1. Applicant claims that she is the widow of P.M.Rahim, who was a Peon under the 4th respondent, Senior Divisional Mechanical Engineer, Southern Railway, Trivandrum. Sri.Rahim had passed away on 19.04.2015. The grievance of the applicant is that the respondents had not paid pension and other retiral benefits to Rahim, after the death of the husband she was not granted family pension and other retiral benefits. Aggrieved by the same, earlier, she had approached this Tribunal with O.A.746/2018. This Tribunal, by order dated 28.10.2019, directed the respondents to consider and dispose of the claim of the applicant within three months from the date of receipt of a copy of the order. However, by Anneure-A13 order the claim of the applicant was rejected, they have illegally asked the applicant to produce a decree from a Court of competent jurisdiction establishing her status as the wife of late P.M.Rahim and a succession certificate issued by a competent civil authority enabling the children born to late P.M.Rahim to get the benefits which were due to Rahim. Aggrieved by the same, the applicant has approached this Tribunal for quashing Annexure-A13 issued by the 5th respondent and to declare that a decree from a Court of law is not necessary to prove the divorce and subsequent marriage of a Muslim man, to declare that legal heirship certificate is sufficient for processing the death benefits of an employee of the respondents and to insist succession certificate is arbitrary and illegal, to declare that the applicant is entitled to receive the terminal benefits of her late husband, to direct the respondents to effect payment without any further delay, to declare that the applicant is entitled for family pension of her late husband and to direct the 5th respondent to sanction pension in the name of her late husband from the date of his compulsory retirement and family pension to the applicant from the date of his death.

2. The applicant says that she is the second wife of late P.M.Rahim, who was compulsorily retired from the service of the 4th respondent on 03.06.1998. Thereafter, his retirement benefits were denied, he was not granted pension and other retiral benefits; though appeal and revisions were filed against the order of compulsory retirement, both were rejected, thereafter retiral benefits were not granted to him and the late husband had made repeated representations. After his death the applicant also made representations, when that did not work, she moved this Tribunal with O.A.746/2018, which was disposed of as aforementioned. Now, that representation has been illegally rejected by Annexure-A13 and that made her to approach the Tribunal again.

3. The applicant submits that herself and her five minor children are living in penurious condition, that the legitimate retiral benefits should have been granted to P.M.Rahim, which were not granted; he also should have been granted pension as he had put in more than 15 years of service as stated by the respondents in AnneureA5 communication. Still pension and family pension were not granted, which is illegal, arbitrary and unjust.

4. The respondents have denied the claims made by the applicant. According to them, the very status of the applicant as the widow of Rahim is not accepted. Pursuant to Annexure-A11 order of this Tribunal, Annexure-A13 was issued. Before that they had found that the husband of the applicant was entitled to get Rs.41,022/ towards service gratuity, retirement gratuity, group insurance and provident fund. But he did not submit necessary declaration etc., so that, that were not processed or issued. Thereafter, through Annexures-R1 and R2 communications, Smt. Suhara, whose name appears as per the family composition as the wife, was informed to produce a decree from a Court of competent jurisdiction establishing her status as the wife of Rahim and a succession certificate issued by a competent civil authority enabling her children born to late P.M.Rahim to claim the said sum of Rs.41,022/-. But those communications were returned unserved so that, that were not processed. They denied the claim of the applicant that she is the widow of Rahim. Annexures-A6 and A7 are not valid documents to consider and hold the status of the applicant. According to them, the said Suhara continues to be the wife of Rahim and there is no document to show that the applicant was married by Rahim or that she is the widow. They also submitted that Rahim was a casual labourer from 21.08.1980, he was granted temporary status on 01.04.1982, he was regularized on 20.04.1993 and later, was compulsorily retired on 03.06.1998. His appeal and revisions were rejected. Various amounts were found due to him as stated earlier for having put in 7 years 7 months and 28 days of qualifying service. But he did not produce relevant forms for sanctioning and arranging payment towards retirement gratuity, provident fund and group insurance etc.; that was how they were not processed or released. As and when documents are produced, the amount will be released to appropriate persons. Annexures-R1 and R2 communications were sent to Smt.Suhara as per the family composition certificate issued by Rahim. Referring to Rules 70 and 74 of the Railway Services (Pension) Rules, 1993 it is stated that in the absence of nomination, those amounts are pending disbursement and it can be released on production of a decree from Court of competent jurisdiction proving the status of the applicant as stated in AnnexureA13 and also succession certificate. According to the respondents, there is nothing to establish that the applicant is the legally wedded second wife of the employee. Therefore, the respondents are justified in issuing Annexure-A13 and submitted that there is nothing to show that there are other children to Rahim born through the applicant. Annexure-A12 legal heirship certificate issued by the Tahsildar shows that the mother and the daughter born in the first marriage are also alive. Referring to the same, it is submitted that they are also legal heirs and therefore the O.A. is bad for non-joinder of necessary parties.

