Remadevi, Pinki Nivas v. Sujatha L and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 20TH DAY OF JUNE 2016/30TH JYAISHTA, 1938 OP(KAT).No. 414 of 2014 (Z) ---------------------------- AGAINST THE ORDER IN OA 2829/2013 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 17.10.2014 PETITIONER/PETITIONER: ------------------------------------REMADEVI, PINKI NIVAS, KRISHNAPURAM.P.O, KAYAMKULAM, ALAPPUZHA DISTRICT, KERALA-690533. BY ADV. SMT.SHAHNA KARTHIKEYAN RESPONDENT(S)/RESPONDENTS: |RESPONDENT(S)/RESPONDENTS:|RESPONDENT(S)/RESPONDENTS:| |---|---| |------------------------------------------------|| |1.|SUJATHA L,| ||REVATHI,PUTHIYAVILA,| ||VATTOLI MARKET.P.O,KAYAMKULAM,| ||ALAPPUZHA DISTRICT,| ||KERALA-690531.| |2.|STATE POLICE CHIEF,| ||POLICE HEADQUARTERS,| ||VAZHUTHACAUD,THIRUVANANTHAPURAM,| ||KERALA-695035.| |3.|THE ACCOUNTANT GENERAL(A&E),| ||O/O.THE ACCOUNTANT GENERAL,THIRUVANANTHAPURAM,| ||KERALA-695 001.| |4.|THE SUB-TREASURY OFFICER,| ||KAYAMKULAM,| ||ALAPPUZHA DISTRICT,KERALA-690502.| ||R1 BY ADV. DR.K.P.SATHEESAN (SR.)| ||ADV. SRI.M.R.JAYAPRASAD| ||ADV. SRI.P.MOHANDAS (ERNAKULAM)| ||ADV. SRI.ANOOP.V.NAIR| ||ADV. SRI.S.VIBHEESHANAN| ||ADV. SRI.N.MANU THAMPI| ||R2 TO R4 BY SR.GOVERNMENT PLEADER SRI MOHAMMED SHAFI| THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 20-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 414 of 2014 (Z) ---------------------------- ## **APPENDIX** ## PETITIONER'S EXHIBITS - -------------------------------------- - EXT.P1 TRUE COPY OF JUDGMENT DATED 2/4/93 IN O.S.171/92 OF MUNSIFF'S COURT,HARIPPAD - EXT.P2 TRUE COPY OF SETTLEMENT ENTERED INTO BY SIVAPRASAD AND THE IST RESPONDENT IN THE LOK ADALAT - EXT.P3 TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE REGISTRAR OF HINDU MARRIAGES - EXT.P4 TRUE COPY OF THE RELEVANT PAGES OF THE RATION CARD ISSUED TO THE IST RESPONDENT - EXT.P5 TRUE COPY OF THE IDENTITY CARD ISSUED BY THE ELECTION COMMISSION OF INDIA TO SIVAPRASAD - EXT.P6 TRUE COPY OF THE NOMINATION FORM SUBMITTED BY SIVAPRASAD DURING OCTOBER 2010 - EXT.P7 TRUE COPY OF THE RELEVANT PAGES OF TREASURY PASS BOOK ISSUED TO THE PETITIONER - EXT.P8 TRUE COPY OF THE ORIGINAL APPLICATION 2829/2013 SUBMITTED BY THE IST RESPONDENT BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL WITH ANNEXURE. - EXT.P9: TRUE COPY OF REPLY STATEMENT FILED BY THE PETITIONER IN OA NO.2829/13 WITH ANNEXURE. - EXT.P10: TRUE COPY OF REJOINDER STATEMENT FILED BY THE 1ST RESPONDENT IN OA No.2829/13. - EXT.P11: COPY OF ORDER DATED 17.10.2014 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL IN OA No.2829/2013. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY ## P.S.TO JUDGE dsn ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** **-------------------------------------------------OP(KAT)No.414 OF 2014** **-------------------------------------------------DATED THIS THE 20[th] DAY OF JUNE, 2016** ## **JUDGMENT** ## **P.R.RAMACHANDRA MENON, J** . Correctness and sustainability of Ext.P11 order passed by the Tribunal in O.A.No.2929/2013, whereby the petitioner's claim to get family pension in respect of the service rendered by her deceased husband has been turned down, is the subject matter for consideration in this Original Petition. 2. The main dispute is with regard to the marital status of the petitioner, vis-a-vis the rival claim put forth from the part of the 1[st] respondent. The deceased person by name Sivaprasad, who was allegedly the husband of the petitioner, was serving as a Police Constable and while so, on 25.9.2013, he bid farewell to this world. Name of the petitioner was given as the 'nominee' entitled for getting the family pension and accordingly, based on the relevant documents, family pension was sanctioned in the name of the petitioner. This was sought to be challenged by filing O.A.No.2829/2013 by the 1[st] respondent herein. The Tribunal observed that the deceased Sivaprasad was proceeded against by OP(KAT)No.414/14 -2- the State, in respect of a serious misconduct of having contracted a second marriage, during the subsistence of valid marriage and accordingly, he was removed from the service on proving the misconduct. This was sought to be challenged by filing an appeal before the Government. After considering the facts and circumstances, the Government changed the order of 'removal from service' as 'compulsory retirement', thus enabling the employee to get all the service benefits. The matter has become final, the same having not been subjected to challenge by Sivaprasad. It was much later, that he expired on 25.9.2013 and there arose dispute between the petitioner and the 1[st] respondent, leading to the proceedings before the Tribunal. 