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Date of Decision: 20th October, 2016 DELHI DEVELOPMENT AUTHORITY ..... Petitioner
Through Mr. Arun Birbal & Mr. Sanjay Singh, Advocates.
Through Mr. Saurabh Ahuja, Advocate.
HON'BLE MS. JUSTICE SUNITA GUPTA SANJIV KHANNA, J. (ORAL):
The petitioner-Delhi Development Authority in this writ petition has impugned the order dated 20th August, 2015 passed by the Principal Bench of the Central Administrative Tribunal (Tribunal, for short) in OA NO. 2129/2014. The aforesaid OA was filed by Usha Rani, the respondent before us, challenging the order dated 9th January, 2014 stopping family pension and order/letter dated 12th March, 2014 directing her to refund family pension of Rs.6,38,522/- paid to her.
JUDGMENT
2. The respondent is daughter of late Lala Ram, a retired employee of the Delhi Development Authority who has superannuated on 31st March,
2009.
3. An year after his retirement, Lala Ram expired on 8th May, 2010. 2016:DHC:7105-DB The respondent at that time was about 35 years of age. She had applied for family pension, which was allowed vide pension payment order dated 12th July, 2011, with effect from 9th May, 2010.
4. Subsequently, the petitioner received complaints that the respondent was working and earning and, therefore, was not entitled to family pension. On ascertaining that the respondent had been working as News Reel Steno in Prasar Bharti from 1st January, 2012 to December, 2012 and had earned more than Rs.3,500/- per month, family pension was stopped and a direction of refund of the payments already made was issued.
5. The impugned order holds that the respondent being a divorced daughter of the deceased Government servant was entitled to family pension till she re-marries or up to her lifetime or till she starts earning monthly income exceeding Rs.3,500/- plus dearness allowance, whichever was earlier. The income received by the respondent was irregular and in the nature of contractual payments which were made depending on the work that was allocated to the respondent by the News Services Division of All-India Radio. It was unclear and whether the respondent had received more than Rs.3,500/- plus dearness allowance per month at any relevant point of time. In such circumstances, the respondent cannot be denied family pension for the income earned by her was not in excess of the limit mentioned and prescribed under the Pension Rules. Moreover, the Ministry or the Department of the Government, under Rule 88 of the Central Civil Service (Pension) Rules (Rules, for short), has the power to relax the operation of the Rules. At the same time, the impugned order records that the respondent had accepted that she was earning between Rs.1000/- to Rs.9,720/- per month.
6. For the sake of convenience, least there be any confusion, we would like to reproduce paras 6 and 7 of the impugned order:-
7. In the wake, the Original Application is disposed of with direction to the respondents to verify the amount received by the applicant from New Service Division of All India Radio after January 2012 and finalize her claim for family pension within three months from the date of receipt of a copy of this Order. For the month the applicant received perquisites from New Service Division in excess of limit mentioned in the relevant rules (ibid), the family pension would be nixed to her and the amount already paid would be recovered. Nevertheless, if in any month the amount received by her was less than the specified limit, no recovery should be made. For future period, the family pension would be released only on furnishing certificate by the applicant that she had not earned any amount in excess of the limit mentioned in the relevant rules as well as the certificate from the agency where she is gainfully employed in this regard. No costs.”
7. In the original application, the respondent did not deny or contest that she was working in Prasasr Bharti or All-India Radio and had earned Rs.73,642.50 during the period 1st January till 31st December, 2012. It is not denied that family pension plus dearness allowance was paid during the same period. For the sake of completeness and as the table in the original application is of some relevance, we would like to reproduce the same in entirety without making any changes or modifications:- “ Months January 2012 to 31st March, 2013 Min. family pension + Dearness Allowance/Relief. (2) Amount received from Prsar Bharti (3) Difference between (2) & (3) January, 2012 Rs.5775/- (Rs.3500 + DA 65% of Rs.3500 i.e. Rs.2275) Rs.4009.50/- Rs.1765.50/- February, 2012 Rs.5775/- Rs.2916/- Rs.2859/- March, 2012 Rs.5775/- Rs.7290/- (Rs.1515/-) April, 2012 Rs.5775/- Rs.9720/- (Rs.3945/-) May, 2012 Rs.5775/- Rs.8100/- (Rs.2325/-) June, 2012 Rs.5775/- Rs.2592/- Rs.3183/- July, 2012 Rs.6020/- (Rs.3500 + DA 72% of Rs.3500 i.e. Rs.2520) Rs.4738.50/- Rs.1281.50/- August, 2012 Rs.6020/- 5832/- Rs.188/- September, 2012 Rs.6020/- Rs.5103/- Rs.917/- October, 2012 Rs.6020/- Rs.5832/- Rs.188/- November, 2012 Rs.6020/- Rs.9409.50/- (Rs.3389.50/-) December, 2012 Rs.6020/- Rs.8100/- (Rs.2080/-) Total (Jan, 2012 to Dec, 2012) Rs.70,770/- Rs.73642.50/- (Rs.2872.50/-) January, 2013 Rs.6020/- Nil Rs.6020/- February, 2013 Rs.6020/- Rs.1000/- Rs.5020/- March, 2013 Rs.6020/- Rs.4000/- Rs.2020/- Total (April, 2012 to March, 2013) Rs.71505/- Rs.64427/- Rs.7078/- ” A reading would show that the respondent had received payment of Rs.73,642.50 during the period 1st January, 2012 and December, 2012. She had also received payment of Rs.1,000/- and Rs.4,000/- in the month of February and March, 2013. The minimum family pension and dearness allowance/relief payable to a person entitled to family pension during the period 1st January to 31st December, 2012 was Rs.70,770/-. Thus, the respondent had received and earned income of Rs.73,642.50, which was more than the minimum amount of family pension and dearness allowance/relief. The position would be different if the financial year is taken as the criterion.
