Central Administrative Tribunal - Delhi
Chander Pal vs Comm. Of Police on 26 August, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH:
NEW DELHI
O.A. NO.91 of 2019
This the 26th day of August, 2019
Hon'ble Ms. Nita Chowdhury, Member (A)
Chander Pal Group „C‟
Ex. Constable in Delhi Police,
PIS No.28780364
Aged about 62 years
S/o Late Sauji Mal
R/o Vill : Rehdra, PO : Paswara,
PS : Prikshit Garh, Dist Meerut, UP
....Applicant
(By Advocate : Shri Anil Singal)
VERSUS
1. Delhi Police
Through Commissioner of Police,
PHQ, I.P. Estate, New Delhi.
2. DCP (7th Bn. DAP)
Through Commissioner of Police,
PHQ, I.P. Estate, New Delhi.
.....Respondents
(By Advocate : Shri Sameer Sharma)
O R D E R (Oral)
By filing this OA, the applicant is seeking the following reliefs:-
"1. To call for records of the case and quash/set aside the impugned order dt. 11.12.2018 and direct the respondents to grant Compassionate Allowance to applicant w.e.f. 16.4.2002 at the earliest.
2. To award cost in favour of the applicant and pass any other order or orders, which this Hon‟ble Tribunal may deem just & equitable in the facts and circumstances of the case."2
2. The applicant‟s grievance in this case against the order dated 11.12.2008 vide which his request for grant of compassionate allowance as provided in Rule 41 of CCS (Pension) Rules has been rejected by the respondents.
3. During the course of hearing, counsel for the applicant submitted that though the applicant was dismissed from service vide order dated 16.4.2002 due to his unauthorized/willful absence but his case was not considered for grant of compassionate allowance as provided under Rule 41 of the Rules ibid while passing the said order of dismissal. The applicant submitted his representation dated nil to the respondents but the same was rejected by the respondents by passing a non-speaking and unreasoned order. 3.1 Counsel for the applicant in support of the claim of the applicant has placed reliance the decision of the Apex Court in the case of Mahinder Dutt Sharma vs. Union of India and others, (2014) 11 SCC 684, as also of this Tribunal in OA No.3373/2016 (Sumlesh Devi vs. GNCTD and others) dated 26.4.2018.
4. On the other hand, counsel for the respondents submitted that applicant was appointed as Constable (Exe.) in Delhi Police on 7.7.1978 and since his joining, he was habitual absentee and in 1991, he was earlier dismissed from service for his willful/unauthorized absence vide order dated 3 25.11.1991 but in compliance of the Order passed by this Tribunal in OA 893/1993 dated 12.2.1999, the applicant was re-instated in service without back wages. However, in spite of the aforesaid, the applicant did not mend himself and again absented himself willfully. He was again dismissed vide order dated 16.4.2002 due to his unauthorized/willful and habitual absence from duty during 30.4.2001 to 10.4.2001 for a total period of 70 days.
4.1 Counsel further submitted that on an appeal preferred by the applicant, the punishment of dismissal was modified by the appellate authority and same was modified from dismissal to removal from service vide order dated 6.8.2002. 4.2 Counsel also submitted that on 4.7.2018, i.e., after expiry of about 16 years, the applicant moved his representation for consideration of his case for grant of compassionate allowance in terms of provisions of Rule 41 of the Rules ibid, which was considered by the respondents but the same was rejected by the reasoned and speaking order dated 11.12.2018 which is impugned by the applicant in this OA. Counsel for the respondents placed reliance on the decisions of the Hon‟ble Delhi High Court in the cases of Keto Devi vs. Govt. of NCT of Delhi and others in WP(C) No.3608/2017 decided on 2.5.2017 and Jai Bhagwan vs. Govt. of NCT of Delhi and others in WP(C) No.13619/2018 decided on 17.12.2018 and further submitted that aforesaid 4 decision of the Hon‟ble Supreme Court in the case of Mohinder Dutt Sharma (supra) has been interpreted by the Hon‟ble Delhi High Court in the said cases. The relevant portion of the decision of the Hon‟ble Delhi High Court in Kelo Devi (supra) reads as under:-
"3. We have heard learned counsel for the petitioner and perused the impugned order as well as the order passed by the respondents denying compassionate allowance to the petitioner in respect of her late husband. „Compassionate allowance‟ as the words themselves suggest is granted by the employer out of compassion. It is for the respondents to determine as to whether a particular case is deserving of compassion keeping in view the guidelines laid down inter alia in Mahinder Dutt Sharma‟s case (supra). There is no vested right either in ex-employee or his heirs to claim compassionate allowance irrespective of the circumstances in which the ex-employee may have been removed from service. If the said course of action was to be adopted, it would lead to sending a very wrong signal to the serving employees that they may eventually secure compassionate allowance which could be as high as 2/3rd of the pension despite being incorrigible in their conduct while in service and despite their being removed from service after enquiry. In the present case, the petitioner‟s late husband displayed incorrigible conduct of remaining absent on 25 different occasions in a short span of 15 years. He was subjected to another major penalty for his another misdemeanour
4. In these circumstances, we do not find any illegality either in the order of the respondents denying allowance in respect of late husband of the petitioner or the impugned order passed by the Tribunal calling for interference."
