Madras High Court
Case BriefsHigh Courts

Madras High Court: B Pugalendhi J. allowed the family pension to be given to the daughter ‘petitioner’ arising out of the employment of her deceased mother. The family pension was rejected by The Senior Accounts Officer, Officer of the Principal Accountant General as she was already in receipt of Freedom Fighters’ Pension, thus making the total income above the eligible ceiling for granting family pension. The Court however held that freedom fighter pension is not considered as an income and hence not to be calculated for total income to deny family pension.

The petitioner is the unmarried daughter of a freedom fighter, namely, S. T. Sivasamy who was getting a freedom fighter’s pension. Her mother was a government servant and a pensioner too. After the death of the petitioner’s mother, father, was drawing the family pension arising out of the deceased mother’s employment. The petitioner started getting freedom fighter’s pension, after the death of the petitioner’s father and at present she is getting a sum of Rs.13,390/- as pension. She has also been sanctioned with family pension arising out of her mother’s employment and it was subsequently cancelled for the following three reasons:

i. The Government Letter No.43105/Pen/2013 dated 02-12-2013, clarifies that all incomes are to be considered as income for fixation of the ceiling limit of Rs.7,850/-.

ii. The petitioner is drawing pension, which is exceeding the income limit fixed vide the G.O.Ms.No.327 Finance Department dated 30-08-2001 and G.O.Ms.No.337 Finance Department dated 14-11-2017.

iii. G.O.Ms.No.290 Public (Ex-Servicemen) Department dated 05-04-2017 does not permit granting of dual pension.

The Court in light of the first two grounds of cancellation relied on judgments K Arumugam v. The Secretary to Government in 2006 SCC OnLine Mad 297 and Vellithyammal v. The Secretary to Government in WP (MD) No. 1457 of 2008, decided on 27-04-2009 to observe that the main objective of Freedom Fighters Pension Scheme (Swatantrata Sainik Samman Yojana) is to honour the services and the sacrifices rendered by the freedom fighters for the nation in the freedom struggle and also in recognition of the services and sacrifices and it is not a charity.

Therefore, the Court noted that the pension received by the petitioner in respect of the freedom fighters’ pension cannot be brought under the meaning of income, as it has been held to be in honour for and in recognition of the services and the sacrifices of the freedom fighters. As such the pension received by the petitioner arising out of the Freedom Fighters Pension, cannot be taken as an income for grant of family pension.

Thus, the first and second reason for denying the family pension to the petitioner cannot be sustained in the eyes of law.

In regard to the third reason regarding not permitting the grant of dual pension as per G.O.Ms.No.290 Public (Ex-Servicemen) Department dated 05-04-2017 is concerned, there is no such denial of grant of dual pension to the pensioner on perusal of the said government order. The Court however noted that, vide this government order, the government ordered for sanction of dual family pension to those families of Ex-Servicemen, who have been re-employed in civil (i.e.) State Government Service and earned a pension out of the re-employment prior to 01-04-2003 (i.e) before the introduction of Contributory Pension Scheme, in addition to Military Family Pension already drawn by them.

Thus, the Court is of the view that citing this government order can have no relevance to deny the family pension arising out the employment of the petitioner’s mother.

The Court directed the respondents to grant family pension to the petitioner arising out of the state government civil service of the petitioner’s deceased mother in addition to the freedom fighters’ pension within a period of eight weeks from the date of receipt of the order.

[S. Jeevalakshmi v. The Principal Accountant General, 2022 SCC OnLine Mad 3810, decided on 14-07-2022]


Advocates who appeared in this case :

Mr. Mohmmed Imran, for M/s. Ajmal Associates, Advocate,for the Petitioner;

Mr. P Gunasekaran, Advocate, for the Respondents 1 and 2;

Mr. S. Saji Bino, Advocate, for the Respondent 3.


*Arunima Bose, Editorial Assistant has reported this brief.

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (Lucknow Bench): The Division Bench of Justice Umesh Chandra Srivastava, Member (J) and Vice Admiral Abhay Raghunath Karve, Member (A) held that a defence person cannot be permitted to change the name of his wife twice in service records.

“Name of wife of the applicant has already been changed from Malhouthi Devi to Samalti Singh on the basis of affidavit given by the applicant in the year 1973. If there was any clerical mistake, the applicant should have reported the matter to concerned officer within few days.”

The applicant was enrolled in the Army on 13-11-1963. On being discharged from service on 21-11-1980, he had been granted service pension from vide PPO dated 02-03-1981. Later on, he joined the Directorate General of Quality Assurance (DGQA) and got retired on 31-01-2005. Therefore, he was getting a 2nd pension vide PPO dated 18-02-2005.

The grievance of the applicant was that he had represented his case for change of name and date of birth of his wife in his army service documents which was denied by the respondents-Union of India. The Government noted that there was a mismatch in the date of birth and name of the applicant’s wife mentioned in the service records and appendix containing change and suggested the applicant to forward a few documents for change of name and date of birth.

Ultimately, the Government rejected the request to introduce afore-mentioned change on the following grounds:

  • “Policy allows only change in surname/maidan name.

  • Applicant had already changed the name from Malhouthi Devi to Samalti Singh.

  • No provision to change of name of wife except surname or maiden name and date of birth except typographical/clerical errors and in applicant’s case no such error is found.”

The Government contended that the applicant had already changed his wife’s name from Malhouthi Devi to Samalti Singh during the year 1973 and policy does not allow change of name second time. Similarly, owing to the difference of more than four (4) years in the date of birth as recorded in service and the proposed date of birth the government denied accepting any changes in the date of birth as well.

The Tribunal noted that earlier the applicant had applied for change of name of his wife in the year 1973, which was changed but at that time he had chosen to remain silent regarding the change of date of birth. Similarly, in the year 2001, he again gave another affidavit requesting to change the name of his wife but nothing was mentioned regarding change of date of birth. It was in the year 2019 after about 56 years from the date of entry in army service documents, the applicant applied for change of date of birth. Thus, the Tribunal held that the applicant’s attempt to change the date of birth of his wife at a belated stage was not justified. The Tribunal stated,

“If the date of birth of the wife of applicant was recorded wrong, then applicant should have consulted the competent authority within few months for correction of date of birth of his wife.”

With regard to change in name of the applicant’s wife, the Tribunal observed the following:

  • First affidavit was given while applicant was serving in the army in the year 1973 for change of name of his wife from Malhouthi Devi to Samalti Singh in army service documents.

  • Second affidavit was given by the applicant in the year 2001 while he was serving in DGQA Kanpur for change of name of his wife from Samanti Singh to Shyam Lata Singh in DGQA service documents.

  • Third affidavit was given by the applicant in the year 2019 for change of name and date of birth of his wife in PPO of army service.

Therefore, the Tribunal opined that it is doubtful for someone to give affidavit three times for change of name of spouse. Further, as per policy on the subject, name of spouse can be changed only one time. Hence, observing that the name of the applicant’s wife had already been changed from Malhouthi Devi to Samalti Singh in the year 1973 the Tribunal held that if there was any clerical mistake, as alleged by the applicant, he should have reported the matter to the officer concerned within few days.

In view of the above, the instant application was dismissed.

[Ram Naresh Singh v. Union of India, 2022 SCC OnLine AFT 835, decided on 27-01-2022]


Advocates who appeared in this case :

Shailendra Kumar Singh and Ravi Kumar Yadav, Advocates, for the Applicant;

Namit Sharma, Central Government Counsel, for the Union of India.


*Kamini Sharma, Editorial Assistant has reported the brief.

High Court Round UpLegal RoundUp

112 significant Reports from 22 High Courts


 

Allahabad High Court


 Right to Reputation


People using cyberspace to vent out anger and frustration by travestying key-figures holding highest office in country, is abhorrent and violates right to reputation

Sanjay Kumar Singh, J., expressed that,

“The internet and social media has become an important tool through which individuals can exercise their right to freedom of expression but the right to freedom of expression comes with its own set of special responsibilities and duties.”

Read full report here…

Corruption


Corruption is a termite in every system; a root cause of all problems but has to be put to account

While expressing that medical and legal fields are more a service than a profession especially the stream of oncology which deals with life and death, Krishan Pahal, J., held that “Corruption is a termite in every system.”

Read full report here…


Andhra Pradesh High Court


Bail


”…being an educated man and Software Engineer, he is not justified in making such irresponsible comments against the Judiciary and the High Court”, Bail denied

Cheekathi Manavendranath Roy J. dismissed the criminal petition and granted bail to the accused advocates and denied bail to accused software engineer.

Read full report here…

Reckless Driving


In the case of reckless driving, injured party will have to always prove that either side was negligent?

The Division Bench of Dr Kaushal Jayendra Thaker and Ajai Tyagi, JJ., while addressing a case of negligent driving, expressed that,

“…if the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable.”

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Evidence


Prosecution must stand on its own legs basing its findings on the evidence that has been led by it

Siddhartha Varma, J., held that it is the bounden duty of the enquiry officer to have seen whether the charges were proved on the basis of the evidence which was led by it.

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Bombay High Court


Nomination of a Councillor


Can a nominated Councillor be appointed as Leader of the House under Maharashtra Municipal Corporation Act, 1949? 

“The term ‘elected Councillor’ in Section 19-1A would necessarily have to be read as an exclusion and bar to any other Councillor i.e ‘nominated Councillor’ to become the Leader of the House.”

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Negligence


When a person suffers injury without any negligence on his part, but result of combined effect of negligence of two other persons: Is it a case of composite or contributory negligence?

Expressing that, Negligence does not always mean absolute carelessness, but want of such a degree of care as required in particular circumstances, Vinay Joshi, J., held that no absolute standard can be fixed as to what constitutes negligence differs from case to case.

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License


To operate in State of Maharashtra, Uber and other unlicensed aggregators to apply for license before 16th March 2022

The Division Bench of Dipankar Datta, CJ and Vinay Joshi, J., directed UBER and other transport aggregators who have not obtained a license as per Section 93(1) of the Motor Vehicles Act to apply for the license before 16th March 2022 otherwise they shall not be able to operate in the State of Maharashtra.

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State Quota


If an aspirant has not completed her 10th and 12th standard from State of Maharashtra, can she still be covered under State Quota of Maharashtra for M.B.B.S?

The Division Bench of S.V. Gangapurwala and S.G. Dige, JJ., addressed a matter wherein an aspirant of M.B.B.S Course approached the Court praying that the petitioner be considered in State Quota from NRI Quota.

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IBC


Can Additional Sessions Judge or Sessions Judge try offences under Insolvency and Bankruptcy Code, 2016?

Sandeep K. Shinde, J., held that Special Court which is to try offences under the Insolvency and Bankruptcy Code, 2016 is the Special Court established under Section 436(2) (b) of the Companies Act, 2013 which consisted of Metropolitan Magistrate or Judicial Magistrate First Class.

