Central Administrative Tribunal - Jodhpur
Ramesh Kumar vs M/O Railway on 17 October, 2024
1- O.A. NO.267/2019 Ramesh Kumar VS. UOI
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application 267/2019
Date of Pronouncement : 17.10.2024
Date of Reserve : 11.10.2024
CORAM :
HON'BLE MR. JUSTICE RAMESHWAR VYAS, MEMBER (JUDICIAL)
Ramesh Kumar S/o Sh. Ram Chander, aged about 55 years, r/o Village
Jhundawas, Post Chundawas, District Bhilwani (Haryana) - 127029, last
employed on the post of Gangman in Gang No. 4 under SSE (P.Way),
Alenabad Railway Station, NWR.
...Applicant
[By Advocate: Mr. A.K.Kaushik]
Versus
1. Union of India through General Manager, North Western Railway,
Headquarters Jaipur Zone.
2. Assistant Divisional Engineer - II, Hanumangarh Jn. NWR -
335513.
.....Respondents
[By Advocate: Mr. B.L.Tiwari]
O R D E R
By the Court :
Being aggrieved by not granting the compassionate allowance to the applicant while removing him from service on 28.11.2005, the applicant has preferred this OA for direction against the respondents to grant him compassionate allowance with consequential benefits.
2. Facts of the case in brief are as under :
The applicant was initially appointed to the post of Casual Khallasi on 26.03.1985. He was absorbed in regular establishment on the post of Gangman in the year 1987. Vide Memorandum of Charges dated 28.05.2003, the applicant was subjected to disciplinary proceedings for his alleged unauthorised absence from duty. After conducting the inquiry 2- O.A. NO.267/2019 Ramesh Kumar VS. UOI the applicant was imposed a penalty of removal from service vide order dated 28.11.2005. The applicant did not challenge the penalty order by filing any appeal against the order. After a gap of eleven years on 13.08.2019 (Annex.A/5) ,the applicant served a legal notice upon the respondents seeking compassionate allowance.
3. As per the averments made by the applicant, recently he came to know from his colleague that there is a provision for grant of compassionate allowance in case of removal or dismissal from service. Referring to the provisions of Rule 65 (1) of the Railway Service (Pension) Rules 1993 and Railway Board RBE No. 164/2008 (Annex.A/3), the applicant submits that he has not committed any misconduct involving moral turpitude. He fulfilled all the parameters laid down by Hon'ble the Supreme Court in the matter of M.D. Sharma Vs. UOI & Ors. reported in (2014) SCC 684.
It is averred that the action of the respondents in not granting compassionate allowance to the applicant is ex facie illegal, arbitrary and unsustainable in law being violative of Articles 14 & 21 of the Constitution of India. It is further averred that his absence was not a wilful absence. He faced unusual and peculiar circumstances for his absence.His family is in indigent condition. The applicant has no source of income.Terming his claim as deserving one, the applicant prayed to direct the respondents to grant him compassionate allowance.
4. As per reply filed by the respondents the applicant has not preferred his claim within the stipulated time prescribed in Section 21 of the Administrative Tribunal Act, 1985. The applicant remained absent on several occasions. The applicant was having a very small length of qualifying service i.e. four years eleven months and thirteen days only. It is incorrect to say that he served the Department for about eighteen years. The applicant remained present in the disciplinary inquiry. The 3- O.A. NO.267/2019 Ramesh Kumar VS. UOI order of removal was served upon the applicant. Contradicting the claim of the applicant, respondents prayed to dismiss the O.A.
5. The applicant filed a rejoinder reiterating his stand.
6. Heard learned counsel for the parties and perused the material available on record.
7. It is contended by learned counsel for the applicant that as per RBE No. 164/2008, the disciplinary authority was required to take a decision for grant of compassionate allowance at the time of the passing of the order of dismissal/removal from service or immediately thereafter. Where the disciplinary authority had not passed any specific order for grant of compassionate allowance, the disciplinary authority was required to review his order on receipt of the representation of the dismissed or removed employee.
