Leelavathy.K v. Kerala State Electricity Board Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940** **WP(C).No. 7971 of 2018 -----------------------** **PETITIONER** **----------** **LEELAVATHY.K.,** **W/O. ANANDAKRISHNAN,KARIYATH HOUSE, PERUVANGOOR (PO),MAYYIL, KANNUR - 670 602.** **BY ADV.SRI.U.BALAGANGADHARAN** **RESPONDENTS:** **------------** **1. KERALA STATE ELECTRICITY BOARD LTD. VYDUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004. REPRESENTED BY ITS CHAIRMAN** **2. THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD LTD. VYDUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004.** **3. THE EXECUTIVE ENGINEER STATE ELECTRICITY BOARD LTD. KANNUR -670 001** **4. ACCOUNTS OFFICER (PENSION AUTHORISATION) KERALA STATE ELECTRICITY BOARD, PATTOM, THIRUVANANTHAPURAM - 695 004.** **5. THE PRINCIPAL SECRETARY FINANCE (PENSION DEPARTMENT) GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **R1-R4 BY ADVS. SRI.M.K.THANKAPPAN, SC, SMT.ANEETHA A.G., SC,** **R5 BY SR GOVERNMENT PLEADER SRI. BIJOY CHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/4.5.18** **WP(C).No. 7971 of 2018 (V)** ## **------------------------------** ## **APPENDIX** ## **------------------** ## **PETITIONER(S)' EXHIBITS -------------------------** - **EXHIBIT P1 A TRUE COPY OF THE PENSION PAYMENT ORDER DATED 11.12.1991 ISSUED BY TE FOURTH RESPONDENT EXHIBIT P2 A TRUE COPY OF THE VERIFIED CERTIFICATE DATED 21.08.2014 ISSUED BY THE VILLAGE OFFICER, KAYARALAM EXHIBIT P3 A TRUE COPY OF THE APPLICATION DATED 10.09.2014 SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 31.10.2014 OF THE THIRD RESPONDENT TO THE FOURTH RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE LETTER DATED 15.12.2014 OF THE FOURTH RESPONDENT TO THE PETITIONER EXHIBIT P6 A TRUE COPY OF THE FIR DATED 18.12.2014 OF MAYYIL POLICE STATION EXHIBIT P7 A TRUE COPY OF THE CERTIFICATE DATED 21.08.2015 ISSUED BY THE SI OF POLICE , MAYYIL POLICE STATION EXHIBIT P8 A TRUE COPY OF THE LETTER DATED 28.12.2015 ISSUED BY THE FOURTH RESPONDENT ON BEHALF OF THE SECOND RESPONDENT. EXHIBIT P9 A TRUE COPY OF THE GOVERNMENT ORDER G.O.(P) NO.1028/87/FIN. DATED 02.12.1987 EXHIBIT P10 A TRUE COPY OF THE GOVERNMENT ORDER GO(P) NO.404/89/FIN. DATED 23.09.1989 EXHIBIT P11 A TRUE COPY OF THE GOVERNMENT ORDER GO(P) NO.594/2011/FIN DATED 13.12.2011. EXHIBIT P12 A TRUE COPY OF THE REPRESENTATION DATED 31.03.2016 SUBMITTED BY THE PETITIONER TO THE SECOND RESPONDENT EXHIBIT P13 A TRUE COPY OF THE REPRESENTATION DATED 16.03.2017 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER** ## **WP(C).No. 7971 of 2018 (V)** **------------------------------** **EXHIBIT P14 A TRUE COPY OF THE LETTER DATED 22.05.2017 OF THE PRIVATE SECRETARY TO THE HONOURABLE MINISTER TO THE PETITIONER** **RESPONDENTS EXHIBITS NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/4.5.18** ## **P.V.ASHA J.** ## **-------------------------------------** ## **W.P.(C).No.7971 of 2018** ## **-------------------------------------** Dated this the 11[th] day of April, 2018 ## **JUDGMENT** The petitioner's husband who was working in the Kerala State Electricity Board Ltd (for short 'KSEB) was drawing pension from August, 1991 onwards based on Ext.P1 pension payment order. He went missing from April, 2008 onwards. Petitioner thereupon approached the respondents in the year 2014 requesting for pensionary benefits. She was informed that the family pension can be given only from the date of expiry of one year from the date of FIR relating to man missing. Ext.P6 FIR was registered in respect of the petitioner's husband on 18.12.2014. Based on this, petitioner was sanctioned family pension as per Ext.P8 order on 28.12.2015 and the sanction was accorded for payment w.e.f. 18.12.2015. W.P.(C).No.7971 of 2018 2 2. The petitioner submits that her husband has not drawn pension as he had been missing from April, 2008 onwards. The petitioner had submitted a representation before the respondent requesting for the pension from March, 2008 to December, 2015. Even though, she approached the Chief Engineer as well as the Government and Government received the said representation, they do not take any action. 3. The learned counsel for the petitioner points out that the family pension is sanctioned with effect from the date of completion of one year from the date of FIR based on Exts.P9, P10 and P11 orders. When the Government directed payment of family pension considering the difficulties faced by the families in man missing cases, nothing is stated regarding the payment of pension during the period when the pensioner was missing and pension was not paid to him including the one year period from the date of registering of FIR. 4. Heard the learned counsel for the W.P.(C).No.7971 of 2018 3 petitioner, learned Standing Counsel for the KSEBL as well as the learned Government Pleader. 