P.M. JALAJA v. KERALA STATE ROAD TRANSPORT CORPORATION

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938** **WP(C).No. 23152 of 2016 (T) ----------------------------** **PETITIONER:** **-----------** **P.M. JALAJA, W/O.LATE CHANDRAN, PANDARAPARAMBIL HOUSE, BOLGHATTY, MULAVUKAD POST OFFICE, ERNAKULAM, PIN - 682 504.** **BY ADV. SRI.C.V.MILTON** **RESPONDENT(S):** **--------------** **1.THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT P.O, THIRUVANANTHAPURAM - 695 023.** **2.THE DISTRICT TRANSPORT OFFICER,** **KERALA STATE ROAD TRANSPORT CORPORATION, ERNAKULAM, PIN - 682 011.** **BY ADV.SRI.M.GOPIKRISHNAN NAMBIAR, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 23152 of 2016 (T) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **-----------------------** **EXHIBIT P1 : TRUE COPY OF THE PENSION PAYMENT ORDER OF SRI.CHANDRAN SHOWING THE JOINT PHOTOGRAPH OF THE PETITIONER WITH HER HUSBAND. EXHIBIT P2 : TRUE COPY OF THE DEATH CERTIFICATE ISSUED BY THE CORPORATION OF COCHIN DATED 03-05-2011. EXHIBIT P3 : TRUE COPY OF THE PENSION PAYMENT ORDER SANCTIONING FAMILY PENSION TO THE PETITIONER. EXHIBIT P4 : TRUE COPY OF THE INTIMATION SLIP OF PENSION PAYMENT ORDER NO PA/5/021345/2001 DATED 06-01-2016. EXHIBIT P5 : TRUE COPY OF THE REPRESENTATION DATED 20-06-2016 TO THE 1ST RESPONDENT.** **RESPONDENT(S)' EXHIBITS: NIL -----------------------** ## **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C). No.23152 of 2016 ----------------------------------------------Dated this the 23[rd] day of August, 2016** ## **JUDGMENT** Petitioner is the wife of one late Chandran, who retired from the 1[st] respondent Corporation on 30.11.1997 while working as Upper Division Clerk at Ernakulam Depot. He expired on 14.3.2011. He is survived by petitioner and four grown-up children. Soon after the demise of her husband, petitioner had to shift from her house, which was a joint family property at Mattanchary, to her ancestral house at Bolgatty. Therefore, the petitioner was not aware of the communications sent to her from the Corporation in the Mattanchery address with respect to the family pension matters and accordingly some delay has occurred for filing the pension papers for family pension. Petitioner could submit the application only on 13.10.2015 along with requisite documents and family pension was sanctioned to her w.e.f. 13.10.2015. The grievance voiced by the petitioner in this writ petition is that, the family pension should have been sanctioned from the next month after the date of death of her W.P.(C). No.23152 of 2016 2 husband i.e. 14.3.2011. It is in this background, this writ petition is filed seeking direction to the respondent Corporation to pay the arrears of family pension following the month of the date of death of petitioner's husband. 2. First respondent has filed a counter affidavit refuting the statements and claims and demands made by the petitioner in this writ petition. According to the 1[st] respondent, in terms of Note 5 to Rule 90(6), family pension shall be payable to the members specified, following the month of the date of death of the pensioner or family pensioner, only if the application in Form 6 along with the Eligibility Certificate or Medical Certificate as the case may be, is submitted to the pension sanctioning authority within 2 years of death of the employee or family pensioner. It is also stated that the said Note provides that, in cases where, the application along with the Eligibility Certificate or Medical Certificate are submitted after 2 years of death of the employee or pensioner or family pensioner, then, family pension shall be payable with effect from the date of issue of W.P.(C). No.23152 of 2016 3 Eligibility Certificate or Medical Certificate. Therefore, according to the 1[st] respondent, under normal circumstances, family pension becomes due, to those eligible, next month from the date of death of the employee, if the application along with necessary documents is made within two years from the date of death, otherwise the family pension can be sanctioned only from the date of such application supported by necessary certificates. It is also stated that, the period of two years has been further extended to three years by G.O.(P) No.322/2015/Fin. dated 28.7.2015. 3. That apart it is stated that, petitioner has submitted the application only on 13.10.2015, that is almost 4 years after the death of her husband and immediately the concerned officials of the 1[st] respondent had taken diligent steps to disburse the family pension to her. It is also stated that, the communications were addressed to the residential address given by her husband in the statement of details of family submitted by him. It was due to the shifting of the residence by the petitioner from the address provided, the W.P.(C). No.23152 of 2016 4 communications issued by the respondent Corporation was not received by the petitioner. Therefore, according to the 1[st] respondent, there was no delay or laches on the part of the 1[st] respondent Corporation to process the application in order to enable the petitioner to secure family pension from the next month after the date of death of the husband of the petitioner. 