8. Rule 54(6) of the CCS (Pension) Rules reads as under:-
9. The Explanations 1 and 3 to the said Rule are relevant and are reproduced below:”- “EXPLANATION 1.- An unmarried son or an unmarried or widowed or divorced daughter, except a disabled son or daughter shall become ineligible for family pension under this sub-rule from the date he or she gets married or remarried.
XXXX EXPLANATION 3.- It shall be the duty of son or daughter or siblings or the guardian to furnish a certificate to the Treasury or Bank, as the case may be, once in a year that, (i) he or she has not started earning his or her livelihood, and (ii) he or she has not yet married or remarried and a similar certificate shall be furnished by a childless widow after her remarriage or by the disabled son or daughter or by parents to the Treasury or Bank, as the case may be, once in a year that she or he or they have not started earning her or his or their livelihood.” As per Explanation 1, a widowed or a divorced daughter is ineligible to get family pension from the date she gets married or re-married. The end point in such situations is stipulated. Explanation 3 states that it is the duty of son or daughter to furnish a certificate to the Treasury or the Bank once a year that he or she has not started earning his or her livelihood and that she has not got married or re-married. The term “livelihood” is not specifically defined in the pension regulations. It obviously has reference to income of the son or daughter who seeks family pension. Learned counsel for the respondent on the said aspect has relied upon Office Memorandum dated 11th September, 2013 issued by Ministry of Personnel, Public Grievance and Pensions. Paragraphs 4 and 5 of the said circular read as under:-
10. In order to determine and decide whether widowed or divorced daughter of a Government servant has started earning her livelihood, reference to a particular month may lead to a difficulty. Explanation 3 to Rule 54 (6) of the CCS (Pension) Rules quoted above refers to and postulates that it is the duty of the son or daughter entitled to family pension to furnish a certificate to the Treasury or the Bank once a year that he/she has not started earning his or her livelihood. Ergo, in the present case counsel for the petitioner has submitted that the period of one year should be counted from 1st December, 2012. The said contention of the counsel for the petitioner would be in consonance with the definition of the term “year” as per sub-section (66) to Section 3 of the General Clauses Act, which stipulates that the expression “year” would generally refer to the British calendar year. It is clear from the table mentioned by the respondent in her OA itself that she had earned a sum of Rs.73,642.50 from Prasar Bharti during the period 1st December, 2012. This amount is more than the minimum amount of family pension, which was payable during the same period, even if we include the dearness allowance relief.
11. Thus, the respondent had earned more than Rs.73,000/- in the calendar year January to December, 2012. She was earning her livelihood and was therefore, not entitled to get family pension from 1st January, 2013 as her income was more than the minimum amount of family pension payable, after including dearness allowance/relief.
12. Family Pension payable to a major son or daughter especially after they have completed their education and are capable of earning a livelihood, must be distinguished from the pension payable to a retired employee or after his/her death, to the spouse. A divorced or widowed daughter is entitled to family pension, provided she is not in a position to work and earn a livelihood. The right to claim family pension is not earned by her, albeit her parent being a retired government servant, the government has extended the said benefit. Provisions pertaining to the grant of family pension in such cases, have to be reasonably construed and not stretched or given an extra-liberal interpretation by applying the principles normally applied to pension provisions. An able-bodied and mentally fit daughter, having had the benefit of education, when found to be working and earning an income beyond the specified limit, should not claim family pension. When she has earned the income of the level indicated over a period of time spanning one calendar year, it is indicative of her ability to earn a living. The nature or source of income of livelihood can be diverse and need not be confined to earnings as an employee in the public or private sector. Earnings through self employment or from contractual employment are equally good sources of livelihood, when the income is earned over a span of 12 calendar months. The respondent is a graduate and has been working in Prasar Bharti on contractual basis and work assignment basis. Documents placed on record by the petitioner indicate that she has been enlisted by them to work on assignment basis in the Talk/Short Stories Branch. We would hasten to clarify, in the given case, family pension can stop immediately after the son or daughter starts earning when it is apparent that the income earned would be more than the amount specified.
13. In case the respondent in future faces grave difficulty or financial problem, she can make an application under Rule 88 of the CCS (Pension) Rules, which provides for and refers to power of relaxation. Learned counsel for the petitioner has stated that in case of extreme difficulty and in exceptional circumstances, the said power can be exercised.
14. However, there is one aspect on which the respondent has rightly succeeded before the Tribunal. The petitioner had claimed refund of Rs.6,38,522/-, being the family pension, etc. paid to her. The order would indicate that certain amounts paid were also claimed by the brother of the respondent, namely, Bhim Singh. We do not find that there is any material or basis to hold that the respondent had incurred the disqualification prior to January, 2013. We also note that the respondent had earned amount of Rs.9,409.50 in November, 2012 and Rs.8,100/- in December, 2012. Therefore, we do believe and accept the case of the respondent that she was entitled to family pension upto 31st December, 2012 and had only then incurred the disqualification. Recoveries thus are not justified and would not be made.
15. The aforesaid observations and directions would, however, not affect any litigation between the respondent and his brother or any litigation filed by a third person for recovery of the amounts, which are due and payable to the third person or brother, who is not a party before us.
16. The writ petition is accordingly allowed to the extent indicated above. The impugned order passed by the Tribunal will be treated as modified to the aforesaid extent. No order as to costs.
SANJIV KHANNA, J. SUNITA GUPTA, J. OCTOBER 20, 2016 VKR