N. Dharmarajan v. Northern Coalfields Limited and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 6TH DAY OF JANUARY 2012/16TH POUSHA 1933** **WPC.No. 37535 of 2008 (R) =====================** - **PETITIONER(S) =============** - **1 N.DHARMARAJAN (N.D. RAJAN),** - **LAIJU VILASAM, ELAKAMON P.O., AYIROOR,** - **VARKALA, THIRUVANANTHAPURAM DIST.** **BY ADV.SRI.S.D.ASOKAN** - **RESPONDENT(S) =============** - **1 NORTHERN COALFIELS LIMITTED, JAYANT PROJECT, REPRESENTED BY ITS MANAGING DIRECTOR,** - **JAYANT COLLERY POST, SIDHI DISTRICT, MADHYA PRADESH 486 890** - **2 THE CHIEF GENERL MANAGER, JAYANT PROJECT, NORTHERN COALFIELDS LIMITTED, SIDHI DISTRICT, MADHYA PRADESH 486 890** - **3 PERSONNEL MANAGER, JAYANT PROJECT, NORTHERN COALFIELDS LIMITTED, SIDHI DISTRICT, MADHYA PRADESH 486 890** - **4 THE ASSISTANT COMMISSIONER, COAL MINES PENSION FUND, CMPF OFFICE, JAYANT COLLERY POST, SIDHI DISTRICT, MADHYA PRADESH 486 890** - **5 UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT, MINISTRY OF MINES AND MINERALS, NEW DELHI.** ## **ADDITIONAL 6** **THE COAL MINES PROVIDENT FUND COMMISSIONER, POLICE LINE, HIRAPUR, HANBAD, 862001.** **AS** ## **WPC.NO. 37535/2008** **BY ADV.** **SRI.M.P.KRISHNAN NAIR SRI.KRISHNAN NANDAKUMAR SRI.V.B.NARAYANAN SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI SRI.O.D.SIVADAS SRI.P.PARAMESWARAN NAIR,ASG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** ## **WPC.NO.37535/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE RELIEVING ORDER OF THE PETITIONER ISSUED BY THE CHIEF PERSONNEL MANAGER OF THE 1ST RESPONDENT DATED 4.4.2000.** **EXT.P2: COPY OF THE DEATH CERTIFICATE ISSUED BY HERITAGE HOSPITALS LTD., LANKA, VARANASI DATED 10.10.1999.** **EXT.P3: COPY OF THE CERTIFICATE OF MARRIAGE ISSUED BY THE MARRIAGE OFFICER, PARAVVOR DATED 15.12. 2006.** **EXT.P4: COPT OF THE LETTER DATED 1.6.2007 ADDRESSED TO THE 2ND RESPONDENT.** **EXT.P5: COPY OF THE LETTER DATED 8.10.2007 ISSUED BY THE 3RD RESPONDENT.** **EXT.P6: COPY OF THE LETTER DATED 27.12.2007 SENT TO THE 2ND RESPONDENT.** **EXT.P7: COPY OF THE FORWARDING LETTER DATED 27.12.2007 ADDRESSED TO THE 4TH RESPONDENT.** **EXT.P8: COPY OF THE COMMUNICATION DATED 5.5.2009 ISSUED BY THE ASSISTANT COMMISSIONER, -I (LEGAL)/H.Q. TO THE 5TH RESPONDENT.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE** **AS** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.37535 of 2008 ---------------------------------------Dated this the 6[th] day of January 2012 ## **J U D G M E N T** The petitioner retired from the service of the 1[st] respondent on 15/4/2000. His wife died on 10/10/1999 and he re-married Smt.Omana on 15/12/2006. The petitioner submitted an application before the 2[nd] respondent requesting to make necessary entry of his wife's name as Omana in the pension scheme records as per Ext.P4. By Ext.P5, the 3[rd] respondent intimated the petitioner that there is no provision or guidelines to include the name of wife in the pension scheme after retirement and in the event of a doubt, clarification can be sought from the Assistant Commissioner, Coal Mines Provident Fund Office. It is challenging Ext.P5 that the petitioner had approached this Court and subsequently the writ petition is amended incorporating Ext.P8 issued by the 4[th] respondent stating that the request for change in nomination for pensionary benefits is not acceptable, since the petitioner is an ex-employee whose name happened to be struck off from the rolls of the W.P.C.No.37535/08 2 management and therefore the said request cannot be granted in the light of operation of paragraph 2(h) and 2(g) of the Coal Mines Provident Fund Scheme 1998. Ext.P8 is also impugned in the writ petition. 2. The learned counsel for respondents 1 to 3 and 4 filed separate counter affidavits supporting the stand taken by the Company and also the Assistant Commissioner Coal Mines Provident Fund Scheme. 