4. Heard learned counsel for the petitioner and learned Standing Counsel for the respondent Corporation and perused documents on record and the pleadings put forth by the respective parties. 5. Learned counsel for the petitioner brought my attention to rule 90(6) and Note 5 of Rule 90(6) of Part III of Kerala Service Rules, which read thus: “90(6) 'Family' for purposes of these rules, means the following relatives of the employee, namely:- - (a) Wife, in the case of a male - (b) Husband, in the case of a female employee; - (c) Eldest eligible son/daughter (in the order of seniority) till marriage or W.P.(C). No.23152 of 2016 5 till attaining the age of 25 years or till he/she gets employed whichever is earlier; (d) Children suffering from physical/mental disorder or disability. - (e) Unmarried daughters above 25 years. - (f) Son/daughter adopted legally before retirement. - (g) Parents (in equal shares); - (h) Judicially separated wife - (i) Judicially separated husband; - (j) Disabled divorced daughter; - (k) Widowed disabled daughter. Note 5: Family pension shall be payable to the members specified in clauses (d), (e), (g) and (k) of sub-rule (6) of this rule from the date or first month following the date of death of the pensioner or family pensioner as the case may be, only if the application in Form 6 along with the Eligibility Certificate or Medical Certificate as the case may be, is submitted to the pension sanctioning authority within two years of death of the employee or pensioner or family pensioner. In cases where the application along with the eligibility Certificate or Medical certificate are submitted after two years of W.P.(C). No.23152 of 2016 6 death of the employee or pensioner or family pensioner, as the case may be, family pension shall be payable with effect from the date of issue of Eligibility Certificate or Medical Certificate. Family pension shall be payable to the members specified in clauses (e), (g), (j) and (k) of sub-rule (6) of this rule only if their income is less than Rs.6,000 per annum, subject to the conditions specified in sub-rule (6A) and sub-rule (7) of this rule.” 6. Therefore, according to the counsel, the stipulations with respect to submission of family pension application restricted to two years are persons guided by clauses (d), (e), (g) and (k) alone. Since the petitioner is the wife of the deceased employee, the stipulation with respect to the two years for submission of the application will not be applicable to the petitioner. Learned Standing Counsel has invited my attention to G.O.(P) No.322/2015 dated 28.7.2015, wherein the two years period is again extended for submission of the application by one year and in accordance with the terms of the said notification 3 years period is provided to submit the application for family pension. According to the learned W.P.(C). No.23152 of 2016 7 Standing Counsel, as per the new notification, a special category is provided, by which, the wife will not come under that term of three years period provided. 7. Therefore, taking into account the relevant circumstances, it can be seen that, the restriction with respect to the submission of application under Note 5 to Rule 90(6) will not apply to the wife, and the persons mentioned in clauses (a) to (c) of sub-rule 6 of rule 90, and whenever the application is made by the wife, the respondent Corporation is bound to pay the family pension from the next month following the death of the employee, or which thus means, it is the bounden duty of the employer to pay the family pension to the said category on information of the death of employee, in accordance with the Rules. Learned counsel has also invited my attention to the judgment of this court in **Aisha Kunju v. Deputy Director of Education** [2004(2) KLT 174], wherein it was held that, the right to family pension is a right emanating from Article 21 of the Constitution of India and therefore, there is no justification in limiting the same to the W.P.(C). No.23152 of 2016 8 date of submission of the application. So is the law laid down by the Apex Court in **S.K.Mastan Bee v. General Manager, South Central Railway and another** [(2003) 1 SCC 184] wherein also the issue with respect to the family pension was considered and held that the same eminates from Article 21 of the Constitution of India. 8. Therefore, taking into account the law laid down by this court and Apex Court as well as Note 5 of Rule 90(6) of Part III of Kerala Service Rules, I am of the considered opinion that, petitioner is entitled to get family pension from the next month following the death of her husband. Resultantly, writ petition is allowed directing the respondent Corporation to pay arrears of family pension to the petitioner from the next month after the date of death of her husband i.e., 14.03.2011 within two months from the date of receipt of a copy of this judgment. The writ petition is allowed accordingly. ## **SHAJI P. CHALY JUDGE** smv 25.08.2016