P.A. Kareeb v. Employees' Provident Fund Organization

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945 ``` ## **`WP(C) NO. 3189 OF 2021`** ## **`PETITIONER:`** ``` P.A.KAREEB, AGED 61 YEARS, SON OF ABDUL RAHMAN, PADANNATTU HOUSE, THOPPIL DESEEYA KAVALA ROAD, THRIKKAKKARA P.O., ERNAKULAM-682 021. ``` ``` BY ADVS. V.A.MUHAMMED SRI.M.SAJJAD ``` ## **`RESPONDENTS:`** - `1 THE EMPLOYEES PROVIDENT FUND ORGANIZATION, REPRESENTED BY ITS REGIONAL OFFICER, REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN, KALOOR, ERNAKULAM DISTRICT-682 017.` ``` 2THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYMENT PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN, KALOOR, ERNAKULAM DISTRICT-682 017. ``` - `3 THE ASSISTANT PROVIDENT FUND COMMISSIONER (PENSION), GOVERNMENT OF INDIA, MINISTRY OF LABOUR AND EMPLOYMENT, EMPLOYMENT PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, KALOOR, ERNAKULAM-682 017.` ``` BY ADV SRI.SAJEEV KUMAR K. GOPAL, SC, EPFO ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NO. 3189 OF 2021 2 ## JUDGMENT The petitioner has approached this Court seeking the following reliefs:- i) call for the records relating to Exhibit P-4 and set aside the original of the same by the issue of a writ of certiorari or other writ or order; ii) declare that petitioner is entitled to substitute his present wife as his pension nominee in the place of his late wife; iii) issue a writ of mandamus or other appropriate writ order or direction commanding the respondents to substitute his present wife Smt.Sajida K.S. as his pension nominee in the place of his late wife Smt. Laila Kareeb. 2. The petitioner’s late wife (Laila Kareeb) was the nominee for receiving the family pension under the provisions of the Employees’ Pension Scheme, 1995. She passed away on 15.01.2018. The petitioner has thereafter contracted another marriage. He approached the Provident Fund Organization with a request for incorporating the name of his present wife as the person entitled to receive family pension. That request has been turned down by Ext.P4 WP(C) NO. 3189 OF 2021 3 stating that as per the provisions of the Employees’ Pension Scheme, 1995, there is no provision to add ‘post retiral wife’ as pension nominee. 3. The learned counsel appearing for the petitioner would refer to the judgment of this Court in Mathai v. State of Kerala [1990 (2) KLT 363] as also the judgment of the Supreme Court in Bhagwanti v. Union of India [1989 (4) SCC 397] to contend that the stand taken in Ext.P4 that the name of the ‘post retiral wife’ cannot be incorporated as the person eligible to receive family pension, is arbitrary and unreasonable. 4. The learned Standing Counsel for the Provident Fund Organization would contend that there is absolutely no illegality in Ext.P4 communication. It is submitted that there is no provision in the Employees’ Pension Scheme, 1995 to incorporate the name of the petitioner's present wife as the person entitled to receive family pension. The learned Standing Counsel also refers to paragraph Nos.4, 5, 6 and 7 of the statement filed in this Court. The contention taken is that the petitioner ceased to be a member of the scheme on attaining the age of 58 and he is not entitled to make any nomination thereafter. WP(C) NO. 3189 OF 2021 4 5. Having heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the Provident Fund Organization, I am of the view that in the light of the law laid down by this Court in Mathai (supra) and by the Supreme Court in Bhagwanti (supra), the petitioner is entitled to succeed. In Mathai (supra), this Court has concerned with the stipulation in Part III of the Kerala Service Rules, which stipulated that marriage after retirement will not be considered for the purposes of family pension. After referring to the judgment of the Supreme Court in Bhagwanti (supra) , it was held:- “ _3._ In Bhagwanti v. Union of India (AIR 1989 SC 2088) Their Lordships had to consider the question as to whether the spouse-man or woman, as the case may be, married after the retirement of the concerned government servant can be kept out of the definition of family so as to deprive him or her from the benefit of the family pension. It was also considered whether children born after retirement are entitled to benefits of such pension. Their Lordships