Sri.A.Venkateshwar Rao, B.Com, B.L.

IN THE COURT OF THE XI JUNIOR CIVIL JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

DATED THIS THE 15th DAY OF NOVEMBER, 2016

PRESENT : SRI A VENKATESWARA RAO, B.Com., B.L.,

XI JUNIOR CIVIL JUDGE

O.S.NO. 271 OF 2014

Between :

1. Smt. P. Dhana Lakshmi W/o late P. Ganesh (died) per Lrs

2. P. Vijayanand S/o late P. Ganesh Occ : Coolie, Aged 48 years

3. P. Vijay Kumar S/o late P. Ganesh Occ : Coolie, Aged 45 years

Plaintiff 2 and 3 are R/o 796, Railway Quarters, Mettuguda, Secunderabad.

4. Jalakam Sangeetha Raju D/o late P. Ganesh, Aged 37 years, Occ : Housewife R/o 10-1-184/8, West Marredpally, Secunderabad.

5. Mrs. Ch. Vijayalaxmi D/o late P. Ganesh Aged 48 years, Occ : Housewife R/o 2-8-1/2/8, Panchavati Colony, Macha Bolarum, Secunderabad.-- Plaintiffs

And

1. General Manager, SCR, Rail Nilayam, Secunderabad.

2. Divisonal Personal Manager, SCR, Rail Nilayam, Secunderabad.--Defendant

This suit coming on this day before me for final hearing in the presence of Sri M.Anand Kumar, Advocate for the plaintiffs and Sri K.Suryanarayana, Advocate for defendants No.1 and 2, having heard both the counsel, having perused the material on record and having stood over for consideration till this day, this court made the following:-

J U D G M E N T

This suit is filed for declaration that deceased plaintiff No.1 is entitled for family pension consequent upon the death of her husband late P.Ganesh on 9.11.2011 and for a

O.S. No.271 of 2014

consequential direction by way of mandatory injunction to defendants No.1 and 2 to release the family pension in favour of the first plaintiff from the date of death of her husband on 9.11.2011.

2.The averments of the plaint are that the first plaintiff is the legally wedded wife of late P.Ganesh, who worked as

Driver in M&D Department South Central Railway. He retired from service on 31.10.1977 and he was a pensioner vide PPO

No. 59021104241. Late P.Ganesh expired on 9.1.2011 leaving behind the first plaintiff as his legally wedded wife. Out of their wedlock, the first plaintiff gave birth to four children (plaintiffs

No.2 to 5). During the lifetime of late P.Ganesh, he had contacted illegal intimacy with one Ganga Bai, who is none other than the sister of the first plaintiff. When the first plaintiff was carrying, Ganga Bai used to reside with the first plaintiff. During that period, late Ganesh developed illegal contacts with Ganga

Bai. Subsequently, the first plaintiff was driven out of the marital home alongwith children. The 1st plaintiff filed maintenance case before the X Metropolitan Magistrate,

Secunderabad vide M.C.No.5/1989 and the Court granted maintenance at Rs.1,000/- to the 1st plaintiff and her children.

3.It is further averred that late Ganesh nominated

Ganga Bai as his nominee for receiving the pensionery benefits.

Ganga Bai predeceased late Ganesh. Ganga Bai died on 22.1.2009 after the demise of Ganga Bai, the husband of the 1st plaintiff, Ganesh addressed a letter dated 7.5.2009 to the

O.S. No.271 of 2014

defendants requesting them to change the nominee, by substituting the name of Ganga Bai with that of the first plaintiff.

However, the said change was not carried out by the defendants during the lifetime of late P.Ganesh.

4.It is submitted that late Ganesh nominated Ganga Bai at the time of his retirement since Ganga Bai was residing with her.

5.It is submitted that the name of the first pliantiff and her four children viz. Rukmini Bai, Sangeetha Bai, Vijayanand and Vijay Kumar (plaintiffs No.2 to 5) are reflected in I.D. cum

Medical Card issued to late P.Ganesh. These documents would clearly prove that the 1st plaintiff is the legally wedded wife of the deceased Ganesh. After the demise of her husband, the first plaintiff addressed a letter dated 16.09.2011 to the defendants requesting them to consider her case for grant of family pension. Since there was no response from the defendants, the first plaintiff addressed a letter dated 24.1.2014 with the very same compentent court to the fact that she is a legally wedded wife of the deceased Ganesh. Hence, the present suit.

6.Defendants No.1 and 2 filed written statement opposing the suit. They first contended that the present suit is not maintainable without issuing the notice as required under

Sec. 80 of CPC. Defendants submitted that the deceased,

P.Ganesh was holding the post of driver (mail and express) at

Secunderabad Railway Station. His date of birth is 10.10.1939.

O.S. No.271 of 2014

After attaining the age of superannuation, late P.Ganesh retired from service on 31.10.1997. The defendants are not in receipt of the information pertaining to the death of the deceased on 9.1.2011.

