1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT D.B. Civil Writ Petition No.10706/2009 Union of India & Ors. vs Rukmani Devi & Anr. DATE OF ORDER : 27.1.2010 PRESENT HON'BLE MR. PRAKASH TATIA,J. HON'BLE MR. DINESH MAHESHWARI,J. Mr. Kamal Dave, for the petitioner. Mr. Pramod Gupta, for the respondent. <><><> REPORTABLE BY THE COURT: (Per Hon'ble Tatia, J.) Heard learned counsel for the parties. The employee Sh. Kishan Joshi of the appellant retired on 31st April, 1982 and he was getting the pension and also retiral benefits. While getting the pension, he died on 31.2.2000. The respondent Smt. Rukmani Devi claimed that she is wife of deceased employee Kishan Joshi and is entitled to family pension after death of her husband. Her claim was not allowed, therefore, she submitted appeal before the Central Administrative Tribunal which was dismissed vide Annex.2 dated 19th Nov., 2008. The respondent – Smt. Rukmani Devi then got the information 2 that her name already entered in service record of her husband maintained by the employer-appellant then she submitted an application for review of the said order dated 19th Nov., 2008, upon which, the tribunal issued notice to the appellant and, thereafter, held vide order dated 29th Oct., 2009 that the respondent is wife of the deceased- employee and, therefore, is entitled to family pension. Learned counsel for the appellant vehemently submitted that neither the appellant had jurisdiction to decide the status of the applicant-respondent nor the tribunal had jurisdiction to decide and declare the status of the respondent to be wife of the deceased-employee Sh. Kishan Joshi. In that view of the matter, the matter could have been decided by the civil court and that could have been done only when the respondent could have obtained the declaration that she is wife of the deceased Sh. Kishan Joshi. In view of the above reasons, the tribunal exceeded its jurisdiction in allowing the review application vide order dated 29th Oct., 2009. We considered the submissions of learned counsel for the petitioner and perused the reasons given by the learned tribunal in its order dated 29th Oct., 2009. We do not find any force in the submission of learned counsel for the appellant that because the name of the respondent has not 3 been mentioned by the deceased employee as nominee for the purpose of grant of family pension or any post retiral benefits, therefore, only on this ground, the respondent could have been denied any benefit. The tribunal has relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Smt. Violet Issaac & Ors. Vs. Union of India & Ors reported in 1991(1) SCC 725 and it is beneficial to quote the same: “The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the Rules are entitled to receive family pension. The employee has no title nor control over the family pension as he is not required to make any contribution to it. The Family Pension Scheme is in the nature of a welfare scheme . Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition. ” (emphasis supplied) Since the entitlement of a person for family pension depends upon her/his status and not depending upon the declaration made or submitted by the employee to the employer mentioning him/her nominee, therefore, the right of the applicant is required to be decided according to the facts of each case. So far as contention of learned counsel 4 for the petitioner that the petitioner as well as the tribunal had no jurisdiction to decide and declare the status of the applicant is concerned, that may be true in technical sense only to the extent that power does not vest in appellant or also in the tribunal to issue any declaration about status of any person whether he/she is married to deceased employee. So far as the determination of the claim for the purpose of pension is concerned, on the basis of material available on record, the employer-appellant could and should have decided about the entitlement of the claim of the applicant. The contention of the appellant is that since the respondent-applicant Smt. Rukamani Devi was not shown as wife of the employee by the deceased in service record as well as for any post retiral benefits during entire service period and even after retirement during the period when he was receiving pension till he died is absolutely irrelevant for the purpose of deciding this controversy in view of the judgment of the Hon'ble Supreme Court delivered in the case of Violet Issaac (supra). The Hon'ble Supreme Court held that the family pension does not form part of estate of deceased employee enabling him to dispose of the same by testamentary disposition and the learned District Judge on application filed by Smt. Rukamani 5 Devi for grant of succession certificate for the purpose of getting family pension in order dated 6th Dec., 2001 (Annex.A/12) rightly held that family pension is not the property of the deceased-employee and, therefore, no succession certificate can be issued for this property. In fact, it appears that in the opinion of the appellant objection may be two fold; one is about the identity of Smt. Rukamani Devi and second is that whether she is wife of deceased employee or not. If these two facts could