The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.29150 of 2023 Hemalata Baitharu ..... Petitioner Mr. A.K. Mishra, Advocate State of Odisha & Ors. -versus- .....
Legal Reasoning
Opposite Parties Mr. S. Rath, ASC Mr. M. Chand, Advocate (Opp. Party No. 5) THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM:
Decision
ORDER 01.07.2024 Order No. 12 1. This matter is taken up through hybrid mode. 2. Heard Mr. A.K. Mishra, learned counsel for the Petitioner, Mr. S. Rath, learned Addl. Standing Counsel appearing for the State and Mr. M. Chand, learned counsel appearing for Opp. Party No. 5. 3. Petitioner has filed the present writ petition inter alia challenging order dtd.25.07.2023 so passed by Opp. Party No. 2 under Annexure- 3. 4. It is contended that Petitioner though is the second wife of the deceased employee and she got married during subsistence of the first marriage of the deceased employee with Opp. Party No. 5, but the said marriage since was conducted with the consent of Opp. Party No. 5, Petitioner is entitled to get the benefit of family pension and other retiral dues as due to the deceased employee. 4.1. It is also contended that claiming extension of the benefit as prayed for, Petitioner had earlier approached this Court in W.P.(C) Page 1 of 4. No. 9122 of 2023. This Court vide order dtd.28.03.2023 while disposing the writ petition, directed Opp. Party No. 2 to take a decision on the claim of the Petitioner. But without proper appreciation of the same, claim of the Petitioner was rejected vide impugned order dtd.21.07.2023 so passed by Opp. Party No. 2 under Annexure-3. 4.2. It is also contended that since Petitioner got married to the deceased employee with due consent of the Opp. Party No. 5, who is admittedly the first wife of the deceased employee, Petitioner is eligible to get the benefit and rejection of the claim so made by Opp. Party No. 2 vide impugned order under Annexure-3 is not sustainable in the eye of law and requires interference of this Court. 5. Mr. M. Chand, learned counsel appearing for Private Opp. Party No. 5 on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No. 5. It is contended that Petitioner at no point of time married the deceased employee with the consent of Opp. Party No. 5. It is contended that since during subsistence of the marriage of the deceased employee with Opp. Party No. 5, Petitioner allegedly married with the deceased employee, her claim has been rightly rejected by the Opp. Party No. 2 vide impugned order dtd.21.07.2023 and it requires no interference. 6. Mr. S. Rath, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No. 4. Placing reliance on the provisions contained under Rule 24 of the Odisha Govt. Servants’ Conduct Rules, 1959 and Rule 56 of the OCS (Pension) Rules, 1992, learned Addl. Standing Counsel contended that Petitioner being the second wife of the deceased employee, which is not disputed, she is Page 2 of 4. not eligible and entitled to get the benefit as claimed in the writ petition. 6.1. It is further contended that Pursuant to the order passed by this Court in W.P.(C) No. 9122 of 2023, claim of the Petitioner was duly considered and rejected by Opp. Party No. 2 vide order dtd.21.07.2023 under Annexure-3. The stand taken in Para 8 & 11 of the counter reads as follows:- “8. That, it is humbly submitted that husband of the petitioner- Late Harish Chandra Baitharu has violated Rules 24 of the Orissa Government Servants' Conduct Rules, 1959. He suppressed the fact till his death, for which the present dispute arises. Rules 24 of the Orissa Government Servants' Conduct Rules, 1959 stipulates that "(1) No Government servant shall enter into, or contract a marriage with a person having a spouse living; and (2) No Government servant having a spouse living shall enter into a contract a marriage with any person; provided that the Government may permit a Government servant to enter into or contract may such marriage as is referred to in Clause (1) or Clause (2) if they are satisfied that (a) such marriage is permissible under to such Government servant and the other party to the marriage; and (b) there are other grounds for so doing." law applicable the personal Xxx xxx xxx 11. That, it is humbly submitted here that the sub rule-6(a) (ii) of Rule 56 of O.C.S. Pension Rules, 1992 and amendment Rule, 2015 stipulates that “On the death of a widow, her share of the family pension shall become payable to her eligible child; provided that if the widow is not survived by any child, her share of the family pension shall not cease but shall be payable to the other widows in equal shares or if there is only one such other widow, in full to her." Further after the commencement of the Hindu Marriage Act, 1955, any second marriage contracted by a Hindu male during the life time of his first wife shall be void and the second wife shall not be entitled to the family pension as a legally wedded wife. Further in Sub-Rule 7(a) of Rule 56 of O.C.S. Pension Rules, 1992 and amendment Rule, 2015 stipulates that "Except as provided in sub rule (6), the Page 3 of 4. family pension shall not be payable to more than one member of the family at the same time." 7. Having heard learned counsel appearing for the Parties and considering the submission made, this Court finds that Petitioner is the second wife of the deceased employee, which is not disputed. Since during subsistence of the marriage of the deceased employee with Opp. Party No. 5, Petitioner got married to the deceased employee; this Court finds no illegality or irregularity with the impugned order so passed by Opp. Party No. 2 on 21.07.2023 under Annexure-3. Therefore, this court is not inclined to interfere with the same and dismiss the writ petition. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 10:39:38 Page 4 of 4.