BOMBAY OA No.517/2011

OA No.517/2011 RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI.

ORIGINAL APPLICATION NO.517 OF 2011
DATED THIS , THE DAY OF

AUGUST, 2013.

CORAM : HON'BLE SMT. LEENA MEHENDALE, MEMBER

(A)

Mrs. Afsar Salim Shaikh
Residing at 14/4 'H' Type
Factory Quarters,
Range Hills Khadki,
Pune 411 020 ... Applicant
(By Advocate Shri P.J.Prasadrao)

VERSUS

1. Union of India,
Through the Secretary,
Ministry of Defence,
South Block,
New Delhi 110 011.
2. The General Manager,
Ammunition Factory,
Khadki Pune 411 003
3. The Principal C D A [Pension]
Draupatighat, Allahabad 211 014
4. The Controller of Accounts [Factories]
Kirkee Group of Factories,
Ammunition Factory
Khadki Pune 411 003
5. Smt. Shaheen Tamboli
Managalya Co-operative Society Ltd
Flat No.506, Survey No.44,

C.House No.486,
Elphistone Road,
Khadki Pune 411 003 ... Respondents

(By Advocate Smt. H.P.Shah along with
Smt. J.K.Rehel for respondent Nos.1 to 4 &
Shri V.N.Tayade for respondent No.5)

O R D E R

PER: SMT. LEENA MEHENDALE, MEMBER (A)
This Original Application is filed
by a married Muslim lady on 22.07.2011 under
Section 19 of the Administrative Tribunals
Act, 1985 to claim the benefits of the
family pension and other retiral benefits,
being heirs to the deceased employee Shri
Shaikh Salim Abdul Karim of Ammunition
Factory Khadki, Pune. She is the second
wife of the deceased employee and it is
claimed that the first wife was legally
divorced. Moreover, the first nomination
for family pension earlier filed by the
deceased Shaikh Salim in favour of first
wife was withdrawn by him after his marriage
with the applicant and a second nomination
form has been submitted to the respondents
for Death-cum-Retirement Gratuity way back
on 20.07.2004 clearly indicating the name of
the applicant to be the beneficiary of
DCRG. Another nomination form is also seen
at Annexure R-4, nominating applicant for
family pension.

2. The impugned order at Annexure A-1 dated 01.11.2011 suggest

the ground taken by the respondent-department, who have not yet
granted the family pension and other benefits as per the claim. The
impugned order reads -

“In this connection you are requested to
refer this of ice letter of even no. dt. 03.05.2010.
As late SK. Salim Abdul Karim, Ex. T.No.
QCSAA/235/840278 is survived by two wives it
was decided that terminal benefits will be paid to
the rightful legal heir whoever produces
Succession Certificate from Court of Law.
You are therefore once again requested to
produce Succession Certificate from Court of Law
by making Smt. Shahin a party to the case, to
enable this of ice to take further action in the
matter.”

3. The brief facts of the case are as under
-
Shri Shaikh Salim Abdul Karim was employee
with the respondent-department i.e.
Ammunition Factory, Khadki, Pune, who
expired on 28.01.2010 while in service. His
Death certificate is dated 08.02.2010 as at
Annexure A-2. He had a first wife Shaheen
and second wife Afsar and it is claimed by
the applicant, who is the second wife that
he had given divorce to the first wife. His
nomination for the DCRG dated 14.11.1987 in
favour of first wife Shaheen (Respondent
No.5 in the present OA) is at Annexure R-
8. However, the applicant Afsar has
produced a copy of fresh DCRG nomination
dated 20.07.2004 in favour of herself. This
is produced along with Annexure A-6, which
is actually an admission by the respondents

under RTI to say that they have received
this fresh DCRG nomination in favour of
Afsar. There is also a nomination filled by
deceased Salim for family pension in favour
of Afsar dated 03.11.2006 is at Annexure R-
4, which contains only the name of Afsar and
three children Anees, Naziya and Tehreen.
It is explained by the applicant in OA, para
4.3 that these three children namely Anees,
Naziya and Tehreen are the children of the
first wife but, now staying with Afsar and
Salim. This nomination for family pension
does not mentioned anything about Shaheen.
The applicant has also produced as a part of
Annexure A-1 another document dated
20.07.2004 (page 37 of the OA), which is an
application from the deceased employee to
request that the name of ex-wife Shaheen
should be deleted from his service record as
he has given her divorce on 15.02.2001, with
a further request to add the name of present
wife Afsar. Along with this applications,
he has also enclosed Talaknama, Court order
of settlement, affidavit of Talak, Nikhanama
with Afsar. The applicant has also produced
at Annexure A-6 (collectively) that
nomination for benefit under Government
Employees Group Insurance Scheme and the
nominees are Afsar (wife), Rahmatbi
(mother), Anees (son), Naziya (daughter),
Shabaz (son) and Tehreen (daughter) (it is
explained that Shabaz has died

