BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/08/2011 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.(MD)No.7713 of 2010 W.P.(MD)No.9062 of 2010 and W.P.(MD)No.12430 of 2009 and M.P.(MD)Nos.1/2009 and 1/2010 W.P.(MD)No.7713 of 2010:- M.K.Gopal ... Petitioner Vs. 1.The Secretary to the Government, Educational Department, Govt. Omanthorar Thottam, Chennai. 2.The Directorate of Technical Education, Office of Directorate of Technical Education, Guindy, Chennai. 3.The Accountant General (A&E), Office of Accountant General, Chennai-18. 4.The District Treasury Officer, Office of the District Treasury, Virudhunagar, Virudhunagar District. 5.The Sub Treasury Officer, Office of the Sub Treasury, Sivakasi, Virudhunagar District. 6.The Principal, Ayya Nadar Janakiammal Polytechnic College, Chinnakamanpatti, Sivakasi-626 189. 7.M.Venkatesan ... Respondents W.P.(MD)No.9062 of 2009: M.Venkatesan ... Petitioner vs. 1.The Principal, Ayyanadar Janakiammal Polytechnic College, Chinnakkamanpatti, Sivakasi-626 189. 2.The Commissioner, Employees Provident Fund Organisation, Regional Office-Madurai, Bhavishyanidhi Bhavan, Lady Doak College Road, Madurai-625 002. ... Respondents W.P.(MD)No.12430 of 2009: M.K.Gopal ... Petitioner vs. The Principal, Ayya Nadar Janakiammal Polytechnic College, Chinnakamanpatti, Sivakasi-626 189, Virudhunagar District. ... Respondent PRAYER in W.P.(MD)No.7713 of 2010 Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, directing respondents 1 to 6 not to release the death -cum- retirement benefits of the petitioner's deceased daughter G.Hemalatha to the seventh respondent. PRAYER in W.P.(MD)No.9062 of 2009 Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, directing the respondents to disburse the provident fund, death -cum- retirement gratuity, commuted value pension and other monetary benefits, etc., in connection with the service of the petitioner's deceased wife by name G.Hemalatha as Senior Lecturer in Mathematics at the first respondent's College. PRAYER in W.P.(MD)No.12430 of 2009 Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, directing the respondent to consider and dispose of the petitioner's representation dated 21.11.2009 on merits. W.P.(MD)No.7713 of 2010: !For Petitioner ... Mr.B.Janath Ahmed ^For Respondents 1,2,4 and 5 ... Mr.V.Pandi Government Advocate For Respondent No.3 ... Mr.P.Gunasekaran For Respondent No.6 ... Mr.M.P.Senthil Kumar For Respondent No.7 ... Mr.R.Anand W.P.(MD)No.9062 of 2009: For Petitioner ... Mr.R.Anand For Respondent No.1 ... Mr.M.Mariappan For Respondent No.2 ... Mr.K.Murali Sankar W.P.(MD)No.12430 of 2009: For Petitioner ... Mr.B.Janarth Kumar For Respondent ... Mr.M.Mariappan *******
:COMMON ORDER
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The petitioner in W.P.(MD)No.7713 of 2010 is the father of the
deceased G.Hemalatha, who has worked in Ayya Nadar Janakiammal Polytechnic
College, Chinnakamanpatti, Sivakasi. While in service, she died on 28.04.2009.
It is stated by the father of the said G.Hemalatha that she was married to one
Prabhakaran in the year 1989 and after, 1994, his daughter and Prabhakaran were
not living together. It is the case of the petitioner that the seventh
respondent, who has nothing to do with his daughter, was only helping the family
and according to the petitioner, the seventh respondent is fraudulently claiming
himself as the husband of the petitioner’s daughter G.Hemalatha stating that she
has married the seventh respondent in the year 1995 and that fact is denied by
the petitioner.
2. On the other hand, the seventh respondent in the said Writ
Petition in W.P.(MD)No.7713 of 2010 has filed a Writ Petition in W.P.(MD)No.9062
of 2009 for a direction to disburse the provident fund, death -cum- retirement
gratuity, commuted value pension and other monetary benefits due in respect of
the deceased G.Hemalatha, who worked as a Senior Lecturer in Mathematics in the
above said College, contending that he has married the said G.Hemalatha in the
year 1995 and they were living together till the date of her death and also
stating that the said G.Hemalatha has nominated the petitioner as a nominee in
respect of the right to receive the retirement benefits.
3. The father of the said G.Hemalatha, who is the petitioner in
W.P.(MD)No.7713 of 2010, has also filed another Writ Petition in
W.P.(MD)No.12430 of 2009, for a direction against the College, wherein his
daughter was working, to consider the representation dated 21.11.2009, by which,
he has requested the College to grant some more time for producing certain
records called for by the Principal of the College in the communication dated
11.11.2009 including Death Certificate, Legal Heir Certificate and application
forms.
4. Therefore, on the facts of the case narrated above, it is seen
that while the father, the petitioner in W.P.(MD)Nos.7713 of 2010 and 12430 of
2009, has denied his daughter’s marriage with the seventh respondent in
W.P.(MD)No.7713 of 2010, the seventh respondent, who filed W.P.(MD)No.9062 of
2009, relies upon the nomination given by the deceased G.Hemalatha in his favour
to substantiate his contention that he is legally wedded husband of the deceased
G.Hemalatha. The fact remains that the deceased G.Hemalatha was married to one
Prabhakaran in the year 1989 and that marriage subsists even as on date and it
is not known as to whether the said Prabhakaran is living or not, even though it
is stated that from 1994 onwards, the said Hemalatha was not living with
Prabhakaran. In this context, as correctly submitted by Mr.M.Mariappan, learned
counsel appearing for the College that when there is a succession dispute, that
has to be resolved only by appreciation of evidence and as per the provisions of
the Succession Act, which requires the parties to prove their right and not by
filing a Writ Petition under Article 226 of the Constitution of India. It is
well settled that the jurisdiction of this Court under Article 226 of the
Constitution of India is not to find out the factual assertions as to the
existence of a fact or non-existence of fact, which is the eminent domain of the
competent civil Court.
5. In such view of the matter, looking into any angle, this Court
cannot grant the relief to any of the petitioners. Accordingly, the Writ
Petitions fail and are dismissed with a direction to the parties to approach the
appropriate forum proving their right and thereafter, approach the College for
release of the fund, in which event, it is for the College to pass orders on
merits and in accordance with law. Consequently, the connected miscellaneous
petitions are also dismissed. No costs.
6. It is to be noted that in W.P.(MD)No.9062 of 2009, the Employees’
Provident Fund Organization has been made as the second respondent. Inasmuch as
the first respondent College is not covered under the Employees’ Provident Fund
Organization, the second respondent is not a proper and necessary party.
SML
To
1.The Secretary to the Government,
Educational Department,
Govt. Omanthorar Thottam,
Chennai.
2.The Directorate of Technical Education,
Office of Directorate of Technical Education,
Guindy, Chennai.
3.The Accountant General (A&E),
Office of Accountant General,
Chennai-18.
4.The District Treasury Officer,
Office of the District Treasury,
Virudhunagar,
Virudhunagar District.
5.The Sub Treasury Officer,
Office of the Sub Treasury,
Sivakasi,
Virudhunagar District.
6.The Commissioner,
Employees Provident Fund Organisation,
Regional Office-Madurai,
Bhavishyanidhi Bhavan,
Lady Doak College Road,
Madurai-625 002.