4.3 Counsel further placed reliance on the following observations of the Hon‟ble Delhi High Court decision in Jai Bhagwan (supra), which reads as under:-
5
"4. Learned counsel for the petitioner strenuously contended that the petitioner having rendered more than 14 years of service, it would be unjust to deny him the pensionary benefit by way of compassionate allowance as provided for under Rule 41 of the said Rules. In his submissions, it was not a case of any moral turpitude but only of absentism and in view thereof, the petitioner but for the acts of absentism having rendered unblemished service for more than 14 years out of a total period of 24 years or so, at the time when he came to be dismissed, at least deserves the pensionary benefits, as contmeplated under Rule 41 of the said Rules. In support of his such submissions, he placed reliance upon Mahinder Dutt Sharma vs. Union of India & Ors., (2014) 11 SCC 684.
5. We have bestowed our thoughtful consideration to the subject matter. Though, the dismissal order has come to be passed on account of acts of absentism, such misconduct cannot be read in isolation of the attending circumstances, which attracted it. After a few rounds of litigation, the competent authority taking note of the misconduct resulting into the dismissal order, has not found the petitioner fit for the grant of compassionate allowance under the said Rules by a detailed order dated 12/14-12-2015. CAT has dealt with the facts and the circumstances of the case in detail and we do not consider it necessary to narrate the same once again. Perusal of the order of the competent authority dated 12/14-12-2015 and the impugned order of CAT, we consider, shall suffice.
6. It is an undisputed fact that the petitioner started unauthorized absence from duty from the time he was Constable (Executive) and his such misconduct persisted even after he came to be promoted as Head Constable. Inspite of the fact that he was repeatedly served with the show cause notices, suspended and imposed penalties since April, 2000 onwards. He invited dismissal order on account of his unexplained and unauthorized absentism, while being a member of a disciplinary force. Of course, it is least expected of a member of a service, which has to be much disciplined.
7. Compassionate allowance under Rule 41 of the said Rules, which the petitioner seeks, is provided by the competent authority, when the case deserves special consideration. On being queried, the learned counsel for the petitioner was at pains to point so but for contending that the petitioner had put in more than 14 years of service and that was unblemished. To us, it is 6 not the purport of Rule 41. Rule 41 by its very opening words and the sentence reads otherwise. It is only the proviso attached to it that provides for the discretion to the competent authority to sanction a compassionate allowance in a case which attracts special consideration.
8. Mahinder Dutt's case (supra) is of no avail to the petitioner inasmuch as it was a case, where the petitioner absented in all for a period of 320 days, 10 hours and 30 minutes and during the service of about 24 years, granted 34 good entries, including 02 commendation rolls awarded by the Commissioner of Police, 04 commendation certificates awarded by the Addl. Commissioner of Police and 28 commendation cards awarded by the Dy. Commissioner of Police. Petitioner is not shown to be even close to such facts and circumstances in which Mahinder Dutt of the same force came to be considered and extended the benefit under the proviso to Rule 41 of the said rules.
9. In view of the foregoing, the petition is dismissed. No order as to costs."
5. Having heard learned counsel for the parties and perused the pleadings available on record. This Tribunal raised a query to the learned counsel for the applicant to substantiate as to how the case of the applicant is similar to the case of Mohinder Dutt Sharma (supra) when in the said case the Apex Court having taken into consideration the fact that the petitioner therein absented in all for a period of 320 days, 10 hours and 30 minutes and during the service of about 24 years, he was granted 34 good entries, including 02 commendation rolls awarded by the Commissioner of Police, 04 commendation certificates awarded by the Addl. Commissioner of Police and 28 commendation cards awarded by the Dy. Commissioner of Police whereas the case in hand 7 does not contain the facts even close to such facts and circumstances in which Mahinder Dutt of the same force came to be considered and extended the benefit under the proviso to Rule 41 of the said rules. Counsel for the applicant only submitted that applicant is having no source of income whereby he could support his wife or himself and his children are also not supporting him.
6. On the other hand, learned counsel for the respondents submitted that on perusal of the order dated 11.12.2018 makes it clear that the case of the applicant was considered in terms of the guiding parameters as laid down by the Apex Court in Mohinder Dutt Sharma's case (supra) but the competent authority did not find his case deserves special consideration and accordingly rejected his request for grant of compassionate ground.
