IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01/04/2002
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
S.A.No.313 of 2002
The Commissioner
Office of the Regional Provident Fund
Royapettah
Chennai-600 014. .. Appellant
versus
1. Ariyamala
2. The General Manager
Swadeshi Cotton Mills
Pondicherry. .. Respondents
Appeal against the judgment and decree dated 29.6.2001 made in
A.S. No.77 of 2000 on the file of the learned Additional District Judge,
Pondicherry, reversing the judgment and decree dated 13.3.2000 made in
O.S.No.876 of 1990 on the file of the learned Principal District Munsif,
Pondicherry.
!For appellant : Mr.V.Vibhishanan
^For respondent-1 : Mr.K.V.Subramanian
:JUDGMENT
Heard.
2. The appellant is the first defendant in O.S.No.876 of 1990,
filed by the first respondent for a permanent injunction restraining the
first defendant from stopping the family pension and recovering the
pension amount by letter dated 14.6.1990.
3. For the purpose of convenience, the parties are arrayed as
per their rank in the suit.
4. The plaintiff laid the suit in O.S.No.876 of 1990 before the
learned Principal District Munsif, Pondicherry, alleging that she got
married to one Subramanian, son of Rangasamy, an employee under the
second defendant-mill, and begot four children, viz., Murugasamy,
Gunavathy, Murthy and Vellayan. According to the plaintiff, her husband,
Subramanian, son of Rangasamy, died on 28.10.1978, when he was in service
under the second defendant-mill, and therefore, she was given employment
on compassionate ground. Unfortunately, she lost her first son
Murugasamy in the year 1979. But after the death of her husband on
28.10.1978, she was paid family pension under the provisions of the
Employees’ Provident Funds (Family Pension Fund and Deposit Linked
Insurance Fund) Act, 1952. However, without any reason, the first
defendant stopped the pension from January, 1990, and communicated a
proceedings dated 14.6.1990, conveying that the family pension was
stopped from 1.1.1990, as she had re-married one Subramani, son of
Govindasamy. Hence, she filed the above suit.
5. The first defendant resisted the suit, contending that the
plaintiff re-married one Subramani, son of Govindasamy, as per the
registered deed dated 11.3.1981, marked by the first defendant as Ex.B4
and also marked as a Court document viz., Ex.X2.
6. Upon the above rival contentions, the learned Principal
District Munsif, Pondicherry, framed the following issues:
i. Whether the plaintiff is having prima facie case over the suit claim?
ii. Whether any injury would be caused to the plaintiff, if an order of
permanent injunction as prayed by her is not granted in her favour?
iii. Whether the balance of convenience is in favour of the plaintiff?
7. To substantiate her claim, the plaintiff examined herself as
P.W.1 and also examined one Thiru Kumar, a mill worker — an independent
witness as P.W.2, as well as one Kanagavalli, the wife of Subramani, son
of Govindasamy, as P.W.3, and marked 13 uments as Ex.A1 to A13 .
8. On behalf of the first defendant, Ex.B4, viz., deed dated
11.3.19 81, alleged to have been executed between the plaintiff and
Subramani, son of Govindasamy, was marked, which is the same as that of
the document marked through the Court, viz., Ex.X2, a certified copy of
the registered deed 11.3.1981.
9. Appreciating the evidence, both documentary and oral, and
holding that the plaintiff had re-married one Subramani, son of
Govindasamy after the death of her husband Subramanian, son of Rangasamy,
as per the registered deed dated 11.3.1981, the learned Principal
District Munsif, Pondicherry, by a decree and judgment dated 13.3.2000
made in O.S.No.876 of 1990, dismissed the suit.
10. However, on appeal in A.S.No.77 of 2000, the learned
Additional District Judge, Pondicherry, by judgment and decree dated
29.6.2001, reversed the said decree and judgment of the learned Principal
District Munsif, Pondicherry, dated 13.3.2000 made in O.S.No.876 of 1990
and allowed the appeal, holding that the registered deed dated 11.3.198 1
has not been proved in a manner known to law, and therefore, rejected the
contention of the first defendant that the plaintiff had remarried one
Subramani, son of Govindasamy, as per the registered deed dated
11.3.1981, after the death of her husband, viz., Subramanian, son of
Rangasamy, and consequently, decreed the suit in O.S.No.876 of 1 990, as
prayed for. Hence the above second appeal.
