Advocates:
['m/s r rajaram', 'M/S V J LATHA', '', 'R MEENAKSHI']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.04.2011

CORAM

THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.NO.29398 of 2008

Smt.Zubaida

.. Petitioner /Petitioner

Vs.

Assistant Provident Fund Commissioner (Pen.),

Employees Provident Fund Organisation,

Sub-Regional Office,

31,Filterbed Road,

Vellore.

.. Respondent /Respondent

This writ petition is preferred under Article 226 of the

Constitution of India praying for the issue of a writ of

certiorarified mandamus to call for the records from the respondent

Provident Fund Commissioner relating to the impugned communication

No.CHN/RO/Grievance/Vol.II/RPFC(F&A)/2006, dated 24.4.2006 and to

quash the same and to direct the respondent to pay the petitioner

family pension to her.

For Petitioner

: .Mr.R.Rajaram

For Respondent

: Ms.V.J.Latha

- - - -

ORDER

The petitioner has come forward to file the present writ

petition seeking to challenge an order of the respondent Assistant

Provident Fund Commissioner, Vellore, dated 24.4.2006. By the

impugned order, the petitioner was informed that she was not

entitled for widow pension under the Employees' Pension Scheme,

1995.

2.In the writ petition, notice was directed to be issued.

Accordingly, Ms.V.J.Latha, learned counsel appeared for the

respondent. But, no counter affidavit was filed. The contention of

the petitioner was that her husband late Allah Basha was the member

of the Family Pension Scheme, 1995. After his retirement, he was

getting pension under the said scheme. He married the petitioner on

26.08.2001 after he got retired from service. She and her husband

were living together happily. He was also drawing monthly pension.

But, unfortunately he died. Hence she had applied for widow pension

with the assistance of the Union. By the first communication, dated

5.1.2006, the respondent had informed the union that as per para 16

https://hcservices.ecourts.gov.in/hcservices/

(2)(iii) of the 1995 Pension Scheme, it is payable to the widow of

the deceased member and not that of the deceased pensioner. As per

para 2(vii) of 1995n Pension Scheme, the term "family" means wife

in the case of male member of the scheme and that the petitioner

was not the wife of the deceased member at the time of sanction of

pension.

3.The Union to which the petitioner's husband was the

member sent a further representation stating that the petitioner's

husband was a regular member of the scheme and was eligible to be

covered by the 1995 Pension Scheme. Even though membership ceased

after the employment came to an end and was getting monthly

pension, but after his death as a pensioner, his wife is entitled

to get widow pension. The petitioner was lawfully married to her

husband. As per the scheme, she is eligible to get widow pension.

When the petitioner sent a letter for reconsideration, the

respondent had passed the impugned order, dated 24.4.2006 stating

that she is not entitled for widow pension. Challenging the same,

the present writ petition came to be filed.

4.The only question that arises for consideration is

whether the impugned order nonsuiting the petitioner on the ground

that she was the widow of the deceased pensioner and not a widow of

the deceased member of the Pension Scheme is legally correct?

5.The stand taken by the respondent is hypertechnical. If

it is accepted, then it will exclude the actual widow from getting

family pension. The term "family" is defined under para 2(g) of the

Employees Provident Funds Scheme, 1952, which reads as follows:

(g)"family" means-

[(i)in the case of a male member, his wife,

his children, whether married or unmarried, his

dependent parents and his deceased son's widow and

children:]

Provided that if a member proves that his wife

has ceased, under the personal law governing him or

the customary law of the community to which the

spouses belong, to be entitled to maintenance she

shall no longer be deemed t