7.It is further averred that in the pension booklet in

Form No.6 statement showing the details of the members of the family for the purpose of the family pension in terms of Rule 75 (15) (a) of Railway Services (Pension) Rules 1993, the deceased,

P.Ganesh furnished the details in respect of his family members as under:-

NameRelationshipDate of birth/Age

P.Ganga BaiWife49

8.Further in Form No.9 of the Pension Booklet, the attested joint photograph is mentioned as that of the deceased and his wife, Smt.P.Ganga Bai. Although, the first plaintiff claims to be the wife of the deceased, P.Ganesh and that the four children were born out of wedlock of deceased, Ganesh, late deceased Ganesh did not furnish their details in the family particulars in the pension booklet. Further, the 1st plaintiff also did not make any claim for inclusion of her name for family pension either at the time of retirement of the deceased or at any point of time including at the time of revision of pension/family pension pursuant to V CPC and VI CPC. The original PPO No.59021104241 dated 14.5.1998 issued pursuant to V CPC and the revised PPO dated 3.3.2011 issued pursuant to the VI CPC are showing the name of the wife of the deceased as

O.S. No.271 of 2014

P. Ganga Bai. Furthermore, as per the last pay certificate of

September, 1997, the salary of P.Ganesh was free from court attachment or recoveries towards maintenance of any kind. The said fact does not support the continuance of the payment of maintenance by the deceased P.Ganesh to the plaintiff either in compliance of the order dated 10.1.1992 in M.C.No.5/1989 or in compliance of any other order of any other court of law. Thus, the possibility of the legal/marital status of the 1st plaintiff as wife of the deceased being not in existence cannot be ruled out, more so, in view of the fact that the 1st plaintiff did not make any claim during all these years or during the lifetime of the deceased.

9.It is submitted that as per the order dated 10.1.1992 in M.C.No.5/1989, the Court directed the deceased, P.Ganesh to pay the maintenance at Rs.300/- per month to each of the petitioner from the date of petition. It is submitted that records relating to the said case are not available with the defendants.

However, as per the copy of the letter No.

CP/501/Drgs/LGD/P.File dated 21.6.1991 of the 2nd defendant, recovery was made from the salary of the deceased towards maintenance and the same was paid to the plaintiff through money order. But, last the pay certificate shows that the salary of the deceased was free from the Court attachments, which only implies that payment of maintenance by the deceased to the 1st pliantiff was not continued. The payemnt of maintenance by the deceased to the 1st plaintiff having not been continued,

O.S. No.271 of 2014

no order of a court of law was invoked for payment of maintenance by the deceased to the 1st plaintiff. Furthermore, the first plaintiff did not approach the Railway Administration all these years praying to include her name for family pension.

Only after the demise of the retired employee on 9.1.2011, the first plaintiff is making claim for family pension. Smt. P.Ganga whom the deceased is declared as his wfie in the pension booklet is no more alive to dispute the claim made by the 1st plaintiff. It is submitted that declaration made by the deceased employee in respect of the members of his family in Form No.6 of the pension book let has been witnessed by his Supervisor (LoF).

10.It is submitted that no representation for change of name of nominee for receipt of family pension had ever been made by the deceased and as such there was no occasion for the Railway Administration to examine or verify the details.

11.It is submitted that the marital status attained through marriage shall stand good only in the event of continuous lawful non-severance of the marital bondage.

Plaintiff had not made any claim for inclusion of her name for family pension either at the time of retirement of the deceased or at any point thereafter. Therefore, the defendants denied the averment that after the demise ofher husband she addressed a letter dated 16.9.2011 tot he defendants on 24.01.2014.

12.It is submitted that the first plaitniff approached this

Court with unclean hands and suppressed the material facts.

O.S. No.271 of 2014

She filed the present suit without any right. Hence, the first plaitniff is entitled for the rleief against the defendants No.1 and 2.

13.During the pendency of the suit, the 1st plaintiff died and the four children of the 1st plaintiff are brought on record as

Lrs of the deceased 1st plaintiff, vide Order of this Court dated 7.1.2016 in I.A.No.442/2015.

14.After inclusion of the children of the deceased first plaintiff as plaintiffs No.2 to 5 defendants filed additional written statement. The contents of the additional written statement is verbatim reproduction of written statement which was filed earlier.

15.On the above pleadings, following issues were settled for trial:

(1) Whether the plaintiff is entitled for declaration as sought for by her?

(2) Whether the plaitniff is entitled for mandatory injunction?

(3) To what relief?

16.During the trial of the suit, plaintiffs examined two witness and got marked Exs.A1 to A14. On behalf of the defendants, one witness was examined and Ex.B1 to B4 were marked. After conclusion of trial, both the counsel submitted arguments.

17. Issue No.1 : According to the plaintiffs, 1st plaintiff is the legally wedded wife and plaintiff Nos.2 to 5 are the children born to 1st plaintiff through late P. Ganesh, who,

O.S. No.271 of 2014

admittedly, worked as Driver in S.C. Railways and retired from service on 31.10.1997. Their grievance is that although 1st plaintiff is the legally wedded wife of the deceased Ganesh, the defendants refused to pay the Family Pension to her after the death of late Ganesh on 9.1.2011. Ex.A.2 (death certificate) shows that Late P. Ganesh died on 9.1.2011. It is averred in the plaint that the deceased Ganesh earlier retired from service on '31.10.1977'. However, the said date as mentioned in the plaint is obviously incorrect, as the same is contrary to the record maintained by the Railways. Ex.B.2 is the certified true copy of the Last Pay Certificate of the deceased issued by the S.C.

Railways, wherein the date of retirement of the deceased is clearly shown as '31.10.1997'. Plaintiffs did not dispute the correctness of the said date of retirement of the deceased as shown in Ex.B.2, by producing any contra evidence. Thus, it can safely be said that the date of retirement of the deceased

Ganesh is 31.10.1997.

