Judgment:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.1198 of 2013 (O&M) Date of decision: 5th October, 2013 Baldev Kaur and another Appellants Versus State of Punjab and others Respondents CORAM: HON’BLE Mr.JUSTICE RAKESH KUMAR GARG1 Whether Reporters of Local Newspapers may be allowed to see the judgment?.
2.
Whether to be referred to the Reporters or not?.
3.
Whether the judgment should be reported in the Digest?.
***** Present: Mr.Arihant Goyal, Advocate for the appellants.
RAKESH KUMAR GARG, J.
This is plaintiffs’ second appeal challenging the judgment and decree of the fiRs.appellate Court dated 30.10.2012 whereby appeal filed on behalf of the defendant-respondents has been accepted and the judgment and decree of the trial Court dated 14.09.2011 has been set aside.
In brief, facts of the present case are that one Constable Jagtar Singh son of the appellants died in harness during his service on 02.04.2003 under suspicious circumstances and an FIR bearing No.45 dated 02.04.2003 under Sections 306/34 IPC was registered at Police Station Talwandi Sabo against respondent No.4 (defendant No.1) Singh Rattan Pal 2013.10.10 11:50 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1198 of 2013 (O&M) 2 Rajbir Kaur, her father Nachhattar Singh, her brothers Rupinder Singh and Jaskaran Singh.
The aforesaid case was decided on 21.03.2005 by the Additional Sessions Judge, Bathinda convicting Nachhattar Singh, father in law of Jagtar Singh; whereas, other accused were acquitted by giving them the benefit of doubt.
However, appeals/revisions filed against the aforesaid judgment are still pending.
It is further case of the plaintiff-appellants that they are dependant parents of late Constable Jagtar Singh and are his family members and legal heiRs.They are entitled to receive his death-cum-retiral benefits to the extent of ½ share and they cannot be excluded from the list of family members of Jagtar Singh.
After the death of Jagtar Singh, the plaintiff-appellants approached respondent No.3 for releasing death- cum-retiral benefits of their son Jagtar Singh, but he did not pay any heed to the request of the plaintiff-appellants.
Thereafter, the plaintiff- appellants approached this Court by filing CWP No.11716 of 2005, which was disposed of vide order dated 01.08.2005 directing respondent No.3 to take decision upon the representation/justice demand notice of the plaintiff-appellants by passing a speaking order.
Thereafter, they were called by respondent No.3 and their statements were recorded and the matter was kept for pronouncing the ordeRs.Thereafter, respondent No.4 (defendant No.1) filed a Civil Suit for declaration in the Court of Civil Judge (Senior Division).Bathinda on 05.09.2005 against the State of Punjab and otheRs.In the meantime, plaintiff-appellants received an order dated 01.12.2005 passed by respondent No.3 vide which it was ordered that Rajbir Kaur-respondent Singh Rattan Pal 2013.10.10 11:50 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1198 of 2013 (O&M) 3 No.4 was entitled to all the retiral benefits of late Constable Jagtar Singh and denied the death-cum-retiral benefits to the plaintiff- appellants and Gursimran Kaur, minor daughter of Jagtar Singh.
The appellants, who were arrayed as defendants in the Civil Suit, appeared through their counsel and filed written statement and also an application for interim relief of staying the implementation of the order passed by respondent No.3.
On coming to know this fact, Rajbir Kaur plaintiff in the suit withdrew the said suit on 18.01.2006.
Thereafter, she started threatening the plaintiff-appellants that she will collect death- cum-retiral benefits of Constable Jagtar Singh.
The plaintiff-appellants requested the defendants to admit their claim and treat the order dated 01.12.2005 passed by respondent No.3 as illegal and not to exclude them and defendant Gursimran Kaur out of these benefits.
Since claim of the plaintiff-appellants was not admitted, necessity arose to file the instant suit.
Upon notice, respondents No.4 and 5 filed a joint written statement raising various preliminary objections.
On merits, it was admitted that Constable Jagtar Singh was working under respondent No.3 and he died on 02.04.2003.
The plaintiff-appellants lodged a false and fabricated FIR against respondent No.4, her father and two brotheRs.It was stated that respondent No.4 has been acquitted in the said case.
It was further submitted that the plaintiff-appellants were not dependant upon late Constable Jagtar Singh.
They were having independent source of livelihood.
It was also stated that the appellants were not legally entitled to receive any share from the death-cum-retiral Singh Rattan Pal 2013.10.10 11:50 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1198 of 2013 (O&M) 4 benefits of Constable Jagtar Singh.
Only respondent No.4, being legally wedded wife of deceased Jagtar Singh, was entitled to receive the said benefits.
It was further admitted that suit for mandatory injunction was filed by respondent No.4, however the order dated 01.12.2005 holding Rajbir Kaur respondent No.4 entitled to all the retiral benefits of Constable Jagtar Singh was admitted to be validly passed by respondent No.3; and thus, dismissal of the suit was prayed for.
