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PETITIONER: P.S.E.B.  AND OTHERS

       Vs.

RESPONDENT: RAM RAKHI

DATE OF JUDGMENT:       28/07/2000

BENCH: Shivaraj V. Patil, S.R.Babu

JUDGMENT:

Rajendra Babu, J.  :

     Leave granted.

     Respondent filed a suit seeking a mandatory injunction to  the  appellants  to  sanction and  pay  family  pension, G.P.F.,  Death-cum- Retirement Gratuity, ex-gratia grant and leave  encashment etc.  Her case is that she is the  widowed sister  of Shri Dalip Chand, who was working as a Lineman in the appellants establishment at the time of his death.  The suit  was resisted by the appellant and it is contended that deceased  Dalip Chand did not nominate any person to be paid the  family pension or G.P.F.  nor any member of his  family was  dependent on Dalip Chand for payment of family pension. The  trial  court  decreed the suit in  respect  of  various claims  made  by the respondent.  The matter was carried  in appeal  unsuccessfully.   In the second appeal in  the  High Court  it  was  noticed that the matter is  covered  by  the decision  in  Jasohdhan Devi vs.  State of Punjab  and  Anr, 1989 (6) S.L.R.  664 and therefore no interference is called for  as  the widowed sister is recognized as member  of  the family entitled to family pension.

     The contention put forth before this Court is that the respondent  is  not  a member of the family as per  the  new pension rules which came into force in 1964 under which only spouse and children of the deceased employee will constitute members  of  the family.  In addition it is  contended  that even  if the respondent is a member of the family under  the old  rules, in which an unmarried widowed sister is included in  the definition of family, still she has to fulfil  other conditions  arising  under the other relevant provisions  of the Rules and those conditions having not been fulfilled the Courts  below  were not justified in passing the decree  for grant  of  family  pension.   The learned  counsel  for  the respondent submitted that the view taken by the Courts below is absolutely justified and no interference is called for.

     Though  three claims had been made by the  respondent, the learned counsel for the appellant confined his case only to  one aspect of the matter namely, grant of family pension and  in  regard to other two aspects did not  challenge  the decree  passed  by the Courts below as affirmed by the  High

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Court  of  Punjab & Haryana.  Therefore, we will  rivet  our attention only to the question of grant of family pension to the respondent.

     The  fact  that respondent is a widowed sister of  the deceased employee of the appellant is not in dispute.  It is also  not in dispute that he did not exercise his option  to be  governed  by the Pension Scheme 1964 and  therefore  the restricted  definition  given  to  the  expression  ‘Family confining  only to spouses, sons and unmarried daughters has no  application.   On the other hand, the relevant rules  in Punjab  Civil  Services  Rules Vol.  II 1960 Ed.   would  be applicable  wherein  in Rule 6.16- D (1) an  explanation  is added  to  define as to what family is and  that  definition adopts  the definition set out in Rule 6.16-B (1)(a)  except certain  persons  and that rule clearly includes  a  widowed sister.   Therefore in the absence of any option having been exercised  by the deceased employee to adopt new Rules,  old Rules govern him as rightly held by the High Court following the decision in Jasodhan Devi v.  State of Punjab (supra), a widowed  sister does become a member of the family who could claim  pension under those Rules.  So far as this aspect  of the  matter is concerned, the view taken by the Courts below is absolutely justified and calls for no interference.

     However,  the  matter  does not rest at what  we  have stated  so far.  In order to become entitled to claim family pension, the conditions specified in Chapter VI, sub-heading D:‘Family  Pensions,  have to be fulfilled.  Clause (a)  of Rule  6.16-D  provides  that no pension is  payable  without production  of  any proof that such person was dependent  on the deceased officer for support in respect of those falling within  sub-rule  (4)(b).   Sub-rule   (4)  applies  to  two categories of the members of the family.  The first category consists  of  spouses  and children.   The  second  category coming  under  clause  (b) are all other  relatives  of  the deceased  such as parents and siblings.  So far as relatives other  than  spouse  and children are concerned there  is  a condition  that they are dependents on the deceased employee for  support  has to be established by  adducing  reasonable proof  to  claim  pension.  Further the scheme of  grant  of pension  is  by way of exclusion of a relative mentioned  in the  earlier category with reference to the one mentioned in the  latter  category.   In  the first place  it  is  to  be established  that there was no nomination in respect of  any one  of  them  and that such person was a dependent  of  the deceased  employee at the time of the death.  In the absence of  such  proof  family pension cannot be  granted.   Indeed whether  a  widowed sister, as in the present case, has  her own  source  of  income  or was not  a  dependent  upon  the deceased  is  a  matter  to   be  established  by   adducing appropriate  proof.   However,  none  of  the  Courts   have adverted  their  attention  to this aspect  of  the  matter, though  the  defence  raised  by  the  appellants  has  been noticed.  Thus we have no option but to set aside the decree passed by the trial court as affirmed by the first appellate court  and  the  High Court in second appeal to  the  extent indicated  above  in  so  far it relates  to  direction  for payment of family pension.

     This  appeal  is thus allowed to the extent  indicated above  setting  aside the decree in so far as it relates  to the  direction  to  grant  of family pension  and  in  other respects  remains undisturbed and the matter is remitted  to the  trial court for fresh consideration on the question  as

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to  whether  the  respondent is dependent  of  the  deceased employee  so  as to claim pension in terms of the  rules  to which  we have adverted to.  Appeal is allowed in part.   No costs.