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Parent’s Property


When parents are alive, can a son claim his share in the property of his parents?

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., held that Asif i.e. son has no rights in his father’s flats.

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Film ‘83’


No stay on OTT Release of film ‘83’: Bom HC | Netflix and Star India already have antecedent rights, both digital and satellite for 10 years

While refusing to restrain Star India and Netflix from streaming the film ‘83’ on their respective broadcasting portals, R.I. Chagla, J., observed that, prospective owner of copyright in a future work may also assign to any person the copyright in the future work.

Read full report here…

Child in Conflict


When a Child in Conflict with Law is to be tried as an adult, an assessment under S. 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is required to be done?

M.G. Sewlikar, J., held that, in terms of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015, Juvenile Justice Board has to make assessment into heinous offences to determine whether CCL is to be tried as an adult.

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Currency Notes


Can Currency Notes in police custody pre-demonetisation, be replaced with current valid tender?

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., addressed a matter concerning currency notes pre-demonetisation and their replacement with current valid tender.

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Karta


Daughters and widow of a deceased would inherit properties of deceased as tenants in common or joint tenants?

Mangesh S. Patil, J., expressed that, by virtue of Section 19 it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

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Calcutta High Court


Rape


Penetration even of the slightest degree is necessary to establish the offence of rape; Court modifies order after 8 years of imprisonment

“It is settled law penetration even of the slightest degree is necessary to establish the offence of rape.”

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Tax


No intention of any evasion of tax; Court directs refund of penalty and tax paid on protest

Md. Nizamuddin, J. decided on a petition which was filed challenging the impugned order of the appellate commissioner confirming the original order passed by the adjudicating authority under section 129 of the West Bengal Goods and Services Act, 2017 for detention of the goods in question on the grounds that the e-way bill relating to the consignment in question had expired one day before, i.e. in the midnight of September 8, 2019, and that the goods was detained in the morning of September 9, 2019 on the grounds that the e-way bill has expired which is even less than one day and extension could not be made and petitioner submits that delay of few hours even less than a day of expiry of the validity of the tenure of the e-way bill was not deliberate and willful and was due to break down of the vehicle in question and there was no intention of any evasion of tax on the part of the petitioner.

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Repealed Acts


Whether the orders passed under a repealed Act be executed? Court discusses

Rajasekhar Mantha, J. disposed of a petition observing that the Supreme Court is the only authority to clarify  whether the orders passed under a repealed Act can be executed or not

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Breach of Contract


Parties to agreement of sale consciously changing their relationship cannot seek relief on the basis of previously established relationship

The Division Bench of Soumen Sen and  Ajoy Kumar Mukherjee, JJ., dismissed an appeal concerned with a breach of contract. The appeal arose out of a judgment in a suit for recovery of possession and injunction. Trial Court had decreed the suit on contest and dismissed the counter claim filed by the defendant.

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Detention Order


Detention order quashed due to lack of opportunity of hearing in the matter of S. 129 of the West Bengal Goods and Service Tax Act, 2017

Md. Nizamuddin, J. disposed of a petition which was filed challenging the impugned order passed by the Deputy Commissioner of Revenue on the ground that the said impugned order was bad in law for the reasons that the petitioners being the owner of the goods in question, which had been detained without giving any opportunity of hearing to the petitioners under the relevant provision of Section 129 of the West Bengal Goods and Service Tax Act, 2017.

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GST Act


The interest of revenue has been safeguarded; Order of detention against the State upheld in matter of GST Act

The Division Bench of T. S. Sivagnanam and Hiranmay Bhattacharyya, JJ., dismissed an appeal and connected application which was filed by the State against the order of detention passed by the authority detaining two trucks containing consignment of steel and other products in WPA 17611 of 2021 dated: 07-12-2021 wherein petitioner was the wife of late Mohit Madhogoria, who was a registered dealer under the provisions of the W.B.V.A.T. Act presently under the GST Act.

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Chhattisgarh High Court


Compassionate Appointment


Illegitimate child’s right to be considered for Compassionate appointment

Sanjay K. Agarwal, J., held that an illegitimate son would be entitled to consideration on compassionate ground and cannot be denied consideration on the ground that he is the illegitimate son of the deceased Government servant.

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Rape


In view of changed definition of rape under S. 375 (b) of  IPC pari materia to S. 3(b) of POCSO Act, whether sexual intercourse is necessary to attract ingredients of offence of rape or penetrative sexual assault?

Addressing a case wherein a minor girl was subjected to sexual, Deepak Kumar Tiwari, J., held that,

In view of the changed definition of rape under Section 375 (b) of the IPC pari materia to Section 3(b) of the POCSO Act, sexual intercourse is not necessary to attract the ingredients of offence of rape or penetrative sexual assault.

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Delhi High Court


Dishonour of Cheque


To prove that cheque amount was larger than debt due, can defence of Issuer be looked at stage of issuing summons?

While addressing a matter revolving around Section 138 of the Negotiable Instruments Act, 1881, Subramonium Prasad, J., held that Courts should primarily proceed on the averments in the complaint, and the defence of the accused cannot be looked at the stage of issuing summons unless it can be shown on admitted documents which the Supreme Court described as “unimpeachable in nature and sterling in quality” to substantiate that there was no debt due and payable by the person who has issued the cheque or that the cheque amount is large than the debt due.

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If a cheque is not honoured by issuer and even after a legal notice he doesn’t pay, he is bound to face criminal trial

Rajnish Bhatnagar, J., dismissed a matter revolving around the dishonour of cheque under Section 138 of the Negotiable Instruments Act.

Read full report here…

Yes Bank Loan Fraud


Public money under garb of Term loan siphoned off, resulting in generation of ‘proceeds of crime’ as well as its layering and ultimate projection as untainted money: Del HC while denying bail to Gautam Thapar

While addressing a matter wherein bail of Gautam Thapar accused in Yes Bank Loan Fraud case, was sought, Manoj Kumar Ohri, J., expressed that it is well settled that, economic offences constitute a class apart and need to be visited with a different approach, given their severity and magnitude. Albeit these offences are likely to adversely impact the economic fabric of the country, bail shall not be denied to a person accused of an economic offence in a routine manner.

Read full report here…

Jurisdiction


Can partners in dispute of an LLP or any other business entity carrying out business in different parts of country, file suit in any place where business is carried out?

Amit Bansal, J., expressed that an LLP or any other business entity can carry out business in different parts of the country, but that would not mean that a suit with regard to disputes between the partners, could be filed in any place where the business of the firm/LLP is carried out.

Read full report here…

Ownership of YouTube Channel


Who ‘owns’ a YouTube channel?: Del HC passes interim directions in dispute over channel ‘Shabad Kirtan Gurbani – Divine Amrit Bani’

Asha Menon, J., considered a very interesting case where the dispute between the parties is regarding the ownership of a YouTube channel. The Court has found a prima facie case in favour of the plaintiff and issued certain directions.

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Bail


On pretext of removing evil spirit from body of a woman who was bipolar in nature, a man lured woman and committed sexual intercourse, but ADJ granted bail: Will HC cancel his bail? Del HC analyses

Mukta Gupta, J., cancelled the bail of an accused who lured a female on the pretext of removing an evil spirit from her body and further committing sexual intercourse with her.

Read full report here…

Theft


Daughter-in-law thrown out of matrimonial home and accused of removal of letters from possession of matrimonial home: Whether Del HC will find her guilty under S. 380 IPC or not?

Chandra Dhari Singh, J., noted that instant dispute has arisen out of matrimonial discord between two people which had also, led to the filing of more than 50 criminal and civil cases between not only the husband and the wife but also their family members. It was found that for the sole purpose of harassing the other party such cases were filed by persons with no just cause or reason and substantial ground for allegations.

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Right of Residence


Right of residence under DV Act is exclusive to and isolated from any right that may arise under S. 9 of Hindu Marriage Act, 1955

“The existence of the strained relationship between the Petitioner and the Respondent has been well established by the fact that there are more than about 60 criminal and civil cases pending between the parties.”

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Desertion and Cruelty


Wife leaves matrimonial home and never returns after several requests and legal notice under S. 9 of HMA, alleges husband of several cruelties without any evidence: Would it amount to desertion and cruelty by wife?

Noting the separation of 12 years between the husband and wife, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., found that the wife had subjected the husband to desertion and cruelty, hence decree of divorce be granted.

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Accusation of extra-marital relationship is a grave assault on character, status, reputation as well as health of spouse against whom such allegations are made: Would this come under ambit of cruelty?

While addressing a matter surrounding the issue of cruelty by wife, the Division Bench of Vipin Sanghi, ACJ and Dinesh Kumar Sharma, J., expressed that,

“It has repeatedly been held that accusations of unchastity or extra marital relationship is a grave assault on character, status, reputation as well as health of the spouse against whom such allegations were made.”

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Arbitration and Conciliation Act


Del HC dismisses appeal filed by Indiabulls Housing Finance in Zee Entertainment – Sony Pictures Scheme of Arrangement

Suresh Kumar Kait, J., addressed an appeal under Section 37(2)(b) of the Arbitration and Conciliation Act, 1996 against the interim order passed by Arbitrator was preferred.

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Mere use of the word ‘Arbitration’ in the heading of an Agreement would mean existence of an arbitration agreement?

Mukta Gupta, J., decided that mere use of word ‘Arbitration’ in the heading of an Agreement would not mean the existence of an arbitration agreement.

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Religious Structure


State obligated to remove unauthorized constructions from public land, but if it is a religious structure, can State still be obligated to do so?

Expressing that, the mere fact that certain encroachments represent religious structure cannot possibly detract State from its obligation, Yashwant Varma, J., held that, State remains duty-bound to remove all unauthorized constructions which may exist on public land.

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Extraordinary Writ Jurisdiction


Extraordinary writ jurisdiction is to be exercised only in rare cases or certain contingencies in the interest of justice, including exceptional cases

Chandra Dhari Singh, J., expressed that it is settled law that the power to issue writ has its own well-defined limitations imposed by the High Courts, one of which was the availability of alternative efficacious remedy.

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Power to Transfer Cases


Can Chairman of CAT on his own motion, without any notice, transfer any case pending before one Bench for disposal to another Bench?

The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., held that the Chairman of Central Administrative Tribunal has been conferred the power to transfer a matter from one Bench to another, on his own motion, without any application from any party.

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Right to Speedy Trial


Incarcerated for 8 years for an offence punishable with minimum 10 years imprisonment: Violation of Right to Personal Liberty and Right to Speedy Trial

Subramonium Prasad, J., remarked that,

“…achievement of universal equality before the law requires the tenets of personal liberty to be applicable to all similarly circumstanced individuals and must not be restricted unless according to procedure established by law.”

