IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 WP(C).No. 11879 of 2004(L) -------------------------- PETITIONER: --------------- C.THANKAMMA, W/O.LATE NAIK.K.KUTTAPPAN, PARUTHYPALLY VEEDU, VELLAKINAR WARD, ALAPPUZHA, KERALA STATE. BY ADV. MR. ANANDARAJAN.N RESPONDENTS: --------------- 1. UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF FINANCE, NEW DELHI. 2. THE CHIEF CONTROLLER OF DEFENCE, ACCOUNTS (PENSION), ALLAHABAD. 3. THE OFFICER-IN-CHARGE OF RECORDS, MADRAS REGIMENT RECORDS, WILLINGTON, NILGIRIS 643 231. 4. THE DEFENCE PENSION DISBURSING OFFICER, OFFICE OF THE DEFENCE PENSION DISBURSING OFFICER, ERNAKULAM, KERALA. 5. THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O. TRIVANDRUM - 23,REP. BY ITS MANAGING DIRECTOR. R1 TO R4 BY ADV. MR. JOHN VARGHESE, SCGSC MR. N.JAMES KOSHY FOR R5 MR. FRANCIS JOSEPH KURISINKAL, ADDL.CGS MR. P.PARAMESWARAN NAIR,ASST.SOLICITOR R5 BY MR. K.PRABHAKARAN, SC, K.S.R.T.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ............................................................................... W.P.(C) No. 11879 OF 2004 ......................................................................... Dated this the 25th September, 2009 J U D G M E N T Ext.P6 order passed by the third respondent, denying the full benefit of family pension already sanctioned by the very same respondent, vide Exts.P3 and P4 orders is the subject matter of challenge in the present writ petition. 2. The petitioner is the widow of one Mr.Kuttappan, who retired from the Military service and got re-employed in the KSRTC. While serving the KSRTC, he took last breath on 14/12/1992. Met with the adverse circumstances, the petitioner filed necessary applications before the Military authorities as well as the KSRTC for granting full family pension. 3. The KSRTC did not give any family pension to the petitioner; whereas the Military authorities sanctioned 50% of the same and the remaining 50% was sanctioned in the name of one Latha, daughter of the second wife of the deceased W.P.(C) No. 11879 OF 2004 2 Kuttappan (by name Meenakshi), in tune with the relevant provisions of law. The grievance of the petitioner is against the action/inaction on the part of Military authorities in not disbursing the full pension, despite her eligibility in this regard, particularly since the daughter of the second wife got married on 2/12/1996 and is not eligible for obtaining the pension any further, as per the norms prescribed. 4. It is stated in the counter affidavit filed from the part of the respondent No.3, that the children of the second wife are entitled to get 50% of the family pension, till they attained the age of 25 years or get married, whichever is earlier. It is also reflected from Ext.R3(b) issued by the authorities concerned, that the second wife Smt.Meenakshi is not at all eligible for any family pension since the second marriage was during the life time of the first wife; though the children in the second marriage are stated as entitled to get the family pension. It was in the said circumstance, that 50% was sanctioned to the first wife (petitioner) and the remaining 50% was sanctioned in the name of Latha, daughter of the second wife by name Smt.Meenakshi. W.P.(C) No. 11879 OF 2004 3 Smt.Latha got married on 2/12/1996 and it was in the said circumstance, that the petitioner filed a petition for granting/ restoration of the full family pension. 5. It is brought to the notice of this Court that the Military Authorities considered the requisition made by the petitioner and accordingly, the marriage of the daughter Latha was sought to be inquired by the third respondent. On getting convinced as to the factual position with regard to the eligibility of the petitioner to get full family pension, though it was stated as sanctioned, the benefit was not actually given to her despite the lapse of two years. Subsequently, the petitioner preferred Ext.P5 representation and after about 2 years, the Military authorities responded by issuing Ext.P6, denying the claim of the petitioner, stating that she was not entitled to get the full family pension, for the reason that the second wife Smt.Meenakshi was already granted family pension from the KSRTC. 