IMPORTANT POINT
The provisions are clear and lucid, it would not be possible for this Court to direct the respondent to pay additional amounts in exercise of powers under Article 226 of the Constitution of India. Before parting, it has to be noticed that the provisions work out some prejudice to a disabled child as she is entitled to only 75 % of the amount which a widow is entitled to. As and when the widow gets remarried, if the child is disabled, ideally the entire amount should have gone to the orphan and not 75% of the widow pension.

JUDGMENT :

Can the disabled daughter of a member who is covered under the Employees’ Pension Scheme, 1995 and whose wife has remarried after his death, claim orphan pension and children pension simultaneously? This is the question that is to be decided in this Writ Petition.

2. The facts which need to be stated to answer the above question can be sequentially stated in the following lines:-

The petitioner is the disabled daughter of Late Sri. B. Umasankar, a former employee of M/s. Premier Tyres Limited, Kalamasserry, an establishment covered under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (“Act 19 of 1952” for the sake of brevity). He died while in service on 7.3.2008. He was survived by his wife Seeja and the petitioner herein. The petitioner and her mother submitted an application seeking child/widow pension. By order dated 8.3.2008, Seeja was granted a sum of Rs.2,051/-towards widow pension and the petitioner was sanctioned a sum of Rs.513/-towards disability pension. On 27.10.2016 Seeja got remarried. Immediately thereafter, a request was made to the respondent to disburse orphan pension in terms of paragraph 16(4)(b) of the Employees' Pension Scheme, 1995 to the petitioner herein. Alleging inaction, the petitioner through her mother approached this Court seeking a direction to the 1st respondent to disburse children pension and also to grant her orphan pension from the date of re-marriage of her mother on 27.10.2016. The respondents refused her request and asserted that the fact that Seeja had got remarried was not disclosed to the organization. It was pointed out that the widow ceased to be eligible for pension with effect from her remarriage. A learned Single Judge of this Court by Exhibit P1 judgment ordered Seeja to refund the excess amount that she had drawn within a period of three months and the respondent was further ordered to disburse the family pension to the petitioner in accordance with law.

3. According to the petitioner, in terms of the order, the mother of the petitioner refunded a sum of Rs.48,000/-. It is urged in the writ petition that the petitioner is eligible for children pension as well as orphan pension. The orphan pension is 75% of the family pension which will come to Rs.1538.25/-and the children pension will come to Rs.527/-, thus totaling Rs.2051.25/-. What is being paid to the petitioner is only Rs.1538/-. Aggrieved by the above, the petitioner has approached this Court seeking the following prayers.

“1. To declare that the petitioner is entitled to receive orphan pension and child pension at the same time as per para 16(e) of the Employees’ Pension Scheme 1995.

2. To issue a writ of mandamus or any other appropriate writ or direction directing the 1st respondent to grant orphan pension and child pension together to the petitioner at the rate of Rs.1538.25/-and Rs.527/-, the total amount being Rs.2051.25/-.”

4. Sri.P.K.Ramkumar, the learned counsel appearing for the petitioner, submitted that the petitioner, being a mentally disabled person, suffering from mental retardation is entitled to receive orphan pension as well as children pension simultaneously. Much reliance is placed on para 16(3) (e) of the Pension Scheme and it is argued that a reading of para 16(3) (e) r/w. para 16(d) would make it clear that a disabled child will be eligible to receive orphan pension as well as children pension at the same time. The refusal of the respondent to pay the pension on both counts is illegal, contends the learned counsel.

5. Sri.Thomas Mathew Nellimoottil, the learned standing counsel appearing for the respondent, has refuted the submissions. He would point out that the petitioner had approached this Court earlier with the very same prayer but by Exhibit P1 judgment, this Court, taking note of the fact that her mother had remarried, had directed the mother to refund the amount which was received by her towards widow pension. He would refer to para 16 of the Scheme and it is argu