18.As per the Service Rules of the Railways, three months prior to the retirement of the literate Railway employee, the Welfare Inspector of the Railways will hand over the Pension

Booklet to the retiring Railway employee to be filled in by him with his own hand, and after filling the same by the retiring

Railway employee, the same will be submitted to the Railway

Administration for grant of pension. The said fact came to light in the evidence of DW.1. In this case also, the pension papers were duly filled up by the deceased Ganesh prior to his

O.S. No.271 of 2014

retirement and the same were submitted to the Railway

Administration for sanction of Pension, Family Pension, Gratuity etc. In the instant case also, it appears that prior to the retirement of the deceased Ganesh from service on attaining the age of superannuation, the deceased Ganesh submitted his pension papers before the Railway Adminstration which were verified by the Railway Administration and then Pension

Payment Order was issued by them. The relevant papers in the

Pension Booklet which were submitted by the deceased Ganesh

before the Railway Administration viz., papers relating to the

Family Pension, are produced in this court by the defendants which are Ex.B.1 to B.4. It is necessary to peruse the same here.

19.Ex.B.1 is the certified true copy of the Family

Pension Booklet in Form No.9 & Form No.6 submitted by the retiring Railway employee before the Railway Administration.

Ex.B.4 is the certified true copy of the Pension Payment Order, under which a sum of Rs.4521/- was fixed as Pension of the retiring employee Ganesh. Ex.B.3, certified true copy of the

Revision of Pension proceedings dated 3.3.2011, shows that the said Pension was subsequently revised by the defendants, pursuant to the Revision of Pay Scales by the Central

Government under VI CPC. Under Ex.B.3, the pension was revised to Rs.13,813/-. It appears that subsequently the deceased Ganesh received the monthly pension as fixed under

Ex.B4, which was revised under Ex.B.3, after his retirement i.e.,

O.S. No.271 of 2014

from 1.11.1997 upto the date of his death on 9.1.2011. In Form

No.9 as well as in Form No.6 of Ex.B.1, the name of the wife of late P. Ganesh is clearly shown by the retiring employee (P.

Ganesh) as "Smt. P. Ganga Bai". At the bottom of Ex.B.1, the joint photo of the retiring Railway Employee (P. Ganesh) and his "wife" namely P. Ganga Bai was also affixed. On the basis of the said nomination by the retiring employee in Ex.B.1, it appears that the Railways issued Pension Payment Order (Ex.B4), by showing the wife of the retiring Railway Employee as "P. Ganga

Bai". In Part III-A (column relating to Family Pension) of Ex.B.4, the name of the wife of the retiring railway employee is shown as "Smt. P.Ganga Bai" and accordingly the family pension was allowed in the name of Smt. P. Ganga Bai, under Ex.B.4. The said pension fixed under Ex.B.4 was subsequently revised under

Ex.B.3. In Ex.B.3 also, the name of the Family Pensioner is shown as P. Ganga Bai and her relationship with the pension (Ganesh) is shown therein as 'wife'.

20.The plaintiffs produced Ex.A.1 in this court to show that after the retirement of the deceased Ganesh from service, the Railways issued Identity Card for medical purposes, wherein his wife's name was shown as P. Ganga Bai. A perusal of Ex.A.1 shows thaat the same is an Indentity Card, captioned as "Pensioner's Identity cum Medical Card" issued by the Railways in the name of the deceased Ganesh. Ex.A.1 shows that the same was issued on 1.11.1997 i.e., after the retirement of the deceased from service. In Ex.A.1, the qualifying service of the

O.S. No.271 of 2014

deceased Ganesh was shown as 37 years 6 months. Ex.A.1 also contained the P.P.O. Number. On the reverse side of Ex.A.1 identity card, the photo of P.Ganga Bai (shown as wife) is printed. Ex.A.1 must have been issued by the Railways showing the name of the wife of the retired employee as Ganga Babi, on the basis of the nomination made by the deceased in his pension papers.

21.Although Smt. P. Ganga Bai was shown as nominee in the pension papers for the purpose of Family Pension, admittedly, family pension could not be paid to Smt. P. Ganga

Bai since she died even prior to the demise of the deceased railway employee i.e., on 22.1.2009. Ex.A3-death certificate of P.

Ganga Bai would show that Ganga Bai died on 22.1.2009. Since the nominee Smt. P. Ganga Bai was no more, in Ex.B.3 Revision of Pension Proceedings dated 3.3.2011, the Revised Family

Pension payable to Smt. P.Ganga Bai, who is shown as wife therein, is mentioned as 'Zero'. The fact remains that after the demise of the deceased railway employee, the Family Pension remained not paid to the person who is shown in the Pension papers as nominee viz., Smt. Ganga Bai. It seems that after the demise of the retired employee P. Ganesh, the 1st plaintiff made claim before the Railways for family pension and when they refused to grant the same, she approached this court.

22.Now, the case of the plaintiffs is that 1st plaintiff is the legally wedded wife of the deceased railway employee Sri

Ganesh, that during their wedlock 1st plaintiff gave birth to

O.S. No.271 of 2014

plaintiff Nos.2 to 5, and that their marriage was not dissolved by any court of law. Their further case is that Smt. P. Ganga Bai is none other than the sister of the 1st plaintiff, that when the 1st plaintiff was pregnant carrying the 5th plaintiff in her womb, Smt.

Ganga Bai came to the house of the 1st plaintiff and at that time the deceased Ganesh developed illicit relationship with Smt.