6. The challenge raised by the petitioner against Ext. P6 is sought to be resisted by the third respondent on a totally new ground as contained in paragraph No.6 of the counter affidavit W.P.(C) No. 11879 OF 2004 4 filed from their side. It is stated therein, that, as per the relevant rules, the second daughter by name 'Usha Kumari K.' and the son by name 'Manoj Kumar' born to the deceased in the second wife Meenakshi, were yet to complete the age of 25 years and hence that they were entitled to have 50% of the family pension retained for such further period, which necessitated issuance of Ext. P6, without restoring the full family pension to the petitioner. Quite obviously, the reason now offered for declining the benefit to the petitioner, is not seen exposed anywhere in Ext. P6 order, whereby, the earlier order restoring the full family pension as contained in Ext.P4 is stated as cancelled by the authorities concerned. It is also relevant to note that Ext. P6 has been issued without giving any opportunity of hearing to the petitioner and thus in violation of all known principles of natural justice. That apart, the law is now well settled, in view of the binding judicial precedents rendered by a Division Bench of this Court as reported in 2007(3) KLT SN.24, (Case No. 29) [Janaki vs. I.G. of Prisons] holding that the reason to sustain the impugned order should be reflected from the order W.P.(C) No. 11879 OF 2004 5 itself and it cannot be added or advanced by providing further reasons through the counter affidavit. On this score alone, Ext. P6 is liable to be set aside. 7. With regard to the contention taken in paragraph No.6 of the counter affidavit as to the alleged eligibility of Master Manoj Kumar and K. Ushakumari, it is not discernible whether the third respondent has got any reliable material in this regard. There is no case for the respondents that the said persons by name Manoj Kumar and Usha Kumari had put forth any claim for Family Pension. That apart, the learned Counsel for the petitioner submits that Usha Kumari got married on 02.12.1996 while Manoj Kumar got married on 11.12.2000 and as such, they are not entitled to get any benefit in this regard. Yet another glaring inconsistency with regard to the stand taken by the respondents is that, for denying the benefit already granted in Ext.P4, by passing Ext. P6, the only reason stated is that the second wife 'Meenakshi' is reportedly obtaining full Family Pension from the K.S.R.T.C., which however, cannot be a ground to penalise the petitioner. That apart, even according to the respondents, as W.P.(C) No. 11879 OF 2004 6 revealed from Ext.R3(b) proceedings dated 04.04.1994, the second marriage with Meenakshi was during the life time of the first wife and hence not legally valid and Smt. Meenakshi is not entitled to have any Family Pension even according to the respondents as stated in Ext.R3(b). This shows that the respondents, at no point of time, did ever have any consistent case. 8. The learned Counsel for the petitioner also brought Ext.P7 decision rendered by a Division Bench of this Court in W.A. No. 1445 of 2003 to the notice of this Court, whereby the stand taken by the respondents to deny the Family Pension to the concerned petitioner, for being the recipient of family pension from elsewhere (K.S.R.T.C.) has been turned down, holding that in the absence of any such rule, the said contention cannot be sustained. In the instant case, even the respondents do not have a case that the petitioner is in receipt of family pension from the K.S.R.T.C. This being the position, the petitioner's case stands on a better pedestal and as such, Ext.P6 issued by the third respondent cannot have any further existence. W.P.(C) No. 11879 OF 2004 7 9. In the above facts and circumstances, Ext. P6 is set aside and the respondents 2 to 4 are hereby directed to restore the full Family Pension to the petitioner as contained and ordered in Exts.P3 and P4 and pay the arrears, as expeditiously as possible; at any rate within three months from the date of receipt of a copy of the judgment; failing which, it will carry interest at the rate 7.5% per annum. The Writ Petition is allowed as above. No cost. P.R. RAMACHANDRA MENON, JUDGE. lk