5. The applicant filed a rejoinder reiterating that the husband of the applicant had put in more than 15 years of service. Therefore, there is no meaning in saying that he had only 7 years 7 months and 28 days of service, which runs contrary to Annexure-A5 communication issued by the 4th respondent. After having stated that he had more than 10 years of service, which is the minimum necessary period for grant of pension, there is no justification in rejecting pension to Rahim or family pension to the applicant, who is the legally wedded wife. Moreover, referring to the contention that there is no document to prove the marriage of the applicant with Rahim, it is stated that Kerala Registration of Marriage (Common) Rules, 2008 had come into effect only in 2008 and marriages solemnized before the coming into force of the said Rules were not compulsorily registrable and therefore, there are only documents like Annexures-A6 and A7 to show that a divorce was effected on 20.09.2003 through a joint agreement between Suhara and Rahim. Moreover, she claims that she produced Annexure-A7 marriage certificate which proves her marriage with Rahim. Referring to Annexure-A14 series she said that she has produced the birth certificates of the children, which prove that five children were born in her wedlock with Rahim. So, according to the applicant, the respondents ought to have granted pension to Rahim, and on his death, she is entitled to get family pension and the contentions raised in the reply are illegal.

6. I heard Smt. Shameena Salahudheen for the applicant and Smt.Mini R. Menon, Additional Central Government Standing Counsel for the respondents.

7. Smt.Shameena, referring to a judgment of the Hon’ble High Court in Writ Appeal 556/2014, submitted that it is illegal to insist succession certificate for claiming family pension by a wife. Similarly, she said that the personal law of the parties permits effecting divorce by declaring 'Talaq' or through mutual agreement. Annexure-A6 clearly indicates that a contract of divorce was effected between Rahim and his first wife Suhara, and Annexure-A7 marriage certificate indicates Rahim had married the applicant on 12.10.2003. Annexure-A14 series birth certificates show that they have five children born in the relationship and from Annexure-A12 it is clear that the children are shown as legal representatives of Rahim, apart from the daughter in the first marriage, the applicant as well as the mother of Rahim. According to the learned counsel, whatever amount due to the applicant and her children should be disbursed on the basis of the documents already made available before the respondents and it is illegal to reject the same. Apart from the documents produced, according to the learned counsel, a welfare officer had visited her house and had made first hand investigation and a report was placed before the respondents. According to the understanding of the applicant, such a report also would indicate that the applicant and her children are the legal heirs of Rahim and therefore, it is illegal to deny the legitimate rights of the applicant.

8. On the other hand, the learned Additional Central Government Standing Counsel submitted that there is absolutely no document to show that the husband of the applicant had put in 15 years of service. What is important is qualifying service of atleast for 10 years, but documents are not available to prove the same. The husband had not made nomination in favour of the applicant and therefore, basing on the family composition statement, communications were issued to the first wife but it were returned unserved, whatever terminal benefits are due would be disbursed to appropriate persons on production of necessary documents as indicated in Annexure-A13.

9. The applicant claims that she is the legally wedded wife of Rahim. It is the common case that, earlier Rahim had married one Suhara and her name appeared in the family composition statement given by Rahim to the respondents.

