$~8 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : January 07, 2013. + W.P.(C) 3372/2011 DISHA VASHISHTHA & ANR. ..... Petitioners Represented by: Petitioners in person. versus NDMC & ORS. ..... Respondents Represented by: Ms.Kanika Agnihotri, Advocate for R-1. Mr.C.B.N.Babu, Advocate for R-2. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE VEENA BIRBAL PRADEEP NANDRAJOG, J.
(Oral) WP(C) No.3372/2011 1. Late Smt.Nirmala was an employee of the New Delhi Municipal Council (respondent No.1) and she unfortunately died in harness and was survived by her daughter (petitioner No.1), husband (petitioner No.2) and minor son (respondent No.2). Upon her death an issue arose as to who would be entitled to the dues payable and lying to the credit of the account of the deceased with the department as also pension. During her lifetime the deceased had nominated her minor son Jai Sharma (respondent No.2) as a nominee to receive gratuity and provident fund deducted every month from her salary as also other amounts lying in credit in different accounts maintained by the department.
2. We clarify at the outset that pension is a right which accrues to the family of a Government servant as per the CCS (Pension) Rules 1972, and as regards employees of NDMC we note that said Rules have been adopted. Thus, as regards payment of pension is concerned, the question of anybody being made a nominee would not arise.
3. NDMC took a decision that in view of the nomination, save and except pension, all other dues such as GPF, SLGIS, DCRG, leave encashment and last months salary payable should be released in the name of the minor son, respondent No.2, through his next friend Smt.Urmila, who we are told is the sister of the deceased. No decision was taken as regards pension. The order passed by the department is based on the reasoning that respondent No.2 was made the nominee by the deceased in the various nomination forms pertaining to the accounts in question.
4. The first writ petitioner Ms.Disha is the daughter of the deceased and the second writ petitioner is the husband of the deceased. They filed a writ petition in this Court challenging the decision dated December 14, 2006 taken by NDMC to release the dues above noted in favour of the minor son of the deceased through his guardian (maternal aunt) and as regards the pension directed the same to be invested in a fixed deposit till a final decision was taken.
5. The writ petition was transferred to the Central Administrative Tribunal when by virtue of a notification issued under the Central Administrative Tribunal Act 1985 requiring service related disputes between employees or their heirs and NDMC to be adjudicated before the Central Administrative Tribunal.
6. Vide impugned decision dated April 19, 2011 the Tribunal has upheld release of GPF, SLGIS, DCRG, leave encashment and last months salary to respondent No.2 on the reasoning that being the nominee he would be entitled to the same. We note that during pendency of the proceedings before the Tribunal, respondent No.2 attained the age of majority.
7. Respondent No.2 is currently in the final year of a degree course in Hotel Management and by the next year would be earning.
8. Respondent No.2 opposed the claim of his father and his sister to be paid a penny out of GPF, SLGIS, DCRG, leave encashment and last months salary not only on the strength of his being a nominee but additionally on the plea that a policy circular requires a husband to be disinherited if he was found living in adultery, a claim denied by the second petitioner, and we note that when the deceased died, the matrimonial bond between petitioner No.2 and the deceased was very much intact.
9. As per the petitioners, on a complaint filed by the wife of the brother of deceased named Nirmala for offences punishable under Section 498A/34 IPC, brother of Nirmala named Narender Kumar was convicted and due to which conviction his services were terminated by NDMC and at that point of time her parents and her sister Urmila, being left without any financial support compelled Nirmala to leave her matrimonial house and not the act of petitioner No.2 living in adultery. As per petitioner No.2, his wife took along with her their son (respondent No.2), as is usual in India and left the daughter (petitioner No.1) behind with the father.
10. Now, way back in the year 1984 in the decision reported as 1984 (1) SCC 42.Smt.Sarbati Devi & Anr. v. Smt.Usha Devi, the Supreme Court had clarified that a nomination would simply mean a right to receive an annuity from a third party and not ownership of the same, meaning thereby, that the nominee receives as an agent and is obliged to pay the money to the legal heirs.
11. It is unfortunate that the Tribunal as also NDMC have overlooked the legal position well settled.
12. Assuming for the sake of argument that petitioner No.2 was living in adultery and thereby would be deprived to receive any money from the employer of his wife, this would not affect the right of petitioner No.1. We highlight that the allegation of adultery continues to remain a mere allegation without any proof.
13. Suppose the allegation was to be proved? It would only mean that as per the policy of the government, petitioner No.2 would be disentitled to receive any due and this would mean that after he receives the dues as the nominee, respondent No.2 would have to pay half to his sister i.e. petitioner No.1 and retain half for himself.
14. Petitioner No.2 who appears in person along with petitioner No.1 states that he had no objection if the dues are directed to be paid half and half to his children.
15. This makes irrelevant the controversy pertaining to petitioner No.2 living in adultery.
16. As regards family pension, the applicable Rules indisputably entitled the same to be received by the husband of the deceased and needless to state petitioner No.2 would be obliged to maintain his children not only till the age they attained majority but till they started earning. We have noted above that when the deceased died the respondent No.2 was a minor. We have noted above that respondent No.2 would be employed the next year after he completes his Hotel Management Course in the current year.
17. To cut short the controversy, petitioner No.2 states that arrears of family pension along with interest which has accrued thereon be released half in the name of his son and monthly family pension payable henceforth till December 2013 may be disbursed half and half.
18. Suffice would it be to state that family pension would thereafter be the entitlement of petitioner No.2 alone.
19. We note that petitioner No.1 who appears in person states that she is not interested in receiving any pensionary dues.
20. We dispose of the writ petition setting aside the impugned judgment and order dated April 19, 2011 disposing of TA No.1375/2009 passed by the Central Administrative Tribunal and direct that all amount lying to the credit of the account in the name of the deceased in the GPF, SLGIS, DCRG, leave encashment and last months salary payable together with interest accrued thereon be released half in the name of petitioner No.1 and the remaining half in the name of respondent No.2. Arrears accumulated with interest thereon with respect to the family pension be released half in the name of petitioner No.2 and the remaining half in the name of respondent No.2. We further direct that monthly family pension payable till December 2013 would be released half in the name of petitioner No.2 and the remaining half in the name of respondent No.2 and thereafter the entire family pension would be released in the name of petitioner No.2.
21. Codal formalities if any required to be completed by the petitioners and respondent No.2 shall be completed by them, independent of each other and upon completion of the codal formalities by one, notwithstanding that any other has not completed the same, such dues as are payable to the one who completes the codal formalities would be released.
22. No costs. CM No.7047/2011 Since the writ petition stands disposed of, instant application seeking interim relief till disposal of the writ petition is disposed of as infructuous. (PRADEEP NANDRAJOG) JUDGE (VEENA BIRBAL) JUDGE JANUARY 07 2013//dk//