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Arms License


If you are found in possession of live ammunition along with a valid arms licence, can an offence under S. 25 of Arms Act still be registered against you?

Deciding a matter of whether an NRI person in possession of two live ammunitions with a valid license can be registered under Section 25 of Arms Act or not, Asha Menon, J., held that, prima facie no malafide intent was found and the licence found was a valid arms licence.

Read full report here…

Right of Putative Father


Right of Putative Father to visit minor child upheld: Del HC

Upholding the rights of the putative fatherV. Kameswar Rao, J., expressed that while determining and granting such rights, more so when the child is of less than 3 years of age, surely his well-being/welfare is of paramount importance

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Issuance of Notice


Section 292BB of Income Tax Act deals with failure of service of notice or failure to issue notice?

The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., addressed a matter wherein the decision of Income Tax Appellate Tribunal for the Assessment Year 2011-12 was challenged.

Read full report here…

RTI Act


Employees of a security establishment cannot be deprived of their fundamental and legal rights just because they work in an intelligence and security establishment

Expressing that, RTI Act is a tool that facilitates the employees and officers in airing their grievances systematicallythe Division Bench of Manmohan and Sudhir Kumar Jain, JJ., remarked that,

“…both service and RTI laws ‘act like a safety valve in the society’.”

Read full report here…

Maternity Leave


Can maternity leave benefits extend beyond the period when contractual period of an ad hoc employee comes to an end?

In a claim of maternity benefit by a contractual employee, the Division Bench of Rajiv Shakdher and Talwant Singh, JJ., expressed that, The Maternity Benefit Act, 1961 Act is a social legislation that should be worked in a manner that progresses not only the best interest of the women-employee but also of the child, both at the pre-natal and post-natal stage.

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Unmarried Daughters


Can unmarried daughters claim expenses of marriage from their parents under the Hindu Adoptions and Maintenance Act, 1956?

While stating that, in Indian society, normally expenses are required to be incurred for pre-marriage and also at the time of marriagethe Division Bench of Goutam Bhaduri and Sanjay S. Agrawal, JJ., held that unmarried daughters have a right to claim expenses of marriage from their parents under the Hindu Adoptions & Maintenance Act, 1956.

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SC Collegium December Meeting


 

Newspaper reports are of no evidentiary value and Courts would be transgressing their well settled limitation if cognizance were to be taken of such unsubstantiated and unverified reports

In a matter wherein, details were sought with regard to Supreme Court Collegium meeting held on 12-12-2018, Yashwant Varma, J., expressed that, newspaper reports are of no evidentiary value and Courts would be clearly transgressing their well-settled limitation if cognizance were to be taken of such unsubstantiated and unverified reports.

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Gujarat High Court


Reasoning in Judgment


Providing reasoning is to give it a value of precedent which can help in reduction of frivolous litigation; Court emphasises on recording reasons in judgments

“It is trite that in a delay application, sufficient cause is the paramount consideration and if sufficient cause is shown, the Court should generally condone the delay. However, if the sufficient cause is imbibed with the laxity on the part of the delayer despite due knowledge, then Court should restrain itself from encouraging such practice and condone the delay.”

Read full report here…

GSTR-6 Return


Court allows writ furnishing the GSTR – 6 return for recording and distributing the ISD credit

“Credit was a tax paid by the registered person on input transactions and such tax already paid to the credit of the Central Government was a vested right of the person. Such vested right cannot be defeated on account of any irregularity in the system evolved by the Government.”

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NDPS


No Conscious possession; Court upholds acquittal under NDPS Act

The Division Bench of S.H. Vora and Sandeep N. Bhatt, JJ., dismissed an application for special leave to appeal which was filed feeling aggrieved and dissatisfied with the judgment and order in NDPS Case whereby the trial Court acquitted the respondent 2 herein-original accused 2 of the offences punishable under Sections 8(c), 20(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

Read full report here…

Detention Order


Simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order; Detention order quashed

Rajendra M. Sareen, J. allowed a petition which was directed against the detention order passed by respondent–detaining authority in exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (“the Act”) by detaining the petitioner-detenue as defined under section 2(b) of the Act.

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Gauhati High Court


Sexual offences against minor cannot be compromised by parents; HC rejects application to enforce compromise

Arun Dev Choudhury, J., held that sexual offences against minor cannot be compromised by parents.

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Himachal Pradesh High Court


Rape


Minor girl students raped and subjected to penetrative sexual assault by their teacher: Sanctity of Teacher-Student relationship polluted

Polluting the sanctity of the relationship of the teacher and students, a teacher committed rape and penetrative sexual assault with minor students, the Division Bench of Sabina and Satyen Vaidya, JJ., noting the harrowing incidents expressed that the said is a sad reflection of the present-day society where a most platonic relationship was exploited.

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Jharkhand High Court


Execution of a Will


Testamentary disposition of property is deviation from natural line of inheritance in lesser or greater degree: Can it result in complete disposition in favour of one heir or exclusion of any other heir?

Expressing that the due execution of a Will is to be proved as per the provisions of law as laid down in Evidence Act as well as that if Indian Succession Act,  Gautam Kumar Choudhary, J., remarked that, a probate court being a Court of conscience, the intention of the testator is paramount and it is the bounden duty of the Court to ascertain the real WILL of the testator if any.

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Karnataka High Court


Domestic Violence Act


Whether the maintenance awarded under the Domestic Violence Act can be sought to be enhanced under the CrPC?

“The language employed in Section 127 of the Cr.P.C. is unequivocal as on a proof of change in the circumstances of any person receiving allowance under Section 125 of Cr.P.C. can maintain a petition under Section 127 of the Cr.P.C.”

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Criminal Proceedings


SC-ST Act is prospective or retrospective? Kar HC quashes criminal proceedings for offences committed in the year 1975

Krishna S Dixit J. quashes the criminal proceedings as the SC-ST act is not retrospective in nature.

Read full report here…

Hijab Ban


16 pointer report on why wearing of Hijab is not a part of essential religious practice in Islam

“Dismayed as to how all of a sudden that too in the middle of an academic term the issue of hijab is generated and blown out of proportion, Court remarked that some ‘unseen hands’ are at work to engineer social unrest and disharmony in the way ‘hijab imbroglio’ unfolded.”

Read full report here…

The uniform can exclude any other apparel like bhagwa or blue shawl that may have the visible religious overtones

“The Holy Quran does not mandate wearing of hijab or headgear for Muslim women rather it was traditionally worn as a measure of social security” 

Read full report here…

POCSO


Whether victim under POCSO Act can be permitted to be cross-examined once she turns hostile?

M Nagaprasanna J. allowed the petition and quashed the impugned order and remitted the matter back to Sessions Judge for cross-examination

Read full report here…

Marital Rape


“Wanton lust, vicious appetite, depravity of senses, loathsome beast of passion, unbridled unleashing of carnal desire of demonish perversion” Kar HC discusses protection provided to husband by the institution of marriage

A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”

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Kerala High Court


Cruelty


At odd hours, if wife continues making discreet phone calls with another man even after a warning by husband, would it constitute matrimonial cruelty?

The Division Bench of A. Muhamed Mustaque and Dr Justice Kauser Edappagath, JJ., held that, despite a warning by the husband, if the wife continues to make discreet calls with another man that too at odd hours, it would amount to matrimonial cruelty.

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Medical Negligence


Do District and State Consumer Disputes Redressal Commissions do not have jurisdiction to take cognizance of medical negligence complaints?

Nagaresh, J., decided whether medical service would fall within the ambit of Section 2(42) of the Consumer Protection Act, 2019 unless of course the service is free of charge or is under a contract of personal service.

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Breach


Compensation payable under Ss. 73, 74 and 75 are only for loss or damage caused by breach or inclusive of mere act of breach as well?

The Division Bench of P.B. Suresh Kumar and C.S. Sudha, JJ., expressed that,

“…compensation payable under Sections 73, 74 as also under Section 75 is only for loss or damage caused by the breach and not account of the mere act of breach. If in any case the breach has not resulted in or caused any loss or damage to a party, person concerned cannot claim compensation.”

The words ‘loss or damage’ in the Sections 73 and 74 would necessarily indicate that the party who complains of breach must have really suffered some loss or damage apart from being faced with the mere act of breach of contract. That is because every breach of every contract need not necessarily result in actual loss or damage.

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Internal Complaints Committee


In the film industry, would production units have to constitute Internal Complaints Committee to deal with harassment against women?

While expressing that, any organisations, establishments, private institutions are employing workers whether for wages or not in contemplation of the provisions of the Act, 2013 coming under the definition of employer, employee and workplace, they are duty bound to constitute an Internal Complaints Committee,  the Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., held that, a production unit of each film industry is an establishment employing Actor Artists and other workers and therefore, such production units have to maintain an Internal Complaints Committee if they are engaging more than 10 workers

Read full report here…

Moral Policing


Man taking a lady from another community in his car, attacked by violent mob: Act of mob moral policing?

Calling it to be ‘moral policing’ K. Haripal, J., addressed a matter wherein a man had taken a lady from another community in his car due to which a mob attacked him with deadly weapons.

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Pre-arrest Bail


Trespassed in house, committed rape, misappropriated money, threatened: Kerala HC denied pre-arrest bail in view of such allegations

Shircy V. J., dismissed a bail application wherein a man committed rape with a woman and misappropriated her money after putting her under threat.

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Strikes


Bar on Government servants to engage in strikes?

While expressing that, it is the duty of the welfare Government to protect not only the citizens, but to continue with, all the Government work as expected, the Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., directed that Government servants should be prevented from engaging in a strike.

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Madras High Court


Central Information Commission


High Court cannot act as a post office to collect and exchange information

While stating that Central Information Commission has only made recommendations, which cannot by any stretch of imagination be taken as a statute so as to give effect, the Division Bench of Munishwar Nath Bhandari, CJ and D. Bharatha Chakravarthy, J., dismissed the petition.

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Promotion


Can an employee claim promotion as a matter of right?

S.M. Subramaniam, J., expressed that employees cannot seek any direction to fill up the post or claim a promotional post.

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Bribe


Every Advocate is a Court officer and part & parcel of justice delivery system: Madras HC found a Govt. Advocate demanding bribes at the cost of justice

The Division Bench of K. Kalyanasundaram and R. Hemalatha, JJ., expressed that, the Government advocate being the representative of the Government has to act in an honest manner. If he/she goes around with the intention to make money at the cost of justice, only chaos will prevail.

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Manipur High Court


Appointment/Promotion of High School Teachers


All resolutions passed at the emergency meeting will be subject to confirmation or revision at the next ordinary meeting; Court allows petition

“Rule 14 (b) of the Rules of 1975 provides that all resolutions passed at the emergency meeting will be subject to confirmation or revision at the next ordinary meeting, none of the respondents, either the State or the respondent 3 to 10 has brought on record that the resolution passed in the emergency meeting held on 21-02-2015 was confirmed or revised in the next ordinary meeting.”