10. Reply statement indicates that the husband of the applicant was initially engaged by the respondents as a casual labourer on 21.08.1980. Later he was granted temporary status on 01.04.1982 and was regularized on 20.04.1993. It is stated that he was irregular in attending office. Numerous disciplinary proceedings were initiated against him and ultimately, by Annexure-A3 order dated 02.06.1998 he was compulsorily retired from service from 03.06.1998. Appeal and revision filed against that order were rejected. It is not disputed that Rahim was compulsorily retired from service on 03.06.1998. He was not granted any retiral benefits. It appears that he had made representations, but owing to the fact that he did not produce necessary documents, such a claim was not processed. While so, he died on 19.04.2015. Thereafter, the applicant pursued the claim for getting the benefits; when it were not considered she moved this Tribunal with O.A.746/2018, which was disposed of through AnnexureA11 with certain observations. Paragraph 5 of the order reads thus:

“……..There is no dispute regarding the facts of the case in so far as the service of the late Shri.Rahim is concerned except to the extent that the authorities state that his service was less than 10 years, whereas according to the applicant, her husband had worked for 15 years. However, it remains a fact that the applicant who is his wife along with her five minor children are living in extremely indigent circumstances after the demise of Shri.Rahim. In the reply statement it is submitted that the details relating to the erstwhile employee’s service are required to process the claim of the applicant. However, in view of the sad circumstances of the case, the respondents are on their own should take special steps to obtain these from their own records and examine the case further. The Tribunal is of the view that interests of justice will be met if the Respondents 2 & 3 are directed to consider the representation, copy of which is available at Annexure-A10. Utmost consideration, possible under law, may be extended to the applicant. A decision may be taken and communicated to the applicant within three months from the date of receipt of a copy of this order………….”

That O.A. was disposed of on 28.10.2019. Pursuant to the same, Annexure-A13 was issued, as stated earlier.

11. The application has two limbs. One is for the grant of pension to Rahim from the date he was compulsorily retired on 03.06.1998 and to grant family pension to the applicant as the legally wedded wife from the date of death on 19.04.2015. The second limb of the claim is seeking the disbursal of other retirement benefits like gratuity, insurance, GPF which fell due on his compulsory retirement.

12. It is the common case that Rahim was compulsorily retired on 03.06.1998 and his retirement benefits were not granted. While the applicant claims that repeated representations were not considered, respondents maintained that, after retiring him compulsorily, the said Rahim had not submitted relevant forms for sanctioning and arranging payment, as per the Rules, so that the amount was not disbursed.

13. On the showing of the respondents it is clear that retiral benefits come to Rs.41,022/-. That amount, according to the respondents, as seen from Annexures-R1 and R2, includes Rs.24,186/- towards service gratuity, Rs.12,093/- towards retirement gratuity, Rs.3,305/- towards group insurance scheme and Rs.1,438/- as provident fund. According to the respondents, Rahim did not have minimum 10 years of qualifying service. He had only 7 years 7 months and 28 days to his credit, so that he did not qualify for granting minimum pension and therefore was not entitled to get pension, as a corollary even if the applicant is taken as the wife, is not entitled to claim family pension from the date of his death.

14. Rule 69(2) of the Railway Services (Pension) Rules, which goes in line with the Civil Services (Pension) Rules, specify that a Railway employee is entitled to get pension only if he has put in a minimum 10 years qualifying service. The applicant claims that the said Rahim had more than 15 years service and therefore rejection/non-granting of pension is illegal and unjust. But before that, consideration into the claim of the applicant as the widow of Rahim should be addressed. As noticed earlier, Rahim was compulsorily retired from service on 03.06.1998. At that time, as the records available with the respondents show, Suhara was his wife. As per the deed of divorce jointly executed by Rahim and Suhara, divorce was effected on 20.09.2003. For two reasons this document cannot be rejected by this Tribunal. Firstly, matters should be dealt with in tune with the personal law of the parties. Here the parties are Muslims, so that as the law prevailed at that time divorce through 'Talaq' was permissible. In other words, there is no Rule position that a Muslim divorce could be effected only through a Court of law. Annexure-A6 clearly establishes that Rahim and Suhara had executed a joint deed of divorce and therefore, there is no legal impediment in rejecting this contention of the respondents.

