Bombay High Court
Anna Deoram Londhe Deceased Through His ... vs State Of Maharashtra on 10 June, 1998
Equivalent citations: 1998(4)BOMCR772, [1999(81)FLR304], 1998(3)MHLJ435
Author: A.B. Palkar
Bench: A.B. Palkar
ORDER A.D. Mane, J.
1. The petitioner (since deceased) had joined services as Assistant Teacher on 1-7-1943 and he worked till the date of his removal from service on account of his conviction for offence under sections 302, 323, 147 and 149 of the Indian Penal Code, which was altered by the High Court in appeal under section 325 of the Indian Penal Code. He was sentenced to suffer rigorous imprisonment for four years. The incident had taken place on 4-5-1975 on account of family feud over the land Survey No. 46/2. The petitioner (since deceased) was, however, removed from service w.e.f. 18-1-1975 by reason of his conviction. The petitioner has challenged the order of removal by filing a special civil suit but he could not succeed in trial Court as well as in the Appellate Court. He filed his special leave petition before the Supreme Court. The Apex Court, while dismissing the special leave petition, however, granted liberty to the petitioner (since deceased) to make a representation to the Government that in spite of his removal he was entitled to compassionate pension under Rule 100 read with Rule 101 of the Maharashtra Civil Services (Pension) Rules, 1982.
2. The petitioner accordingly made his representation on 13-3-1993 but his representation came to be rejected, vide communication received by the petitioner (since deceased) on 25-1-1994 from the respondent No. 3.
3. In this writ petition, the petitioner, therefore, challenges the rejection of his representation for compassionate pension, inter alia on the ground that there has been non application of mind by concerned authority in not considering his case under the relevant Rules for grant of compassionate pension. The copy of communication received by the petitioner dated 1-11-1993 is produced at page No. 66. It is clear that it lacks reasoning for rejection of the petitioner's representation except by recording a fact that he was convicted and sentenced to life imprisonment by Sessions Court on 7-7-1976 and in his appeal, sentence was reduced to rigorous imprisonment for four years with a fine of Rs. 500 under section 325 of the Indian Penal Code.
4. In reply affidavit filed by the respondent No. 4, it has been reiterated that the petitioner was involved in the serious offence for which he was convicted under section 302 of the Indian Penal Code by the Sessions Court and sentenced to suffer life imprisonment on 7-7-1976. It is, further stated that in appeal sentence was reduced to rigorous imprisonment for four years by altering conviction under section 325 of the Indian Penal Code. It is further stated that on receipt of representation from the petitioner his case was considered in accordance with the Rules 26, 45, 100 and 101 of the Maharashtra Civil Services (Pension) Rules, 1982. It is submitted that as per Rule 45 of the Pension Rules, 1982 an employee looses his right after his termination from service. Since the petitioner was convicted for serious offence and he was removed from service for misbehaviour, he was not entitled to claim pension on compassionate ground.
5. We heard Mr. S.B. Talekar, Counsel for the petitioner for and on behalf of Mr. Irale Patil, Mr. S.V. Chillarge, Assistant Government Pleader for the respondents Nos. 1 and 4 and Mr. S.T. Shelke, Counsel for the respondents Nos. 2 and 3. It is admitted position that the Apex Court, while dismissing the special leave petition filed by the petitioner (since deceased) against the order of removal, passed the following order:-
"However, the petitioner is at liberty to make a representation to the Government that in spite of his removal he is entitled to compassionate pension under Rule 100 read with Rule 101 of the Maharashtra Civil Services (Pension) Rules, 1982."
Rule 100(1) of the Rules of 1982 provides that a Government servant who is removed or required to retire from Government service for misconduct or insolvency shall be granted no pension other than a compassionate pension. Further, sub-rule (2) of Rule 100 also provides that a Government servant who is removed or required to retire from Government service on the ground of inefficiency, shall, if he be eligible for a superannuation, or retiring pension, be granted such pension. If he is not eligible for superannuation or retiring pension he shall be granted no pension other than a compassionate pension.
6. Rule 101 which deals with compassionate pension, inter alia, provides as under:
"Grant of Compassionate Pension in deserving cases by Government"
i) When a Government servant is removed or required to retire from Government service for misconduct or insolvency or is removed or required to retire from Government service on grounds of inefficiency before he is eligible for a retiring or superannuation pension, Government may, if the case is considered deserving of special treatment, sanction the grant to him of a compassionate pension not exceeding two thirds of the invalid pension which would have been admissible to him if he would have been retired:
ii) The pension under the proviso shall not be less than the minimum pension :
iii) A dismissed Government servant is not eligible for compassionate pension."
7. In the present case, the petitioner (since deceased) was removed from service for misconduct on account of his conviction under section 325 of the Indian Penal Code for which he was sentenced to suffer R.I. for four years. This conduct, however, is not connected with the discharge of his duties as such. Moreover, there is no dispute that the petitioner had put in more than 30 years of service and he was otherwise eligible for superannuation or retiring pension. He was, however, removed from service on account of the aforesaid conviction. Therefore, merely because the petitioner (since deceased) was removed from service for the aforesaid misconduct, that alone will not furnish a ground to deny him the benefit of compassionate pension. On going through the return filed on behalf of the respondents, we find that the only reason assigned for rejection of representation for compassionate pension was that the petitioner was convicted for offence under section 325 of the Indian Penal Code, which was considered to be serious offence. In our considered opinion, in terms of provision of Rule 101, the respondent ought to have considered the representation of the petitioner from a point of view if the case is deserving of a special consideration for grant of compassionate pension independently. Since that has not been done and nothing is on record adverse to the interest of the petitioner (since deceased) for grant of compassionate pension, we find that the impugned order suffers from legal infirmity, namely non application of mind. That necessary follows that the impugned order deserves to be set aside. In the facts and circumstances of the case discussed above, we find that the petitioner was entitled to compassionate pension.
8. It is admitted position that the petitioner is now dead. The legal heir of the petitioner has been brought on record. The petitioner is survived by his widow only, who is aged 74 years. We, therefore, feel that the respondents can be directed to grant family pension to the widow of the petitioner (since deceased).
9. In the result, we allow the petition. We set aside the impugned order and direct the respondents to pay arrears of compassionate pension due to the petitioner (since deceased) and further grant family pension to his widow. The payment should be made within a period of three months from the date of receipt of the writ. Rule is accordingly made absolute. There shall be no order as to costs.
10. Petition allowed.