observed:- “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 selfsame consideration. Since pension is linked with past service and the avowed purpose of the Pension Rules is WP(C) NO. 3189 OF 2021 5 to provide sustenance in old age, distinction between marriage during service and marriage after retirement appears to be indeed arbitrary.” ## Their Lordships went on to observe:- “Considered from any angle, we are of the view that the two limitations incorporated in the definition of ‘family’ suffer from the vice of arbitrariness and discrimination and cannot be supported by nexus of reasonable classification. The words provided the marriage took place before retirement of the Government servant in clause (i) and but shall not include son or daughter born after retirement in clause (ii) are thus ultra vires Art. 14 of the Constitution and cannot be sustained.” 4. A Government servant on his retirement acquires the right to get pension as also the right to get family pension on account of the services rendered by him in the past. The right to get pension ensures to him right from the date of his retirement. The liability of Government to pay family pension arises only on the death of the pensioner. The family pension is to be paid to the family of the pensioner as on the date of his death. A person cannot have a second wife during the life time of the first. The second marriage hence should be one in conformity with law. A Government employee might contract marriage after retirement even. In these cases can that spouse be considered to be alien to the family? The answer should be in the negative. If the second wife is a member of the family on the date of the pensioner’s death, Government are liable to pay family pension to her. In the instant case petitioner’s first wife died on 22-2-1984. WP(C) NO. 3189 OF 2021 6 After the death of the first wife he contracted a second marriage. The lady so married became his wife. If on the death of the petitioner she is alive, she will be a member of his family and as a member of his family she will be entitled to the family pension. The contrary stand taken by the Government is untenable. The provision in the K.S.R. which states that marriage after retirement will not be considered for the purpose of these Rules is arbitrary and violative of Art. 14 of the Constitution. So I strike down Note 2 to Rule 90(6) of Part III K.S.R. as invalid.” In the light of the above, it must be held that Ext.P4 communication cannot be sustained in law. A member will include any person who was admitted to membership in terms of the provisions contained in the Scheme and, the provisions of paragraph 6A of the Employee Pension Scheme 1995, which states that a member will continue as a member till he attains the age of 58, cannot affect the right of a person to make a nomination or change the details of the nomination after he attains the age of 58. Any other interpretation will be against public policy and contrary to the Rights of the petitioner guaranteed under Article 21 of the Constitution of India. Therefore, this writ petition is allowed and the 2[nd] respondent is directed to consider the claim of the petitioner for including the name of his present wife as the nominee to receive family pension, taking note of the observations of this Court in Mathai (supra). The 2[nd] WP(C) NO. 3189 OF 2021 7 respondent shall pass fresh orders within a period of one month from the date of receipt of a certified copy of this judgment. Sd/GOPINATH P. JUDGE DK WP(C) NO. 3189 OF 2021 8 ## **`APPENDIX OF WP(C) 3189/2021`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1 ``` - `TRUE COPY OF THE PENSION PAYMENT ORDER NO.PPO NO.KR/KCH/00100513 DATED NIL.` - `EXHIBIT P2 TRUE COPY OF THE DEATH CERTIFICATE NO.CERTNO/DEATH/2018/588 DATED 19.9.2018 OF THE SMT. LAILA KAREEB.` - `EXHIBIT P3 TRUE COPY OF THE MARRIAGE CERTIFICATE NO.1057/2019 DATED 27.2.2019 OF THE PETITIONER.` - `EXHIBIT P4 TRUE COPY OF THE COMMUNICATION VIDE LETTER NO.KRKCH/PPO100513/PC II(4) 2019 DATED 7.2.2020 OF THE EMPLOYEES PROVIDENT FUND ORGANIZATION.` ``` EXHIBIT P5TRUE COPY OF THE DECISION REPORTED IN MATHAI V. STATE OF KERALA (1990(2)KLT 363) DATED 30.7.1990. ``` ``` EXHIBIT P6TRUE COPY OF THE DECISION REPORTED IN SMT.BHAGWANTHI VS. UNION OF INDIA REPORTED IN 1989 (4) SCC 397. ```