This Writ Petition has been filed for issuance of a Writ of Mandamus directing the respondents 1 and 2 to disburse the service benefits like Provident Fund, Family Pension, Gratuity and Earned Leave, etc., due to the petitioner's deceased daughter, to the petitioner.
2.The brief facts that are necessary for the purpose of disposing the above writ petition are as follows:
2.1.The petitioner's daughter by name Verginia was serving as P.G. Assistant in the third respondent school. Before working in the third respondent school, the petitioner's daughter was working in other schools also. While the petitioner's daughter was working in the third respondent school, she died on 18.04.2014 at her age of 49, due to brain tumor. Though the petitioner's daughter was given in marriage to the fourth respondent, due to some misunderstanding, it is alleged that they were separated within six months and that thereafter, they never lived as husband and wife. It is contended by the petitioner that his daughter lived as a spinster till her premature death on 18.04.2014.
2.2.Since the petitioner's daughter expired while she was in Government service, she is entitled to the benefits, namely, Provident Fund, Gratuity and Earned Leave, etc. Though the fourth respondent is eligible to get the service benefits of the petitioner's daughter, in the normal course, it is specifically pleaded that the fourth respondent executed a notarised affidavit on 04.06.2014 to the effect that he is not making any claim over any of the service benefits of the petitioner's daughter and that he has no objection for the disbursement of all amounts receivable to the petitioner and his wife Smt.Chiria Pushpam. It is further contended by the petitioner that on the strength of the same affidavit of the fourth respondent, the petitioner also approached the Tahsildar, Srivaikundam, for the issuance of legal heir certificate for his deceased daughter. The petitioner also has produced the Certificate issued by the Tahsildar, dated 17.11.2014 wherein the petitioner and his wife were shown as the legal heirs of the petitioner's daughter for the purpose of receiving the service benefits of the petitioner's daughter.
2.3.The sworn affidavit of the fourth respondent dated 04.06.2014 was also submitted to the third respondent by the fourth respondent with a copy marked to the petitioner. On the basis of the said affidavit and the legal heir certificate, the petitioner approached the third respondent for disbursement of the service benefits of the petitioner's daughter to the petitioner and his wife. The Headmaster of the school also forwarded the papers to the office of the first respondent. However, by letters dated 26.10.2015 and 28.10.2015, the first respondent raised some queries and insisted the petitioner to obtain a Succession Certificate issued by a competent Court along with other documents so as to disburse the service benefits of the petitioner's daughter. In the communication, dated 26.10.2015, it was further stated by the first respondent that the affidavit of the fourth respondent will not be considered as a valid document and that the petitioner is required to forward the decree of divorce obtained from the Court, though it is not the case of the petitioner that the marriage between the petitioner's daughter and the fourth respondent was dissolved by an order of Court. It was further stated in the communication, dated 26.10.2015 that in the Death-cum-Retirement Gratuity nomination filed by the petitioner's daughter, she has nominated her husband namely the fourth respondent and that therefore, this discrepancy must be clarified. It was also stated in the communication that the pension application in Form-14 along with documents should be submitted by the petitioner's wife Smt.Chiria Pushpam, as the mother of the Government servant alone is eligible to receive the family pension.
2.4.Though the application of the petitioner was not rejected, the contents of the communication dated 26.10.2015 and the queries raised by the first respondent would disclose that the petitioner is not eligible to get the service benefits of his daughter, even though the fourth respondent has no objection for disbursement of the amount payable to the legal heirs of deceased namely the service benefits of the petitioner's daughter. Hence, the present Writ Petition has been filed by the petitioner for directing the respondents 1 and 2 to disburse the service benefits to the petitioner and his wife.
3.Heard Mr.M.V.Venkatasheshan, learned counsel for the petitioner, Mr.P.Gunasekaran, learned counsel appearing for the respondents 1 and 2, Mr.V.Pandi, learned Government Advocate appearing for the third respondent and Mr.V.Selvam, learned counsel for the fourth respondent.
4.The learned counsel appearing for the fourth respondent has no objection for allowing the Writ Petition and submitted that the fourth respondent has given his sworn affidavit expressing in unequivocal terms his consent for disbursement of the service benefits to the petitioner and his wife. In the sworn affidavit of the fourth respondent, the fourth respondent has admitted his separation between his wife and himself from 01.06.1991. He has agreed for disbursement of all the amounts towards the service benefits of the petitioner's daughter to the petitioner and his wife and stated further that he will not claim any right in any of the amount disbursed towards the service benefits of the petitioner's daughter and any other movable or immovable assets of the petitioner's daughter. From the communication of the Headmaster of the third respondent school, dated 04.06.2014, substantial amount of more than Rs.21,00,000/- is due to the legal heirs of the petitioner's deceased daughter.
