CIVIL WRIT PETITION NO.17970 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 05, 2009 Shanti Devi .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Anurag Goyal, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. A widow, who was in receipt of family pension, seeks quashing of the order whereby her family pension has been stopped on the ground that she has remarried. The petitioner denies to have re-married. She, therefore, has prayed for directions to commence her family pension and so also for release of arrears. If remarriage is to dis-entitle a family to claim family pension, then would not it mean that widow has to live this life with tragedy staring at her and a discouragement to start life afresh? Such incidental questions may also CIVIL WRIT PETITION NO.17970 OF 2008 :{ 2 }: incidentally arise for consideration. First the facts in brief:- The husband of the petitioner was working as Clerk in the Irrigation Department, Haryana. He expired in a road accident on 25.2.1982. The petitioner submitted all the requisite documents for release of various benefits. P.P. O. No.4182/F/Hr. was issued by respondent No.6, granting the benefit of family pension to the petitioner. The petitioner opened saving salary account where her family pension was being credited every month. This continued upto October 2003. When the petitioner visited the Bank in December 2003, she learnt to her surprise that her family pension had been stopped as per the directions of Accountant General, Haryana (respondent No.7) w.e.f. November 2003. The pension was statedly discontinued on the ground that the petitioner had remarried. A letter in this regard was shown to the petitioner by the Bank. The petitioner submitted a detailed representation on 9.3.2004, clarifying the position that she had not performed any remarriage after the death of her husband. She pointed out that person behind the complaint in this case was none other than her brother-in-law (younger brother of her late husband). As per the allegation, the petitioner had married her brother-in-law. The petitioner also pointed out that a litigation was pending between her son and the said brother-in-law regarding one plot which the complainant wanted to grab. The petitioner made a detailed representation to respondent Nos.3 and 4 with a request to direct respondent No.7 to restore her family pension. Thereupon, respondent No.7 wrote to Deputy Commissioner, Fatehabad, seeking report if the petitioner CIVIL WRIT PETITION NO.17970 OF 2008 :{ 3 }: had contacted remarriage. In the meantime, the petitioner also submitted a detailed representation to the Comptroller and Auditor General of India, New Delhi, for restoration of her family pension. Respondent No.7 appears to have approached Deputy Commissioner again with a reminder to submit report. The petitioner was called by Sub Divisional Officer, Tohana, who recorded her statement. She also produced her ration card where she was shown as head of the family and a voter list where name of her husband was shown as Zile Singh. Respondent No.6, then forwarded a report to respondent No.7 stating that the petitioner had not remarried after the death of her late husband. As per the report, she has not even performed a Kareva marriage. Despite this, no action was taken, forcing the petitioner to make another representation to respondent No.7 on 5.11.2004. Yet another representation followed on 19.1.2005. The family pension thereafter was restored to the petitioner on 26.5.2005 and sum of Rs.43,907/- was credited in her account as arrears. The family pension was so paid upto September 2005 but with effect from October 2005, the same was again discontinued. The process of filing representation again commenced. The petitioner statedly visited respondent No.7 also. Still, the family pension was not released. Accordingly, the petitioner served a advance notice of writ petition on 27.8.2007 and ultimately filed the present writ petition before this Court. Common reply on behalf of respondent Nos.1 to 6 is filed by respondent No.4. Respondent No.7 has filed separate reply. There is yet another reply filed by respondent No.8. In the reply filed CIVIL WRIT PETITION NO.17970 OF 2008 :{ 4 }: by respondent No.7, it is stated that a complaint was received from Balwant Singh that the petitioner had remarried Jaspal Singh, younger brother of her late husband in 1984 and was drawing pension fraudulently. It appears that Balwant Singh is husband of sister of the petitioner and is in litigation. Executive Engineer, Tohana, was requested to investigate and intimate the matter relating to remarriage of the petitioner. Matter was taken up with Superintendent of Police,Fatehabad. Deputy Superintendent of Police held an enquiry and reported that the petitioner had performed Karewa with her brother-in-law. The pension was, thus, discontinued. Deputy Commissioner, Fatehabad, was later requested to investigate the matter and he furnished the photo copy of the report of S.D.M that the petitioner had not re-married. This being in conflict with report of D.S.P, Deputy Commissioner was requested to look into it again, when he informed respondent No.7 that the petitioner had remarried with Jaspal Singh in the year 1984 and thereafter