Ganga Bai and thereafter he neglected the 1st plaintiff and also drove her out of the marital home along with her children. Their further case is that thereafter P. Ganesh and Smt. Ganga Bai lived together and that Smt. Ganga Bai died issueless and since

Ganga Bai was living with the deceased Railway employee, he showed the name of Ganga Bai as his wife and nominee for the purpose of Family Pension. According to the plaintiffs, originally since the deceased Railway employee showed the 1st plaintiff and plaintiff Nos.2 to 5 as his wife and children in the service records maintained by the Railways, the nomination made by late Ganesh in his pension papers is illegal and being the legally wedded wife of late Ganesh, 1st plaintiff alone is entitled to receive the Family Pension. The further case of the plaintiffs is that on coming to know about the entries in the Pension Papers submitted by late Ganesh, the 1st plaintiff approached the

Railway Adminstration and submitted a representation dated 16.9.2011 (i.e., after the demise of late Ganesh) and again on 24.1.2014 (prior to the filing of this suit) requesting them to change the name of the nominee and substitute her name in place of the name of Smt. P. Ganga Bai, but the Railway

O.S. No.271 of 2014

Adminstration did not do so. According to them, even the deceased Ganesh also submitted a represenation to the Railway

Administration during his life time to change the name of the nominee, but the Railway Administration did not take any step.

The said averment was, however, denied by the defendants.

The said denial of the defendants cannot be said to be baseless since the plaintiffs did not produce any document to show that deceased Ganesh submitted representation during his life time.

Similarly, no document is produced by 1st plaintiff to show that she submitted representation dated 16.9.2011 to the defendants. Even the latest representation which is said to have been submitted by 1st plaintiff prior to the filing of this suit, viz., representation dated 24.1.2014 (copy is marked as Ex.A.4), the defendants denied the receipt of the same also. A perusal of

Ex.A.4 shows that it bears no acknowledgment of the defendants. However, the postal receipt which is enclosed to

Ex.A.4 shows that Ex.A.4 was sent by the 1st plaintiff to the defendants by Speed Post on 27.1.2014. Assuming that the cover containing Ex.A.4 representation was duly delivered by the postal authorities to the defendants and the same was received by the defendants, the fact remains that the same emanated just prior to the filing of this suit in the year 2014.

23.Learned counsel for the plaintiffs contended that 1st plaintiff is the legally wedded wife of the deceased P. Ganesh and since her marriage with late Ganesh having not been dissolved by any court of law, she has got a statutory right to

O.S. No.271 of 2014

receive the Family Pension. According to him, the nomination made by late Ganesh in his Pension Booklet showing Smt.

P.Ganga Bai as his wife and nominee under the Family Pension

Scheme is not binding on the 1st plaintiff, since being the legally wedded wife of the deceased Ganesh, the 1st plaintiff alone is entitled to claim the Family Pension. He, therefore, contended that irrespective of the nomination made by the deceased

Ganesh in his Pension Booklet nominating P. Ganga Bai as his wife, the defendants are bound to pay the Family Pension to the 1st plaintiff alone from the date of death of the deceased Ganesh (9.1.2011) till the date of death of the 1st plaintiff (3.8.2015) and as such the plaintiffs are entitled for the relief of declaration.

24.Per contra, learned counsel for the defendants contended that as per the nomination made by the deceased employee in the Pension Booklet Smt. P. Ganga Bai is the wife of the deceased employee, that the defendants are bound to take into consideration the said nomination made by the deceased in

Pension Booklet, and that the defendants are not aware of the relationship between plaintiffs and the deceased Ganesh since they never approached them either during the lifetime of the deceased Ganesh or after his demise. Therefore, according to him, the family pension is liable to be paid to Smt. P. Ganga Bai alone and since Smt. P. Ganga Bai pre-deceased the deceased employee Ganesh, question of payment of family pension to

Ganga Bai or anybody else, much less to the 1st plaintiff, does not arise. He, therefore, contended that plaintiffs are not

O.S. No.271 of 2014

entitled to seek the relief of declaration.

25.As the defendants did not admit the relationship of the 1st plaintiff and plaintiffs 2 to 5 with the deceased Ganesh, the proof of which is essential for the plaintiffs before seeking the relief of declaration from this court, the plaintiffs produced evidence to show that they are the legal heirs of the deceased

Ganesh. They also produced evidence to prove their identity.

Before perusing the evidence as regards the relationship, I shall

first peruse the evidence as regards the identity of the plaintiffs hereunder.

26.Ex.A.8 is the Adhar Card issued in the name of "Paramanada Dhanalakshmi" (deceased 1st plaintiff herein). In

Ex.A.8, the husband's name of 1st plaintiff is shown as "P.Ganesh

Late" and her Year of Birth was shown therein as 1940. Further, the residential address of 1st plaintiff is shown in Ex.A.8 as "796

Railway Quarters Outhouse, Mettuguda, Secunderabad,

Hyderabad, Andhra Pradesh 500017". Ex.A.8 shows that the same was issued on 13.3.2011 i.e., prior to the filing of the suit.

Ex.A.7 is the Household Card issued in the name of "Paramananda Vijayanand" (2nd plaintiff herein). In Ex.A.7, the father's name of 2nd plaintiff is shown as "Ganesh". In the column relating to the Details of Family Members, Swarupa is shown as Wife, Dhanalaxmi (1st plaintiff) is shown as Mother and

Vijay Kumar (3rd plaintiff) is shown as Brother of the cardholder namely Paramanda Vijayanand (2nd plaintiff). Ex.A.7 shows that the same was issued on 23.4.2006 i.e., much prior to the filing

O.S. No.271 of 2014

of this suit. Ex.A.11 is the Adhar Card issued in the name of "Paramananda Vijay Anand" (2nd plaintiff). In Ex.A.11, the father's name of 2nd plaintiff is shown as "P Ganesh Late". The address of 2nd plaintiff is shown therein as "796 Railway Quarters

Outhouse, Mettuguda, Secunderabad, Hyderabad, Andhra

Pradesh 500017". Ex.A.11 shows that the same was issued on 13.3.2011 i.e., prior to the filing of the suit. Ex.A.12 is the Adhar

Card issued in the name of "Paramananda Vijay Kumar" (3rd plaintiff). In Ex.A.12, the father's name of 3rd plaintiff is shown as "P Ganesh Late". The address of 3rd plaintiff is shown therein as "796 Railway Quarters Outhouse, Mettuguda, Secunderabad,

Hyderabad, Andhra Pradesh 500017". Ex.A.11 shows that the same was issued on 11.3.2011 i.e., prior to the filing of the suit.

