Indrajit Mahanty, J.
1. The petitioner-Smt. Sudha Das, wife of Lata Kishore Chandra Das has filed this writ application on behalf of her minor children, namely, Mamata Das and Rooja Das, aged about 17 years and 10 years respectively.
2. The petitioner had approached the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1494 (C) of 2007 on behalf of her minor children praying for grant of pensionary benefits and Other statutory dues after the death of her husband who was working as a process Server (Class-IV employee) under opposite parties 1 and 2. The Tribunal disposed the aforesaid O.A. in the following directions:
We are not here to decide the status of a kept wife in so far as the payment of retiral dues of gratuity of a deceased Government servant is concerned. It is for the appropriate authority to take a decision in the matter. Therefore, a copy of the paper book be sent to Respondent-1 to take appropriate decision in the matter. He is at liberty to consult the pension sanctioning if he is not the pension sanctioning authority. The applicant is at liberty to approach the Collector personally for redressal of her grievance.
Disposed of with the above orders.
Copies of these orders be handed over to the counsel for the parties for onward transmission to the parties concerned.
3. Learned Counsel for the petitioners submitted that the petitioners-Smt. Sudha Das had married Late Kishore Chandra Das who was working as Process Server in the office of the Tahasildar, Rayagada. The petitioner asserts that her late husband had married two ladies, namely, Baidei Das and Sudha Das (present petitioner). It is averred that from the first wife (Baidei Das), five children were born and from the second wife (Sudha Das) four children were born. She further asserts that her children are entitled to a share of the husband's death-cum-retirement benefits and accordingly, she made a representation dated 12.7.1999 to the Tahsildar, Rayagada.
It appears that on receipt of the petitioner's representation, the Tahsildar, Rayagada (O.P. No. 2) directed the petitioner to submit Legal Heir Certificate for necessary action regarding grant of death-cum-retirement benefits vide letter dated 29.7.1999. Thereafter, the petitioner submitted necessary Legal heir Certificate (Annexure-1) before the concerned authorities. After a delay of 21/2 years, i.e., on 21.12.2001, the Tahasildar, Rayagada directed the petitioner to produce any documents relating to 'prior permission' from the competent authority for second marriage by Kishore Chandra Das. Thereafter, although the petitioner made various representations, the office of the Tahasildar did not respond to the request of the petitioner and thereafter, it appears that the family pension papers of Late Kishor Chandra Das were submitted to the Account General, Orissa (O.P. No. 3) by the Tahasildar, Rayagada on 25.9.2004 for release of payment and ultimately, the Tahasildar vide letter dated 3.5.2005 under Annexure-9, wrote to the Asst. Accounts Officer clarifying that Late Kishor Chandra Das had two wives, namely, Baidei Das and Sudha Das and from Baidei Das, the deceased had five children and from Sudha Das, the deceased had four children. Despite such recommendation from the Tahasildar, Rayagada, since no pensionary benefits were given to the petitioner's children, she made a representation to the Account General Orissa and thereafter, due to inaction, the petitioner approached the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1494 (C) of 2007 and the same came to be rejected vide order dated 2.8.2007 which is quoted hereinabove.
4. Learned Counsel for the petitioners, inter alia, asserted that the Tribunal ought to have allowed the prayer made before it by the petitioner since the Legal Heir Certificate under Annexure-1, clearly establishes the fact that the petitioner was the second wife of Late Kishore Chandra Das and that Mamata Das and Rooja Das (minor children of the petitioner) for and on whose behalf, the writ application has been filed, are the legitimate children of Late Kishore Chandra Das and are entitled a share of the death-cum-retirement benefits and the properties left by their father Kishore Chandra Das.
5. In this respect, learned Counsel for the petitioners placed reliance on a judgment of the Hon'ble Supreme Court in the case of Rameshwari Devi v. State of Bihar and Ors. : (2000)ILLJ1087SC , in which, it has been laid down that the children born out of a second marriage performed during the subsistence of the previous marriage are entitled to their legal share in the death benefits of the father even though the second marriage is otherwise void in law.
6. The Hon'ble Apex Court came to the aforesaid judgment placed reliance upon interpreting Section 16 of the Hindu Marriage Act, which is quoted hereunder:
16. Legitimacy of children of void and voidable marriage:
(1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child not withstanding the decree of nullity.
(3) Nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parent.
Learned counsel for the petitioners further placed reliance on the judgment of this Court in the case of Smt. Kanakalata Maharana v. Smt. Shantilata Maharana and Ors. 94 (2002) CLT 53 : 2002 (Supp.) OLR (NOC) 796, wherein, this Court took into consideration the judgments of the Hon'ble Supreme Court in the case of Rameshwari Devi (supra) and further took into account the Orissa Civil Service (Communication of Pension) Rules, 1992 and in particular, Rule-55 thereof, which deals with the family pension. Considering Rule-55 and Sub-rules (6)(c) and (12)(a), this Court came to hold that the children born through the second wife, were declared to be entitled to a share of the family pension but the exact share of the said children would have to be determined by the employer in accordance with the family pension rules. It is further declared therein that such children born from the second wife were also entitled to further benefits like gratuity, provident fund and unutilized leave salary in equal shares.
7. In view of the aforesaid discussion of the case laws, the order of the Tribunal dated 2.8.2007 is quashed and this writ application is allowed holding that the petitioner's minor children, namely, Mamata Das and Rooja Das are entitled to an equal share of the family pension of Late Kishore Chandra Das as his other dependent children and are also entitled to get other benefits of gratuity, provident fund and unutilized leave salary in equal share.
8. Accordingly, we hold that the children of Late Kishore Chandra Das, born through the first wife Baidei Das as well as the children born through Sudha Das, shall be entitled to get family pension, gratuity, provident fund etc. in equal share in accordance with the provisions of Family Pension Rules and this would be determined by the employer namely, Tahasildar, Rayagada within a period of three months from the date of receipt of this judgment. Till determination is made by the Tahasildar, Rayagada, the Accountant General, Orissa shall issue necessary direction not to release any benefit to any party and in the event, any benefit has already been released, the same shall be computed and adjusted from payments due to be made in terms of the directions contained hereinabove.
L. Mohapatra, J.
9. I agree.