3. The learned counsel for the petitioner points out that there is absolutely no rhyme or reason for the Tribunal to have interfered with the right of the petitioner to get family pension. The case of the petitioner is that, the deceased Sivaprasad had never contracted any valid marriage with the 1[st] respondent at any point of time and that, only an 'agreement to marry' was there, based on which they were co-habiting together. In the said relationship, two children were born. The deceased Sivaprasad OP(KAT)No.414/14 -3- had moved the Munsiff's Court, Harippad, by filing O.S.No.171/1992 seeking for a declaration to the effect that no valid marriage had taken place between them, with reference to Ext.A1 mentioned therein. The plaintiff was examined as PW1 and the agreement dated 8.7.1986 was produced as Ext.A1. The Munsiff's Court, as per Ext.P1 judgment dated 2.4.1993 dismissed the suit, holding that no valid marriage between the plaintiff and the defendant was constituted merely by execution of Ext.A1 agreement. The learned Munsiff also observed that the plaintiff was not entitled to have the declaration as sought for, as the agreement itself was void and not liable to be acted upon. Subsequently, the dispute in between, i.e., between Sivaprasad on one side and the 1[st] respondent and her children on the other side came to be settled in 'Lok Adalat' proceedings held on 12.6.2004, as revealed from Ext.P2. This being the position, no further claim or right was subsisting for the 1[st] respondent to get the family pension. The version of the petitioner is that, a valid marriage was contracted between the deceased Sivaprasad and the petitioner in accordance with the Hindu religious rites and rituals and the petitioner has obtained a certificate as well, in this regard. OP(KAT)No.414/14 -4- The relevant documents were produced before the Department/State so as to claim the benefit of Family Pension and this was granted accordingly. But intervention has been made at the instance of the 1[st] respondent as per Ext.P11 order passed by the Tribunal, which hence is sought to be intercepted by way of this Original Petition. 4. Heard the learned Government Pleader as well. 5. The Tribunal, after considering the facts and figures, has observed that the deceased Sivaprasd was proceeded against by way of disciplinary proceedings, for having contracted a marriage during the subsistence of an earlier marriage. The first marriage was stated as held on 5.7.1986 and two children were born therein. The daughter is stated as a mentally retarded child and the son is stated as physically challenged (differently abled). It was thereafter, that the deceased nominated the applicant in the O.A. as per Annexure A1 mentioned therein, for receiving the Provident Fund amount standing in his account and she was shown as the wife of the deceased Sivaprasad. He had nominated her as per Annexure A2 for receiving the family pension as well, and Annexure A3 was the nomination for receiving the DCRG. OP(KAT)No.414/14 -5- Similarly, reference is made to Annexure A4 Ration Card as well, wherein the applicant's name is shown as the wife of Sivaprasad. The second marriage with the petitioner stated as held on 22.5.2003 and on coming across the instance of the said marriage, Sivaprasad was placed under suspension on 30.4.2003. Subsequently, the suspension was revoked and he was reinstated without prejudice to continuation of the disciplinary proceedings. Finally, based on the enquiry report, he was removed from the service on 1.1.2007 for the proven misconduct. However, based on the review petition filed before the Government, as per order dated 27.9.2010, the punishment of 'removal from service' was converted as 'compulsory retirement', treating the period of suspension as duty for all purposes, except for salary, which was limited to the subsistence allowance payable. This sequence of events has become final, as the deceased Sivaprasad did not choose to challenge the same any further. 