Ex.A.13 is the Adhar Card issued in the name of "Ch.

Vijayalaxmi" (5th plaintiff). In Ex.A.13, the husband's name of 5th plaintiff is shown as "Ch. Augiah" and the date of birth of 5th plaintiff is shown as 2.5.1967. Ex.A.13 shows that the same was issued on 16.8.2013. Ex.A.9 is the Household Card issued in the name of "Jalakam Raju". In the column relating to the Details of

Family Members, "Sangeetha Raju" (4th plaintiff) is shown as

Wife, Divya is shown as Daughter and Narender is shown as Son.

Although Ex.A.9 does not bear any date of its issuance, from a perusal of the said document, it appears that the same was also issued prior to the filing of this suit. Ex.A.10 is the Aadhaar Card issued in the name of Jalakam Sangeetha Raju (4th plaintiff). In

Ex.A.10, the husband's name of 4th plaintiff is shown as "Jalakam

O.S. No.271 of 2014

Raju", and the Year of Birth of 4th plaintiff is shown as 1978.

Ex.A.10 shows that the same was issued on 11.10.2011 (prior to the filing of this suit). The aforementioned documents viz.,

Ex.A.8, Ex.A.7, Ex.A.11, Ex.A.12, Ex.A.13, Ex.A.9 and Ex.A.10, in my view, are sufficient to prove the identity of plaintiff Nos.1 to

5. Further, these documents, especially Ex.A.8 which shows the husband's name of 1st plaintiff, Ex.A.7 which shows the father's name of Vijayanand (2nd plaintiff) and husband's name of 1st plaintiff as Ganesh, and Ex.A.12 which shows the father's name of Vijay Kumar (3rd plaintiff) as Ganesh, are also useful to establish the relationship between plaintiffs and late Ganesh as wife and children of late Ganesh.Let us now peruse the evidence produced by plaintiffs to prove their relationship with the deceased Ganesh. The 1st plaintiff, who got herself examined as

PW.1, in her evidence clearly deposed that she is the legally wedded wife of late P. Ganesh and out of their wedlock, they were blessed with 4 children. She also deposed that deceased

Ganesh developed illegal contacts with her sister P.Gangabai and then drove her (PW.1) out of the marital home along with children.

27.Pw.1 was cross-examined on commission, wherein it was suggested by defendants' counsel that as per their records,

Gangabai is the wife and that she (PW.1) is not the wife of the deceased Ganesh. The said suggestion was denied by PW.1.

Ex.A.1 to A.4 were got marked through PW.1.

28.It appears that some time after PW.1 deposed

O.S. No.271 of 2014

evidence in this case, she died and then her children were brought on record as Plaintiff Nos.2 to 5. After the plaintiff Nos.2 to 5 were brought on record, the 4th plaintiff was examined as

PW.2 and Ex.A.5 to A.14 were marked through PW.2. PW.2 in her evidence reiterated the oral evidence of PW.1. In her cross- examination also, the defendants' counsel suggested to her to the effect that as per the records maintained by the Railways (Ex.B.1), Ganga Bai is the wife of late P.Ganesh and that plaintiffs are not shown as his nominees. PW.2 expressed ignorance of the same.

29.Coming to documentary evidence, Ex.A.5 is the certified copy of the Docket Order dated 21.6.1991 in

Crl.M.P.No.1473/1991 in M.C.No.5/1989 on the file of X

Metropolitan Magistrate, Secunderabad. Ex.A.6 is the certified copy of the Order dated 28.8.1991 in Crl. Rev. Petition

No.217/1991 on the file of II Additional Metropolitan Sessions

Judge, Hyderabad. A perusal of Ex.A.5 and Ex.A.6 shows that 1st

plaintiff and her two minor children viz., Master Vijayakumar and

Kum. Sangeetha (3rd and 4th plaintiffs herein), who are shown as petitioners 1 to 3 therein, filed maintenance case under Section 125 Cr.P.C. against the deceased Ganesh vide M.C.No.5/1989, and subsequently the 1st plaintiff filed Crl.M.P.No.1473/1991.

The Court passed order in her favour on 21.6.1991 (vide Ex.A.5), to the following effect:

"Both the parties are present. Counter is not filed. Heard. In view of settlement of marriage of the 2nd petitioner I hereby direct the Respondent to pay Rs.10,000/- as desired by the petitioner towards

O.S. No.271 of 2014

minimum marriage expenses on par with their social status on or before 5-7-91."