Respondents No.1 to 3 filed a joint written statement raising various preliminary objections.
On merits, it was submitted that appellant No.1-Baldev Kaur has a son and husband, who are owners of the property and other valuable articles along with ancestral property, and therefore, they are not entitled to the monetary benefits of deceased Jagtar Singh.
It was stated that plaintiff-appellants have got no certificate of being legal heirs of deceased Jagtar Singh from the office of Deputy Commissioner, Mansa and thus the department was unable to make payment to them.
Filing of CWP No.11716 of 2005 in this Court was admitted.
It was further stated that the order dated 01.12.2005, declining the plaintiff-appellants their entitlement, was passed under Rule 6.17 of the Civil Service Rules Vol.II because Rajbir Kaur widow of deceased Jagtar Singh was the only legal heir entitled to the financial benefits; but no order was made till date for release of the said benefits.
All other allegations were denied and dismissal of the suit was prayed.
From the pleadings of the parties, the trial Court framed the following issues: Singh Rattan Pal 2013.10.10 11:50 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1198 of 2013 (O&M) 5 1.
Whether the plaintiffs are entitled to the declaration as prayed for?.
OPP2 Whether the plaintiffs are entitled to the mandatory injunction as prayed for?.
OPP3 Whether the plaintiffs are entitled to permanent injunction as prayed for?.
OPP4 Whether jurisdiction of this Court is barred to entertain the suit U/s 20 of CPC?.
OPD5 Whether plaintiffs have no cause of action or locus standi to file the present suit?.
OPD6 Whether the plaintiffs have not complied with provision of Section 80 CPC and as such suit is liable to be dismissed?.
OPD7 Relief.
After going through the evidence on record and hearing learned counsel for the parties, the trial Court decreed the suit with costs vide judgment and decree dated 14.09.2011.
Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the State of Punjab i.e.respondents No.1 to 3 filed an appeal before the fiRs.appellate Court.
The appeal was allowed vide impugned judgment and decree dated 30.10.2012.
While accepting the appeal, the fiRs.appellate Court observed as under: “17.
I have considered the above rival contentions of both sides and have perused the record carefully.
In the present case appellants-defendants No.3 to 5 argued that Singh Rattan Pal 2013.10.10 11:50 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1198 of 2013 (O&M) 6 learned lower Court has wrongly set aside the order dated 01.12.2005 passed by appellant No.3/defendant No.5 ignoring Punjab Civil Service Rules.
Now this Court is to see whether the learned lower Court has rightly set aside order dated 01.12.2005, passed by appellant No.3/defendant No.5.
As per rule 6.16AA and 6.16BB of the Punjab Civil Service Rules, the death-cum-gratuity is payable to wife/husband, sons and un-married/widowed daughters and in case none of them is available then it can be paid to father, mother, brother, married daughter or children of pre-deceased son as per definition of family given in Rule 6.16 (B) of rules and rule 6.16 B describes family.
At the end of these rules there is note given in which it is mentioned that gratuity under this rule will be payable to the family of deceased Govt employee in order of preference below: (1) eldest surviving widow in the case of male officer/official; (2) husband in the case of a female Officer/Official; (3) eldest surviving son; (4) eldest surviving un-married daughter; (5) eldest widowed daughter; (6) father; (7) mother; (8) eldest surviving brother below the age of 18 yeaRs.(9) eldest surviving un-married sister; (10) eldest surviving widowed sister.
Rule 6.17 deals with family pension scheme and in these rules it is mentioned that family for the purpose of this rule will include the following relatives of the Government employee: Singh Rattan Pal 2013.10.10 11:50 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1198 of 2013 (O&M) 7 (a) wife in the case of male government employee and husband in the case of a female Government employee; (b) a judicially separated wife or husband, such separation not being granted on the ground of adultery, provided the marriage took place before the retirement of the Government employee and the person surviving was not held guilty of committing adultery; and (c) sons up to the age of twenty five yeaRs.(d) unmarried daughters up to the age of twenty five yeaRs.Note 1: (c) and (d) will include children adopted before retirement.
Note 2: Marriage after retirement will be recognized for the purpose of this scheme.
(4) The pension will be admissible (i)(a) in the case of a widow or widower upto the date of death or remarriage whichever is earlier.
(b) in the case of son and un-married daughter until he or she attains age of twenty five years or till he or she starts earning his/her livelihood whichever is earlier Further the following Govt Instructions were issued vide IA: (I-A) Parents who were wholly dependent on the Government employee when he/she was alive provided the deceased employee had left behind neither widow nor a child.
The person whose total income from all sources was Rs.2620/- per mensem Singh Rattan Pal 2013.10.10 11:50 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1198 of 2013 (O&M) 8 or more at the time of death of employee shall not be considered to be dependent.
As per rules mentioned above, the respondents No.1 and 2/plaintiffs No.1 and 2 are not entitled for retiral benefits accrued on death of Jagtar Singh.