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Madhya Pradesh High Court


Writ of Mandamus


A writ for mandamus cannot lie to direct the State to enact a law; Petition dismissed

The Division Bench of Ravi Malimath, CJ. and Dinesh Kumar Paliwal, J.dismissed a petition which was filed in public interest praying for a writ of mandamus to incorporate certain provisions in the law, namely, Section 14-A of the Madhya Pradesh Municipal Corporation Act, 1956 and Section 32-A of the Madhya Pradesh Municipalities Act, 1961.

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Election Dispute


Registrar exercising power of the election tribunal cannot pass interim directions of any nature; Court allows appeal

“…Registrar who was trying the election dispute was exercising the power of the election tribunal. Therefore, he could not have passed orders even though it was in the interest of society.”

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Custody


Technical objections cannot come in way of custody; Court allows 16-year-old to choose to live with father

The Division Bench of Subodh Abhyankar and Satyendra Kumar Singh, JJ., dismissed an appeal which was filed being aggrieved of the order passed by Single Judge wherein he quashed the earlier impugned order passed by the Sub-Divisional Magistrate whereby custody of the children of the appellant was given to her husband (respondent 4). The Single Judge had only partly granted relief by not giving any express direction restoring the custody of the children in favour of the appellant.

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Appointment Order


Cancellation of candidature on the ground of typographical error arbitrary and grossly disproportionate; Court allows petition

Pranay Verma, J., allowed a petition which was filed praying for a direction to consider petitioner’s candidature for the post of Office Assistant (Multi purpose) and to issue appointment order in her favour in light of offer letter.

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Meghalaya High Court


Family Pension


Court decides on eligibility of family pension under Rule 48 of Meghalaya Civil Services Pension Rules of 1983

“Rule 48, provides that an unmarried/widowed/divorced daughter, would be entitled to family pension and that a person would be entitled for family pension, only after other eligible family members in the first category have ceased to be eligible to receive it.”

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Companies Act


If an advertisement for petition filed under S. 433 of Companies Act, 1956 is not published, will entire matter be transferred to NCLT?

Sanjib Banerjee, CJ, addressed a petition wherein a creditor’s winding-up petition was instituted under Section 433 of the Companies Act, 1956 and the same was not yet advertised.

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Testimony


Court affirms trial court’s conviction on the basis of victim’s testimony in POCSO matter

The Division Bench of  Sanjib Banerjee and W. Diengdoh, JJ., while hearing an appeal which challenged the judgment of conviction of December 21, 2018, which convicted the appellant under Section 3(a) R/W Section 4 of the Protection of Children from Sexual Offences Act, 2012, upheld the same and stated that there was no good reason to interfere with the judgement of the trial court.

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Compromise Deed


Lower Courts to deal with entire process expeditiously after receipt of the application under S. 151 read with Or. 20 R. 6-A CPC

H.S. Thangkhiew, J. while hearing a revision application allowed the same and directed the lower court to deal with the entire process expeditiously immediately on receipt of the application under Section 151 read with Order 20 Rule 6-A CPC.

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Inherent Power


fraus et jus nunquam cohabitant; Ori HC analyses how does prohibition under S. 362 CrPC operate viz-a- viz the inherent power of the High Court

It is the oft-repeated and a salutary principle of law that fraud and justice never dwell together (fraus et jus nunquam cohabitant)

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Rape


If a man rubs his organ on vagina over victim’s underpants, would that amount to rape?

The Division Bench of Sanjib Banerjee, CJ and W. Diengdoh, J., addressed that, if the victim’s underwear was not taken down and the man merely rubbed himself on the victim’s crotch while she still wore her underpants, would that amount to commission of rape.

Read full report here…

POCSO


FIR and proceedings in Special POCSO Case quashed; Minor ‘victim’ gave birth to child while living with accused as his wife

Diengdoh, J. allowed a petition which was filed praying to quash the criminal proceedings pending in the Court of the Special Judge (POCSO) under Section 5(j)(ii)/6 POCSO Act, 2012.

Read full report here…


Punjab and Haryana High Court


Live-in Relationship


In ever-evolving society, evolving law with it, time to shift perspective from didactics of orthodox society, shackled with strong strings of morality to one that values an individual’s life

While dealing with a matter regarding protection to live-in relationship, Anoop Chitkara, J., held that, every person in the territory of India has an inherent and indefeasible fundamental right to life flowing from Article 21 of the Constitution of India and the State is duty-bound to protect life.

Read full report here…

Laws governing ‘Live-in-relationships’ is need of the hour; Court directs State to file response on the social predicament

‘Live-in-relationships’ has always been a debatable issue because of the absence of any law on the said practice. The Legislation has not yet consolidated any Act in this regard; on the other hand the Judiciary, through several decisions has made a clear stand to protect the various rights of such couples. Supreme Court in Lata Singh v. State of U.P., (2006) 5 SCC 475S. Khushbhoo v. Kanniammal(2010) 5 SCC 600, and Indra Sarma v. V.K.V. Sarma(2013) 15 SCC 755, has upheld the status of live-in-relationships and issued certain direction to protect life and liberty of the individuals.

Read full report here…

MBBS Course


Whether Court can issue directions for filling up the vacant seat for the MBBS Course?

S. Thangkhiew, J. allowed a petition in which he had to consider whether this Court can direct the respondents to consider the petitioner for filling up the vacant seat for the MBBS Course.

Read full report here…

Recission of Contract


Application for rescission of contract ‘mandatory’ to avail the relief, as S. 28, Specific Relief Act, 1963 doesn’t confer indefeasible right

Sudhir Mittal, J. dismissed the revision petition filed by the petitioners (in this case the judgment-debtors) against the action of the Executing Court for refusing to recall the impugned order. According to the petitioners, the execution order was passed, ex parte hence, the fundamental principle of natural justice was violated.

Read full report here…

Carnal Intercourse


Use of phrase “carnal intercourse” considered as a conscious act of the legislature reflecting the clear intent to engraft an offence under S. 377 IPC, conviction upheld

Vinod S. Bhardwaj, J. contemplated the revision petition filed by the accused/ children in conflict with the law, challenging the dismissal of appeal by Additional District and Sessions Judge along with the order of conviction and sentence passed by the Juvenile Justice Board, for the commission of offence punishable under Section 377 of Penal Code, 1860 and Section 10 Protection of Children from Sexual Offences Act, 2012.

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Cooling Off Period


Cooling off period under S. 13-B (2) HMA directory and not mandatory, court must waive off statutory period where marriage is irreconcilable

Rajbir Sehrawat, J., allowed the instant revision petition, filed against the order of Family Court, where the joint application for waving off the statutory period of 6 months for cooling off, had been dismissed.

Read full report here…

CBSE


Schools succeeded in hoodwinking CBSE, however, no fault can be attributed to the students; direction for issuance of class 12th result

Sudhir Mittal, J. allowed the writ petitions filed against the action of the Central Board of Secondary Education (CBSE) declaring petitioners ineligible for evaluation of class 12th and to issue the final result.

Read full report here…

Fundamental Rights vis a vis Judicial Review


Answer to the question on ‘fundamental rights vis-a-vis judicial review’ considered as ‘National Confusion’ as different interpretation possible

Rajbir Sehrawat. J., contemplated and answered the interesting question asked in the recruitment test on which the dispute of the petitioner revolves around. Thorough interpretation of judgments starting from Sankari Prasad to I.R. Coelho was analysed by the Court to formulate the correct answer asked in the recruitment test.

73. Which of the following schedule of the Constitution is immune from judicial review on the grounds of violation of fundamental rights?

  1. A) Seventh Schedule B) Ninth Schedule C) Tenth Schedule D) None of the above”

Read full report here…

Material Fact


Suppression of a ‘material fact’ of non-disclosure of pendency of bail application considered, subservient to the right of liberty granted to the petitioners; Guidelines issued

Three petitions are clubbed together where the petitioners intended to withdraw their bail applications as bail was already granted by the different trial courts. The main issue before Jasgurpreet Singh Puri, J. was effect of filing bail applications and passing of bail orders by the trial courts during the pendency of bail application before High Court by the same accused without disclosing such pendency and what safeguards should be adopted by the trial courts in this regard.

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Compensation


Entitlement to compensation on general principles for inordinate delay in receiving monies due; Interest on refund of excise duty granted

The Division Bench of Ajay Tewari and Pankaj Jain, JJ., contemplated the appeal where the interest on refund of excise duty was rejected by the authorities. The main question before the Court was whether the assessee was entitled to interest.

Read full report here…

Departmental Punishment


Departmental punishment of government servant is not a necessary and automatic consequence of conviction on a criminal charge

Jaishree Thakur, J. set aside and quashed the dismissal of the petitioner and remanded back the matter to the punishing authority for reconsideration. The Court directed that punishing authority to apply its mind and to form an opinion as to whether the conviction of the petitioner deserves the penalty of dismissal, removal or reduction in rank or any other lesser penalty.

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Patna High Court


Economic Offence


Entire community is aggrieved if economic offenders, who ruin economy of the State are not brought to book

Expressing that the entire community is aggrieved if the economic offenders, who ruin the economy of the State are not brought to bookAnjani Kumar Sharan, J., held that economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community.

Read full report here…


Rajasthan High Court


Whenever there is a conflict between substantial justice and hyper-technicality then substantial justice should be preferred to avoid defeat for the ends of justice: Raj HC observes in a case where candidature was rejected on a hyper-technical approach

A Division Bench of Anoop Kumar Dhand and Pankaj Bharadwaj, JJ., disposed of the petition and directed the Department to appoint the respondent.

Read full report here…

Cause Title


“..use of salutation and titles is prohibited in terms of Arts. 14 18 and 363A of the Constitution of India in public documents and public offices”; Raj HC observes in a case where hereditary title was mentioned in a cause title

“…any title awarded to the citizen of India by a Foreign State cannot be accepted nor used and no such title, other than the military or academic distinctions, can be conferred other than by the State. In terms of Article 363A of the Constitution of India, the heredity titles of nobility being in conflict with the principles of equality and contrary to Article 14 of the Constitution of India cannot be used as prefixes or suffixes.”

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Provisional Attachment


Order of provisional attachment cannot survive beyond a period of one year in terms of S. 83 (2) CGST Act; Provisional attachment order stayed

“Section 83 of the CGST Act pertains to provisional attachment to protect the revenue in certain cases. In sub-section (1) of Section 83 the commissioner is empowered to order provisional attachment of the property of the assessee including bank account where proceedings under Chapters XII, XIV and XV are pending and the commissioner is of the opinion that for the purpose of protecting the interest of government revenue it is necessary so to do.”