11.1. Mr.V.Vibhishanan, learned counsel appearing for the
appellant, seriously contends that the civil Court has no jurisdiction to
decide on the liability of the defendants under the provisions of the
Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, in
view of Section 7A(4) of the Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952, which reads as follows:
7A. Determination of moneys due from employers.
(1) …..
(2) …..
(3) …..
(4) Where an order under sub-section (1) is passed against an employer
ex-parte, he may, within three months from the date of communication of
such order, apply to the officer for setting aside such order and if he
satisfies the officer that the show cause notice was not duly served or
that he was prevented by any sufficient cause from appearing when the
inquiry was held, the officer shall make an order setting aside his
earlier order and shall appoint a date for proceeding with the inquiry:
Provided that no such order shall be set aside merely on
the ground that there has been an irregularity in the service of the show
cause notice if the officer is satisfied that the employer had notice of
the date of hearing and had sufficient time to appear before the officer.
Explanation. — Where an appeal has been preferred under this
Act against an order passed ex parte and such appeal has been disposed of
otherwise than on the ground that the appellant has withdrawn the appeal,
no application shall lie under this sub-section for setting aside the ex
parte order. ”
In this regard, Mr.V.Vibhishanan, learned counsel for the appellant,
places reliance on the decision in UNION OF INDIA V. NARAYAN reported in
1989 LAB.I.C. 854.
11.2. Mr.V.Vibhishanan, learned counsel for the appellant, also
contends that the plaintiff is not entitled for family pension benefit
under the provisions of the Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952, read with the Employees’ Family Pension Scheme,
1971. Proviso 29 of the Employees’ Family Pension Scheme, 1971 reads as
follows:
” Family Pension to whom payable. — Subject to the provisions of
paragraph 28 of this Scheme, the family pension is payable–
(a) to the widow or widower up to the date of death or re-marriage
whichever is earlier;
(b) failing (a), to the children in the order of their birth and the
younger of them shall not be eligible for family pension unless the elder
next above him or her has become ineligible for the grant of family
pension;
Provided that in the case of the male child, the family
pension shall be payable up to the age of 25 years and in the case of
female child, family pension shall be payable up to the age of 25 years
or her marriage, whichever is earlier.
The family pension shall not be paid to more than one
person at a time.
NOTES.– (i) In cases where there are 2 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.
(ii) In the event of re-marriage or death of the widow or
widower, the pension will be granted to the minor children through their
natural guardian. In disputed cases, however, payments will be made
through a legal guardian. ”
12. Per contra, Mr.K.V.Subramanian, learned counsel appearing
for the first respondent, brought to my notice that the plea regarding
the bar of jurisdiction was not raised by the appellant before the Courts
below, and in any event, Ex.B4, the registered deed dated 11.3.1981,
cannot, by itself, be a proof to hold that the plaintiff had remarried
Subramani, son of Govindasamy after the death of her husband Subramanian,
son of Rangasamy on 28.10.1978. In any event, it is contended that
living together as husband and wife, by itself, would not confer the
status as husband and wife, as held in SURJIT KAUR V. GARJA SINGH
reported in AIR 1994 S.C. 135.
13. I have given my careful consideration to the submissions of
both sides.
14. It is true that K.A.Swami,J., (as he then was), in UNION OF
INDIA V. NARAYAN reported in 1989 LAB.I.C. 854, has held that the
determination of liability of the employer under Section 7A of the
Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, cannot
be gone into in a civil proceedings, as the civil suits are barred to
decide such issues impliedly that are governed under Section 7A of the
Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, which
deals with the determination of dues from the employer. K.A. Swami, J.