5.Unfortunately this Writ Petition is contested only by the respondents 1 and 2. Mr.P.Gunasekaran, learned counsel appearing for the respondents 1 and 2 submitted that the nominee of the deceased daughter of the petitioner has no right to assign the pension and other allowances and as per the provisions of the Pension Act, the fourth respondent alone is entitled to receive the amounts. The learned counsel appearing for the respondents 1 and 2 referred to Section 12 of the Pensions Act, 1871 which reads as follows:
?12.Assignments etc., anticipation of pension to be void:- All assignments, agreements, orders, sales and securities of every kind made by the person entitled to any pension, pay or allowance mentioned in Section 11, in respect of any money not payable at or before the making thereof, on account of any such pension, pay or allowance, or for giving or assigning any future interest therein, are null and void.?
6.The learned counsel for the respondents 1 and 2 further relied upon the provisions of Tamil Nadu Pension Rules, 1978. According to him, as per Rule 46 of the Tamil Nadu Pension Rules, 1978, the gratuity shall be paid only to the person on whom the right to receive the gratuity is conferred by means of a nomination under Rule 48. Rule 46 of the Tamil Nadu Pension Rules reads as follows:
?46.Persons to whom gratuity is payable-(1)(a) The gratuity payable under rule 45 shall be paid to the person or persons on whom the right to receive the gratuity is conferred by means of a nomination under rule 48:?
7.The learned counsel appearing for the respondents 1 and 2 also referred to Rule 48 of the Tamil Nadu Pension Rules which speaks about nomination. As per Rule 48, a Government servant shall make a nomination in Form-1 or Form-2 as may be appropriate in the circumstances of the case conferring on one or more persons the right to receive the Death-Cum- Retirement Gratuity payable under Rule 45. As per Rule 45(5) of Tamil Nadu Pension Rules, in the case of ?family? in relation to a Government servant means, husband, including judicially separated husband in the case of a female Government servant and other legal heirs including father and mother of the deceased. After referring to the provisions of the Tamil Nadu Pension Rules, 1978, the learned counsel for the respondents 1 and 2 submitted that the fourth respondent who has been nominated by the petitioner's daughter is the only person entitled to receive the benefits and he has no right to relinquish or assign in favour of any one. The petitioner, who is the father of the deceased, is not a legal heir of the deceased and hence, he is not eligible to get the service benefits of the deceased or the family pension. Since Section 12 of the Pensions Act, 1871, prohibits any assignment of pensionary benefits and renders such assignment as null and void, there is no merit in the claim of the petitioner and his wife. The learned counsel for the respondents 1 and 2 relied upon an unreported judgment of the Hon'ble Supreme Court in the case of B.Premanand & others v. Mohan Koikal and other in Civil Appeal No.2684 of 2007, dated 16.03.2011 and submitted that when there is a conflict between the law and equity, it is the law which is to prevail. It is further held in the said judgment that equity can only supplement the law when there is gap in it but it cannot supplant the law. In the judgment of the Hon'ble Supreme Court relied upon by the learned counsel for the respondents 1 and 2, several other decisions have been referred to for following the principles that the Court cannot read anything into a statutory provision which is plain and unambiguous and that the language employed in a statute is a determinative factor of the legislative intent.