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Public Interest Litigation


“Citizen approaching Court in a public interest jurisdiction holds greater duty to make full research” PIL dismissed due to lack of necessary evidence presented

A Division Bench of Akil Kureshi, CJ and Rekha Borana, J. dismissed the petition and kept it open for the petitioners to file a fresh public interest petition.

Read full report here…

Private Entity


In absence of any factual foundation to show whether a particular entity is State or not, writ jurisdiction not maintainable

Mahendar Kumar Goyal J. dismissed the petition being not maintainable against a private entity. 

Read full report here…

Interim Maintenance


Raj HC dealt with whether husband can be absolved from his duty to pay interim maintenance if there is delay of 30+ years in filing application

“…an order under Section 125 of CrPC is in the nature of interim maintenance and husband, who admittedly earns Rs 40, 000/- per month cannot be absolved of his obligation to pay interim maintenance, merely because the respondent – wife has chosen to file the application after 36 years of marriage.”

Read full report here…

Transfer Petition


Transfer petition for trial of Salman Khan’s deer hunting case allowed; High Court to take charge

Pushpendra Singh Bhati, J., allowed a transfer petition in the infamous deer hunting case of actor Salman Khan.

Read full report here…

Bail


Economic offender should not be dealt as general offender because economic offenders run parallel economy; bail rejected

Narendra Singh Dhaddha rejected bail and dismissed the petition being devoid of merits.

Read full report here…

Sikkim High Court


Compromise


Handing out punishment is not the sole form of delivering justice; Court allows compromise

Bhaskar Raj Pradhan, J. allowed the compromise to bury the difference between parties and gives them their lives as good citizens.

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Tripura High Court


Disposal of Garbage


Court directs AMC to set up proper slaughterhouses and ensure garbage disposal in scientific manner

Court issued directions to the Corporation to prepare a long-term plan for not only setting up the abattoir/slaughter house but also for ensuring disposal of garbage in an appropriate scientific manner, rendering all authorities including the local police authorities for enforcing/assisting in carrying out its duties, considering application for licenses and disposing of at an early date so that people are not deprived of essential needs, maintaining hygienic conditions and carrying out inspection of all the license premises.

Read full report here…

Divorce


Unable to approve this kind of matrimonial conduct or filing a suit for divorce on such coloured narrative; Court dismisses appeal in matter of divorce

The Division Bench of S. Talapatra and S.G. Chattopadhyay, JJ. dismissed an appeal which was filed under Section 28 of the Hindu Marriage Act, 1955 from the judgment by the Additional District Judge declining to grant the divorce and consequently dismissing the suit. It was observed that case did not reflect any such situation which can demand the dissolution of marriage between the petitioner [the appellant and the respondent].

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Uttaranchal High Court


Personal Rights


Irrespective of the personal rights of a person or a community, it can under no set of circumstances, override the rights or need of the defence of the country; Petition dismissed

Sharad Kumar Sharma, J. dismissed a writ petition which involved the issue pertaining to regulating the frontier borders of the country, adjoining to the ‘Line of Actual Control’, which adjoins and shares the boundary lines of our neighbouring country, China, which is approximately about 20 to 25 Kms. only away from the land, in dispute, which is proposed to be acquired for the purposes of meeting out the defence need of the ITBPF, i.e. ITBP.

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Judgment of Acquittal


There have to be very substantial and compelling reasons for setting aside a judgment of acquittal; petition dismissed

The Division Bench of S.K. Mishra and A.K. Verma, JJ., dismissed the appeal for acquittal considering it to be devoid of substantial and compelling reasons.

Read full report here…

Hate Speech


Right to freedom, as granted under the Constitution is not an absolute right; Court rejects bail in Hate Speech matter

Ravindra Maithani, J., rejected a bail application which was filed by the applicant who was in judicial custody under Sections 153A, 298 Penal code, 1860.

Read full report here…

Public Service Commission


Public Service Commission directed to declare result of candidate who submitted late fees

The Division Bench of Sanjaya Kumar Mishra, CJ. and Ramesh Chandra Khulbe, J. allowed a petition which was filed by an aspirant seeking a direction to respondents to allow the petitioner to appear for the mains examination of the Assistant Conservator of Forest.

Read full report here…

Registration of Sikh Marriages


State directed to take steps to frame and notify Rules for Registration of Sikh Marriages

The Division Bench of Sanjaya Kumar Mishra, ACJ. and Ramesh Chandra Khulbe, J. took up a PIL filed by the petitioner commanding the respondent State to notify the Rules under Anand Marriage Act, 1909 and also to issue guidelines to register the marriage of people of Sikh Community under the Anand Marriage Act, 1909.

Read full report here…

Bail


Society has a vital interest in grant or refusal of bail because criminal offence is the offence against the society; Bail applications rejected in fraud case under Epidemic Diseases Act

Alok Kumar Verma, J. rejected three bail applications of the applicants who were in custody for the offence under Sections 188, 269, 270, 420, 467, 468, 471, 120B of IPC, Section 3 of the Epidemic Diseases Act, 1897 and Section 53 of the Disaster Management Act, 2005.

Read full report here…



Weekly Roundups from March


Stories of sexual assault of a minor, woman travelling in public transport experiencing inappropriate touch and how children below 12 years of age are ‘asexual’ | Read 7 Legal Stories of the week

9 Legal Stories of the Week | Unlicensed transport aggregators to Spanking back of a woman without her consent, read more such stories in this weekly roundup

From Hijab Ban to Bloomberg Privacy Case and more | 7 Legal Stories of the Week

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (Lucknow Bench): The Division Bench of Justice Umesh Chandra Srivastava, Member (J) and Vice Admiral Abhay Raghunath Karve, Member (A) held that special Family Pension cannot be granted merely on being mentioned in Discharge book that cause of death was aggravated by military service. The Bench specified that fact that death was aggravated by military service can only be certified by medical opinion.

Facts of the Case

Brief facts of the case were that the husband of the applicant, deceased-Ex Rfn Kishan Singh was enrolled in the Army on 15-02-1971, who was married to one Bachuli Devi who eloped with Balwant Singh in the year 1975. The deceased remarried to Sabuli Devi on 03-07-1977 (after death of Bachuli Devi on 08-10-1976). The deceased had one son named Raghuvir Singh from the first marriage and another son named Yashpal Singh from the second marriage.

The grievance of the applicant was that the deceased died on 10-05-1979 due to ‘MALIGNANT COCHEXIA’ and as per discharge book, his death was aggravated due to military service, however, the case of the applicant for grant of special family pension was rejected on the ground that death of deceased soldier was neither attributable to nor aggravated by military service. Ordinary Family Pension was sanctioned to Raghuvir Singh for the period from 11-05-1979 to 19-12-1997 and Yashpal Singh was granted Ordinary Family Pension from 20-12-1997 to 04-01-2005.

The applicant represented her case to PCDA (P), Allahabad for grant of family pension which was rejected by the respondents on the ground that late Kishan Singh married to the applicant without taking divorce from first wife as well as date on certificates of marriage submitted by her were different.

Earlier, the Tribunal while referring the petition of the applicant transferred by the Uttranchal High Court had direct PCDA (P), Allahabad to decide the claim again keeping in mind that the first wife being died on 08-10-1976, it was not possible for the Ex serviceman to seek divorce with her. The Bench had also imposed cost of Rs. 10,000 to be recovered from the officer who had dealt with the matter. Despite aforesaid, the PCDA (P), Allahabad had again dismissed the claim of the applicant saying applicant had represented three marriage certificates showing three dates.

Observations and Findings

While addressing the instant application, the Bench opined that the reasons assigned by the PCDA (P), Allahabad for denying applicant’s claim of family pension were not acceptable more so when applicant had come up with a specific plea that her marriage with late Kishan Singh had taken place after his first wife had deserted him and eloped with someone else and that too after her (first wife) death.

Therefore, the Bench opined that the applicant’s claim was wrongly denied and it was granted to sons of the deceased for which the applicant could not be punished. The Bench stated, the respondent could not deny legal right of the applicant only on the ground that there was difference in date of marriage certificates produced by the applicant. The Bench added,

At least respondents after ascertaining the factual position should assist the widow lady in granting family pension and means of livelihood. Respondents cannot be hard to say that date of marriage mentioned in marriage certificates produced by the applicant is different, therefore, they are not under obligation to grant family pension.”

Accordingly, the applicant was held entitled for grant of family pension from after the next date of death of the first wife. The respondents were directed to grant family pension to applicant from 05-01-2005 with interest at 8% per annum till actual payment. [Sabuli Devi v. Union of India, 2021 SCC OnLine AFT 7126, decided on 03-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Applicant: Shailendra Kumar Singh, Advocate

For Union of India: Amit Jaiswal, Central Govt Counsel

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal: The Division Bench of Justice R.N. Singh and A. K. Bishnoi, Member (A), settled a case of family pension and retirement dues in favour of widow of the deceased ASI who had committed suicide while in judicial custody. The Bench held,

“When subjective satisfaction of dispensing with the inquiry is not supported by any independent material, dispensing with holding the inquiry would be illegal and if a preliminary inquiry could be conducted, there may not be any reason as to why formal departmental inquiry could not have been initiated against the delinquent.”

The applicant – widow of deceased Satbir Singh, ASI (Exe.) in Delhi Police, had challenged the impugned order whereby the deceased was dismissed from service by the respondents without conducting the regular departmental inquiry.

The deceased was implicated in case under Sections 302 of Penal Code, 1860 read with Sections 25/54/59 of Arms Act, pursuant to which he was placed under suspension w.e.f. 21-01-2019. A preliminary inquiry was conducted by the respondents and taking into account the allegations levelled against the deceased the respondents had dismissed him from service by dispensing with the departmental inquiry by invoking the provisions of Article 311 (2) (b) of the Constitution. Consequently, the deceased committed suicide while in judicial custody.

The applicant contended that though the respondents had heavily relied upon the report of the preliminary inquiry as well as the allegations levelled against the her husband, no copy of the said report was ever served to the deceased and so her husband was deprived of an opportunity to refute the said report, findings in the said preliminary inquiry report and/or the allegations levelled against him in the said FIR, therefore, the impugned order was illegal, bad in the eyes of law and not sustainable.

The Bench noticed that the deceased had 37 years of unblemished service under the respondents and was to retire on attaining the age of superannuation on 31-05-2021. Moreover, keeping in view the facts noted hereinabove, he committed suicide while in judicial custody on 08-06-2019 and whatever the applicant would have got as retirement/terminal benefits had also been taken away in view of the orders passed by the respondents.