(as he then was), in this regard, has held as follows:
” Thus all the trappings of a judicial proceeding are grafted into the
process of determination to be made under S.7A(1) of the Act. Even
thereafter, if the employer feels aggrieved by the order it is open to
him to challenge the same under Art.226 or 227 or both of the
Constitution. The bar contained in sub-sec.(4) of S.7A of the Act has to
be appreciated in the background of the object of the Act. The Act is a
beneficial legislation and it is intended to serve interest of the
employees. Even after the determination is made after holding a due
enquiry under S.7A of the Act to the effect that the provisions of the
Act are attracted and the employer is liable to deposit the amount as per
the provisions of the Act, and such a determination in spite of the
provisions contained in sub-sec.(4) of S.7A of the Act, is held to be
open to challenge by seeking relief in a civil court either in the form
of an injunction or declaration, it will be nothing but defeating the
very Act itself inasmuch as the enforcement authority will not be able to
enforce the Act, until the proceeding before a civil Court attains
finality; which, having regard to several stages including an appeal and
further appeal have to be covered, before it attains finality, is
possible only after a decade or two and by that time many of the
employees would be either out of employment or have left the world for
ever. Keeping this aspect in view and also the fact that an aggrieved
employer has a remedy against the order passed under S.7A of the Act
under Arts.226 and 227 of the Constitution, the Parliament in its wisdom
has excluded the jurisdiction of a Civil Court and has issued statutory
injunction that the order made under S.7A of the Act shall not be
questioned in any court of law. A party cannot be allowed to over-come
or avoid such a statutory injunction by seeking a prayer in a civil Court
in such a manner so as to make it appear that apparently the order passed
under S.7A of the Act is not challenged; though in effect and in
substance the relief, if granted would result in nullifying the order
passed under S.7A of the Act. Therefore having regard to the fact that,
in the instant case, if the decree as prayed for is granted, it results
in setting aside or nullifying the order passed under S.7A of the Act,the
Civil Court has no jurisdiction to grant such a relief. ”
15. The issue raised in the above suit is not with regard to the
determination of money due from the employer, which is governed under
Section 7A of the Employees’ Provident Funds and Miscellaneous Provisions
Act, 1952, but the one as to the status of the plaintiff as the wife of
Subramanian, son of Rangasamy, that entitles her to claim the family
pension under the Employees’ Family Pension Scheme, 1971. Clause 21 of
the Scheme, admittedly, applies to the widow, and disqualifies the widow
in the event of her re-marriage. But what is pertinent to be decided is
that whether the plaintiff had re-married Subramani, son of Govindasamy,
as alleged by the first defendant based on Ex.B4, a registered document.
16. The learned Additional District Judge, Pondicherry, in his
detailed discussion, appreciating the evidence, both oral and documentary
evidence, especially that of P.W.3, who is nonetheless the wife of
Subramani, son of Govindasamy, the so-called second husband of the
plaintiff, has disbelieved the marriage between the plaintiff and
Subramani, son of Govindasamy, which is purely a question of fact, but
not a question of law.
17. That apart, the Apex Court in SURJIT KAUR V. GARJA SINGH
reported in AIR 1994 S.C. 135, has held that as early as in B.S.LOKHANDE
v. STATE OF MAHARASHTRA reported in AIR 1965 SC 1564, the bare fact of a
man and a woman living as husband and wife does not, at any rate,
normally give them the status of husband and wife even though they may
hold themselves out before society as husband and wife and the society
treats them as husband and wife. The above ratio was also subsequently
upheld by the Apex Court in SURJIT KAUR V. GARJA SINGH reported in AIR
1994 S.C. 135, holding that living together as husband and wife, by
itself, would not confer a status of husband and wife.
18. If the facts are tested in the teeth of the above ratio laid
down by the Apex Court, I have no hesitation to hold that the factum of
marriage between the plaintiff and Subramani, son of Govindasamy after
the death of her husband Subramanian, son of Rangasamy, merely based on
the document marked as Ex.B4 has not been proved. If that be so, the
refusal to pay the family pension to the plaintiff from 1.1.199 0 as per
the letter dated 14.6.1990, in my considered opinion, is held to be
illegal, as rightly held by the learned Additional District Judge,
Pondicherry. Hence, finding no substantial question of law, this second
appeal is dismissed. No costs. Consequently, C.M.P.No.2551 of 2002 is
also dismissed.
ksv
P.D.DINAKARAN,J.
Index: Yes / No
Internet: Yes
01/04/2002
ksv
Sd/- Assistant Registrar
/True Copy/
Sub Assistant Registrar
To:
1. The Additional District Judge
Pondicherry.
2. The Principal District Munsif
Pondicherry.
S.A.No.313 of 2002