15. Similarly, Annexure-A7 marriage certificate indicates that Rahim had married the applicant on 12.10.2003. As rightly pointed out by the learned counsel for the applicant, at the relevant time there was no law that a Muslim marriage was compulsorily registrable. It was only after the promulgation of the Kerala Registration of Marriage (Common) Rules, 2008 a stipulation had come into effect for compulsory registration. In the absence of better documents and contest by the parties Annexure-A7 should be given due weight. Annexure-A12 legal heirship certificate also indicates that the applicant is the wife of Rahim and therefore Annexure-A7 along with AnnexureA12 clearly suggest that the applicant is the legally wedded wife of Rahim.

16. As stated earlier, personal law of the parties suggests that a decree of divorce is not necessary in the case of Muslims. Moreover, for our purpose Annexures-A7 and A12 are sufficient to say that the applicant is the widow of Rahim. It is also evident that divorce with Suhara and then the marriage with the applicant were effected after Rahim was terminated from service on compulsory retirement on 03.06.1998. Therefore, question of submitting any family composition statement, after the order of compulsory retirement, which had become final, did not arise. Therefore, these documents can be taken for our purpose to prove the status of the applicant.

17. Even though status of the applicant is established, in the absence of convincing evidence we cannot say that she is entitled to get family pension. Before that a probe into the contention of the applicant that the respondents ought to have granted pension to the applicant immediately after compulsory retirement on 03.06.1998 has to be addressed. But the contentions of the parties on this aspect are mutually exclusive. While the applicant claims that Rahim had more than 15 years of service, the respondents state that he had only less than 10 years service, more precisely, had only 7 years 7 months and 28 days to his credit, which did not qualify for pension and thus he was not granted pension. But so much amounts are due towards retiral benefits, which were not processed. Referring to Annexures-R1 and R2 it is submitted that the first wife Suhara was addressed, following the family composition statement, for the disbursement of the amount for production of documents, but the communications were not served on her.

18. The contention of the applicant that her husband had put in more than 15 years of service to his credit is not proved by any satisfactory records. In order to establish this claim, implicit reliance has been placed on Annexure-A5 communication dated 05.10.2001, which is the order rejecting the revision submitted by Rahim against the order of compulsory retirement. From Annexure-A5 it appears that in the revision petition the said Rahim had taken a contention that he was ignorant of the Rules. In that context it was stated that, having put in 15 years of service, he cannot take shelter under ignorance of Rules. It was in that context that 15 years service was mentioned; there is absolutely no material to say that, that is a finding with regard to the length of service, that too qualifying service was 15 years rendered by Rahim at the time of his compulsory retirement. It cannot be taken as an admission against the respondents. From Annexure-A5 it is clear that he was very much irregular in attending his duties. It is revealed that it was the third occasion that disciplinary proceedings were initiated against him, which ended in his compulsory retirement. During 1993 he was unauthorisedly absent for 12 months and then again during 1996 he went unauthorisedly absent, for which punishments were imposed withholding increments. His unauthorised absence was taken more seriously by the respondents at the third time and the extreme penalty of compulsory retirement was imposed.

19. For our purpose the pivotal question is what was his actual qualifying service. While the applicant claims that he had 15 years of service, the respondents say that he had only 7 years 7 months and 28 days. In my opinion, this version of the respondents need not be doubted, because such a finding was made and orders were communicated after perusal of records as directed by this Tribunal in Annexure-A11 order.

20. Secondly, the statement in Annexure-A5 that he was having 15 years of service was rendered in a totally different context. That might not have been stated after perusing the service records and assessing the qualifying service of the husband of the applicant. Such an observation was made in a different context, in a loose manner. Moreover, as indicated earlier, even though he was having engagement as casual labourer from 1980 onwards, temporary status was conferred only on 01.04.1982 and he was regularised on 20.04.1993. Therefore, qualifying service will commence to run, as provided in Rule 20 of the Railway Services (Pension) Rules, only from 20.04.1993 and 100% of the period qualifying for pension will be reckoned from 20.04.1993. At the same time, it can be reasonably assumed that the respondents might have taken 50% of the period rendered after conferring temporary status also. That was how 7 years 7 months and 28 days could be reckoned as qualifying service. If the period was reckoned from 20.04.1993, by the time compulsory retirement was offered from 03.06.1998, he did not have that much length of service. So, 50% of the service reckonable as qualifying service prior to regularisation after conferring temporary status also must have been taken as ruled by the Hon'ble Supreme Court in Union of India (UOI) and Ors. v. Rakesh Kumar and Ors. [AIR 2017 SC 1691 [LQ/SC/2017/464] ]. Any how, there is no material to support the claim of the applicant, apart from Annexure-A5 that he had 15 years of service to his credit. A passing reference made in Annexure-A5 in a different context cannot be taken to hold that Rahim had 15 years service and thus had qualified for getting pension.