had left his house. In this background, the Treasury Officer, Tohana, was requested to stop the pension and recover the excess amount paid to the petitioner. In the reply filed on behalf of respondent No.1 to 6, similar stand is taken that the petitioner had arranged a remarriage with Jaspal Singh in the year 1984. The first question that would require immediate attention would be to see if this mode adopted by the official respondents to discontinue the pension would be permissible one? Discontinuing the family pension simply on receipt of a complaint that lady has remarried would certainly be something, which really can not traced to any authority under the provisions of law. It is also not made clear CIVIL WRIT PETITION NO.17970 OF 2008 :{ 5 }: as to under which provision, respondent No.7 would have an authority to seek investigation into the aspect of remarriage, if any of the petitioner and thereafter to rely upon such a report to discontinue the pension. The course, as adopted by the respondent, does not appear to be an authorised one under the law or one which is legally permissible. Even if such a complaint was received, this was required to be properly determined before discontinuing the family pension. Noticing this contradiction, this Court vide its order dated 3.7.2009, directed the petitioner to file an affidavit in this regard. Thereafter, the counsel for the petitioner did not put in appearance. Considering the case to be one where issues of vital interest to general public at large was involved, Mr.Anurag Goyal was requested to assist the Court as Amicus-curiae. Learned counsel appearing as amicus-curiae would submit that there is no rule which prohibits the grant of family pension to a widow of the deceased who had remarried and particularly in the same family. According to the counsel, the aspect whether the petitioner has remarried or not, thus, would not be of much significance. Prima-facie, there is no material on record to indicate that the petitioner has remarried, the ground on which her family pension has been discontinued. It appears that this complaint has been made because of the litigation that is continuing between the son of the petitioner and her brother-in-law. If the petitioner had remarried the said brother-in-law, then there can not be any cause for her son to fight or contest any litigation with said brother in law, who would now be his father. Mere fact that there is some property dispute going on CIVIL WRIT PETITION NO.17970 OF 2008 :{ 6 }: between the son of the petitioner and her brother in law, whom she is alleged to have remarried would be enough to indicate that this complaint appears to be a made up one just to seek discontinuation of this family pension. Keeping this aspect apart, even if it be taken that the petitioner has remarried, which is in the same family, the family pension due to her perhaps can not be discontinued. In this regard, the learned amicus-curiae has placed reliance on the case of Kiran Kumar Vs. State of Haryana and others, 2003(3) RSJ 283, where this Court has observed that there is no rule to prohibit the grant of family pension to the widow of the deceased who has remarried and particularly in the same family. This was a case where the widow of the deceased has remarried the younger brother of the deceased. The daughter of the deceased was living with the widow. The economic dependence of the family continued in its entirety on the widow. Thus, the respondents were directed to pay the family pension to the widow and the minor. On the other hand, Mr.Rathee has referred to Family Pension Schemes issued in the year 1964. Mr.Rathee would refer to Rule 4(iii)(a), which says that pension is admissible in the case of widow/widower upto the date of death or remarriage, whichever is earlier. Apparently, this Rule can not be read in isolation. Rule 4(v) provides that in the event of remarriage or death of a widow or widower the pension will be granted to the minor through their natural guardian. As per Rules updated in 2009, the definition of a `family' for the purpose of family pension is contained in Rule 14. Though in Category 1, widow or widower is defined as `family' upto remarriage CIVIL WRIT PETITION NO.17970 OF 2008 :{ 7 }: or death as the case may be but still a provision has been made that the childless widow of the deceased Government servant shall continue to be paid family pension even after her remarriage subject to the condition that the family pension shall cease once her independent income from all other sources becomes equal to or higher than the minimum prescribed family pension in the State Government. Though the Rules have been amended in the year 2009 but apparently these have not kept pace with the changing needs of the Society and the requirement of family pension. Reference in this regard may be made to the instructions issued by the Government of India on the basis of the recommendation of the 5th Pay Commission regarding pension or special pension in case of Armed Forces officers and personnel below officer rank. Para 5.8 of these instructions regulates family pension on remarriage of widow. A widow has been held entitled to full family pension if she continues to support the children after