The Allahabad High Court has said that after the death of a divorced woman employee, only her dependent sons and daughters are entitled to family pension and other service benefits.
A Single Bench of Justice Neeraj Tiwari passed this order while hearing a petition filed by Niyaz Ahamad.
The petition has been filed seeking following reliefs:-
“(1) Issue a writ, order or direction in the nature of mandamus commanding the respondents to provide all service dues of Late Nazbun Nisha (mother of petitioner) along with interest in favour of petitioner at an early date in accordance with law.
(2) Issue a writ, order or direction in the nature of mandamus commanding the respondent no 3 to decide the representation made by the petitioner within a stipulated time, in accordance with law.”
The Court noted that,
Case was heard on 23.07.2024 and the Court has passed the following order:-
“The petitioner’s mother was a Safai Karmi in the Office of the District Panchayati Raj Officer, Basti. She died in harness on 26.09.2020. The grievance of the petitioner is that he has yet not been paid death-cum-retirement benefits due to his mother. Let the District Panchayati Raj Officer, Basti file his own affidavit, on or before 26.07.2024, disclosing why death-cum-retirement benefits due to the petitioner’s mother have not been paid to the petitioner so far. Adjourned to 26.07.2024. To be taken up as fresh. The Registrar (Compliance) is directed to communicate this order to the District Panchayati Raj Officer, Basti through the Chief Judicial Magistrate, Basti today. “
In compliance with the order dated 23.07.2024, District Panchayati Raj Officer Basti has filed a personal affidavit.
Case was taken up on 26.07.2024 and considering the personal affidavit, the Court has passed following order:-
“In compliance with the order dated 23.07.2024, a personal affidavit has been filed by the District Panchayat Raj Officer, Basti.
In paragraph nos 4, 6, 7 and 8 of the said affidavit, it is averred:
“4. That in compliance of aforesaid order of the Court, it is respectfully submitted that by means of the petition the petitioner has prayed for service related benefits of her mother subsequent to his mother’s death, for which he is not entitled inasmuch as the petitioner’s mother Late Nazbun Nisha was posted on the post of Safai Karmi in the Panchayat Raj Department, who was died in Harness on 26.09.2020. The husband of Late Nazbun Nisha, Mohd Umar i.e father of the petitioner is still alive.
6. It is submitted that the above arrangement is given in the said government order that after the death of a government servant, in case the deceased servant was the husband, pension will be sanctioned to the wife and in case of the wife being the wife, family pension will be sanctioned to her husband. Only if both husband and wife are not alive, family pension and other consequential death-cum- retiral dues will be paid to the dependent sons and daughters of the deceased servant as per rules. Late Nazbun Nishan’s husband Mohd Umar is alive, hence the family pension cannot be paid to the petitioner right now. Copy of Government Order dated 23.12.2016 is being annexed herewith and marked to the affidavit.
7. The petitioner presented an application dated 25.4.2023 in the office of the District Panchayat Raj Officer, Basti, along with which a photocopy of the death certificate of the petitioner’s mother and the heir certificate issued from Tehsil Basti Sadar was attached. By presenting the same, a demand was made to pay all the death-cum- retiral dues of his late mother Najbun Nisha.
8. That in such a situation, family pension will be sanctioned only to Mohd Umar and as per the government order, only in case the spouse of the deceased is not alive, the son and daughter of the deceased are eligible for family pension as per the rules. That also for approval of family pension to her husband Mohd Umar after the death of late Nazbun Nishan, the petitioner is requested to fill pension form part-2 and 3 along with pension form part-2 and 3 of other family members and submit the following records which are certified by the Block Development Officer and Assistant Development Officer (Panchayat), from Development Block-Bankati were demanded to be made available in the office of District Panchayat Raj Officer, Basti.”
At this stage, Counsel for the petitioner stated that the stand taken by the respondents is misconceived because the deceased Smt Nazbun Nisha and her husband Mohd Umar had had a divorce and were no longer husband and wife at the time of her demise. There is no change to that effect in the petition.
Counsel for the petitioner may file a supplementary affidavit carrying the necessary averments and evidence, if any.
It is made clear that if the fact is found correct that the deceased husband and the deceased were divorced, the Court would be compelled to impose penal costs on the respondents.
Adjourned as fresh to 21.08.2024. “
The Court further noted that,
Pursuant to the orders of the Court, respondent no 4-Mohd Umar (father of petitioner) has filed counter affidavit before the Court with a categorical averment that he has divorced mother of petitioner according to Shariyat. Respondent no 4 also stated that he has no objection in case retiral dues of Najibunnisha has been paid to the petitioner.
According to the counter affidavit:-
“That, on 06.06.2016 the deponent divorced (3 Talaq) the Najibunnisha according to the Shariyat. A photocopy of the Divorce and the Punchnama are being collectively filed herewith and marked to the counter affidavit.
That deponent is posted as Fourth Class employee (Sweeper) at the Primary Health Centre, Bankati, District Basti, and residing in the quarter allotted in the Primary Health Centre Bankati, District Basti.
That, after the divorce the deponent has not any relation with the Najibunnisha.
Najibunnisha was residing with her children namely Niyaj Ahmad, Suhel Ahmad, Ulmenasiba, Ulmehabiba, Zamal Ahmad and Hur Bano.
That deponent has no objection if the retiral dues of Najibunnisha have been paid to the petitioner.”
In personal affidavit, only ground taken by District Panchayati Raj Officer, Basti for denial of retiral/death benefits is that husband of deceased employee is alive, but in light of facts so mentioned herein-above, it is absolutely clear that respondent no 4 neither entitled nor he is claiming any right over the retiral/death benefits, the Court observed while allowed the petition.
The Court directed the District Panchayati Raj Officer, Basti to pay retiral/death benefits to the petitioner in accordance with Rules, maximum within a period of four weeks from the date of production of certified copy of the order.