the situations, governing payment of family pension. Consciously the rule maker has stipulated that in respect of death before 'commencement of pension payment', the full monthly member's pension is payable to the widow. If the intention of the rule maker was to restrict rate of family pension to 50% in cases where pension had already been O.P.No.29070/1999 6 sanctioned to the employee, the rule maker would have specifically stated so. Instead the rule maker stipulated the condition as 'before the commencement of pension payment' instead of 'before becoming eligible for pension payment'. When admittedly, the 1st petitioner's husband died before commencement of pension payment, there cannot be any doubt that going by Clause 16(2)(a)(ii), the amount payable is full monthly member's pension. Consequently, the 2nd petitioner is also entitled to proportionate payment of pension till she attains the age of 25, at the proportionate rate mentioned in sub Clause 3(b) of Clause 16. 5. Accordingly, the respondents are directed to pay to the petitioners, family pension at the rate equal to monthly members pension as provided in Clause 16(2)(a)(ii) and 16(3) (b) respectively and the petitioners shall be paid monthly pension every month at those rates. Arrears shall be paid within a period of one month from the date of receipt of a copy of this judgment. The original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.No.29070/1999 7