6. In the above circumstance, the Tribunal held that, the challenge raised by the applicant with regard to her eligibility to get the family pension was liable to be considered. The Tribunal also took note of the contention raised by the 4[th] respondent OP(KAT)No.414/14 -6- therein, who is the present petitioner in this O.P., that according to her, she was the only legally wedded wife, which status was claimed more with reference to Ext.P1 judgment, herein. This was a case filed by the deceased Sivaprasad to get a declaration that there was no valid marriage between him and the applicant in the O.A., which however came to be dismissed. Based on the available materials, it was observed by the Tribunal that the 1[st] marriage of the deceased Sivaprasad was with the applicant in the O.A. and that the Department who took disciplinary action against Sivaprasad and imposed punishment on him for having contracted another marriage during the subsistence of earlier marriage could not have turned round to grant family pension to the petitioner. It was accordingly ordered to be paid to the applicant in the O.A.; however safeguarding the interest of the petitioner herein as well. The further observation in Paragraph 5 of Ext.P11 order protecting the rights and interests of the 4[th] respondent therein, i.e., the petitioner herein is worthwhile to be noted, which hence is extracted below: “5. .... .... The findings made by us in this order will not affect the rights, if any, of the 4[th] respondent to approach the competent Family Court to get appropriate declaration OP(KAT)No.414/14 -7- regarding the status of her marriage with late Sivaprasad. If the competent court declares that her marriage with Sivaprasad was valid and she is the legally wedded wife and not the applicant, of course the 4[th] respondent can move the competent authority for sanctioning family pension to her and in that event, this order will not affect her rights for pursuing her claim. Until such a declaration is obtained by the 4[th] respondent, the applicant is entitled to get family pension.” 7. From the above, it is clear that the Tribunal has made it open for the petitioner to establish her rights and interests, if she was the legally wedded wife of the deceased Sivaprasad, by raising such pleadings and proceedings before the appropriate forum. By virtue of the law declared by the Apex Court in **Balram** **Yadav** v. **Fulmaniya Yadav (2016 (4) Scale 475),** it is for the Family Court to arrive at a finding as to the marital status of the dispute between the parties and not for the High Court or Tribunal to arrive at a finding as to the same. The scope of such status can be examined only if it is incidental to the disciplinary proceedings and the same is always subject to appropriate declaration to be made by the competent court **(State of W.B.** v. **Prasenjit Dutta (1994 (2) SCC 37)** . It is with the above view in mind, that the Tribunal has made it clear in Ext.P11 order, that the finding based OP(KAT)No.414/14 -8- on the available materials, declaring the right of the applicant to get the family pension will be subject to the declaration of the marital status by competent Family Court after affording opportunity of hearing to all concerned. 8. We find absolutely nothing illegal or irregular with regard to the finding and reasoning given by the Tribunal, to call for interference at our hands. Accordingly, the O.P. stands dismissed, without prejudice to the rights already conferred by the Tribunal upon the petitioner. We only make it clear that disbursement of the 'family pension' and arrears pursuant to Ext.P11 order passed by the Tribunal will of course be subject to the declaration/verdict to be passed by the competent court as aforesaid. Sd/- ## **P.R.RAMACHANDRA MENON** , **JUDGE** Sd/- dsn **ANIL K.NARENDRAN, JUDGE** True copy P.S.to Judge