Hence, the application was allowed and the impugned orders were set aside. The respondents were directed to grant and release death-cum-retirement dues, viz., family pension, DCRG, leave encashment etc. with all consequential benefits family pension, arrears of family pension and interest on family pension, gratuity, etc. [Santra Devi v. GNCT of Delhi, O.A. No.3170 of 2019, decided on 07-10-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Applicant: Advocate Sourabh Ahuja

For the GNCT of Delhi: Advocate Sameer Sharma

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal: Mohd. Jamshed, Member (A), held that compassionate appointment cannot be equated with family pension. Slamming the respondents for their insensitive and inconsiderate attitude towards a person with 82% permanent disability, the Bench expressed,

“This correspondence between the 2nd and 3rd respondent indicates lack of any sensitivity and concern towards a physically handicapped person…the net result is that a physically handicapped person, whose parents have expired is being denied the family pension which is due to him as a matter of right in terms of extant rules and regulations.”

The father of the instant applicant Late Mr Hari Chand, used to serve in Horticulture Department, Central Public Works Department (CPWD) under Ministry of Urban Development as a Senior Mali and superannuated from service w.e.f. 31-07-2011. The applicant was aggrieved by the refusal of the respondents to include his name in Pension Payment Order (PPO) as a disabled son and for sanction of family pension in his favour.

The applicant was examined in Ram Manohar Lohia (RML) Hospital, Delhi by the Medical Board and declared as a case of ‘post-polio residual paralysis of both lower limbs’. His permanent physical impairment was declared as 82% and it was mentioned that he could perform desk jobs only. The applicant asserted that he was using crutches in both hands for walking and it was not possible for him to move without the help of an accompanying person. It was also submitted that he was unable to sit in a chair and could not use public transport/toilet and hence, he was not able to undertake any job in the office. Hence, he insisted that family pension be released to him.

The applicant had relied upon the OM dated 01-07-2013 issued by Ministry of Personnel, Public Grievances and Pension, Department of Pension and 4 OA No. 695/2019 Pensioner Welfare wherein it is clearly indicated that on acceptance of such request from permanently disabled children, the Head of Office will immediately issue order for grant of family pension. He had also relied upon the OM dated 27-01-2016 which says that the grant of family pension to disabled children is in no way equated to compassionate appointment.

Observing that the respondent had at one point found the reasons given by the applicant for his inability to undertake the desk job acceptable and, had recommended his case for grant of family pension yet the applicant was denied grant of pension, the Bench stated,

“This is indeed ironical as the case of family pension has already been recommended by the 2nd respondent.”

Noticing that the correspondence between the respondent 2 and 3 indicated lack of any sensitivity and concern towards a physically handicapped person, and that the respondents had based their objections only on the line mentioned in the medical certificate which says ‘he can perform only desk job’, the Bench opined that the respondents had denied the family pension to the applicant on account of sheer apathy, inaction and indecision.

“Equating grant of family pension to compassionate appointment is in itself fundamentally wrong…the contention of the respondents that the applicant had once been asked to apply for compassionate appointment, which he has refused and, therefore, he is not eligible for family pension is not supported by rules and is purely arbitrary.”

In the light of the above, the Bench held that the kind of apathy being shown towards a physically handicapped person by depriving him of his right and to get much-needed family pension for his survival for last more than 5 years, without any basis to say the least was injustice. Accordingly, the respondents were directed to grant family pension to the applicant within a period of three months without any arrears. However, in case of non-compliance by the respondent within three months further directions were made making them liable to pay interest at 9% for any subsequent delayed payment. [Sh. Mahesh Kumar Sharma v. Union of India, O.A. No.695/2019, decided on 24-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Applicant: Advocate: Mr. B.K. Berera

For the Respondents: Advocate: Mr. Hitesh Kumar Bagri

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal (CAT): Pradeep Kumar, Member (A) addressed the instant application wherein the widow of one Narayan Dutt, who was engaged as casual labour on 18-12-1972 under the respondent-Railway, had sought for the grant of family pension.

The deceased was drawing a basic pay of Rs 226/- p.m. when he, unfortunately, died on 28-07-1983, leaving behind three children – a 4 years old son and two daughters; 2 years and 6 months at that time. The applicant submitted that gratuity was paid to her at the time of death and subsequently, her elder son Brij Mohan was appointed on compassionate ground as a Group-D employee by the respondent-Railway on pay scale of Rs 2550-3200.

The grievance of the applicant was that in spite of repeated representations since 1983,

for directions to grant family pension, leave encashment, insurance, GPF, death-cum- retirement benefits along with arrears of family pension, the same had not been released by the respondent. Reliance was placed by the applicant on the decision of Supreme Court in Prabhavati Devi v. Union of India, (1996) 7 SCC 27, and on the following rule:

75. Family Pension Scheme for railway servants, 1964

(2) Without prejudice to the provisions contained in sub-rule (3), where a railway servant dies:-

  1. a) after completion of one year of continuous service,

***

the family of the deceased shall be entitled to a family pension 1964 (hereinafter in this rule referred to as family pension) the amount of which shall be determined in accordance with the Table below…”

On the other hand the respondent argued that the deceased was not a regular employee. Since the husband of the applicant was unscreened, his services could not be treated as a Substitute or permanent and as such, applicant was not entitled to any of the benefit sought in the OA.

The Bench observed that the total service from 18-12-1972 to 28-07-1983 out of which the service as an authorised scale employee was from 01-04-1974 to 28-07-1983 which was a period more than 9 years as against one year specified. Noticing further that according to the notification released by Assistant Personnel Officer-IV, Delhi Division, the deceased had acquired the status of a substitute, the Bench opined that under such conditions substitute should be accorded all the rights and privileges as may be admissible to a temporary Railway servants from time to time on completion of six months continuous service.

Relying on Prabhavati Devi’s case, which was similarly placed as that of the applicant, the Bench said the applicant could not be denied the benefit of family pension and other retiral dues as applicable to a temporary Railway servant.

Hence, the respondents were directed to allow family pension and other terminal dues as per rules with arrears to be paid within a period of eight weeks. It was further clarified that the arrears for the period prior to 23-05-2018 should not carry any interest. The arrears which were due as of 23-05-2018 would carry interest at 6% p.a. w.e.f. 23-05-2018.[Kamla Devi v. Union of India, O.A. No.2208 of 2018, decided on 16-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court:

For the applicant: Adv. T.D.Yadav,

For the respondents: Adv. K.K.Sharma

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Division Bench of Justice Umesh Chandra Srivastava (Chairperson) and Vice Admiral Abhay Raghunath Karve (Member) A heard the instant application, whereby the mother of the ex-serviceman had sought for the grant of family pension.

The facts of the case were such that one, Sepoy Tarun Kumar Yadav was enrolled in Indian Army on 14-12-2004. Unfortunately, on 27-01-2013, when the deceased soldier was on temporary duty cum leave, he died in a car accident leaving behind his widow and mother as his dependants. A Court of Inquiry was conducted and the death of deceased soldier was declared as a physical casualty. Being nominee, Babita Yadav, widow of the deceased was paid all pensionary benefits after the death of soldier.

Thereafter, applicant being mother of the deceased soldier made several correspondences with the respondents for grant of at least half of the awards entitled to her son after his death but to no avail. The applicant submitted that,

After few months of death of her son, her daughter-in-law left her matrimonial house and started living with her parents in her parental house. She was repeatedly requested and persuaded to remain with the family as the applicant was completely shattered by the sudden death of her son and the separation of daughter-in-law was another blow to the applicant.  

Applicant was solely dependent on the earning of her son during her life time and after the death of her son, the widow had been paid all benefits and presently she was being paid family pension. Therefore, the applicant claimed that as per the Hindu Succession Act, 1956 and Govt. of India, Ministry of Defence letter dated 31-01-2001, the applicant was entitled for pensionary and other benefits as applicable to the parents of the deceased soldier and accordingly, applicant should be given 50% share of family pension which had been paid to the wife of deceased solider.

The Tribunal observed that According to Section 8 of Hindu Succession Act, 1956, Class I heirs are entitled to get share in assets left by a deceased. Since the widow had no child, the widow and mother were entitled to get share of family pension, being inherited property of the deceased soldier. The Tribunal expressed,

“It was the moral and even legal duty of widowed daughter-in-law to look after properly to the parents of deceased soldier who were wholly dependent on their son during his service and after death on his pensionary benefits, but to leave them in a destitute condition and herself living quite comfortably on the pensionary benefits of deceased soldier is quite unjust and unlawful on the part of her.”

In the light of above, the state was directed to consider the claim of the applicant for division of family pension in equal share (i.e. 50% each) between the wife and mother of deceased soldier.[Sunita Devi v. Union of India, 2021 SCC OnLine AFT 2080, decided on 02-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Applicant: Shri V.P. Pandey, Advocate

For the Respondents: Dr. Shailendra Sharma Atal Central Govt Counsel and Shri R.Chandra, Advocate

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Division Bench of Justice Umesh Chandra Srivastava (Chairperson) and Vice Admiral Abhay Raghunath Karve (Member) A, heard the instant application seeking grant of special family pension.

Husband of the applicant was enrolled in the Army on 22-12-2003. While being posted to 20 RAJ RIF unit, he was granted 04 days Advance of Annual Leave from 06-11-2010 to 09-11-2010. On 06-11-2010 husband of applicant met with a road accident and subsequently died on 15-11-2010 in Command Hospital, Lucknow. A Court of Inquiry was convened and it was opined that death of husband of applicant was neither attributable to nor aggravated by military service and also not connected with military service. Accordingly, the applicant was granted an Ordinary Family Pension.

The applicant approached the government to sanction Special Family Pension but her case was rejected. Thereafter, she preferred O.A. No. 384 of 2018 before this Tribunal which was disposed of on 31-08-2018 with direction to the respondents to decide the pending appeal of the applicant by a speaking and reasoned order in accordance with law within a period of three months. Till date, the order had not been complied with. Thereafter, applicant filed Execution Application No. 236 of 2018, during which government passed the impugned order dated 18-11-2019 denying Special Family Pension to the applicant.

Noticing the report of the Court of Inquiry, the Tribunal expressed, the State had denied special family pension to the applicant on the reason that for getting special family pension, in respect of injury sustained resulted to death during course of employment, there must be some causal connection between the injury/death and military service, which was being lacking in applicant’s case.

 The Supreme Court, in  Madan Singh Shekhawat v. Union of India, (1999) 6 SSC 459 framed following points for consideration regarding grant of pension:-

“(a) When Armed Forces Personnel proceeds on casual leave or annual leave or leave of any kind, he is to be treated on duly

(b) There has to be causal connection between the injury or death caused by the military service. The injury or death must be intervention of armed forces service and not an accident which could be attributed to risk common to human being.”

