Back
2016 Supreme(Kar) 481
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
MOHAN M. SHANTANAGOUDAR, J. & K.N.PHANEENDRA, JJ.
Union of India Represented by the General Manager South Western Railway Kesavapura Hubli and Ors. – Petitioners
Versus
Smt. Nithya S.E. and Ors. – Respondents
WRIT PETITION NO.45392 of 2013 & 46991 of 2014 (SCAT)
Decided On : 22-02-2016
For the Petitioner: Sri N.S.Prasad
For the Respondent: Sri. C.C.Thomas, Sri. Vighneshwara S. Shastri
Headnote:LABOUR AND SERVICES – Appointment on compassionate grounds – Railway employees dying in harness, etc. – Railways Supplementary Circular No. 5 to Master Circular No. 16 – Appointments on compassionate grounds to second widow and her children are not to be considered unless administration has permitted second marriage, in special circumstances, taking into account personal law, etc.
LABOUR AND SERVICES – Family Pension – Entitlement of first and second wife – Railway Servants Conduct Rules, 1966 – Rule 21(1), Family Pension Schemes for railway Servants, 1964, Para 4 – The widow of the deceased employee would be entitled for family pension upto her death or re-marriage, whichever is earlier. In case of a son, he is entitled for family pension till he attains the age of twenty five years and in case of unmarried daughter, she is entitled for family pension till she attains the age of twenty five years or until she gets married, whichever is earlier. It is also clear from the Scheme that where the family pension payable to more widows than one, the family pension shall be paid to the widows in equal shares. This portion of the Scheme will have to be read with Rule 21(1) of the Railway Servants Conduct Rules. Paragraph 7 of the Family Pension Scheme for Railway Servants would mean that family pension may be paid to two wives, if and only if , the second marriage has taken place as per the personal laws governing the employee, who has married second time. In the matter on hand, undisputedly the employee had not taken permission of the Department to have the second marriage and so also his personal law does not permit him to marry second time. The survivors in the first marriage shall be considered for payment of family pension, if they are entitled for the same (having regard to their age) as per Rules. It is open for the survivors in the first marriage to apply for family pension and appointment on compassionate grounds as per law and if such application is made, it is open for Administration to consider the same as per Rules. The children of the first wife (if are found within the prescribed age limit for getting family pension as per Rules) shall be paid family pension. It is further made clear that the eligible children of the first wife and the second wife are entitled to family pension in equal proportion.
LABOUR AND SERVICES – Settlement dues – Railway employees dying in harness, etc., leaving more than one widow along with children born to second wife Railway Servants Conduct Rules, 1966 – Rule 21(1) – Family Pension Schemes for Railway Servants, 1964 – Para 7 and Supplementary Circular No. 5 to Master Circular No. 16 – Settlement dues may be shared by both widows due to Court orders or otherwise on merits of each case.
CONSTITUTION OF INDIA, 1950 – Article 226 – Jurisdiction under – Service – Second marriage – Whether second wife was cheated by employee or not is a pure question of fact and cannot be decided in writ proceedings or in service matters.
HINDU MARRIAGE ACT, 1955 – Sections 11 & 16 – Void marriage – Right of child born out of – Notwithstanding the fact that the marriage is null and void under Section 11, any child of such void 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 and whether or not the decree of nullity is granted in respect of that marriage etc. Thus, the two children born out of the second marriage shall have to be treated as legitimate children and they may also be entitled for family pension.
The order dated 30.10.2012 passed by the Central Administrative Tribunal (‘CAT’ for short), Bangalore in O.A.No.160/2012 is called in question in these writ petitions.
2. The parties will be addressed as arrayed in W.P.No.45392/2013. The records reveal that the first respondent herein is the second wife of the deceased S.N.Ethirajulu, who was working as Commercial Supervisor in Bangalore Division of South Western Railway. S.N.Ethirajulu expired while in service on 8.6.2010; S.N.Ethirajulu had married one Smt.Saraswathi and the said couple had four children; respondent No.2 herein is one of the children of S.N.Ethirajulu and Saraswathi; during the subsistence of first marriage with Saraswathi, S.N.Ethirajulu married the first respondent herein second time on 13.12.1999 in a temple; two children are born out of the wedlock of S.N.Ethirajulu and the first respondent herein; the first wife Saraswathi of S.N.Ethirajulu also expired on 13.11.2006; the official records maintained by the Railways do not contain the names of either respondent No.1 or two children born to her; on the other hand, the official records contain (P.F. nomination etc.) the names of Smt. Saraswathi and her four children; after the demise of S.N.Ethirajulu on 8.6.2010, respondent No.1 started claiming the pensionary benefits as well as the appointment on compassionate grounds. The prayer of the first respondent to grant the family pension and appointment on compassionate grounds have not been acceded to by the Department. Consequently, the first respondent approached the CAT in O.A.No.160/2012, which came to be allowed by the impugned order observing that the first respondent is entitled for the benefit sought for by her inasmuch as she would be the only wife after the demise of the first wife. The CAT has directed the Department to consider the prayer of the first respondent herein including appointment on compassionate grounds and the family pension.
3. W.P.No.45392/2013 is filed by the Department Railways whereas W.P.No.46991/2014 is filed by one of the sons of first wife namely, S.E.Rajashekar (who is respondent No.2 in W.P.No.45392/2013 and respondent No.4 before the CAT).
4. Following are the three reliefs sought for by the second wife Smt.Nitya S.E. (the private respondent in both the writ petitions):
“(a) Direct the respondents to release the half of settlement dues of late Sri. Ethirajulu to the applicant and half of the survivors in his first marriage.
(b) Direct the respondents to arrange Family Pension to this applicant-this widow.
(c) Direct the respondents to grant Compassionate Ground Appointment to late Sri. Ethirajulu’s widow-this applicant.”
5. The CAT has practically allowed all the three prayers of Smt.Nitya S.E. (the second wife of the deceased S.N.Ethirajulu).
6. Sri Prasad, learned Advocate appearing on behalf of the petitioners Railways in W.P.No.45392/2013 and Sri Vighneshwar S. Shastri, learned Advocate appearing on behalf of the petitioner in W.P.No.46991/2014 (son of the first wife Smt.Saraswathi) fairly submit that Smt.Nitya S.E. may be entitled for half of the settlement dues of Late S.N.Ethirajulu, inasmuch as the Rules of the Railways permit for grant of settlement dues in favour of the second wife also. Supplementary Circular No.5 to Master Circular No.16 vide Annexure-D filed along with W.P.No.45392/2013 discloses that in the case of Railway employees dying in harness, etc. leaving more than one widow along with children born to the second wife, while settlement dues may be shared by both the widows due to Court orders or otherwise on merits of each case. The very document further makes it clear that the appointments on the compassionate grounds to the second widow and her children are not to be considered unless the administration has permitted the second marriage, in special circumstances, taking into account the personal law, etc.
Thus from the aforementioned circular, it is amply clear that Smt. Nitya S.E. (second wife) is en