subsequently). The applicant has also
produced a nomination in her favour for the
purpose of Provident Fund. This nomination
is at page 49 of the OA and it mentions the
name of Anees as a second nominee in case of
invalidity. Thus we find valid nominations
in favour of applicant Afsar for purposes of
Family Pension, DCRG, Provident Fund and
Government Group Insurance, all separately.

4. It is thus seen that approximately six years prior to the deceased
employee, he had properly informed the office about his second
marriage, his divorce from the first wife and filed several nominations
in favour of the second wife Afsar, who is the applicant here. On
behalf of the respondent No.5, the first wife, the learned counsel has
stated that she denies the claim of “talak” with the deceased
employee. However, respondent No.5 is not able to claim that the
nomination filed by the deceased employee is not valid. The
respondent No.5 raises objection to the marriage between the deceased
employee and the applicant. However, she is neither able to explain as
to how it supports her stand of still being the legally married wife, nor
the stand as to how the nomination by the deceased employee in favour
of applicant may be ignored.

5. The learned counsel for Respondent No.5 has relied upon the
judgment in Vidhyadhari and others Vs. Sukhrana Bai and others,
(2008) 1 SCC (L&S) 451, where Vidyadhari and Sukhrana Bai were
each claiming to be the only wife of deceased employee and, therefore,
claiming to be the sole beneficiary. They were demanding succession
certificate for the purpose of movable property. However, the said
case is distinguishable for the reason that the present case will be
governed by the Customary Muslim Law and also by the fact that it is

not a case to settle the succession claim. It is a case to demand family
pension and other retiral benefits, in view of valid nominations in
favour of second wife in supersession of the nomination in favour of
the first wife. The learned counsel for the respondent No.5 has also
cited the case of Dagdu Chotu Pathan Vs. Rahimbi Dagdu Pathan and
others, 2002 (3) Mh.L.J. 604, in which it was held that if Triple Talak
given by Muslim husband at an earlier date followed by the certificate
by the Qazi at a later date does not amount to the dissolution of
marriage from the date on which such a statement of Triple Talak is
made. However, the said judgment does not negate the fact of Talak
by itself. In the present case in particular we also have to go by the
fact that the first nomination was duly cancelled and a fresh
nomination was filled separately for DCRG, Pension, Provident Fund
and Group Insurance benefits, by the employee much prior to his
death.

6. There are three types of claim against the respondent-
department -

Family Pension.
All Retiral benefits, which
would have normally arisen
after retirement in natural
course such as DCRG.
Other Benefits, which arise
out of the service of the
deceased employee before his
death while in service and as
such, different from retiral
benefits. These are claims
such as salary of that month,
etc.

7. The family pension will accrue fully to
the second wife namely the present
applicant. The retiral benefits such as
DCRG, Provident fund and group insurance
will also accrue as per the nomination
forms. Since the first wife had children
and they have been mentioned in nomination
forms, they have a right to share those
benefits alongwith Afsar, the applicant.
Third type of benefits which are not part of
the retiral benefits, but have arisen due to
sudden death of the employee while in
service will have to be identified by the
respondents No.3 and 4 and will have to be
paid to the applicant and the children of
the first wife with a stipulated that they
will be recoverable if Shaheen is able to
get a succession certificate.

8. The impugned order at Annexure A-1 dated 01.11.2011 is
quashed. Respondent Nos.2, 3 and 4 are directed to ensure that family
pension is fixed in favour of the applicant and all the relevant orders
regarding all other retiral benefits are passed as per nominations within
next four months. The actual payment should be made to the
concerned beneficiary within two months next, a stipulation as
mentioned supra will be kept for those payments where it is due as
discussed above.

9. With these instructions, the OA is
allowed. No order as to costs.

(Smt. Leena

Me
h
e
n
da
le)

Me
m
b
e
r
(A)

km