In the present matter at the time of removing the applicant from service, no order was passed by the disciplinary authority with regard to grant of compassionate allowance to the applicant. The action of the respondents in not considering his case for grant of compassionate allowance is against the rules and the provisions of the RBE No. 164/2008. Relying upon the judgment passed by Hon'ble Rajasthan High Court in the matter of Om Prakash Vs. UOI & Ors. passed in DB Civil Writ Petition No. 11214/2019 decided on 05.12.2022, as also the judgment rendered by Hon'ble Delhi High Court in the matter of Gauri Shankar Vs. Central Reserve Police Force & Anr. reported in 2022 (2) SLJ DHC 430, learned counsel for the applicant prayed to allow the O.A.
8. On the contrary, learned counsel for the respondents submitted that in the absence of qualifying service, the claim of the applicant for compassionate allowance is not tenable. The applicant was removed from service in the year 2005. The instant OA has been filed beyond the limitation period in the year 2019 without any valid reasons. The applicant remained habitually absent from service. As per the Chart 4- O.A. NO.267/2019 Ramesh Kumar VS. UOI (Annex.R/2) the total qualifying service of the applicant was four years eleven months and thirteen days only. In view of this learned counsel for the respondents prayed to dismiss the O.A.
9. Having regard to the arguments advanced by learned counsel for the parties and the material available on record, it emerges that the penalty order passed in the year 2008 removing the applicant from service has not been challenged by the applicant before the appellate authority. The order has become final. It is an admitted position that the disciplinary authority did not pass any order regarding grant or non grant of compassionate allowance to the applicant. For the sake of arguments assuming that the cause of action arose in favour of the applicant is continuing one, this tribunal considered the facts of the case.
10. As per reply filed by the respondents, the applicant was a habitual absentee. The unauthorised absence and qualifying service statement of the applicant shows that the applicant was in the habit to remain absent. According to the chart, a total length of qualifying service of the applicant is four years eleven months and thirteen days only. It is a well settled principle of service law that for being eligible to get pension one has to complete minimum qualifying service. If an employee does not serve the department for a specific period, he cannot claim pension / family pension. This tribunal is of the view that a person who is not entitled to get pension for want of qualifying service is also not entitled for compassionate allowance in case of his dismissal or removal from service.
11. Learned counsel for the applicant relies upon a judgment of Hon'ble Delhi High Court Gauri Shankar Vs. Central Reserve Police Force & Anr. After perusal of the above judgment, it emerges that Hon'ble Delhi High Court though allowed the petition of the petitioner yet in last part of its judgment made it clear that this order has been passed in peculiar facts and shall not be treated as precedent in any other 5- O.A. NO.267/2019 Ramesh Kumar VS. UOI case. In view of this, the judgment of Hon'ble Delhi High Court cannot be used as a precedent.
12. In another matter of Om Prakash Vs. UOI & Ors. [D.B.Civil Writ Petition No. 11214/2019] Hon'ble Rajasthan High Court allowed the Writ Petition on the ground that the applicant was removed from service not on account of any moral turpitude or dishonesty towards the employer. The absence was also not on account of any personal gain or to intentionally cause harm to any third person.
13. There is no dispute with regard to the above preposition of law but in the instant matter question remains whether an employee can claim compassionate allowance without completing qualifying service. This question was not in issue in the judgment referred by the learned counsel for the applicant. Therefore, the judgment relied upon by him is not applicable in the facts of the present case.
14. In the present matter, the applicant raised the issue after a delay of more than ten years without any sufficient reason. Ignorance of rule or law cannot be made an excuse to condone the delay in filing the O.A. We are not in agreement with the contention of the learned counsel for the applicant that the cause of action arose in favour of the applicant is continuing one. When compassionate allowance was granted to the applicant at the time of his removal from service, it should have been challenged within the limitation period. In view of the above, this O.A. deserves to be dismissed. Resultantly, the O.A. is dismissed with no order as to costs.
(Rameshwar Vyas) Member (J) jrm 6- O.A. NO.267/2019 Ramesh Kumar VS. UOI