3. The learned counsel for the petitioner mainly relied on the judgment in **Bhagwanti v. Union of India [AIR 1989 S.C 2088]** . That was a case where the petitioner was a widow of an ex-Subhedar of the Indian Army. Her husband retired on 03/08/1947 and was given pension. In 1955, his wife died and in 1965 he was re-married to the petitioner. The Subhedar died in September 1985. The second wife applied for family pension which was denied on the basis of the scheme which inter alia stated that the wife in the case of a male Government servant is entitled for pension provided the marriage took place before retirement from the Government service. The vires of the above provision was challenged in the writ petition and the Supreme Court had come to a conclusion that such a provision preventing W.P.C.No.37535/08 3 the second wife from claiming pensionery benefits is bad in law. It is held by the Supreme Court in paragraph 9 as follows: “Pension is payable, as pointed out in several judgments of this Court, on the consideration of past service rendered by the Government servant. Payability of the family pension is basically on the self-same consideration. Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age, distinction between marriage during service and marriage after retirement appears to be indeed arbitrary. There are instances where a Government servant contracts his first marriage after retirement. In these two cases before us, retirement had been at an early age. In the Subedar's case, he had retired after putting in 18 years of service and the Railway employee had retired prematurely at the age of 44. Premature or early retirement has indeed no relevance for deciding the point at issue. It is not the case of the Union of India and, perhaps there would have been no force in such contention if raised, that family pension is admissible on account of the fact that the spouse contributed to the efficiency of the Government servant during his service career. In most cases, W.P.C.No.37535/08 4 marriage after retirement is done to provide protection in old age. The consideration upon which pension proper is admissible or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of 'family' by keeping the post retiral spouse out of it.” 4. The learned counsel also relied upon the judgment of this Court in **Vilasini Amma v. Union of India [1991(1) KLT 872]** which is in similar lines with **Bhagwanti** (Supra). Therefore, there is no doubt about the proposition regarding the entitlement of the second wife of the petitioner to claim family pension scheme after the death of the first wife irrespective of the fact that the employee had retired from the service of the Company and the re-marriage took place after retirement. The contentions raised by the respondent is that since the petitioner had ceased to an employee of the Company on the basis of Sections 2(g) and 2(h), only the wife whose name appeared in the pension scheme papers before retirement is eligible for the family pension, is against the judgment of the Supreme Court as stated above. 5. The respondents had also raised a question regarding territorial jurisdiction in entertaining the writ petition. Since the W.P.C.No.37535/08 5 pension is payable within the jurisdiction of this Court, admittedly, this Court has jurisdiction in the matter. 6. Under these circumstances, rejection of the nomination papers submitted by the petitioner to the 1[st] respondent and thereafter by the 4[th] respondent is bad in law. 7. In the result, this writ petition is allowed as follows: i) That the petitioner shall submit all necessary records relating to the nomination of the second wife Smt.Omana to the 1[st] respondent within a period of one month from the date of receipt of a copy of this judgment. ii) The 1[st] respondent shall, in turn, send the records to the 4[th] respondent with necessary particulars regarding the change of the name of “wife” of the petitioner and the 4[th] respondent shall, thereafter permit the said change in name within a period of one month from the date of receiving the records from the 1[st] respondent. ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.37535/08 6 W.P.C.No.37535/08 7 W.P.C.No.37535/08 8 ## **THOMAS.P.JOSEPH,J.** Crl.M.C.No. of 200 ORDER 19/01/2011