Judgment:
1. This application has been filed by Smt. Usha Rani Chowdhury being a widow mother of the deceased Govt. employee Arun Kanti Chowdhury, who died as bachelor, claiming family pension on account of the death of her son who executed a nomination in her favour for receiving full 100% amount due under Central Government Employees Group Insurance Scheme, 1980 by a letter of nomination marked as Annexure-D to the application.
It is stated that the applicant is 85 years old and she cannot work to earn her livelihood and she is in constant need of medicine and attendants for her sustenance. Since Sri Arun Kanti Chowdhury died as bachelor and there is no other earning member in the family and thereby she is entitled to get family pension as dependent of the deceased employee, Arun Kanti Chowdhury. It is stated in the application that only C.G.E.G.I.S. amount of Rs. 1,20,000 has been paid to the applicant by the respondents. But the respondents did not grant family pension till date and they also did not reject the family pension though she was asked to fill up the forms for the purpose of granting family pension. Applicant also made several representations to the authorities requesting the respondents to pay family pension but they did not pay family pension. It is stated that according to the rules under Central Civil Service (Pension) Rules, 1972 if a person dies while working under Central Civil Service, after his death his next heir is entitled to get family pension along with other payments. So, the respondents be directed to sanction the family pension with effect from 3.3.1991.
2. The case of the applicant is resisted by the respondents by filing written reply stating inter alia that the applicant has been paid all dues to which she was entitled on the death of her son Arun Kanti Chowdhury who was holding the post of Works Manger, Gun and Shell Factory, Cossipore. It is also stated that since the applicant does not come within the definition of "family" in terms of the Rule 54 (14)(l)(b) of the CCS(P) Rules, 1972 she is not entitled to get family pension as prayed for in her representation dated 22.1.1998. Hence the application is devoid of merit and liable to be dismissed.
3. Mr. Ghosal, learned advocate leading Mrs. Ghosal, learned advocate has drawn our attention to the notification bearing O.M. No.45/51/97-P&PW(E) dated 5.3.1998 with regard grant of family pension to dependent parents from 1.1.1998 and submits that the applicant was wholly dependent on the son, Shri Arun Kanti Chowdhury who died in harness while he was in service. And thereby the applicant being wholly dependent on the said son is entitled to get family pension in view of the notification and he further submits that the definition of the expression of the word "family" as appeared under Rule 54(14)(1)(b) of the CCS (P) Rules, 1972 stands modified in pursuance of the said notification dated 5.3.1998 which has been issued by the Central Government after acceptance of the recommendations of the 5th Pay Commission and thereby grant of family pension to parents who are wholly dependent on the son who died in harness cannot be denied by the respondents. So, the relief sought for in the application should be granted to the applicant with retrospective effect.
4. Mr. M.S. Banerjee, learned advocate appearing on behalf of the respondents submits that it appears from the record that another son of the applicant is still alive and thereby the said notification has no manner of application for the purpose of granting family pension to the applicant.