30.The said order under Ex.A.5 was, however, set aside under Ex.A.6. The relevant portion of Ex.A.6 order is extracted hereunder :

"It is no doubt true that the third petitioner is the daughter and 2nd petitioner is son and the 1st petitioner is wife. But the relationship and character of the first petitioner before lower Court is impeached. The petition is filed u/S. 125 Cr.P.C. To the wife and children. Under Cl.(b) and (c) of S.125 Cr.P.C. a legitimate or illegitimate daughter or son are entitled to maintenance by way of monthly allowance. This clsue does not necessarily give scope to interpret the law in such a way that the lumpsum amount can be ordered by the Court towards the marriage expenses. Unfortunately even the petition filed before lower Court does not show under what provision of law lumpsum payment was sought for. The Courts of law, especially on criminal side, are expected to dispose off the cases as per the rule of law laid down by the competent body, but not at the fancies of the Court as such. Hence the order passed by the lower Court is palpably erroneous and is liable to be set aisde and accordingly set aside allowing the revision and setting aside the order in Crl.M.P.No.1473/1991. In the circumstances of the case each party shall bear their own costs."

31.Ex.A.5 and Ex.A.6 would thus go to show that the 1st plaintiff filed a maintenance case in the year 1989 against the deceased P.Ganesh under Section 125 Cr.P.C. From a perusal of

Ex.A.6-order, it appears that the deceased Ganesh took a plea in the said maintenance case disputing the relationship between him and 1st plaintiff. In view of the said dispute as to relationship, the finding of the court in the said maintenance case assumes importance, but the plaintiffs did not file the certified copy of the final order in M.C.No.5/1989. Counsel for

O.S. No.271 of 2014

plaintiffs represented that the record being not traceble in the court, they are unable to obtain a certified copy of the order in the said M.C. He is also not in a position to say as to the result of

M.C.No.5/1989.

32.Learned counsel for the plaintiffs, however, submitted that pursuant to the order passed in the above maintenance case, the Divisional Railway Manager (P) BG/SC,

Secunderabad used to deduct a sum of Rs.999/- every month from the salary of the deceased Ganesh and send the same to the 1st plaintiff through money order along with a covering letter.

Plaintiffs produced a xerox copy of one such covering letter, which is bearing Ref.No.CP/501/Drgs/LGD/P.File dated 21.6.1991 addressed by the Divl. Rly. Manager (P) BG/SC, SC Railways,

Secunderabad to the X Metropolitan Magistrate, Secunderabad, wherein the factum of deduction of amounts from the salary of

Ganesh and the factum of their sending the deducted amount to the 1st plaintiff has been informed to the Court. They also produced another xerox copy of the cheque dated 10.8.1990 for

Rs.999/- issued by the Railways in the name of the 1st plaintiff.

The deposition of DW.1 shows that the plaintiffs' counsel made an attempt to confront the above two xerox copies to DW.1 and elicit answers from him, but DW.1 stated that he has no personal knowledge about the same. Since DW.1 did not admit those two xerox copies, they could not be marked as exhibits, although they are part of the record.

33.Learned counsel for the plaintiffs contended that the

O.S. No.271 of 2014

denial of the relationship by late Ganesh in the said maintenance case was obviously made with a mala fide intention of avoiding the legitimate claim of the plaintiffs for maintenance and the same is not bona fide, since long prior to the filing of the said maintenance case by the 1st plaintiff, the deceased had clearly mentioned in Ex.A14 that 1st plaintiff is his wife and plaintiffs 2 to 5 are his children. According to him, the entries in Ex.A.14 would amount to the clear admission on the part of the deceased Ganesh as to his relationship with all the plaintiffs. He further contended that Ex.A.14 having been issued by the Railways, the defendants cannot now be permitted to express ignorance about the said relationship between plaintiffs and the deceased Ganesh. Let us now peruse Ex.A.14.

34.Ex.A.14 is the Railway Medical Attendance Identity

Card issued by the Railways. In Ex.A.14, the name of the employee is shown as P. Ganesh and his designation is shown as

Driver 'C'. Ex.A.14 contained the particulars of the family members of Ganesh as under:

1) Dhanlaxmi, wife, aged 36 years

2) Rukmani Bai, u/m/daughter, aged 16 years

3) Sangeetha Bai, u/m/daughter, aged 10 years

4) Vijai Anand, son, aged 15 years

5) Vijai Kumar, son, aged 12 years.

35.Dhanlaxmi is the 1st plaintiff herein, Vijay Anand is the 2nd plaintiff herein, Vijai Kumar is 3rd plaintiff herein and

Sangeetha bai is the 4th plaintiff herein. It appears from Ex.A.10

Adhar Card that after her marriage, the name of 4th plaintiff is changed as "Jalakam Sangeetha Raju". Insofar as Rukmani Bai

O.S. No.271 of 2014

is concerned, in Ex.A.14, she is shown as the elder daughter of the deceased Ganesh and 1st plaintiff. While so, in the cause title of the plaint, the elder daughter's name is shown as "Ch. Vijaya

Lakshmi." Plaintiffs filed Ex.A.13 Adhar Card which is issued in the name of Ch. Vijaya Lakshmi. However, since there is ambiguity in respect of the name of Rukmini Bai, PW.2 gave clarification in her cross-examination stating that in Ex.A.14, her father got written the name of her elder sister as "Rukmini Bai".

Thus, from the above answer, it is clear that "Rukmini Bai" (as shown in Ex.A.14) and "Ch.Vijaya Lakshmi" (shown as plaintiff

No.5 in cause title) is one and the same. Be that as it may. On the last page of Ex.A.14, the photo of the deceased employee

Ganesh is found pasted. The said photo has been attested by a

Gazetted Officer of the A.P. Secretariat, whose signature and

Rubber Stamp is affixed across the photo. Ex.A.14 also contained the date of issuance of the said identity card.