21. Moreover, it is very important to note that a claim for pension for Rahim was raised for the first time only through the O.A. filed in 2019 which was disposed of through Annexure-A11. That O.A. was filed by the applicant long after the death of Rahim. If Rahim had a claim with regard to his entitlement for pension, no doubt, that would have been raised when he gave the Annexure-A8 representation. Annexure-A8 representation was submitted on 07.03.2013, where he wanted to disburse payments of whatever amount due to him by way of gratuity, provident fund etc. In Annexure-A8 there is no mention about the claim for pension. If Rahim had a claim that he had put in minimum 10 years qualifying service, he would have raised the same; that was not done. Now, confounding the doubt, in Annexure-A10 also which was given by the applicant before the 4th respondent, there is no claim for pension. That means, the claim for pension for Rahim was raised for the first time only through O.A.746/2018, which must be a subsequent invention, an offshoot of a second thought. In other words, there is nothing to doubt the contention of the respondents that the husband of the applicant did not have minimum qualifying service of 10 years to grant him pension. Therefore, the claims of the applicant that Rahim should have been granted pension and as a necessary corollary she is entitled to get family pension are lacking in merits and are liable to be rejected.

22. I have no doubt that if Rahim was entitled to get pension, on the basis of Annexure-A7 the applicant would have entitled to claim family pension. But there is no justification for such a claim. If the claim for pension is upheld by the Tribunal, as held by the Hon'ble High Court in Writ Appeal No.556/2014, the contention of the respondents that the applicant should produce a succession certificate has no basis. In this connection, in paragraph 20, the High Court has observed basing on the judgments of the Hon'ble Supreme Court that family pension is not a debt or security of the deceased. It is not a matter of testamentary disposition. It is not part of estate of the deceased. Family pension is a right conferred on the wife or other legal representatives, as the case may be, after the death of the pensioner. It depends on the status of the parties. Therefore, succession certificate cannot be insisted on such a claim because it is not a matter of testamentary disposition. This has been reiterated by the Apex Court time and again (see the decisions in Jodh Singh v. Union of India and another [(1980) 4 SCC 306] [LQ/SC/1980/426] , Smt. Violet Issac and others v. Union of India and others [(1991) 1 SCC 725] [LQ/SC/1991/72] etc.) That means, even in the absence of succession certificate, family pension, which is the right conferred on the legal heirs on the death of the pensioner, is grantable. But here, as I noticed earlier, Rahim was not entitled to get pension and therefore, the applicant, the widow is not entitled to get family pension either and non-production of succession certificate has no legal consequence.

23. But such a view cannot be taken with regard to various amounts which are to be disbursed by the respondents, which is now kept at their disposal, that is a sum of Rs.41,022/-, which is the amount accrued to the credit of Rahim by virtue of the service rendered by him for 7 years 7 months and 28 days. That amount was due to the deceased and can be disbursed to the legal heirs only, on production of succession certificate. Legal heirship certificate is not sufficient. It only shows who are the legal heirs of the deceased. But in order to ascertain the due share of each legal heir, a succession certificate should be produced. Here, Annexure-A12 shows that the said Rahim had left behind his wife, mother and six children including five children born through the applicant and another daughter aged 30 years who was born in the first marriage, all of them are legal heirs of the deceased and their due share in the amounts, which was payable to Rahim, can be fixed only after obtaining a succession certificate.

24. To sum up, there is absolutely no reason to interfere with Annexure-A13 order and the Original Application is liable to be dismissed. Dismissed. No costs.