The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.43076 of 2023 Kalpana Sethi …. Petitioner Mr. S.P.Swain,Advocate -versus- State of Odisha & others …. Opposite Parties Mr. N.Pratap, A.S.C. Mr. S.K.Patra,Advocate for O.P. No.5 CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 16.01.2024 Order No. 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioners as well as learned Additional Standing Counsel appearing for the State-Opposite Parties and Mr. S.K.Patra, learned counsel appearing for the Principal Accountant General for Opposite Party No.5. Perused the Writ Petition as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: “It is therefore prayed that this Hon’ble Court would be graciously pleased to; (i) Allow this writ petition. (ii) to why Issue Rule NISI, asking the Opp.Parties to show the order No.4727 dated case as 14.11.2023 passed by the Superintending Irrigation Division, Engineer, Jagatsinghpur Jagatsinghpur vide Annexure-8 shall not be quashed and if the Opp.parties do not show // 2 // cause or show insufficient cause then issue a writ of certiorari in nature thereby quashing the same And further direct to the concerned Opp.parties to grant/release the family pension in favour of the petitioner being the divorced daughter of deceased pension holder having PPO No.85610 within a stipulated period; (iii) And/or pass such other order/(s), direction/(s) as this Hon’ble Court deems fit and proper.” 4. Learned counsel for the petitioner at the outset submitted that being aggrieved by the action of the Opposite Parties in rejecting the prayer of the present petitioner for grant of family pension to the petitioner, who happens to be the divorced daughter of a deceased Government employee, the petitioner has approached this Court by filing the present writ application. Learned counsel for the petitioner further contended that one late Kashinath Sethi, who is an ex- Government Employee and pension holder by PPO No. 85610, was working as Khalasi and retired from government service upon attaining the age of superannuation on 10.04.1993. Learned counsel for the petitioner submitted that present petitioner is the daughter of the above-mentioned ex-Government Employee as is evident from the Legal Heir Certificate under Annexure-6 to the writ application. The father of the present petitioner, i.e. the above-mentioned ex- government employee, was receiving pensionary benefits after his retirement from service on 10.04.1993, till his death on 01.01.2021. After the death of the father, the mother of the petitioner, being the widow of the deceased father, was receiving the family pension up until her death on 28.12.2021. It is further submitted by the Learned Counsel appearing for the petitioner that, the present petitioner was initially married to one Sanatan Sethi on 22.06.2004. Thereafter, due to some matrimonial discord the present petitioner left her matrimonial home and was staying with her father, i.e. the pensioner. // 3 // Further, referring to the divorce decree vide judgment dated 19.12.2022, under Annexure-4 to the writ application, learned counsel for the petitioner submitted that the learned Judge, Family Court, Jagatsinghpur had given a categorical finding that owing to the torture meted out to the present petitioner, she left her matrimonial home and was staying with her father since 02.01.2005. A divorce proceeding was initiated in the year 2022, vide civil proceeding No.79 of 2022, which was concluded vide judgment dated 19.12.2022 by granting a decree of divorce to the petitioner. 5. Learned Additional Standing Counsel as well as Mr. S.K. Patra, learned counsel appearing for the opposite parties, contended before this Court that the divorce decree was granted only on 19.12.2022, which is not before the death of either the pensioner, i.e. father of the petitioner or the mother of the petitioner. In such view of the matter, both the learned counsels for the Opposite Parties submitted that in view of the clarification issued by the Financial Department vide letter dated 24.02.2023, the present petitioner is not entitled to the family pension. Accordingly her case was considered by the opposite Party and her representation has been rejected vide order dated 14.11.2023 under Annexure-8. In view of the aforesaid factual background learned counsel appearing for the opposite parties submitted, that the opposite parties have not committed any illegality. 6. On a careful consideration of the submissions made by the learned counsels appearing for the respective parties, and on careful examination of the background facts as well as the materials on record, this Court is of the observation that in the divorce decree vide judgment dated 19.12.2022 under Annexure-4, the learned Judge, Family Court has categorically stated that on consideration of the oral evidence a clear finding has been returned that the respondent husband had tortured the petitioner like anything for which the // 4 // petitioner was forced to live at her parenteral house since 02.01.2005. It was also observed that the petitioner has been living for last 17 years in her parenteral house without any matrimonial relationship with her husband. Accordingly, the learned Family Judge has drawn an inference that the marriage has irretrievably broken down and accordingly a decree of divorce has been granted. In the aforesaid factual background this Court has no hesitation in coming to a conclusion that, in view of the categorical finding of the learned Judge, Family Court, Jagatsinghpur that the petitioner has been living at her parenteral house since 02.01.2005, the opposite party should have considered the case of the petitioner and instead of rejecting her case for grant of family pension, the opposite parties should have granted her family pension after the death of the mother of the petitioner on 28.12.2021. In such view of the matter this Court is of the view that the impugned rejection order dated 14.11.2023, under Annexure-8, is unsustainable in law. Accordingly, the same is hereby set aside. Further this Court observes that when a law provides for the grant for family pension to the divorced daughter, the same cannot be simply taken away by virtue of a clarification of the Finance Department dated 24.02.2023, particularly in the factual background of the present case. Moreover, this Court is also of the view that the learned Judge, Family Court has categorically observed that the petitioner was staying at her parents house since 02.01.2005. In the aforesaid factual background this Court deems it proper to remand the case of the petitioner to the Opposite Party No.3 to consider the matter afresh in the light of the aforesaid observation. Accordingly, the petitioner is directed to approach the Opposite Party No.3 along with a certified copy of today’s order. In Such eventuality, the Opposite Party No.3 shall do well to reconsider the case of the petitioner for grant of family pension as is permissible to // 5 // a divorced daughter under Rule 56 of the OCS Pension Rules, 1992 and pass a final speaking order within a period of six weeks from the date of communication of a certified copy of this order. The order so passed be communicated to the petitioner within ten days from the date of passing such order. This Court further clarifies that in the the event the Opposite Parties arrive at a conclusion that the petitioner was in fact staying with her parents since 02.01.2005, as has been held by the Judge, Family Court in the divorce decree, then the Opposite Party shall do well to sanction the family pension in favour of the petitioner within a period of six weeks from the date of taking such decision. 7. With the aforesaid observation and direction, the writ application stands disposed of. 8. Issue urgent certified copy of this order as per Rules. Rubi ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 20-Jan-2024 12:00:04