ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

Transcription

1 ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI O.A.No. 51 of 2016 WEDNESDAY, THE 17TH DAY OF AUGUST, 2016/26TH SRAVANA, 1938 CORAM: HON'BLE MR. JUSTICE S.S. SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) APPLICANT: AMMINI.K.N., AGED 62 YEARS, WIDOW OF NO SPR E.K. KRISHNAN KUTTY, GOWRY NIVAS, PARAMPUZHA, KOTTAYAM DISTRICT, KERALA BY ADV.SRI. T.R.JAGADEESH Versus RESPONDENTS:- 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI THE CHIEF OF THE ARMY STAFF, INTEGRATED HQ, MINISTRY OF DEFENCE (ARMY) SOUTH BLOCK, NEW DELHI THE PCDA (P) DRAUPADI GARH, ALLAHABAD, UP RECORD OFFICER, MADRAS ENGINEERING GROUP, PIN , C/O 56 APO. BY ADV.SMT.E.V.MOLY, CENTRAL GOVERNMENT COUNSEL

2 -: 2 :- ORDER VAdm M.P. Muralidharan, Member (A): 1. The Original Application has been filed by Smt. Ammini K.N., widow of late Sapper E.K. Krishnan Kutty No , essentially seeking that ordinary family pension be also paid to her for the period from 29 Mar 2003 to 23 Sep 2012, ie. the interim period from one day after the death of her husband to date of actual grant. 2. Shri.T.R. Jagadeesh, learned counsel for the applicant, submitted that the applicant's husband late Sapper Krishnan Kutty was in receipt of service pension from the Army based on the service rendered by him and after his retirement he was reemployed in State Bank of Travancore (for short SBT) w.e.f. 03 April While serving with SBT the applicant's husband died on 28 March After the demise of the applicant's husband, the SBT granted family pension to the applicant under the

3 -: 3 :- Employees Pension Scheme of the bank (Annexure A1). Family pension claimed from the military side by the applicant was rejected by the respondents since the applicant's husband had exercised option for civil family pension in accordance with CCS Rules and based on the option exercised no family pension could be granted from the Army side. The applicant was however advised to forward a petition for claiming dual family pension w.e.f. 24 Sep 2012 based on PCDA (P), Allahabad Circular No.504 dated 17 Jan 2013 (Annexure A2). Accordingly an appeal was preferred by the applicant (Annexure A3) and she was granted ordinary family pension from the Army in addition to family pension from the SBT in September 2013 (Annexure A4). 3. Learned counsel further submitted that subsequently in May 2015, the applicant preferred another appeal, as in accordance with the Government Notification No. 1/19/96-P & PV (E) dated 27 Jul 2001, family pension under Employees Pension Scheme 1995 was allowed in addition to family pension from the military side (Annexure A5). However, despite submitting all

4 -: 4 :- connected documents through the Zilla Sainik Welfare Officer (Annexure A6), the applicant was denied family pension from the military side for the interim period from one day after the date of death of her husband to the date of sanction of family pension in accordance with PCDA (P) Circular No.504 (Annexure A7). The learned counsel submitted that denial of family pension from the military side to the applicant from 29 March 2003 to 23 Sep 2012 was arbitrary. It was also submitted that this Tribunal in O.A.No. 82 of 2011 and connected cases had granted ordinary family pension to the applicants therein from the date of death of their husbands in addition to family pension paid by banks. The Hon'ble High Court of Kerala had also granted reliefs to widows of similarly situated personnel who were employed in State Bank of India. 4. Smt. E.V. Moly, learned Central Government Counsel for the respondents, submitted that the applicant's husband late Sapper Krishnan Kutty No was enrolled in the Army (MEG) on 07 Oct 1965 and discharged with effect from 31 Oct

5 -: 5 : on fulfilling the conditions of his enrolment. He was granted service pension for life with effect from 01 Nov Late soldier was re-employed in the SBT on 03 Apr 1985 and died on 28 Mar 2003 while in service of the Bank. 5. Learned counsel further submitted that at the time of discharge of her husband, next of kin of Armed Forces pensioners, who got civil employment in Central Civil departments or State Govt./PSUs/Autonomous bodies/local Funds of Central/State Governments on retirement from military service were authorised to draw ordinary family pension either from military side or from the civil side and as per option exercised by her husband she was entitled to civil pension only. The learned counsel also submitted that even as per Regulation 78 of Pension Regulations for the Army, 2008 only one pension was admissible. However, based on a policy review by the Government, next of kin were authorised to draw two family pensions ie. from military side in addition to family pension if

