High Court · 2009

Heard Mr. R. Ali, learned Counsel for the petitioners and Dr. B. Ahmed, learned Standing Counsel, Irrigation Department. Also heard Mr. C. Barua h, learned Counsel appearing for the Accountant General, A & E, Assam. The pleadings being complete, this petition has been heard and d isposed of at the motion stage. The petitioner No. 1 claims to be the second wif e of Kaliyikal Mithai Kutty (since deceased) (hereafter for short referred to as the deceased) and the petitioner No. 2 is one of the daughter through her. The deceased who was appointed as Overseer (Jr. Engineer) with the Irrigation Depart ment under the Government of Assam on 14/5/1959 died in harness on 30/1/1988. Ou t of the wedlock between the petitioner No. 1 and the deceased, they were blesse d with three daughters. As in the meantime, two daughters have been given in mar riage. The petitioners, following the death of the deceased, submitted an applic ation before the Executive Engineer, Dhansiri Project Division (Irrigation) Cana l-II, beseeching the said authority to process their claim for family pension an d other benefits due in law to them. According to the petitioners, after the dea th of their predecessor in interest, they came to learn that he (deceased) had m arried earlier and had children through the said alliance. The first wife and he r son, however, left after attending the religious ceremony after his demise ass uring that they would not claim any pensionary benefit and instead relinquished their claim infavour of the petitioners. As years passed by, the petitioners wai ted in expectation but to no avail. Being exasperated, they are before this Cour t for redress. The respondent No. 3, in his affidavit has pleaded that while th e issue with regard to the family pension and other benefits was under scrutiny, his office received a letter dated 3/3/1988 from one Shri K.C. Nainan, Deputy S ecretary to the Governor, Raj Bhawan, Mumbai, espousing the cause of the first w ife of the deceased employee for family pension and other benefits. According to the deponent, however, nothing was heard in this regard thereafter and, therefo re, he wrote a letter dated 10/10/2007 addressed to the Chief Engineer, Irrigati on Department, imploring him to take necessary steps as in view of the uncertain ty of the claim of the first wife, the process had stopped. The Accountant General, Assam, in his affidavit while clarifying that no intimation has yet been received by his Office in the matter has conten ded with reference to Rule 143 of the Assam Service (Pension) Rules, 1969 (herea fter referred to as the Rules) that in case of two or more widows, the family pe nsion is payable to the next surviving widow and that the dues with regard to th e Group Insurance and Leave Salary Encashment has to be authorised by the concer ned Department of the State. Mr. Ali has urged that there being no surviving claim for the fa mily pension and other retiral benefits by the first wife or any of her children , the delay in the matter on the part of the respondents is without any justific ation and, therefore, an appropriate direction and/or writ ought to be issued to complete the process pertaining thereto so as to facilitate the release of the entitlements to the petitioners as expeditiously as possible. According to him, as nothing has been heard of the first wife or her children for last two decades , the process by no means ought to be stalled in a fruitless wait for them to th e prejudice of the petitioners. Dr. Ahmed referring to the letter dated 3/3/1988 as above has af firmed that no further communication from the first wife or her children has yet been received after the year 1988. The learned Counsel for the Accountant General has reiterated th e pleaded stand of the said respondent. The pleadings on record and the arguments advanced have been dul y considered. The factum of marriage of the petitioner with the deceased and the status of the petitioner No. 2 as her daughter through him is not in dispute. A s a matter of fact it is not as such denied by the respondents. The certificate of death (annexure 1 to the writ petition) testifies the death of the deceased o n 30/1/1988. This also is a matter of record. Though by the letter dated 3/3/198 8 one Shri K.C. Nainan, Deputy Secretary to the Governor, Raj Bhawan, Mumbai, ha d requested the respondent No. 3 to take steps for release of the pensionary ben efits to Mrs. Thankamma Kutty and her five children, admittedly the same had not been pursued thereafter though in the meantime more than two decades have elaps ed. Having regard to the fact that the status of the petitioners as the wife and the daughter of the deceased employee is not in doubt, this Court is of the vie w, in the singular facts and circumstances of the case that their claim for fami ly pension and other retiral benefits as envisaged under the Rules ought to be p rocessed. The letter dated 10/10/2007 of the respondent No. 3 addressed to the C hief Engineer of the Department in substance recommends the said course of actio n. The materials on record do not contain anything to the contrary thereto as on date. The note appearing in Rule 143 of the Rules clarifies that in case there are two or more widows, pension would paid to the next surviving widow, if any. One asp ect however cannot be overlooked. The Group Nomination Form annexed to the affid avit of the respondent No. 3 discloses that the first wife and the children thro ugh her had been referred to therein as the nominees of the deceased. Be that as it may, as it is not unlikely that at that point of time of nomination, the sec ond marriage with the petitioner No. 1 had not been solemnised, such a nominatio n, in the opinion of this Court, at this distant point of time ought not to act as an impediment to consider the petitioners’ claim for family pension and other retiral benefits. Rule 143, as noticed hereinabove, also contemplate the approv al of the claim of the surviving wife of a deceased employee governed thereby. On a totality of the above considerations therefore this Court c onsiders it to be fit and proper to issue a direction to the State respondents m ore particularly the Chief Engineer, Irrigation Department, Assam, respondent No . 2 and the Executive Engineer, Dhansiri Project Division (Irrigation) Canal-II, respondent No. 3, to forthwith process the claim of the petitioners for pension ary benefits and forward the same to the respondent No. 4 for completion of the exercise without undue delay. Needless to say, the process would be conducted st rictly in accordance with the relevant provisions of the Rules and the dues woul d be disbursed to the petitioners as early as possible. The petition stands allowed in the above terms. No costs.