IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 29070 of 1999(I)
1. PADMAKUMARY
... Petitioner
Vs
1. UNION OF INDIA
... Respondent
For Petitioner :SRI.A.VIJAYAKUMAR
For Respondent :SRI.P.S.SREEDHARAN PILLAI, SCGSC
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :17/09/2008
O R D E R
S. SIRI JAGAN, J.
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O.P.No.29070 OF 1999
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Dated this the 17th day of September, 2008
JUDGMENT
The petitioners are the widow and minor child of a deceased
employee, who was entitled to pension under the Employees’
Pension Scheme under the Employees Provident Funds and
Miscellaneous Provisions Act. The 1st petitioner’s husband applied
for pension under the Scheme. But before commencement of the
pension payment, he died. The petitioners thereafter applied for
family pension. The family pension has been sanctioned only at
the rate of 50% of the monthly member’s pension payable. The
petitioners’ contention is that since the authority under the
Employees Pension Scheme did not commence pension payment
to the deceased employee before the death of the employee, the
1st petitioner is entitled to full monthly member’s pension instead
of 50%, in view of Clause 16 of the Employees’ Pension Scheme.
The petitioners therefore, seek the following reliefs:
“(i) Issue a Writ of Mandamus directing the
respondents to extend the benefits available to the
petitioners under clause 2(ii) of para 16 of theO.P.No.29070/1999 2
Scheme 95 and sanction full pension cancelling
Ext.P2 orders.
(ii) award the costs of this Original
petition.
(iii) Pass any other writ, order, or direction
deems fit and proper in the nature and
circumstances of the case”.
2. A counter affidavit has been filed by the
respondents in which the contention taken is as follows:
The 1st petitioner’s husband died on 10th January, 1999. Before
death, he applied for monthly pension in December 1998.
That application was processed and monthly pension of
Rs.465/- has been granted with effect from 1.8.1998. Since
the deceased employee had applied for pension and was
granted pension, the 1st petitioner is entitled to only 50% of
the monthly members pension.
3. I have considered the rival contentions in detail. The
issue involved has to be decided on the basis of Clause 16 of
the Employees’ Pension Scheme, the relevant portions of which
are extracted below:
“16. Benefits to the family on the death of a
member.- (1) [Pension to the Family] shall be admissible
from the date following the date of death of the
member, if the member dies:-
(a) while in service, provided that at least one
O.P.No.29070/1999 3
month’s contribution has been paid into the Employees’
Pension Fund, or
(b) after the date of exit but before attaining
the age of 58 years, from the employment having
rendered service entitling him/her to monthly members’
pension but[before the commencement of pension
payment, or]
(c) after commencement of payment of the
monthly members pension.
Note.-The cases where a member has rendered
less than 10 years eligible service on the date of exit
but has retained the membership of the Pension Fund,
and dies before attaining the age of 58 years, shall be
regulated under sub-paragraph (8) of paragraph 12.
(2) (a) The monthly widow pension shall be-
(i) in the cases covered by clause (a) of sub-
paragraph (1) equal to the monthly member’s pension,
which would have been admissible as if the member had
retired on the date of death or Rs.450 or the amount
indicated in Table C whichever is more,
(ii) in the cases covered by clause (b) of sub-
paragraph (1) equal to the monthly members pension
which would have been admissible as if the member had
retired on the date of exit or [Rs.450/- per month] or
the amount indicated in Table C whichever is more,
(iii) in the cases covered by clause (c)of sub-
paragraph (1), equal to 50 per cent of the monthly
members pension payable to the member on the date of
his death subject to a minimum of [Rs.450 per month],
[(iv) in all the cases, where the amount of family
pension sanctioned under the Ceased Family Pension
Scheme, 1971, and is paid/payable under this scheme is
less than Rs.450 per month, the amount of family
pension in such cases shall be enhanced to Rs.450 per
month;]
(b) the monthly widow pension shall be payable
O.P.No.29070/1999 4
upto the date of death of the widow or re-marriage
whichever is earlier”.
Note.-In cases where there are two or more widows,
family pension shall be payable to the eldest surviving
widow. On her death it shall be payable to the next
surviving widow, if any. The term “eldest” would mean
seniority with reference to the date of marriage.
(3) Monthly children pension-
(a) If there are any surviving children of the
deceased member, falling within the definition of family,
they shall be entitled to a monthly children pension in
addition to the monthly widow/widower pension.
(b) Monthly children pension for each child shall be
equal to 25 per cent of the amount admissible to the
widow/widower of the deceased member as monthly
widow pension payable under sub-paragraph (2)(a)(i)
provided that minimum monthly children pension for
each child of the deceased member shall not be less
than [Rs.150 per month]
[(c) Monthly children pension shall be payable until the
child attains the age of 25 years.]
(d) The monthly children pension shall be admissible
to the maximum of two children at a time and will run
from the oldest to the youngest child in that order.
[(e) If a member dies leaving behind a family having
son or daughter who is permanently and totally disable
such son or daughter shall be entitled to payment of
monthly children pension or orphan pension, as the case
may be, irrespective of age and number of children in
the family in addition to the pension provided under
clause(d).]
The said Clause contemplates three types of situations for
payment of family pension. First is that when the employee
O.P.No.29070/1999 5
dies while in service. The second is that when the employee
dies after retirement but before commencement of pension
payment. The third is when the employee dies after
commencement of payment of monthly member’s pension.
Here, admittedly, although pension was sanctioned to the
deceased employee, the pension payment had not
commenced. Therefore, the claim of the petitioners is clearly
covered by sub clause (b) of Clause 16(1) i.e., a situation
where the employee dies before commencement of pension
payment. Rate of payment of family pension in that situation
is squarely covered by sub Clause 2(a)(ii), which stipulates
that in cases covered by Clause (b) of Sub Clause (1) of Clause
16, the amount of family pension payable is equal to the
monthly member’s pension.
4. The rule maker has taken pains to specifically
stipulate the situations, governing payment of family pension.
Consciously the rule maker has stipulated that in respect of
death before ‘commencement of pension payment’, the full
monthly member’s pension is payable to the widow. If the
intention of the rule maker was to restrict rate of family
pension to 50% in cases where pension had already been
O.P.No.29070/1999 6
sanctioned to the employee, the rule maker would have
specifically stated so. Instead the rule maker stipulated the
condition as ‘before the commencement of pension payment’
instead of ‘before becoming eligible for pension payment’.
When admittedly, the 1st petitioner’s husband died before
commencement of pension payment, there cannot be any
doubt that going by Clause 16(2)(a)(ii), the amount payable is
full monthly member’s pension. Consequently, the 2nd
petitioner is also entitled to proportionate payment of pension
till she attains the age of 25, at the proportionate rate
mentioned in sub Clause 3(b) of Clause 16.
5. Accordingly, the respondents are directed to pay to
the petitioners, family pension at the rate equal to monthly
members pension as provided in Clause 16(2)(a)(ii) and 16(3)
(b) respectively and the petitioners shall be paid monthly
pension every month at those rates. Arrears shall be paid
within a period of one month from the date of receipt of a copy
of this judgment.
The original petition is disposed of as above.
S. SIRI JAGAN, JUDGE
Acd
O.P.No.29070/1999 7