7. This Tribunal also perused the impugned order dated 11.12.2018 in which the respondents have considered the guiding parameters as laid down by the Apex Court in Mohinder Dutt Sharma's case (supra) and observed as under:-
"This show that he was given ample opportunities before his removal from service but he never showed seriousness for his service. He remained absent unauthorizedly/under suspension for a period of 03 years 01 month 16 days which was decided as the period „Not spent on duty‟ etc. during his service career. He was also awarded adverse ACRs of Grade „C‟ twice after resuming his duties from dismissal in the year 1999 on the grounds of habitual absenteeism. The total qualifying service rendered by the constable from his 8 date of enlistment till removal from service is 14 years 18 days. The Guiding Principles for the grant of Compassionate Allowance is to consider the aspects such as the misconduct of the Applicant, the kind of service rendered by the individual before his/her dismissal/removal from service and his/her family liabilities.
The Ex-Constable has not been found honest/devoted/sincere towards his duties which is reflected by his above mentioned negative/adverse service records. An officer is supposed to serve the Department for a minimum of 20 years (Qualifying service) to make himself/herself eligible for Pension on Voluntary Retirement which is the preliminary form of Pension in normal course. But, he has got just 14 years 18 days of qualifying service. The other aspects of the case such as financial condition/family liabilities etc. stand overshadowed by the performance of service rendered by the Ex-Constable before his removal from Service.
In view of the facts of the case as explained in the foregoing paras, I Jitendera Mani, Dy. Commissioner of Police, 7th Bn. DAP is of the considered view that the case of Ex. Constable (Exe.) Chander Pal No.8738/DAP (PIS No.28780364) is not a fit case for grant of Compassionate Allowance being devoid of merit."
8. From the above portion of the impugned order, it is quite clear that the same cannot be said to be a non-speaking and unreasoned. Rather the same can be said to be a reasoned and speaking order and in compliance of the directions of the Apex Court in Mohinder Dutt Sharma's case (supra) as was interpreted by the Hon‟ble Delhi High Court in the aforesaid cases, the relevant portion of the said judgments have already been quoted above.
9. It is to be noted that reliance placed by the applicant on the decision of this Tribunal in the case of Sumlesh Devi 9 (supra) in support of applicant‟s claim, the respondents have challenged the same by filing a Writ Petition (Civil) No.9020/2018 in which while issuing notice to the said Sumlesh Devi, the Delhi High Court vide Order dated 6.12.2018 observed as under:-
"2. On the last date, it was submitted by Ms. Ahlawat, Standing Counsel for the petitioners, that the Tribunal had wrongly placed reliance on Ramesh Kumar Singh vs. Union of India and Ors., WP(C) 5127/2012 decided on 23.08.2012 since, in the facts of that case, the petitioner had rendered more than ten years of service, which is not the position in the present case. On consideration of the said decision in Ramesh Kumar Singh (supra), in the light of Rule 41 of the CCS (Pension) Rules (in short „Rules‟), prima facie, it appears to this Court that the decision in Ramesh Kumar Singh (supra) itself requires reconsideration. Rule 41(1) of the Rules states that a Government servant, who is dismissed or removed from service, shall forfeit his pension and gratuity. Prima facie, it appears that the said Rule itself postulates that the Government servant, in respect of whom the said Rule for grant of compassionate allowance is formulated, is one, who, otherwise, would be entitled to pension and gratuity, but, for his dismissal or removal.
3. A Government servant, who under the Rules, would not be entitled to pension and/or gratuity on account of his/her service at the time of his dismissal or removal from service, prima facie, is not sought to be covered under Rule 41 of the Rules. To illustrate the same, we may take an example of a Government servant, who has rendered, let us say, one year of regular service or less, and is dismissed or removed from service on account of misconduct. If the interpretation advanced in Ramesh Kumar Singh (supra) were to be accepted, it would mean that such a Government servant may also be granted compassionate allowance, which is Rs.3,500/-
per month in the minimum, for the rest of his life even though the Government servant may have served the Government for a few days or months in a regular appointment.
4. It appears to us that the reference to compassionate pension in the proviso to Rule 41(1) - which is dealt 10 with in Rule 39 of the Rules, is only to indicate the quantum of compassionate allowance that may be sanctioned by the Government in a deserving case i.e. in a case where the Government servant would be entitled to pension and gratuity but for his removal or dismissal from service. In the aforesaid circumstances, we are inclined to issue notice.
5. Issue notice.
6. Mr. Singal, Advocate accepts notice on behalf of the respondent."
The said Writ Petition is pending adjudication before the Hon‟ble Delhi High Court.
10. Since the facts of the present case do not come even close to the facts of the said Mohinder Dutt Sharma's case (supra) as interpreted by the Hon‟ble Delhi High Court in the aforesaid two cases viz. Keto Devi vs. Govt. of NCT of Delhi and others in WP(C) No.3608/2017 decided on 2.5.2017 and Jai Bhagwan vs. Govt. of NCT of Delhi and others in WP(C) No.13619/2018 decided on 17.12.2018, relied upon by the respondents, this Tribunal does not find any illegality in the order passed by the respondents on his request for grant of compassionate allowance and hence, the present OA is dismissed. There shall be no order as to costs.
(Nita Chowdhury) Member (A) /ravi/