PADMAKUMARY & Ors. v. NONE

O.P.NO. 29070/1999APPENDIXPETITIONER'S EXHIBITS:EXHIBIT P1: COPY OF DEATH CERTIFICATE NO. A3-103/70 OF SRI. K.K. GOPINATAN NAIR.EXHIBIT P2: ORDER NO. KR/KC/P.CELL/II/PPO/4671 DT. 3.8.99 OF ASST. PROVIDENT COMMISSIONER SANCTIONING PENSION.EXHIBIT P3: REPRESENTATION DTD. 28.9.99 BY THE PETITIONER FOR FULL PENSION./TRUE COPY/P.A. TO JUDGE.vkm S. SIRI JAGAN, J.------------------------------------O.P.No.29070 OF 1999----------------------------------------Dated this the 17th day of September, 2008JUDGMENTThe petitioners are the widow and minor child of a deceasedemployee, who was entitled to pension under the Employees'Pension Scheme under the Employees Provident Funds andMiscellaneous Provisions Act. The 1st petitioner's husband appliedfor pension under the Scheme. But before commencement of thepension payment, he died. The petitioners thereafter applied forfamily pension. The family pension has been sanctioned only atthe rate of 50% of the monthly member's pension payable. Thepetitioners' contention is that since the authority under theEmployees Pension Scheme did not commence pension paymentto the deceased employee before the death of the employee, the1st petitioner is entitled to full monthly member's pension insteadof 50%, in view of Clause 16 of the Employees' Pension Scheme.The petitioners therefore, seek the following reliefs:“(i)Issue a Writ of Mandamus directing therespondents to extend the benefits available to thepetitioners under clause 2(ii) of para 16 of the O.P.No.29070/19992Scheme 95 and sanction full pension cancellingExt.P2 orders.(ii)award the costs of this Originalpetition.(iii)Pass any other writ, order, or directiondeems fit and proper in the nature andcircumstances of the case”.2.A counter affidavit has been filed by therespondents in which the contention taken is as follows:The 1st petitioner's husband died on 10th January, 1999. Beforedeath, he applied for monthly pension in December 1998.That application was processed and monthly pension ofRs.465/- has been granted with effect from 1.8.1998. Sincethe deceased employee had applied for pension and wasgranted pension, the 1st petitioner is entitled to only 50% ofthe monthly members pension.3.I have considered the rival contentions in detail. Theissue involved has to be decided on the basis of Clause 16 ofthe Employees' Pension Scheme, the relevant portions of whichare extracted below:“16.Benefits to the family on the death of amember.- (1) [Pension to the Family] shall be admissiblefrom the date following the date of death of themember, if the member dies:-(a)while in service, provided that at least one O.P.No.29070/19993month's contribution has been paid into the Employees'Pension Fund, or(b)after the date of exit but before attainingthe age of 58 years, from the employment havingrendered service entitling him/her to monthly members'pension but[before the commencement of pensionpayment, or](c)after commencement of payment of themonthly members pension.Note.-The cases where a member has renderedless than 10 years eligible service on the date of exitbut has retained the membership of the Pension Fund,and dies before attaining the age of 58 years, shall beregulated under sub-paragraph (8) of paragraph 12.(2)(a)The monthly widow pension shall be-(i)in the cases covered by clause (a) of sub-paragraph (1) equal to the monthly member's pension,which would have been admissible as if the member hadretired on the date of death or Rs.450 or the amountindicated in Table C whichever is more,(ii)in the cases covered by clause (b) of sub-paragraph (1) equal to the monthly members pensionwhich would have been admissible as if the member hadretired on the date of exit or [Rs.450/- per month] orthe amount indicated in Table C whichever is more,(iii)in the cases covered by clause (c)of sub-paragraph (1), equal to 50 per cent of the monthlymembers pension payable to the member on the date ofhis death subject to a minimum of [Rs.450 per month],[(iv)in all the cases, where the amount of familypension sanctioned under the Ceased Family PensionScheme, 1971, and is paid/payable under this scheme isless than Rs.450 per month, the amount of familypension in such cases shall be enhanced to Rs.450 permonth;](b)the monthly widow pension shall be payable O.P.No.29070/19994upto the date of death of the widow or re-marriagewhichever is earlier”.Note.-In cases where there are two or more widows,family pension shall be payable to the eldest survivingwidow. On her death it shall be payable to the nextsurviving widow, if any. The term “eldest” would meanseniority with reference to the date of marriage.(3)Monthly children pension-(a)If there are any surviving children of thedeceased member, falling within the definition of family,they shall be entitled to a monthly children pension inaddition to the monthly widow/widower pension.(b)Monthly children pension for each child shall beequal to 25 per cent of the amount admissible to thewidow/widower of the deceased member as monthlywidow pension payable under sub-paragraph (2)(a)(i)provided that minimum monthly children pension foreach child of the deceased member shall not be lessthan [Rs.150 per month][(c)Monthly children pension shall be payable until thechild attains the age of 25 years.](d)The monthly children pension shall be admissibleto the maximum of two children at a time and will runfrom the oldest to the youngest child in that order.[(e)If a member dies leaving behind a family havingson or daughter who is permanently and totally disablesuch son or daughter shall be entitled to payment ofmonthly children pension or orphan pension, as the casemay be, irrespective of age and number of children inthe family in addition to the pension provided underclause(d).]The said Clause contemplates three types of situations forpayment of family pension. First is that when the employee O.P.No.29070/19995dies while in service. The second is that when the employeedies after retirement but before commencement of pensionpayment. The third is when the employee dies aftercommencement of payment of monthly member's pension.Here, admittedly, although pension was sanctioned to thedeceased employee, the pension payment had notcommenced. Therefore, the claim of the petitioners is clearlycovered by sub clause (b) of Clause 16(1) i.e., a situationwhere the employee dies before commencement of pensionpayment. Rate of payment of family pension in that situationis squarely covered by sub Clause 2(a)(ii), which stipulatesthat in cases covered by Clause (b) of Sub Clause (1) of Clause16, the amount of family pension payable is equal to themonthly member's pension.4.The rule maker has taken pains to specificallystipulate the situations, governing payment of family pension.Consciously the rule maker has stipulated that in respect ofdeath before 'commencement of pension payment', the fullmonthly member's pension is payable to the widow. If theintention of the rule maker was to restrict rate of familypension to 50% in cases where pension had already been O.P.No.29070/19996sanctioned to the employee, the rule maker would havespecifically stated so. Instead the rule maker stipulated thecondition as 'before the commencement of pension payment'instead of 'before becoming eligible for pension payment'.When admittedly, the 1st petitioner's husband died beforecommencement of pension payment, there cannot be anydoubt that going by Clause 16(2)(a)(ii), the amount payable isfull monthly member's pension. Consequently, the 2ndpetitioner is also entitled to proportionate payment of pensiontill she attains the age of 25, at the proportionate ratementioned in sub Clause 3(b) of Clause 16. 5.Accordingly, the respondents are directed to pay tothe petitioners, family pension at the rate equal to monthlymembers pension as provided in Clause 16(2)(a)(ii) and 16(3)(b) respectively and the petitioners shall be paid monthlypension every month at those rates. Arrears shall be paidwithin a period of one month from the date of receipt of a copyof this judgment.The original petition is disposed of as above. S. SIRI JAGAN, JUDGEAcd O.P.No.29070/19997