Though as per Government instructions IA, the parents are also entitled to receive family pension but only in the case where parents were wholly dependent on the Govt employee when he/she was alive provided the deceased employee had left behind neither widow nor a child and the parents whose total income from all sources was Rs.2620/- per mensem or more at the time of death of employee shall not be considered to be dependent.
In the present case, respondents No.1 and 2/plaintiffs No.1 and 2 do not fit into these instructions of Govt.
incorporated as IA as they have not been able to prove their total income from all sources was more than Rs.2620/- and also that they were dependent upon Govt employee.
Further, what is important in the present case is that deceased employee had left behind a widow and child and as per these instructions if the deceased had left behind widow and child then the parents are not entitled for pension.
I have gone through the authority State of Punjab versus Kharak Singh Kang and another (Supra) cited by respondents No.1 and 2/plaintiffs No.1 and 2 but this authority with due respect is not applicable to the facts of the present case as in this authority, the deceased was un-married and had not left any widow and child.
18.
The cumulative effect of my above discussion is that learned lower Court fell in error while setting aside order dated 01.12.2005 passed by appellant No.3/defendant No.5 by holding that order dated Singh Rattan Pal 2013.10.10 11:50 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1198 of 2013 (O&M) 9 01.12.2005 is illegal, null and void and also by holding that respondents No.1 and 2/plaintiffs No.1 and 2 are entitled to receive all the benefits to the extent of their share out of the death-cum-retiral benefits of their son Jagtar Singh and by also restraining the appellants/defendants No.2 to 5 from releasing of amount of death-cum-retiral benefits in favour of respondent No.3/defendant No.1 on the basis of order dated 01.12.2005 and also by directing the appellants/defendants No.2 to 5 to release all the death- cum-retiral benefits in favour of the respondents No.1 and 2/plaintiffs No.1 and 2 alongwith respondents No.3 and 4/defendants No.1 and 2 to the extent of their share and the impugned judgment and decree passed by learned lower Court is set aside.”
.
Feeling aggrieved from the aforesaid judgment and decree of the fiRs.appellate Court, the plaintiffs have filed the instant appeal submitting that the following substantial questions of law arise in this appeal: (i) Whether the approach of the learned lower appellate Court in setting aside the well reasoned judgment and decree of the learned trial Court is justified and sustainable in the eyes of law?.
(ii) Whether the dependent parents of the deceased could be deprived of the benefit of proportional retiral benefits after the death of their deceased son?.
(iii) Whether the respondent-authorities were justified in preferring the appeal without the same being preferred by the aggrieved party?.
Singh Rattan Pal 2013.10.10 11:50 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1198 of 2013 (O&M) 10 (iv) Whether the wife of the deceased could change her stand to maintain her mother-in-law after securing the job and after filing the affidavit in this regard?.
(v) Whether the learned lower appellate Court was justified in setting aside the well reasoned judgment and decree of the learned trial Court after putting reliance upon a judgment which had no relevancy to the case and further after not putting reliance upon the judgment which has not been over ruled so far?.
In support of his case, counsel for the appellants has vehemently argued that parents are a part of the family and their non- inclusion in the definition of ‘family’ as per Rule 6.17 of the Punjab Civil Service Rules Vol.II is wrong.
Therefore, the plaintiff-appellants are entitled to the benefits to the extent of ½ share and the impugned judgment and decree of the lower appellate Court is illegal and erroneous and is liable to be set aside.
I have heard learned counsel for the appellants and perused the judgments and decrees of both the courts below.
At this stage, it may be noticed that Rule 6.17 of the Punjab Civil Service Rules Vol.II deals with Family Pension Scheme and in these Rules, parents have not been included in the definition of family of a Government employee and thus, as per the aforesaid Rule the appellants, who are parents of the deceased employee, are not entitled to his retiral benefits.
Though, as per the Government instructions Singh Rattan Pal 2013.10.10 11:50 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1198 of 2013 (O&M) 11 parents are also entitled to receive family pension but it is only in those cases where the parents were wholly dependent upon the Government employee when he/she was alive provided the deceased employee had left behind neither widow nor a child and the parents whose total income from all sources was `2,620 per mensem.
In the instant case, appellants have failed to prove the aforesaid facts.
Moreover, in the instant case deceased has left behind his widow and his child and therefore, the appellants cannot be included in the list of family members of the deceased employee.
Faced with this situation, learned counsel for the appellants has vehemently argued that respondent No.4 being murderer of the deceased employee cannot inherit his estate.
The argument is liable to be rejected simply on the ground that no such charges have been proved against her and she has been honourably acquitted.
No other argument has been raised.
Thus, the substantial questions of law, as raised, do not arise at all in this appeal.
Dismissed.
(RAKESH KUMAR GARG) JUDGE October 5, 2013 rps Singh Rattan Pal 2013.10.10 11:50 I attest to the accuracy and integrity of this document Punjab & Haryana High Court