not have been decided by the appellant-employer in this case then how the appellant could decide these issues in all other matters? Whether the appellant employer gets jurisdiction to decide above two issues if the employee submits the names of his dependent during the period of service or at the time of his retirement or thereafter? If merely on the basis of said statement of employee, the department/employer can pay the pensionary benefits or retiral benefits to the person named by the deceased employee then whether they gets jurisdiction to decide the identity and status of a person and that too, merely on the basis of such admission of deceased employee? If they do so, then also, the employer is not deciding the identity and status of a person. The above argument of the appellant is also result of myopic approach only. While advancing such 6 argument, the appellant-employer failed to notice that even if the employee discloses name of his wife or son or dependant to the employer and is duly recorded in the service record of the employee throughout service and continued so even after his retirement till the employee dies and then if the employer pays and gives the benefit of family pension or any other benefit in accordance with Rules to that person named in the service record of the employer and disclosed by the employee itself is not a declaration of status of any person named by the employee and even accepted by such dependant and the other party, the rightful owner yet has right to seek declaration from the court of law for getting the benefit which has already been given/paid to the dependant or nominee of the employee. In either case when employer accepts the dependants of deceased employee to be dependent as heir of the employee or rejects that claim they are not making any declaration. The limited jurisdiction of the employer is to satisfy itself about the claim of the claimant on the basis of material available on record or produced before them to substantiate the claim and pass appropriate order. Therefore, it is the satisfaction of the employer which is material for the purpose of giving the service benefits to the dependant of the employee after death of employee 7 according to the rules. By doing so also, they are not declaring about identity or status of any person as lawful heir or dependant of the deceased employee. It appears that appellant proceeded on assumption if they will decide the claim of the respondent-claimant for family pension that may amount to declaration of identity or status of the claimant and they may be in trouble if any other claimant will comeforward. That assumption is also misconceived as in all other cases such dispute may arise if the employer pays post retiral benefits to the dependants of the deceased employee. Here, in this case, it is worthwhile to mention here that the employee died in the year 2000 and before that he executed the Will wherein also there is a mention that he has wife. There is no other claimant also. There is name of Smt. Rukamani Devi in the service record as wife of the deceased employee. The appelalnt has placed on record the copies of the statement of Pradeep Joshi, the son of the deceased employee recorded in probate proceeding no.19A/2001 for grant of probate for Will of deceased employee wherein son of the deceased employee admitted that Smt. Rukamani Devi is his mother and the statement of Smt. Rukamani Devi recorded in the succession certificate proceedings no.115A/2000 wherein the 8 respondent Smt. Rukamani Devi's statement and his son's statements were recorded as back as in the year 2001. The other materials which have been placed on record by the applicant alongwith the rejoinder filed before the tribunal were sufficient material on the basis of which the tribunal was justified in holding that the applicant-respondent Smt. Rukamani Devi is lawfully claimant for the family pension. In these facts and circumstances of the case, if the issue for limited purpose for grant of family pension has been decided so as to hold that the applicant is entitled to family pension, we are not inclined to interfere in the writ jurisdiction so as to deny the benefit of the order passed by the tribunal for a lady of about more than 80 years. Learned counsel for the appellant apprehended that in large number of cases such types of claims may be raised. If it is so, then also, it is of no help to the appellant in any manner because each case is required to be examined according to the facts of each case and on the basis of evidence and not on the basis of reason that some relief has been granted to someone in the facts of that case. Learned counsel for the appellant also has apprehension that there may be other claimants for the family pension. If it is so, then the claims of those persons will be decided by civil court in accordance with law as we have already 9 observed that this decision is for limited purpose of grant of family pension and not declaration as of status of the respondent that she is wife of the deceased employee. In view of the above reasons, there is no merit in this writ petition and the same is hereby dismissed. (DINESH MAHESHWARI), J. (PRAKASH TATIA),J. cpgoyal/-