In view of above guiding factors, the Tribunal reached to the findings that husband of the applicant was on advance of annual leave when he met with accident with another motorcycle and later succumbed to injuries, the activity in which he sustained injury resulted to death were neither attributable to nor aggravated by military service and not connected with his military duties in any manner’. Hence, the Tribunal dismissed the petition holding that the widow was not entitled to special family pension. [Neelam Singh v. Union of India, 2021 SCC OnLine AFT 1815, decided on 04-02-2021]


Kamini Sharma, Editorial Assistant has put this story together

Fact ChecksNews

An article published by India Today claimed that the Punjab and Haryana High Court in an unusual judgment had recently observed that the wife would be eligible for family pension even if she murders her husband. The article quotes an observation of the Court which stated that

“Nobody butchers the hen giving golden eggs. The wife cannot be deprived of the family pension even if she murders her husband. Family pension is a welfare scheme that was launched to provide financial help to the family in the event of a government employee’s death. Wife is entitled to family pension even if she is convicted in a criminal case,”

The article further quoted the facts of the case as ‘one Baljeet Kaur of Ambala told the court that her husband Tarsem Singh was a Haryana government employee who passed away in 2008. In 2009, she was booked for or a murder and was later convicted in 2011 (sic). Baljeet Kaur was getting the family pension till 2011 but the Haryana government stopped the pension immediately after her conviction.’

The article concluded by stating that the Court had directed the concerned department to release the petitioner’s family pension within two months along with the pending dues.

The screenshot of the news item can be seen below.

The screenshot of the controversial paragraph which stated that wife cannot be deprived of family pension even if she murders her husband can be seen below.

This news was also reported on other sites such as

  1. News 18
  2. Daily Hunt

Now let us test the veracity of the claims.

We looked up the judgment of this case on the website of Punjab and Haryana High Court and found a judgment with similar facts which was delivered on 25th January, 2021. The case was Baljinder Kaur vs. State of Haryana, CWP No. 24430 of 2017, delivered on 25.01.2021. The India Today article had got the name of the petitioner wrong. It was Baljinder Kaur and not Baljeet Kaur.

We read the judgment delivered by the court and found the paragraph quoted in red above has nowhere been mentioned in the written judgment. As per the facts, the petitioner’s husband died in 2008 after which she was receiving pension from the government for some time. However, after she was booked and later convicted for murder of another person in 2011 (who was obviously not her husband) she stopped receiving the pension. Therefore, the question of the wife murdering her husband does not arise in this case.

Under the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2006, the state government had denied the petitioner pension on the grounds that her conduct was not good as she was convicted of murder. They said that pension was not a charity or bounty and that it was a conditional payment depending upon the  sweet will of the employer. As her sentence was not stayed and merely suspended for bail, they said that she was not entitled to any pecuniary benefits.

After going through the facts and arguments of the case, the bench of GS Sandhawalia, J. was of the opinion that denying pension to the petitioner on account of her conviction, was unrelated to the death of her husband and was therefore not sustainable. Accordingly, the said order was set aside.

The Court further clarified that it was not disputed that the petitioner had committed murder but she was out on bail and her sentence had been suspended. She needed the pension to maintain herself and the Court was of the opinion that she cannot be denied the financial assistance. Pension is not a bounty and is her right on account of the services rendered by her husband to the Government, the Court observed.

Conclusion

Therefore, we can safely conclude that the headline of the article on India Today and the quoted paragraph highlighted in red above is not reflected in the written judgment. The reasons for allowing pension to the petitioner was because her conviction for murder was in no way connected to the death of her husband.

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., modified the sum of the award granted to a widow by the Motor Accident Claims Tribunal.

The instant appeal was filed challenging the judgment and award passed by the Additional District Judge wherein the sum of Rs 70,000 with an interest of rate 7% was awarded.

Brief facts

The deceased was 62 years of age at the time of the accident. The claimant was the sole surviving legal heir of the deceased. Further, it was added that the deceased was a retired railway employee and was getting pension.

In view of the above circumstances, the pension was halved and the widow was getting Rs 14,000 which shows that she lost Rs 14,000 because of the sad demise of her husband.

MACT awarded a sum of Rs 70,000 while relying on the decision of Supreme Court in National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680 holding that there was no loss of income.

Further tribunal held that claimant was the legal heir and legal representative of the deceased, the deceased was 62 years of age whose income was shown to be Rs 30,000 per month but no document was produced, hence tribunal did not believe the income to the deceased to be Rs 30,000.

Tribunal also added to its observation that the deceased had been receiving the pension of Rs 28,000 and after his death, family pension of Rs 14,000 is being received by the claimant herself.

Therefore, as the deceased was getting Rs 28,000/- approx as a pension, 50% of the same he would be spending on himself and, therefore, Rs 14,000 would be the monthly datum figure available to the widow.

Issue:

Can the claimant a widow who receives family pension be deprived of compensation is the main question which arises for consideration. If the answer to it is in the negative, what compensation is she entitled to?

Bench stated that, Tribunal ought to have considered the fact that had her husband survived, she would have got a sum of Rs 28,000 per month which has now been halved. Court stated that the multiplier applicable would be ‘7’ as the deceased was in the age bracket of 61-65 years in view of the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 which has been not considered by the Tribunal and has given reasonings which can be said to be questionable.

Further, relying on the decision of this Court in Regional Manager, UPSRTC v. Nisha Dubey, First Appeal from Order No. 3154 of 2013, no deduction from the pension is allowed.

In view of the above, total compensation of Rs 4,97,000 would be granted.

As far as the issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Supreme Court in National Insurance Co. Ltd. v. Mannat Johal, (2019) 15 SCC 260.

The claimant is the widow of a railway officer and, therefore, she is not illiterate, hence, all the amount need not be invested but shall be transferred to her account.

In view of the above, the appeal was partly allowed. [Subhadra Pandey v. Siddharth Agrawal, First Appeal From Order No. 1237 of 2018, decided on 07-12-2020]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J. allowed a second appeal filed by the first wife of the deceased who died in harness while working as Supervisor in Chhattisgarh State Power Generation Co. Ltd., and held that his second wife was not entitled to any share in the family pension.

Provisions of the Chhattisgarh Civil Services (Pension) Rules, 1976, provide that where a Government servant dies, while in service, the family of the deceased shall be entitled to contributory family pension. Rule 47(a)(i) provides that where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares.

First wife of the deceased filed a suit claiming the entire family pension. Per contra, the second wife relied on Rule 47(a)(i) and claimed an equal share in the family pension.

Relying on Section 5 read with Section 11 of the Hindu Marriage Act, 1955, and several decisions of the Supreme Court, including Lila Gupta v. Laxmi Narayan, (1978) 3 SCC 258 and A. Subash Babu v. State of A.P., (2011) 7 SCC 616, the High Court held that since the second wife married the deceased during subsistence of her marriage with the first wife, therefore, the marriage of the second wife with the deceased was void and she could not be said to be the legally wedded wife of the deceased and therefore her claim in the family pension was liable to be rejected.

Furthermore, reference was made to Rule 22 of the Chhattisgarh Civil Services (Conduct) Rules, 1965, sub-section (1) of which, prohibits Government servants for performing second marriage during the lifetime of their spouse living, without obtaining permission from the Government. The said prohibition is absolute and unconditional, and even if the personal law of the employee permits second marriage, then also, it is prohibited unless done with the leave of the Government. In other words, the applicable statutory rule will prevail over the personal law applicable to the Government servant concerned.

It was held that the second wife of the deceased Government employee was not entitled to any share in the family pension. Resultantly, the judgment of the first appellate court reversing the decision of the trial court and decreeing the second wife’s claim of equal share in the family pension was set aside. The Court also recorded appreciation for Hari Agrawal, Advocate, who acted as Amicus Curiae, for providing valuable assistance to the Court on short notice. [Nanbai Rathore v. Meena Bai, Second Appeal No. 373 of 2018, decided on 14-10-2019]

Case BriefsHigh Courts

Meghalaya High Court: H.S. Thangkhiew, J.  directed respondents 1 and 2 to substitute the name of petitioner in place of the deceased wife and directed them to communicate the same with respondent 3 for issuance of authorization for payment of pension.

The deceased husband of the petitioner worked as havaldar under respondent 2 and retired from service. After the death of his first wife, he married the petitioner, and out of the wedlock a female child was born. Thereafter the deceased employee had filed a representation to the authorities for the inclusion of the name of the petitioner and the child for the benefit of pension, but the said representation was not replied leading to the filing of a Writ Petition for necessary directions. However, during the pendency of the writ petition, he expired, after which the said writ petition was withdrawn and petitioner being lawfully wedded wife filed this petition.

Learned counsel of the petitioner S. Bhattacharjee, submitted that the petitioner should not be denied the pension as of Note (2) of Rule 48 of the Meghalaya Civil Services (Pension) Rules, 1983, permits post-retiral spouses and children born/adopted legally after retirement to be eligible for family pension. She further submitted that respondents had admitted the request of family pension and had informed the Accountant General.

Learned Additional Senior GA appearing on behalf of respondents 1 & 2 did not refute the submissions. He further referred to the letter issued by the Office of the Accountant General, wherein it was stated that change of nomination for family pension the deceased would depend upon the orders passed by this Court.

As there was no dispute regarding the marital status of the petitioner with regards to the deceased employee, it was directed that the name of the deceased wife be substituted with the name of the petitioner and same to be communicated to respondent 3 for issuance of authorization for payment of pension. The name of the child out of the said wedlock was also to be inserted.[Marcyana N. Marak v. State of Meghalaya, 2019 SCC OnLine Megh 89, decided on 15-05-2019]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J. has held that a Government servant is not entitled to make a Will of the family pension which is granted in accordance with the service rules.

Vijay Kumar Kaushik, Head Constable in the Police Department, died in harness. He had two wives and children from each of them. After his death, the first wife and her children (petitioners) made an application under Section 372 of the Indian Succession Act, 1925 for grant of Succession Certificate claiming family pension, gratuity, and other benefits. This was opposed by the second wife and her children (respondents) contending that Vijay Kumar had already made a Will in their favour and also nominated them in service records, and therefore the petitioners were not entitled for grant of succession certificate. Petitioner’s application was rejected by the trial court, which decision had been affirmed by the appellate court. Aggrieved thereby, the petitioners filed the present revision petition under Section 388(3) of the 1925 Act.

Shivali Dubey, Advocate appeared for the petitioners; Devesh Chandra Verma, Advocate represented the respondents (second wife and her children); and Hari Agrawal, Advocate appeared as amicus curiae, whose assistance was appreciated by the Court.

Applying the principles laid down by the Supreme Court in Jodh Singh v. Union of India, (1980) 4 SCC 306; Violet Isaac v. Union of India, (1991) 1 SCC 725; and Nitu Singh v. Sheela Rani, (2016) 16 SCC 229, the High Court recapitulated the guiding principles of law relating to retiral benefits vis-a-vis their testamentary disposition:

(i) An employee has no power of testamentary disposition with respect to something which was not payable to him during his lifetime.