However, since the handwriting in Ex.A.14 shows that the same was written long back with blue ink pen, the 'date' and 'month' are partially faded out. But, it is not so difficult for me to view and understand the said date. To my naked eye, the date of issuance of Ex.A.14 appears to be '13.12.1980'. Ex.A.14 also shows that the particulars of the family members of the employee Ganesh were authenticated by the then Foreman, SC

Railways, who put his signature underneath those particulars.

Undearneath his signature, the Foreman put date as "11.10.1990", which would give rise to an indication that after

O.S. No.271 of 2014

the subsequent inclusion of the names of the family members of the deceased Ganesh in Ex.A.14, the same was attested by the

Foreman in the year 1990.

36.When DW.1, who is the present Welfare Inspector of the defendants, was in witness box, Ex.A.14 was confronted to him. On seeing the same, DW.1 admitted the said document by saying that Ex.A.14 is the identity card issued by the Railways.

He, however, added in the next sentence that the same is not visible. But, having perused the entries in Ex.A.14, I am unable to agree with the said statement of DW.1. The particulars of the family members which are written in Ex.A.14 are clearly visible to the naked eye and there is absolutely no difficulty for me in reading the names of the family members of the deceased

Ganesh. Having stated that Ex.A.14 is not clearly visible, DW.1 admitted in the next sentence thus: "It is true that in Ex.A.14, the name of Dhanalaxmi is written." But, in the next sentence,

DW.1 stated that "I have doubt about the genuineness of

Ex.A.14 since the first page contains the year 1981 and the second page contains 1991." In the next sentence, plaintiff's counsel gave a suggestion to DW.1 to the effect that after issuance of Ex.A.14 in 1981, entries were made in the year 1991 after the birth of children. DW.1 was not ready to accept the said suggestion and as such he denied the same. But, on a perusal of Ex.A.14, I find myself in agreement with the contention of the plaintiffs that Ex.A.14 was intially issued in the year 1980 (and not in the year 1981 as stated by plaintiffs'

O.S. No.271 of 2014

counsel) and subsequently after entering the names of all the family members in the year 1991, those entries were attested by the Foreman in the year 1991.

37.The defendants having doubted the genuineness of

Ex.A.14, especially the entries made therein, did not produce any document which would show that Ex.A.14 is a fabricated document. It is not as if the defendants do not possess any document or record pertaining to the service of the deceased employee. Admittedly, the deceased Ganesh worked in S.C.

Railways for more than three decades. If that is the case, his service record, if not entire record, at least important record or at least the Service Register of the deceased, must be available with the defendants, which would certainly contain the particulars of all the family members of the deceased. It is not as if the defendants do not preserve the service registers of the retiring employees. DW.1 in his cross examination clearly admitted that service registers are maintained in their Accounts

Department after the retirement of an employee. Nothing prevented the defendants from producing the same in this court.

But, the defendants did not choose to produce any record pertaining to the deceased in this court, except Ex.B.1 to B.4.

When DW.1 was in witness box, the plaintiff's counsel put a specific question to him as to whether he can produce the service register of the deceased. DW.1 answered thus: "I can produce the original service register of the deceased in this court." But, subsequently, the defendants failed to produce the

O.S. No.271 of 2014

service register of the deceased Ganesh in this court. The entries in the service register of an employee are generally believed to be true and correct, since the entries therein are made basing on the information given by the employee. If the entries in the service register of the deceased do not show the names of the plaintiffs as the family members of the deceased

Ganesh, then those entries are sufficient for this court to disbelieve Ex.A.14. The defendants having failed to produce the service register of the deceased in this court, this court can certainly draw an adverse inference against the defendants that although the service register of the deceased Ganesh is very much available with them, they did not choose to produce the same in this court, obviously since the entries therein do not support their contention which is now put forth on the basis of

Ex.B.1 to B.4. Having given my careful consideration, I am of the view that Ex.A.14 is a genuine document and the entries made therein are not manipulated for the purpose of this case.

If the entries in Ex.A.14, coupled with Ex.A.5 and A.6, are taken into consideration, then this court has no doubt in its mind in holding that the plaintiffs are able to establish their relationship with deceased Ganesh as wife and children of the deceased. For the above reasons, I am of the view that plaintiffs are entitled to seek the relief of declaration. Issue No.1 is answered in favour of the plaintiffs.

38. Issue No.2: Pension or retirement benefits like

Gratuity, leave encashment, provident fund or any other benefit

O.S. No.271 of 2014

payable at the time of the retirement is to be made on the day of retirement or within a stipulated time period, in case of termination of the contract of employment due to voluntary retirement, retrenchment, layoff etc., to the employees, and in case of death of the employees during the course of employment or in employment, to his nominee or next of kin, within a stipulated or reasonable time period, where it is not stipulated. If not provided within this time period, interest is to be paid on the delayed payments. The pension or the retiral benefits may be the only source of livelihood and means of survival for them; hence non-payment of these benefits may have devastating effects on their lives. Since it is the question of the very survival of the retired employee or nextof-kin, and/or family members of the deceased employees, if these retirement benefits are not paid to them, it violates their human rights.

39.The apex court in D.S. Nakara & Others vs. Union of

India (AIR 1983 SC 130) made the following observations on right to pension:- “The antiquated notion of pension being a bounty or a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar & Ors. (AIR 1971 SC page 1409)wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by rules and a Government servant coming within those rules is entitled to claim pension”.

