IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 WP(C).No. 10121 of 2004(E) -------------------------------------- PETITIONER: -------------------- KAMALAKSHY AMMA W/O. LATE SUKUMARAN NAIR ARUN NIVAS, MAHJALLUR P.O., THENKURRISSY VILLAGE, ALATHOOR, PALAKKADU DISTRICT, KERALA STATE. BY ADV. SRI.N.K.KARNIS RESPONDENTS: ----------------------- 1. OFFICER, 1/C RECORDS, RAKSHA SURAKSHYA CROPS ABHILEKH DEFENCE SECURITY CORPS RECORDS, MILL ROAD, KANNUR -670013, KERALA STATE. 2. DISTRICT TREASURUY OFFICER, PALAKKADU.\ 3. SUB TREASURY OFFICER, AGALI, PALAKKADU. GOVERNMENT PLEADER SRI . MUHAMMED FAZIL M.P. FOR R2,3 ACGSC ,SRI.THOMAS MATHEW NELLIMOOTTIL FOR R1 SRI.TOJAN J.VATHIKULAM, ADDL.CGSC FOR R1 SRI.P.PARAMESWARAN NAIR,ASGI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.10121/2004 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE CERTIFICATE ISSUED BY THE 3RD RESPONDENT DT. 24.9.2001. EXT.P2;- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE 2ND RESPONDENT DT. 8.8.2000. EXT.P3:- COPY OF THE ENDORSEMENT ON THE REVERSE SIDE OF EXT.P2 DT. 14.1.2000. EXT.P4:- COPY OF THE DIRECTION ISSUED BY THE IST RESPONDENT TO THE 3RD RESPONDENT DT. 28.2.2002. EXT.P5:- COPY OF THE LETTER SENT BY THE 3RD RESPONDENT TO THE PRESIDENT, ALATHUR TALUK CONSUMER PROTECTION FORUM, ALATHUR DT. 4.9.02. RESPONDENT'S EXHIBITS EXT.R1(a):- COPY OF THE PENSION PAYMENT ORDER NO.F/NA/7453/2000. /TRUE COPY/ P.A. TO JUDGE tss P.N.RAVINDRAN,J. ====================================== W.P.(C)10121/2004 ====================================== Dated this the 21st day of July 2008 JUDGMENT The petitioner is the widow of late Sukumaran Nair, a defence pensioner. The petitioner's husband was sanctioned pension with effect from 1.12.1984. The last payment of pension to him was on 30.10.1990. He thereafter passed away on 23.7.1999. On the death of her husband, the petitioner was sanctioned family pension. These facts are not in dispute. 2. After the petitioner's husband passed away, she approached the third respondent, the Sub Treasury Officer, Agaly for disbursement of the arrears of pension due to her husband for the period from 1.11.1990 to 23.7.1999. The third respondent thereupon informed the petitioner that the pension papers have been transferred to the Defence Pension Payment Office at Kannur through the District Treasury Officer, Palakkad along with letter dated 5.7.1994. The petitioner thereafter submitted a representation before the District Treasury Officer, Palakkad. Ext.P2 is a copy of the said representation. On receipt of Ext.P2, the third respondent returned it to the petitioner with the endorsement evidenced by Ext.P3, which reads as follows:- Pension documents received from STO Agali W.P.(C)10121/2004 2 as per L.Dis.No.A3/142/92 was returned to STO Agaly for enclosing the pension certificate by registered post on 22.7.1994 to STO Agaly as per this office records.” 3. The petitioner again approached the third respondent for disbursement of the pension arrears. As the third respondent did not render any help, she moved the first respondent. The first respondent thereupon sent Ext.P4 letter to the third respondent with a copy to the petitioner, directing payment of arrears of pension payable to late Sukumaran Nair for the period from 1.11.1990 to 23.7.1999. Ext.P4 reads as follows: “It is intimated that No.11107621 Hav/P.Sukumaran Nair was an ex-pensioner and was drawing his service pension from your office wef.01 Oct.09 vide FCDA (P) Allahabad PPO No.SP/7908/84 (TO-11364). As per pension payment condified issued by your office, he had drawn his pension upto 30th October 1990. The individual died on 23 Jul.1999 and on his demise, family pension has been granted to Sri.Kamalakshi Amma, widow of the deceased vide PCDA (P) Allahabad PPO No.F/EA/7453/2000 (TS-11364). The lady vide her petition dtd.10 Oc.2001 reported that she has not received life time arrears of pension due to his late husband from 1 Nov.90 to 23 Jul.99 so far. Copy of pension payment issued by your office is enclosed for necessary action. In view of the above, you are requested to check your records and arrange to make payment of LTPA to the lady.” 4. Notwithstanding the directions in Ext.P4, the third respondent did not take steps to disburse the arrears of pension. The petitioner thereupon moved the Consumer Disputes Redressal Forum, Palakkad. In the said complaint, the third respondent took the stand that the pension documents are not traceable W.P.(C)10121/2004 3 and that he shall endeavor to trace out the pension records, if it has been received back from the District Treasury, Palakkad on or after 5.7.1994. In view of the stand taken by the third respondent in Ext.P5, the Consumer Disputes Redressel Forum dropped further proceedings. The petitioner thereafter filed this writ petition seeking the following reliefs: a) call for the records relating to Exts.P1 to P5 from the respondents; and b) issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to disburse the pension arrears of the petitioner's late husband Sri.P.Sukumaran Nair for the period 31.10.1990 to 23.7.1999 to the petitioner. 