6 -: 6 :- any, authorised from civil department w.e.f. 24 Sep 2012 (Annexure R2). Accordingly, the applicant was sanctioned family pension from the military side w.e.f. 24 Sep Learned counsel submitted that hence the applicant was not authorised to receive dual family pension from the date of death of her husband. 6. Heard rival submissions and perused the records. 7. The applicant in her appeal against rejection of dual family pension at Annexure A3 had sought the benefit of Government of India Notification No.1/19/96-P & PV (E) dated and Govt. of India Letter No.2/CC/B/D (Pension/Services) 2001 dated , by which family pension under Employees' Pension Scheme, 1995 was allowed in addition to family pension from military side. She had also sought that pending the Government decision based on the above letters, she be also considered for dual family pension

7 -: 7 :- w.e.f. 24 Sep 2012 in accordance with PCDA (P) Circular No.504. The applicant was granted dual family pension w.e.f. 24 Sep 2012, which was based on the decision of the Government promulgated by Ministry of Defence letter No.01(05)/2010-D (Pen/Policy) dated (Annexure R2), by which dual family pension was permitted w.e.f. 24 Sep The sole question that arises for our consideration is whether the applicant was entitled to both military family pension as well as civil family pension for the interim period ie. from one day after the date of death of her husband to date of actual sanction now granted ie. from 29 March 2003 to 23 Sep It was also contended by the learned counsel for the applicant that in a similar case in O.A.No. 82 of 2011 dual family pension was allowed by this Tribunal from the date of death of the husband of the applicant therein. 8. At the outset it is observed that the claim of the applicant for dual family pension under the Employees' Pension

8 -: 8 :- Scheme 1995 or the Family Pension Scheme, 1971, is not applicable because those schemes have been made under the provisions of Section 6A of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952, which is applicable to employees of factories and other establishments to which the said Act of 1952 applies or is applied under sub-section (3) or sub-section (4) of the said Act and to none others. 9. As regards the similarity of the applicant's case to O.A.No. 82 of 2011, we would like to observe that when the orders in the said O.A. were passed in December 2012, the Government Policy at Annexure R2 was not in force as the same was promulgated only on 17 Jan Further, O.A.No. 82 of 2011 was examined based on the provisions of sub rule 13-A and 13-B of Rule 54 of the C.C.S. (Pension) Rules. The said rules being relevant are reproduced below: (13-A). A military pensioner, who on retirement from military service, on retiring pension, service pension or invalid pension is governed for the grant of ordinary

9 -: 9 :- family pension by Army Instruction 2/S/64 or corresponding Navy or Air Force Instructions and is re-employed in a civil service or civil post before attaining the age of superannuation, shall for the purpose of eligibility for the family pension admissible under this rule or the family pension already authorized under the aforesaid Army/Navy/Air Force Instruction, be governed as follows: (i) If he dies while holding a civil post, his family shall be allowed family pension under these rules or the family pension authorized at the time of retirement or discharge from the military service, whichever is more advantageous to he family; (ii)if he has, on appointment to a civil service or post, opted to retain military pension for the past military service - (a) and retires from the civil re-employment without earning any pension therefore, his family shall be entitled to family pension as authorised at the time of his retirement/discharge from military service; (b) retires from civil re-employment after becoming eligible for pension therefore, he shall exercise an option at the time of applying for pension for civil service either to be governed by family pension under these rules or to avail of family pension benefits as authorised at the time of his retirement/discharge from military service and the said option once exercised shall be final.

