High Court

Legal Reasoning

HON’BLE MR. JUSTICE UJJAL BHUYAN Head Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Mr. B. Gogo i, learned Standing Counsel, Health and Finance Department appearing for respond ent Nos. 1, 2 and 4. Mr. K. Das, learned Standing Counsel, BTC appears for respo ndent No. 3 and Mr. G. Baishya, learned Standing Counsel, Accountant General app ears for respondent No. 5. By way of this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to pay family pension and other admissible allowances to her on account of service rendered by Late Jatindra Moh an Sarkar being his surviving widow. Case of the petitioner is that she is the second wife of Late Jatindra M ohan Sarkar who worked as Surveillance Worker in the Health Department, Governme nt of Assam. He died on 15.11.1999 while in service. On the death of Jatindra Mo han Sarkar, his first wife Smt. Renu Bala Sarkar received pensionary and other b enefits as admissible. During the life time of Smt. Renu Bala Sarkar, she had en tered into an agreement with the petitioner on 8.1.2000 that after her death, th e pensionary benefits should be paid to the petitioner. Smt. Renu Bala Sarkar expired on 13.9.2007. After her death, the authori ties have stopped paying pension. Petitioner approached the authority to resume payment of family pension and other allowances to her and in this connection, su bmitted a representation before the Joint Director of Health Services, Kokrajhar , BTC, Assam on 23.7.2010. However, no steps have been taken for payment of fami ly pension and other admissible dues to the petitioner, compelling her to file t he present writ petition seeking the relief as indicated above. Respondent No. 4 in his affidavit has stated that family pension was pai d to Smt. Renu Bala Sarkar, the first wife of Late Jatindra Mohan Sarkar till he r death but thereafter, as per direction of the Accountant General, payment of f amily pension was stopped. Respondent No. 5 i.e. Accountant General, Assam in his affidavit dated 2 4.5.2011 has taken the stand that family pension is not payable to more than one member of the employee’s family at the same time. He has also taken the stand t hat second marriage during the life time of the first spouse would not be a vali d marriage in the eye of law and, therefore, the second wife would not be entitl ed to family pension. Mr. Mahmud, learned counsel for the petitioner has placed before the Cou rt a judgment of this Court in the case of Sumitra Chetri(Smti) -vs- Union of In dia & Ors reported in 1999 (1) GLT 601 to contend that it is not a question of s econd marriage but actually a question of a nominee making further nomination. Mr. Baishya, learned Standing Counsel submits that the second wife is no t entitled to family pension and in this connection, he has referred to a judgme nt of this Court rendered in the case of Musst. Fazila Begum@Fazliya Begum -vs- State of Assam & Others reported in (2009) 3 GLR 201. Submissions made have been considered. This Court in Sumitra Chetri (supra) held as follows:- (cid:28)2. Without going to the question of second marriage being invalid o r whether the second wife is entitled to family pension or not, the question is of general principle i.e. whether the nominee can nominate somebody else to rece ive pensionary benefit of her late husband. The question was put by the Court to the learned counsel for the respondents Mr. K.N. Choudhury who was unable to an swer the question at all except submitting that under the Hindu Law, the second wife was not permissible nor the second wife had any right to receive pensionary benefit under the Act or the rules. However, the Court does not feel necessary to go into the matter as to whether the second wife was entitled to receive any pension under the Act or rules or not. From all these facts, a question arises w hether a nominee, the wife, can nominate a third person, whether she is the wife or not to receive for and on behalf of the nominee, the first wife. To this, no answer is provided to this Court. However, it appears to me that this question is correlated to the fact that the amount to be paid to the petitioner is the fa mily pension payable to the wife. Instead, the wife is allowing somebody else to receive money for and on her behalf. Nothing has been shown to me that the same cannot be done. In the peculiar facts of this, the second wife may or may not b e the legal wife of the deceased. However, the second wife is also having a daug hter from the deceased and under general principles of law of Hindu Law, even th e children of illegal marriage or illicit marriage are entitled to maintenance f rom the husband or the heirs and representatives of the husband. There is no dis pute that the daughter of the second wife is the daughter of the deceased. As su ch, there cannot be a bar to make payment of some amount towards the maintenance of the daughter of the second marriage. In this view of the matter, I hold that the second wife is also entitled to receive maintenance from the heirs and lega l representatives of the deceased for and on behalf of herself and her daughter. The same is permissible in law, particularly, in view of the fact that the firs t wife herself had written a letter to the respondent to pay family pension to t he petitioner for the benefit of the petitioner which also covers her daughter. I find no bar in making such payment of pensionary benefit to the petitioner. 3. In view of the same, I direct the respondents to pay to the peti tioner the family pension as nominee of the nominee (i.e. Smt Streamlet Mary Che tri) of the deceased husband. Since the first wife is not claiming whatsoever to wards the pensionary benefit, I find no reason as to why the respondents could n ot pay pensionary benefit to the present nominee of the first wife. I find no ba r in paying the pensionary benefit to the nominee or the nominees of the decease d, who is otherwise entitled to maintenance from the deceased’s property in the hands of first legal wife. The petitioner shall be entitled to receive all arrea rs of family pension, if not already withdrawn by the first wife and in future t he petitioner shall get monthly pension as per the letter dated 21.3.1992 of Str eamlet Mary Chetri with Director General, Assam Rifles, Shillong. The respondent s to carry out the order with the month from the date of the service. (cid:29) The decision in Fazliya Begum (supra) was based on the fact situation wh ere the claim of the second wife was made while the first wife was alive and in the context of the competing claim, the authority had declined to entertain the prayer of the second wife, which was upheld by this Court. The issue before the Court in Fazliya Begum (supra) was whether a second wife was entitled to have fa mily pension during the lifetime of the first wife. However, the same is not the situation in the present case where the fir st wife who was provided the family pension had in the meanwhile expired. During her lifetime, she had nominated the petitioner as the person entitled to receiv e family pension. This Court in Sumitra Chetri (supra) in the contextual facts o f that case has held such nomination to be permissible. In view of above, this writ petition is disposed of by directing the res pondent No. 5 to release the family pension including the arrear amount of Late Jatindra Mohan Sarkar in favour of the petitioner with effect from the date of d eath of Smt. Renu Bala Sarkar. Since the claim relates to payment of pension, th e respondent No. 5 should expedite the matter and clear the pension proposal wit hin a period of 2(two) months from the date of receipt of a certified copy of th is order. Writ petition is allowed to the extent indicate above.