remarriage. In case she does not support the children after remarriage, the ordinary family pension equal to the 30% of the emolument to the last drawn to the remarried widow will be payable. If such a widow has no children, full special family pension will continue to her. There is even a provision for sharing the family pension between the parents and the widow where she remarries. The purpose of making all these provisions appears to be that the lady who becomes a widow should not be made to suffer any disadvantage on that count or for settling afresh in life or to restart life again. Imposing such a disability, would certain discourage a widow to resettle in life or restart afresh. Are we to discourage widows who are victims of misfortunes to remain as such throughout CIVIL WRIT PETITION NO.17970 OF 2008 :{ 8 }: their lives by denying them the pension, to which they would be entitled to? Even the provisions of Regulations 2 and 3 can be referred to in support of the proposition that a widow who remarries in the family would continue to receive family pension. In this regard reference can also be made to the case of Kamaljit Kaur Vs. Union of India and others, 1997 (3) PLR 441, where it is held as under:- “Petitioner, widow of Malkit Singh, married with the brother of the deceased. This fact is admitted in the written statement. In such a situation the relevant Rule that applies to the case in hand in Rule 219 of Section 2 of Service Pension and Gratuity. That Rule states that “A relative specified in regulation 216 shall be eligible for the grant of family pension.” Widow is one mentioned in Regulation 216. Thus, it is beyond controversy that widow is entitled to pension under Rule 219. That Rule further states that if the widow re-marries her deceased husband's brother and continues to live a common life with and/or contributes to the support of the other living eligible heirs she continues to be entitled to family pension In this case petitioner re-married deceased's direct brother. She is maintaining the son born to her through the deceased thus petitioner continues to have a right to get the family pension. That family pension was denied to her from May 1994. The said action on the part of the respondents was illegal. So, respondents are directed to pay the entire arrears, of pension to the petitioner within a month from today. If the entire arrears CIVIL WRIT PETITION NO.17970 OF 2008 :{ 9 }: are not paid within one month, as stated above, that entire arrears will carry interest at the rate of 12% per annum from the date of the expiry of one month till the date of actual payment. We direct the respondents to continue to disburse the family pension due to petitioner regularly month by month.” For benefit of understanding, reference here can be made to Regulation 98 of the Pension Regulations for the Army, 1961 where the widow is held entitled to receipt of the family pension continuously where she marries a brother of the deceased husband. The aim is obvious. It is that she would continue to support the family where she was initially married and, thus, there would not be any justification to discontinue the grant of family pension to such a widow. Reference here further can be made to Note in Para 19.1 of instructions issued by Central Government for Armed Force Personnel, which regulate the grant of liberalization and family pension and it reads:- “Note:- In case of both officers and personnel below officer rank, if a widow remarries her deceased husband's real brother and continues to live a communal life with and/or contributes to the support of other living eligible heirs, she will continue to be eligible to the liberalized special family pension at the rates indicated in Para 19.1 above. On re-marriage with another person, she will forfeit her right to liberalized special family pension but will be given ordinary family pension at the rates indicated in Para 13 from the date following the date of her re- CIVIL WRIT PETITION NO.17970 OF 2008 :{ 10 }: marriage and from the said date children will be allowed children allowance as specified in Para 22 below.” There is no basis for allowing different treatment to a lady otherwise entitled to family pension. Above all this, there is a serious dispute in the present case, whether the petitioner-widow has remarried at all or not. Even if it is taken that she has remarried Jaspal Singh, who is the younger brother of her late husband, she would be entitled to receive the family pension on the basis of consideration noted above. There would, thus, be no ground to discontinue the family pension to the petitioner. Accordingly, the impugned order discontinuing the family pension to the petitioner can not be sustained. The same is set- aside. Direction is hereby issued to respondent No.7 and others concerned to release the family pension due to the petitioner immediately from the date it is withheld with all the arrears due till the date of payment. The arrears shall carry an interest @ 12% per annum because of the unjustified stand taken by the respondents. The petitioner is also held entitled to the costs, which are assessed at Rs.10,000/-. The writ petition is allowed in the above terms. September 05, 2009 ( RANJIT SINGH ) khurmi JUDGE