5. The third respondent has filed a counter affidavit stating that though the pension papers have been traced out on 1.6.2004, he is not competent to disburse the life time arrears of pension payable on account of late Sukumaran Nair for the period from 1.11.1990 to 23.7.1999. Relying on Rule-137 of the Instructions for Payment of Military Pensions issued by the Controller of Defence Accounts (Pensions) Allahabad, the third respondent contended that as the arrears of pension relate to a period of more than three years, it can be sanctioned only by the Controller of Defence Accounts (Pensions) Allahabad on receipt of (1) an application in form IAFA-381 - duly filled up and witnessed by two Military Pensioners known to the Pension Disbursing Authority wherein the reason for non-drawal of pension for more than three years has to be satisfactorily explained, (2) a Non-conviction certificate to the effect that the pensioner has not been convicted by any court of law during the period when W.P.(C)10121/2004 4 pension was not drawn and (3) a Non-employment certificate for the said period. A counter affidavit has been filed on behalf of the first respondent also wherein a similar contention has been taken. 6. This writ petition was placed before the Lok Adalath on 1.4.2008. In the Lok Adalath also, the counsel appearing for the first respondent objected to the payment of arrears of pension for the reason that the aforesaid documents have not been produced. In the proceedings of the Lok Adalath held on 1.4.2008, the Manager, State Bank of Travancore, Coyalmannam Branch was directed to make available the pension payment order of late Sukumaran Nair on 10.4.2008. On 10.4.2008, the pension payment order was produced. However, as the counsel appearing for the first respondent objected to the payment of arrears of pension on the ground that the documents referred to in Rule 137 are not available, this writ petition was directed to be placed before the court for hearing. 7. I have heard Sri.N.K.Karnis, the learned counsel appearing for the petitioners, Sri.Thomas Mathew Nellimoottil, the learned counsel appearing for the first respondent and Sri.Muhammed Fazil, the learned Government Pleader appearing for respondents 2 and 3. It is not in dispute that the petitioner's husband was a pensioner and that he had drawn pension only till 30.10.1990. It is also admitted that the petitioner's husband passed away on 23.7.1999 and that on his death, family pension was sanctioned to and is being paid to the petitioner. The only dispute is whether the wife of the pensioner, the petitioner W.P.(C)10121/2004 5 herein, should submit an application as required by Rule-137 of the Instructions issued by the Controller of Defence Accounts (Pension) Allahabad along with other documents for claiming arrears of pension payable to her husband for the period from 1.11.1990 to 23.7.1999. Though Rule 137 has not been extracted in full in the counter affidavits filed by the respondents 1 and 3, the sum and substance of the contention is that there should be an application in Form No.IAFA-381, that it should be witnessed by two military pensioners known to the Pension Disbursing Authority, the reason for non-drawal of pension for more than three years has to be satisfactorily explained, a Non-Conviction Certificate to the effect that the pensioner has not been convicted by any court during the period when the pension was not drawn and a Non-Employment Certificate for the said period should also be furnished. A reading of Rule 137, as set out in paragraph-6 of the counter affidavit filed by the third respondent discloses that it applies only to a case where the pensioner who has not drawn pension claims arrears of pension. It has not been shown with reference to the Rules that Rule 137 governs claims by the widow of the deceased pensioner as well. In my opinion, the stand taken by respondents 1 and 3 in their respective counter affidavits, runs counter to the direction issued by the first respondent in Ext.P4. No such stand has been taken in Ext.P4 which was issued on 28.2.2002. It cannot be said that the first respondent has issued Ext.P4 ignoring the rules. No such contention has been raised in the counter affidavit filed by the respondents. I am, therefore, of the opinion that the stand taken by respondents W.P.(C)10121/2004 6 1 and 3 in their respective counter affidavits is plainly untenable. As noticed earlier, no provision in Rule 137 enjoins the widow of the pensioner to make available the documents referred to in paragraph - 6 of the counter affidavit filed by the third respondent. As the first respondent has in Ext.P4 directed the third respondent to disburse the arrears of pension after verifying the records, the respondents are not justified in putting forward a technical plea that the pensioner's widow should submit an application in the proper form accompanied by relevant certificates. The attitude adopted by the respondents in the matter of payment of arrears of pension due on account of late Sukumaran Nair to his widow, the petitioner herein is unjust and unreasonable. 9. For the reasons stated above, I direct the respondents to give effect to the direction issued by the first respondent in Ext.P4 and pay the arrears of pension payable to late Sukumaran Nair, referred to in Ext.P4, for the period from 1.11.1990 to 23.7.1999. Such payment shall be made within one month from the date of receipt of a copy of this judgment. If payment, as directed above, is not made, the arrears of pension will carry interest at 7.5% per annum from 1.4.2002, i.e. one month after the date on which Ext.P4 order was issued. The writ petition is allowed as above. No costs. P.N.RAVINDRAN, JUDGE css/ W.P.(C)10121/2004 7