H. Dawngi vs Union of India (UOI) and Others

H.K.K. Singh, J.—Heard Mr. A.R. Malhotra, learned counsel for the petitioner as well as Mr. B. sharma, learned Addl. CGSC appearing on behalf of the respondents.

Petitioner''s husband, Hav. Dila Ram Gurung joined the service of Assam Rifles on 9.11.1935, retired from service on 1.5.1957 and subsequently died on 25.1.1986. Petitioner got married to Dilaram Gurung in the year 1941. After retirement, petitioner''s husband was enjoying his retiral benefits including his monthly pension vide PPO No. CAR-17233; but on his death, petitioner approached the Assam Rifles authority for allowing her to receive family pension, however her request was rejected under letter dated 25.9.1986 (Annexure-IV) which reads as follows :

"No. 80025/8AR/F/11-P/94-56/NE25 Sept'' 86

Smt. H. Dawngi

Bungkawn (W)

P.O. Aizawl (Mirozam)

Pin-796001

APPLICATION FOR THE GRANT OF FAMILY PENSION TO THE FAMILY OF THE CENTRAL GOVT. EMPLOYEES WHO RETIRED OR DIED BEFORE 1.1.1964 OR OTHERWISE NOT RECOVERED BY THE FAMILY PENSION SCHEME OF 1964.

Reference your application dated 23 June 86 for family pension.

As per record held in this Directorate, the name of wife of No. 80025 Hav. Dila Ram Gurung is Smt Sangkili and not H. Dawngi as mentioned in your application. No action is therefore being taken on your application for family pension.

Sd/-

(G.P. BARTHWAL) Captain Dy. Asstt. Director (Records) For Director General Assam Rifles."

Consequently, petitioner approached the Zila Sainik Board, Aizawl District, Mizoram with no avail, thereafter she approached the Subordinate District Council Court, Aizawl which after adjudicating the matter, issued Heirship Certificate No. 535 of 1994 under order dated 28.11.1994.

Enclosing the certificate issued by the Court, petitioner approached the competent authority for making payment of family pension as per law and even notice u/s 80 CPC (Annexure-XVI to the writ petition) was also issued. Still, under letter dated 3rd July, 1996 the Authority intimated the petitioner that family pension cannot be paid to her even if she had obtained Heirship Certificate as the Certificates are contrary to the declaration made by Mr. Dilaram Gurung during his life time, which was recorded in the Service Book. But in the Pension Payment Order being No. CAR-17233 (Annexure-II to the writ petition) it is found recorded that on the death of Dilaram Gurung family pension may be given to H. Dawngi who is the petitioner in the present case.

Right to family is a statutory right. This right cannot be defeated even by making a nomination to the contrary. And if any nomination be made contrary to the statute the said nomination would not be operative. The said proposition of law finds place in the decision of Supreme Court in the case of (1999) 5 SCC 237, G.L.Bhatia v. Union of India

In the present case, the competent court issued Heirship Certificate (Annexure-XV to the writ petition) in respect of No. 80025 Hav. Dilaram Gurung 8th Bn. Assam Rifles who died on 25.1.1986 in favour of his wife, Smt. H. Dawngi in respect of pension pay. This Certificate issued by the competent court even if issued under testamentory jurisdiction or under matrimonial jurisdiction is to be accepted by the authority concerned. And under the law, a debtor gets a valid discharge if payment is made to the holder of the Certificate issued by the court. Thus, there will be no impediment on the part of the authority to make payment of family pension to the petitioner in view of the certificate above mentioned issued by the court. Even if any claim be made from any third party, it is to be decided as a separate cause of action against the present petitioner separately in accordance with the provisions of law. Pension, Family pension are not bounty. These are rights conferred by law and the same should not be denied to the persons who are entitled to the same under the statute (See All India Reserve Bank Retired Officers Association and others Vs. Union of India and others,

The respondents in spite of proper service of notice, have not filed any counter, however, Mr. B. Sharma, learned Addl. CGSC appearing for the respondents submits to the court for passing any appropriate order.

In view of the facts and circumstances of the case the writ petition is allowed and it is ordered that family pension payable under the provision of relevant rules may be given to the petitioner w.e.f. the date just after the death of her husband, Hav. Dilaram Gurung, i.e., w.e.f. 25.1.1986.

Mr. A.R. Malhotra,, learned counsel for the petitioner has prayed for granting interest at the rate of 12 per cent per annum for the unpaid amount of family pension citing the decision of this court in the case of Stilakhi Roy v. G.O.C. Eastern Command and Ors. 2001 (1) GLT 312.

I have considered the matter. Interest may be awarded from the date when the petitioner has submitted heirship certificate noted above. Accordingly, it is ordered that interest at the rate of 12 per cent per annum be also paid to the petitioner w.e.f. 1.12.1994 on the unpaid amount of family pension.

It is also ordered that unpaid family pension may be paid within a period of six months from today. Thereafter regular family pension will be paid as per law. It is also ordered that a sum of Rs. 5,000 (Rupees five thousand) only also be paid as costs to the petitioner within the aforesaid period of six months from today.