5. We have considered the submissions of the learned advocates of both the parties and we have gone through the relevant records. It is found that the applicant's claim was turned down by this Tribunal by a judgment dated 26.6.1998. Subsequently, a review application has been filed by the applicant for reviewing the order dated 26.6.1998 and after hearing the learned advocates of both the parties the review application was allowed by the Single Bench for further hearing of the OA and the matter was placed before the Division Bench for appropriate decision in this regard. It is found that the applicant could not produce the notification dated 5.3.1998 when the earlier order dated 26.6.1998 was passed by the Single Bench. The definition of the 'Family Pension' as embodied under Rule 54(14)(1)(b) of the CCS (Pension) Rules, 1972 appears to have been modified by notification dated 5.3.1998, mentioned above, for the purpose of family pension. The notification dated 5,3.1998 runs as follows : "The undersigned is directed to refer to this Department's Resolution No. 45/ 86/97-P&PW(A), dated the 30th September, 1997 and items (a & b) of para 7.2. of this Department's O.M. No. 45/86/97-P & PW(A), Part-I, dated 27th October, 1997 vide which it has been stated that the definition of family for the purpose of family pension shall also include (i) parents who were wholly dependent on the Government servant when he/she was alive, provided the deceased employee had left behind neither a widow nor a child, and (ii) widowed/divorced daughter in respect of whom dependency/income criterion will be clarified separately." On a perusal of the said notification dated 5.3.1998 it is found that the Govt. lays down the criterion for admissibility of family pension to be parents or widowed/divorced daughter with effect from 1.1.1998 subject to fulfillment of other reasonable conditions. It is also found that the cases where family pension has already been granted to sons/daughters after 1.1.1998 before issue/implementation of that OM without imposition of earning condition need not be reopened. It is also found from the notification that it has been decided by the Government that the income criteria in respect of parents and widowed/divorced daughters will be that their earning is not more than Rs. 2550/per month. The parents will get family pension at 30% of basic pay of the deceased employee subject to a minimum of Rs. 1,275/per month and they will have to produce an annual certificate to the effect that their earning is not more than Rs. 2550/- per month. Further, the family pension to the widowed/divorced daughters will be admissible till they attain the age of 25 years or upto the date of her remarriage, whichever is earlier. On a perusal of the said notification it is found that the parents of the deceased employee should not have income more than Rs. 2550/per month. On a perusal of the application filed by the applicant, it is found that the applicant did not mention whether she has got any earning of more than Rs. 2550/- per month. It is stated by the applicant in her application that her one son late Arun Kami Chowdhury had died; there is no other earning member in the family and as a result her family is in severe financial crisis and she is spending her remaining days in poverty and starvation. In the subsequent supplementary affidavit filed by the applicant, Smt. Usha Rani Chowdhury before this Tribunal on 23.3.1998 the applicant reiterated the said fact stating inter alia that the applicant is an old lady lying ill almost throughout the year and since there is no other earning member in the family, is passing days in darkness in these days of hardship. From the representation dated 21.1.1998 addressed to the General Manager, Gun and Shell Factory, Cossipore the Applicant stated that my only grandson Shri Goutam Chaudhury, son of Tusar Kami Chaudhuri, elder brother of late Arun Kanti Chowdhury who was a minor at the time of death of her demised son late Arun Kanti Chowdhury has now become major and he is looking after her trying his level best to solve the problems. In the said representation it is found that the applicant had another son, viz., Tusar Kanti Chaudhuri.
But the applicant did not clarify the particulars of the earning of Shri Tusar Kanti Chowdhury. When the applicant has another son viz., Tusar Kanti Chowdhury, as stated in the representation dated 21.1.1998, thereby it cannot be said that the applicant was wholly dependent on the Government servant, viz., late Arun Kanti Chowdhury who died in harness. However, it is found that the son, Arun Kanti Chowdhury died in harness leaving no widow or children, and the applicant who was residing with him has no independent earning to maintain her. The applicant had stated that she was wholly dependent on the deceased son and he had no independent earning on the death of the deceased son. On the face of the said averments made by the applicant in the application which could not be controverted by the respondents by producing any contrary evidence regarding dependency of the applicant on her son who died in harness and income as stipulated in the notification dated 5.3.1998. So, the claim of family pension of the applicant cannot be denied. In view of the aforesaid circumstances we are of the view that the applicant who was wholly dependent on the deceased, Arun Kanti Chowdhury is entitled to get family pension in view of the notification dated 5.3.1998, but it appears that the said admissibility of pension to parents will be effective from 1.1.1998 subject to fulfillment of other usual conditions. So, the applicant is to satisfy the authority by producing material certificate from the competent authority or by way of affidavit that she is wholly dependent on the deceased employee, Arun Kanti Chowdhury at the time of his death in harness and she is also to satisfy the authority that she has no earning more than Rs. 2550/- per month. If these two conditions are fulfilled then the applicant would be entitled to get family pension with effect from 1.1.1998.
6. Having regards to the facts and circumstances of the case we direct the respondents to grant family pension to the applicant subject to fulfillment of the conditions that she was wholly dependent on late Arun Kanti Chowdhury while he was alive and she has no earning of more than Rs. 2550/- per month and that the same should be paid to the applicant within three months from the date of production of the certificate or affidavit in this regard. With this observation the OA is allowed awarding no cost.