(ii) If the qualifying event/benefit occurs only on the death of the deceased while he is in service and due to this, some monetary benefits accrue, it would not form part of the estate of the deceased and the same cannot be disposed by testamentary disposition because there is an element of uncertainty of happening of event.

(iii) If the scheme and/or service rules designate certain persons who are entitled to receive benefits out of the scheme, then no other person except those designated persons can be entitled to the said benefits.

(iv) If the employee makes no contribution to the benefit, he has no control over the same to dispose it by testamentary disposition.

(v) If the scheme/Rules do not provide for the nomination of any person during the lifetime of the deceased employee, he has no title to the same and it cannot be disposed by testamentary disposition.

However, it was made clear that the said principles are not exhaustive and the condition laid above are independent of each other and not mutually destructive and in the event of any of the conditions being fulfilled, it cannot be said that testamentary disposition can be made with respect to the said benefit.

In light of the principles, the Court decided the present revision petition under different heads. The disbursement of the family pension, gratuity and other retirement benefits in the present case were governed by Chhattisgarh Civil Services (Pension) Rules, 1976. As far as family pension was concerned, it was held that same was payable only to the family of a deceased employee, and Petitioner 1 being the legally wedded wife of Vijay Kumar, she was entitled to the entire amount of the said pension. Similarly, ex-gratia amount and police welfare amount were payable only after the death of the employee. As such, they did not form part of the estate of the deceased and thus could not be disposed by way of testamentary disposition. However, the benefits under the heads of gratuity, leave encashment, group insurance scheme, family benefits fund and department provident funds formed part of the estate of the deceased employee and therefore could be disposed by in terms of the Will made by the deceased employee.

Consequently, the petitioners were held entitled to the Succession Certificate with regard to family pension, ex-gratia and police welfare payment. The revision petition was disposed of in such terms. [Samunda Bai v. General Public, 2019 SCC OnLine Chh 29, dated 15-04-2019]

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Bench of S.V.S. Rathore, J. and Lt. General N.B. Singh (Member) dismissed an application challenging the denial of family pension, holding that the same was without any substance.

Applicant herein claimed to be the eldest son of a deceased soldier Mohd. Rafique and applied for a family pension as he was totally blind. His claim for pension was denied by respondent on the ground that his name did not figure in the service book of Mohd. Rafique. Aggrieved thereby, the instant application was filed under Section 14 of the Armed Forces Tribunal Act, 2007.

Learned counsel for the applicant placed reliance on relation certificate issued by the SDM, Sultanpur, wherein apart from five other sons and daughters of Mohd. Rafique, the name of the applicant was also mentioned. Learned counsel for the respondents raised an objection to this certificate stating that the certificate clearly mentioned that it had been issued only for administrative purposes and that it could not be used in any court of law.

The Tribunal held that a plain reading of Regulations 216 and 219 of the Pension Regulations for the Army, 1961 (Part-1) made it clear that name in the service record as son of the applicant was a condition precedent to grant the relief claimed. Admittedly, the name of the applicant was not mentioned as nominee in the service record of the deceased soldier. This gave rise to an inference that the father of the applicant deliberately avoided mentioning the name of the applicant in the service record to debar him from such pension. Thus, the application was dismissed holding that there was no infirmity in the impugned order.[Akhtar v. Union of India, 2019 SCC OnLine AFT 3, Order dated 13-02-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Alexander Thomas, J. while hearing civil writ petition filed for grant of freedom fighter’s dependant pension ruled that the same is available from the date of sanctioning order and not from the date of submission of an application for grant thereof.

Petitioner’s husband was the recipient of freedom fighter’s pension under Kerala Freedom Fighters’ Pension Rules, 1971. His application for grant of freedom fighters’ pension under the Central Swatantrata Sainik Samman Pension Scheme, 1980 (Central Scheme) was rejected. After his demise, the petitioner filed an application under the Central Scheme for grant of freedom fighter’s dependent pension. State government recommended grant thereof but Union government rejected her claim. In view of court’s order requiring Union government to reconsider petitioner’s claim, she was granted dependant pension from the date of the court’s judgment. The said order was challenged vide instant petition.

Contention on behalf of the respondent was that since the petitioner had made available only secondary evidentiary materials to prove her claim, she was entitled to grant of dependent pension only from the date of court’s judgment dated and not from the date of her application.

Relying on the dictum of Apex Court in Union of India v. Kaushalaya Devi, 2007 (9) SCC 525, it was held that since the petitioner had produced only secondary evidentiary materials in support of her claim, therefore, she was entitled to get dependant pension and its arrears only from the date of sanctioning order and not from the date of submission of her application.

However, the Court noted that secondary evidentiary materials submitted by petitioner had been duly acknowledged by the State government and despite the State government’s positive recommendation, the Central government had rejected the petitioner’s claim. Therefore, it was held that the petitioner would be entitled to pensionary benefits and its arrears from the date of State government’s recommendation and not from the date of court’s judgment requiring reconsideration thereof by the Central government. [Aleyamma Kunjappan v. Union of India,2018 SCC OnLine Ker 4909, decided on 22-10-2018]

Case BriefsHigh Courts

Meghalaya High Court: A Single Judge Bench comprising of Mohammad Yaqoob Mir, CJ., dismissed a petition claiming the family pension.

Facts of the case were that petitioner’s father was a constable and after his superannuation, he got retired in 1991. In the year 2009, the petitioner’s father expired. After he got expired his wife represented for grant of family pension which in the beginning was not granted and eventually an order withdrawing family pension was passed by AG’s Office to the Superintendent of Police. Since in 2017 wife also expired her daughter i.e. petitioner claimed family pension which was not considered. Hence, this petition was filed before the High Court.

Petitioner submitted that this petition was maintainable by virtue of amended Rule 48 of the Meghalaya Civil Services (Pension) Rules issued by Finance (Pension Cell) Department, Government of Meghalaya. According to the aforementioned rule family for the purpose of pension constitute a daughter which includes widow daughter, till the date of marriage or remarriage or till the date, she starts earning or till she turns 25 years old.

Issue before the Court was whether petitioner (daughter) can claim family pension after the death of the wife (petitioner’s mother) was found to be weakened by the fact that petitioner was otherwise not eligible to such family pension.

The High Court found that petitioner was married and above 25 years of age and by virtue of Rule 48 a married women cannot claim the family pension. Therefore, the petition was dismissed. [Prettilla M. Sangma v. State of Meghalaya,2018 SCC OnLine Megh 175, Order dated 27-09-2018]

Case BriefsHigh Courts

Meghalaya High Court: A Single Judge Bench comprising of Mohammad Yaqoob Mir, CJ. dismissed a writ petition filed against the order of denial of family pension to the petitioner.

Husband of the petitioner was in the Police Department under State of Meghalaya. After his death, the petitioner claimed family pension. The said claim was denied by the respondent Authorities, inter alia, on the ground that the marriage of the petitioner was solemnized with the deceased public servant in the year 1978, during subsistence of first marriage with his first wife. It was contended on behalf of the petitioner that marriage between the petitioner and the deceased was contracted in accordance with customs and usage in the local area which is protected under Section 3 of Hindu Marriage Act, 1955.

The High Court did not find favour with the contention of the petitioner and held that the marriage was void under Section 5(i) read with Section 11 HMA. It was further observed that registration of marriage in the year 2003 will not alter the position that marriage was contracted in 1978; knowledge or no knowledge of first marriage was immaterial. In such circumstances, it was held that the petitioner was not entitled to claim family pension. The petition was accordingly dismissed. [Debokala Thakuri v. State of Meghalaya, 2018 SCC OnLine Megh 93, dated 20-07-2018]

Case BriefsHigh Courts

Madras High Court: A Bench comprising of S.S. Sundar, J. has directed the respondent Accountant General, to disburse the family pension to the petitioner who was held entitled to it.

The petitioner’s father was a government servant and had two daughters. After the death of the parents, elder sister of the petitioner, who was a widow at that time, became entitled to the pension. Later on, she remarried and became ineligible to get family pension. Thereafter, the petitioner, being unmarried, claimed family pension. Her elder sister consented to the same and filed a sworn affidavit in which she relinquished her right to get family pension and expressed “No Objection” for the petitioner to get family pension.

The petitioner pointed out a G.O. which states that family pension is payable to the unmarried or widowed daughters of deceased employees even after the age of 25 years. The respondent on the other hand pointed out the admission of the petitioner, that the second husband of her elder sister has also died. Therefore, only the elder daughter, being a widow is eligible to get pension, as there is no provision in the G.O. which entitles younger daughter of a deceased government servant to get family pension. The Court stated that when the elder daughter had remarried, there is no impediment for the younger daughter to get family pension. Upon death of her 2nd husband, there is no provision to disqualify the 2nd daughter.

The Court stated that the petitioner is entitled to get the benefit of G.O. on happening of that event and she is eligible to get family pension, the said right cannot be taken away by any subsequent event which was not contemplated in the G.O. The G.O. has to be interpreted in such a way that as and when the elder sister of the petitioner remarried, she looses the right to get pension. Consequently, the Court held that the petitioner is entitled to get family pension. [S. P. Jothi v. Accountant General, Accounts and Entitlements, 2017 SCC OnLine Mad 1731, decided on 18.04.2017]

Case BriefsSupreme Court

Supreme Court: In the matter where the widow of a Government Employee aggrieved by the order of the High Court of Punjab & Haryana at Chandigarh where it was directed that 50% of the pension be paid to the mother of the Government Employee, the Court set aside the impugned order and held that the parents of a married officer are not entitled to receive the pension amount as per the the Family Pension Scheme, 1964.

The Bench of A.R. Dave and L. Nageswara Rao, JJ took note of the Scheme and said that the mother of the deceased is not included in the definition of the term “family” for the reason that as per the provisions of sub-clause (f), parents of an unmarried officer would be a part of the family.

Explaining the difference between the position of law under the Hindu Succession Act, 1956 and the Family Pension Scheme, the Court said that as far as the Succession Law is concerned, it is true that the properties of a Hindu, who dies intestate would first of all go to the persons enumerated in class I of the schedule as per the provisions of Section 8 of the said Act and therefore and hence, the properties of the deceased in the case at hand would be divided among the respondent mother and the appellant wife, provided there is no other family member alive, who would fall within class 1 heirs, but position in this case, with regard to pension, is different.

The Court said that it is pertinent to note that in this case the pension is to be given under the provisions of the Scheme and therefore, only the person who is entitled to get the pension as per the Scheme would get it. The Court, hence, directed that the full amount of pension be paid to the widow of the Government employee. [Nitu v. Sheela Rani, 2016 SCC OnLine SC 1004, decided on 28.09.2016]