8.The learned counsel appearing for the respondents 1 and 2 also referred to
Section 5(1) of the Provident Funds Act, 1925, which reads as follows:
?5. Rights of nominees (1) Notwithstanding anything contained in any law for the time being in force or in any disposition, whether testamentary or otherwise, by a subscriber to, or depositor in, a Government or Railway Provident Fund of the sum standing to his credit in the Fund, or of any part thereof, where any nomination, duly made in accordance with the rules of the Fund, purports to confer upon any person the right to receive the whole or any part of such sum on the death of the subscriber or depositor occurring before the sum has become payable or before the sum, having become payable, has been paid, the said person shall, on the death as aforesaid of the subscriber or depositor, become entitled, to the exclusion of all other persons, to receive such sum or part thereof, as the case may be, unless--
(a) such nomination is at any time varied by another nomination made in like manner or expressly cancelled by notice given in the manner and to the authority prescribed by those rules, or
(b) such nomination at any time becomes invalid by reason of the happening of some contingency specified therein,-- and if the said person predeceases the subscriber or depositor, the nomination shall, so far as it relates to the right conferred upon the said person, become void and of no effect: Provided that where provision has been duly made in the nomination in accordance with the rules of the Fund, conferring upon some other person such right in the stead of the person deceased, such right shall, upon the decease as aforesaid of the said person, pass to such other person.] (2) Notwithstanding anything contained in the Indian Succession Act, 1925 ], (39 of 1925 .) or the Bombay Regulation VIII of 1827 , any person, who becomes entitled as aforesaid, may be granted] a certificate under that Act, or that Regulation, as the case may be, entitling him to receive payment of such sum or part, and such certificate shall not be deemed to be invalidated or superseded by any grant to any other person of probate or letters of administration to the estate of the deceased.?
9.According to the learned counsel appearing for the respondents 1 and 2, in a case where the subscriber to the fund nominate any person in accordance with the rules of the fund, the person nominated alone is entitled to the exclusion of all other persons to receive all the amounts. The learned counsel for the respondents 1 and 2 relied upon another judgment of the Hon'ble Supreme Court in the case of Prakash Nath Khanna and another v. Commissioner of Income Tax and another reported in (2004) 9 SCC 686. In paragraph 13, the Hon'ble Supreme Court has held as follows:
?13.It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed, not as theorems of Euclid", Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage (218 FR 547). The view was re- iterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981), and Padma Sundara Rao (dead) and Ors. V. State of Tamil Nadu and Ors. (2002 (3) SCC 533).?
10.Finally, the learned counsel for the respondents 1 and 2 relied upon an unreported judgment of a learned Single Judge of this Court in the case of P.Umalakshmi v. State Bank of India in W.P.No.558 of 2007, dated 12.07.2012. It is a case where the first petitioner who is the widow of the deceased Government employee has filed a Writ Petition along with her two children seeking the pensionary benefits, family pension, gratuity, compensation in lieu of compassionate appointment and other reliefs, claiming to be the legal heirs of the deceased Government employee. It was admitted in the said case that the marriage between the first petitioner and the deceased Government servant was during the subsistence of an earlier marriage of the deceased with his first wife. Though the first marriage was dissolved by an order of Court, the dissolution of marriage was after the marriage of the deceased with his second wife namely, the first petitioner in the said case. It was in the factual background, this Court has held as follows in paragraphs 8 and 9:
?8. Mr. S.M.Subramaniam, learned counsel for the petitioner submitted that an agreement was reached on 25.02.1995 between the petitioner and the fifth respondent, before the Panchayatdar stating that out of the terminal dues payable to late Ravindran, such as Family Welfare Fund, Special PF, Gratuity, Encashment of Earned Leave, GPF, the fifth respondent will receive 40% and the petitioner and her children will receive 60%. Out of the pension payable, each will receive 50% of the same every month and that the petitioner is entitled to get compassionate appointment.
9. The said agreement was filed before the District Munsif Court for passing appropriate decree. But before the District Munsif Court, the official respondents were given up and the private arrangement between the petitioner and fifth respondent was the basis for decreeing the suit. Such a decree will not bind on the official respondents. In any event, we do not find anything illegality or irregularity in the order passed by the Tribunal and it is perfectly in accordance with the right of the parties as provided under the Tamil Nadu Pension Rules, 1978. If the parties are having any private arrangement, it is for them to work out their rights in terms of their private arrangement and certainly, the State cannot be bound by such arrangements made de hors the Rules.?
11.As regards the claim for family pension, it has been held that the first petitioner therein who is the second wife was held not to be treated as wife.
12.The contentions of the learned counsel appearing for the respondents 1 and 2 are considered in the light of the provisions of the Pensions Act, Tamil Nadu Pension Rules, 1978 and the Provident Fund Act, 1925.
13.The only question falls for consideration in the present Writ Petition is whether the father and mother of the deceased female Government servant is entitled to receive the service benefits of their deceased daughter in view of the nomination in favour of the fourth respondent, even though the fourth respondent has no objection for the disbursement of the whole amount payable to the parents of the deceased Government servant.