5. Having considered the contentions on either side, it is seen that pension which was due to the husband of petitioner from the year 2008 onwards till the family pension was sanctioned remains unpaid. The petitioner's husband had been drawing pension on the basis of Ext.P1 pension payment order since the year 1991. The respondents do not have a case that pension was paid to him from April, 2008 onwards. Therefore there is no justification in denying the pension which was payable to him till the date from which family pension was sanctioned to petitioner. In case, the petitioner's husband was not missing, the said amount would have been paid to him. Now that no payment is made and the FIR has been acted upon sanctioning family pension in favour of petitioner, there is no justification in denying the pension which was due to the pensioner for the period from April, 2008 to November, 2015, to the W.P.(C).No.7971 of 2018 4 ## petitioner/the dependents of the pensioner. 6. The Government issued Ext.P9 order on 02.12.1987, for the purpose of settlement of claims in respect of man missing cases and directed as follows: _“...The Government of India, in their O.M. read above, have liberalised the settlement of pensionary claims in respect of man-missing cases. Government after examining the various aspects of the case in consultation with the Accountant General, Kerala, are pleased to issue the following instructions on the lines of the Government of India Orders._ - _(i) When an employee disappears leaving his family, the family will be paid in the first instance the amount of salary due, leave encashment due and the amount of General Provident Fund, having regard to the nomination made by the employee._ - _(ii) After the elapse of a period of one year from the date of disappearance the pensionary benefits such as Death-cumRetirement Gratuity, Family Pension etc. will be granted to the family of the employee.”_ 7. Thereafter on 23.09.1989, Government ordered as follows clarifying how the period of one year had to be reckoned. _“When a serving employee/pensioner disappears leaving his family, Family Pension is to be sanctioned one year after the serving employee/pensioner is reported missing. The period of one year is to be reckoned, from the date on First Information Report is lodged with the Police authorities. All such cases for_ W.P.(C).No.7971 of 2018 5 _grant of pension will be forwarded to Government through the Head of Department, for sanctioning payment along with the documents mentioned in the G.O. read as first paper above. The family may apply to the Head of Office concerned for grant of family pension and Death-cum-Retirement Gratuity in accordance with the procedure prescribed for sanction of Family Pension and Death-cum-Retirement Gratuity.”_ 8. Again in the year 2011, seeing the difficulties which were faced by the widows/widowers in man missing cases, Government ordered the procedure to be followed on registering the FIR and for acting upon the same and ordered as follows: _“(i) Family pension in man missing cases in pursuance of the orders read above will continue to be sanctioned and paid one year after the date of lodging the First Information Report or registering crime in cases where date of First Information Report is not available but it will accrue from the date of lodging First Information Report or registering crime or expiry of leave of the employee who has disappeared whichever is later._ _(ii) On receiving information of missing of an employee while in service, the concerned administrative authorities will send a letter in Form 6A with the application form for family pension to the family of the employee missing and ask for necessary documents mentioned therein. In such cases instead of death certificate as mentioned in Form 6A, the documents specified in G.O.(P)1028/87/Fin. Dated 02.12.1987 shall be asked for.”_ 9. These orders did not provide for the payment of pension which was liable to be paid to the W.P.(C).No.7971 of 2018 6 pensioner for the one year period from FIR or before that. It is settled law that pension is the property of the pensioner **(See Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330,** _**D.S. Nakara v. Union of India: (1983) 1 SCC 305, State of Jharkhand v. Jitendra Kumar Srivastava: (2013) 12 SCC 210, etc**_ **)** . Therefore, there cannot be any objection or impediment in making payment of the pension to the family of the pensioner when it remains unclaimed. In the above circumstances, respondents 1 to 4 are directed to see that arrears of pension which was due to petitioner's husband from April, 2008 to November, 2015 is paid to the petitioner within a period of 'four months' from the date of receipt of a copy of this judgment. Accordingly, this writ petition is disposed of. Sd/- ## **P.V.ASHA, JUDGE.** ww