40.Pension is the deferred portion of compensation for

O.S. No.271 of 2014

long and devoted services rendered by an employee with the employer. It is a social welfare measure as well. Article 21 of the

Constitution of India guarantees everyone a fundamental right to livelihood, which includes entitlement to receive his deferred wages in accordance with rules, after retirement. Non-payment of retiral benefits therefore, is a violation of one’s fundamental right under Article 21. The right to receive the same is not only a fundamental right but is also a right to property under Article 300-A of Constitution of India which cannot be taken away except by Authority of Law. In the instant case, the Rule governing the grant of family pension is embodied in Rule 75 of the Railway Services (Pension) Rules, 1993. According to the said Rule, the right of receiving family pension by the widow or widower of the railway servant cannot be disputed. No doubt, the pension granting authority while sanctioning the family pension is certainly obliged to take into consideration the particulars of the nomination made by the retiring employee in his pension papers, but that does not mean that he should mechanically pass orders by solely basing on the entries in the pension papers. In my view, before passing orders on the pension papers, the pension granting authority is duty bound to verify the correctness or otherwise of the particulars stated in the pension papers by the retiring employee with the service record of the employee (furnished in Form 6 by the employee as soon as he acquires family). Had the authority verified the particulars mentioned in Ex.B.1 to B.4 with the service register

O.S. No.271 of 2014

and other records of the deceased Ganesh before sanctioning the pension and family pension, the situation could have been averted. In my considered view, being the widow of the deceased railway employee Ganesh, the 1st plaintiff who was surviving as on the date of demise of Ganesh, she alone is eligible to receive the family pension as per Rule 75 and the said right of the 1st plaintiff receiving family pension being her statutory right, the nomination of the name of P. Ganga Bai by late Ganesh in Ex.B.1 to B.4 is not binding on her as it would not deprive her from enforcing her statutory right. For the above reasons, I am of the view that the 1st plaintiff is entitled to receive family pension irrespective of the said nomination of the name of Gangabai in Ex.B.1 to B.4 from the date of death of the deceased Railway Employee late Ganesh on 9.11.2011 till the date of death of the 1st plaintiff on 3.8.2015. The defendants are, therefore, bound to sanction family pension in the name of the 1st plaintiff (P. Dhanalakshmi w/o P. Ganesh) for the period from 9.11.2011 to 3.8.2015 together with interest at 12% per annum and credit the amount into the Bank Account of the 1st plaintiff. If the 1st plaintiff does not have a Bank Account as on today, then plaintiff Nos.2 to 5 are entitled to receive the said amount being the children of the deceased 1st plaintiff. Issue

No.2 is answered in favour of the plaintiffs.

41. Issue No.3: In the result, the suit is decreed with costs as prayed for. The defendants are directed to release the

Family Pension in favour of the 1st plaintiff from the date of death

O.S. No.271 of 2014

of her husband late P. Ganesh on 9.1.2011 upto the date of death of the 1st plaintiff on 3.8.2015, together with interest at 12% per annum and credit the total amount into the Bank

Account of the 1st Plaintiff. If the 1st plaintiff does not have a

Bank Account as on today, then the defendants are directed to pay the entire amount to plaintiff Nos.2 to 5.

Typed to my dictation, corrected and pronounced by me in pen court, on this the day of 15th day of November, 2016.

XI JUNIOR CIVIL JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS :-

PW1: P. Dhanalakshmi

PW2: Sangeetha Raju

FOR DEFENDANTS :-

DW1:- B.S.L. Ram Prasad

DOCUMENTS MARKED

FOR PLAINTIFFS :-

Ex.A1 is Original Provisional Identity Card cum Medical Card of deceased P.Ganesh dt. 1.11.1997

Ex.A2 is Original Death Certificate of deceased P.Ganesh, dt.

8.8.2011

Ex.A3 is Original Death Certificate of P.Gangabai dt. 23.1.2014

Ex.A4 is Original Letter dt. 24.1.2014 issued by the plaintiffs to the defendants alongwith postal receipts, dt. 24.1.2014

Ex.A5 is Certified copy of the Docket Order dated 21.6.1991 in Criminal M.P.No. 1473/1991 in M.C.No. 5/1989

Ex.A6 is Certified copy of Order dated 28.8.1991 in Criminal Revision Petition No. 217/1991

Ex.A7 is the Household Card issued in the name of Paramanand Vijayanand

O.S. No.271 of 2014

Ex.A8 is Aadhaar Card issued in the name of Paramnand Dhanalakshmi (plaintiff No.1)

Ex.A9 is the Household Card issued in the name of Jalagam Raju (husband of PW2)

Ex.A10 is the Aadhaar Card issued in the name of Jalagam Sangeetha Rani (PW2)

Ex.A11 is Aadhaar Card issued in the name of Paramanand

Vijayanand

Ex.A12 is Aadhaar Card issued in the name of Paramanand Vijay

Kumar

Ex.A13 is Aadhaar Card issued in the name of Ch. Vijaya Laxmi

Ex.A14 is Railway Medical Identity Card issued by S.C. Railways

dt. 11.10.1990 containing the names of the deceased P.Ganesh

and his family members

FOR DEFENDANT :-

Ex.B1 is Certified true copy of Family Pension Booklet of the deceased late P.Ganesh, dated Nil.

Ex.B2 is Certified true copy of Last Pay Certificate of the deceased, late P.Ganesh as typist on 31.10.1997

Ex.B3 is Certified true copy of revision of pension/family of the deceased dt. 3.3.2011

Ex.B4 is Certified true copy of the revised PPO Order dated. 14.5.1998

XI JUNIOR CIVIL JUDGE,

CITY CIVIL COURT, SECUNDERABAD.