14.The provisions of Pensions Act does not prohibit the nominee to assign the benefits in favour of other legal heirs of the deceased female Government servant. Section 12 of the Pension Act, 1871, is required to be read along with Section 11. Section 11 exempt the amount payable by way of pension from attachment. Section 12 prohibits any person who is entitled to pension, pay or allowance mentioned in Section 11 from assigning by any arrangements the money not payable or before making payment. Section 12 speaks about assignment of pensionary benefits in anticipation of pension. Section 12 is to protect the interest of the pensioner and prohibits even the pensioner from creating any encumbrance over the pensionary benefits even before the petitioner is entitled to the amount. In the present case, Section 12 has no application. It is not in dispute that the amount payable towards service benefits are due and payable by the respondents 1 and 2. The nominee, if he is a member of the family, though entitled to receive the benefits, he may hold the amount in trust for the benefits of all the legal heirs of the deceased. The parties are Hindus and hence, the Hindu Succession Act is applicable in the present case to determine whether the petitioner and his wife are the legal heirs of the petitioner's daughter. Certainly, the father and mother are not the legal heirs of their daughters. However, the mother as dependent of the deceased is entitled to family pension as per Rules and this is admitted. Hence, even in the impugned proceedings the petitioner's wife is entitled to family pension.
15.No doubt it is true that the nominee of the Government servant is entitled to receive the service benefits of the deceased. However, it is submitted that such nomination can be only in favour of a family member of the deceased.
Section 15(2) of the Hindu Succession Act recognises the heirs of father of the deceased as a legal heir in case the deceased female Government servant dies without any issues, provided the deceased inherit the property from her father. In the present case the petitioner's daughter cannot be said to have inherited the subject matter of dispute from her father. Nevertheless, the nominee who is entitled to receive the amount towards service benefits not only as a nominee but also as the sole legal heir has got a right to use the funds in the manner he chooses. The fourth respondent is the sole legal heir of the deceased Government servant and it is not in dispute. In such circumstances, the claim of the petitioner on the strength of the sworn affidavit of the fourth respondent and on the assertion of the fourth respondent before this Court, this Court is not hesitant to consider the petitioner's claim to get the service benefits of his daughter for himself and his wife. The sole legal heir of the deceased Government servant has appealed to this Court to give all the service benefits of the petitioner's daughter to the petitioner and his wife. It is in these circumstances, it is difficult to accept the contention of the learned counsel for the respondents 1 and 2. The benefits that are payable to the Government servants by way of service benefits is a property of the deceased and when there is no dispute with regard to the claim in a lis before this Court, the Court can act upon the stand taken by the lawful heir of the deceased Government servant so as to grant appropriate relief in the Writ Petition filed by the petitioner. The concession by fourth respondent now shown before this Court in this lis in favour of petitioner and his wife can be the sole reason to decide this writ petition without going into any other issue. The amount is payable and the official respondents are not the owners / masters to dictate. May be as authorities under the statute they are expected to act according to rule. But, this Court in the adjudicatory process to resolve any dispute can decide by consent without affecting the rights of any third parties.
16.The judgment relied upon by the learned counsel for the respondents 1 and 2 in W.P.No.588 of 2007 has no application to the present case where there is no rival claim and the petitioner and his wife are acknowledged by the fourth respondent as persons eligible to get the service benefits of his wife on his volition. Similarly, there is no specific rule which prohibits the disbursement of service benefits of the deceased Government employee to any one as per the decision of the nominee on his own volition and wisdom. It is admitted that there is no other rival claim and that the fourth respondent alone is entitled to receive the benefits, as the sole legal heir of the deceased Government servant. In such circumstances, I am inclined to allow this Writ Petition rejecting the contentions of the respondents 1 and 2. The Writ Petition is allowed and the respondents 1 and 2 are directed to disburse the service benefits like Provident Fund, Gratuity, Earned Leave and eligible family pension to the petitioner and his wife upon the petitioner and his wife submitting the application in the prescribed format, within a period of eight weeks from the date of receipt of such application. No costs. Consequently, the connected C.M.P.(MD)No.8452 of 2016 is closed.
To
1.The Accountant General (Accounts & Entitlements), 361, Annna Salai, Chennai ? 18.
2.The Accounts Officer, Office of Accountant General (Accounts & Entitlements), 361, Annai Salai, Chennai ? 18.
3.The Headmaster, Government Higher Secondary School, Peranambakkam, Tiruvannamalai District, PIN ? 606 904..