10 -: 10 :- (iii) if on appointment to a civil service or post, he has opted to surrender military pension and count the military service for civil pension, his family shall be entitled to family pension under these rules. (13-B) Family Pension admissible under this rule shall not be granted to a person who is already in receipt of Family Pension or is eligible therefor under any other rules of the Central Government or a State Government and/or Public Sector Undertaking/Autonomous Body/Local Fund under the Central or a State Government: Provided that a person who is otherwise eligible for family pension under this rule may opt to receive family pension under this rule if he forgoes family pension admissible from any other source: Provided further that family pension admissible under the Employees Pension Scheme, 1995, and the Family Pension Scheme, 1971, shall, however, be allowed in addition to the family pension admissible under these rules. 10. Sub-rule 13(A) prohibits dual family pension in that the widow or relatives of the deceased pensioner are entitled to only one of the two family pensions, ie. from military or civil, which is more advantageous to the family. Sub-rule 13(B) also prohibits grant of family pension admissible under Rule 54 of the C.C.S. (Pension) Rules to a person who is in receipt of family pension or is eligible thereof under the rules of Central

11 -: 11 :- Government or a State Government and/or Public Sector Undertaking/Autonomous Body/Local Fund under the Central or a State Government. The first proviso to sub-rule 13(B) also speaks of only one family pension subject to the option chosen by the entitled person. 11. A Bench of this Tribunal in O.A.No. 82 of 2011 had expressed the view that sub-rule 13(B) could not be applied merely because re-employment was taken in a Public Sector Undertaking/Autonomous Body/Local Fund, but it was also required to be shown that such Undertaking/Body/Fund is under the Central Government or a State Government. In other words, the Tribunal held that if the source of family pension is not under the control of the Government, the dual family pension cannot be denied. Accordingly, it was held that eventhough in respect of State Bank and its subsidiaries the Central Government had authority and power to issue directions in the matter of policy, in the appointment of officers and employees of the Bank, the Central Government had no role to play in the affairs of the

12 -: 12 :- bank except to give directions in the policy matters. Hence it was held that the bank is not under absolute control of the Central Government under the meaning of sub-rule 13(B) and therefore dual family pension could be granted. 12. With respect, we cannot agree with the view taken. It is observed that the Hon'ble Apex Court while considering C.A.No of 2015, eventhough examining the case of voluntary retirement scheme of State Bank of India, referring to its own decision in Bank of India & Others v. O.P. Swarnakar & Others (2003) 2 SCC 721, held that the State Bank of India is an instrumentality of the State. The Hon'ble Apex Court in O.P.Swarnakar (supra) has held as follows: 48. The employees of the nationalized bank may not enjoy a status as is the case of government employees or the statutory authorities whose terms and conditions of service are governed by the constitutional provisions and/or the statutes and the statutory rules; but there is no gainsaying that the employees of the

13 -: 13 :- nationalized banks enjoy security of their employment. So far as the employees if the State Bank of India are concerned, their terms and conditions of service, as noticed hereinbefore, are governed by statutory rules But the State Bank of India as also the nationalized banks are States within the meaning of Article 12 of the Constitution of India Article 12 of the Constitution of India being relevant is reproduced below: 12. Definition.-- In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. 14. There cannot be any dispute that the State Bank of India is governed by the State Bank of India Act, 1955, by which the former Imperial Bank was converted as the State Bank of India with necessary consequences provided in the Act.

14 -: 14 :- Similarly, the State Bank of Travancore, which is governed by the State Bank of India (Subsidiary Banks) Act, 1959, is managed almost in the same manner as the State Bank of India. It is also not disputed that the Government holds shares to the tune of 51% in the Bank and the State Bank of India's mandatory share holding in the State Bank of Travancore is to the tune of 51%. Further, as held by the Apex Court, the said bank would come under the definition of the State as envisaged under Article 12 of the Constitution of India. Therefore, in our view, it cannot be held that the provisions of sub-rule 13(B) quoted above would not apply to the State Bank of India or its subsidiaries such as State Bank of Travancore, in which the applicant's late husband was employed. Therefore, we are of the considered view that the applicant is only eligible for dual family pension w.e.f. 24 September 2012 ie. the date from which he has been granted pension in accordance with the provisions of Government policy letter at Annexure R2, and is not entitled for the earlier period.

15 -: 15 :- 15. In view of the foregoing, the Original Application is devoid of merit and it is accordingly dismissed. 16. There will be no order as to costs. 17. Issue free copy of this order to both sides. Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN, MEMBER (A) MEMBER (J) tm. /True Copy/ Prl. Private Secretary