Central Administrative Tribunal - Delhi
Ramesh Chander vs Comm. Of Police on 20 September, 2022
1
O.A. No. 4416/2015
Item No. 29
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 4416/2015
This the 20th day of September, 2022
Hon'ble Ms. Pratima K Gupta, Member (J)
Ex. Const. Ramesh Chander
Belt No. 9637/ DAP, PIS No. 28823757
S/o Sh. Hukam Chand
R/o H. No. 909/4, Ashok Vihar Colony,
Near 22 Feet Road, Line Cross, Bahadurgarh,
District-Jhajjar, Haryana
Aged around 51 years
.....Applicant
(Advocate: Mr. Sourabh Ahuja)
Versus
1. GNCT of Delhi
Through its Chief Secretary
Delhi Secretariat, Players Building,
IP Estate, New Delhi
2. Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
3. Deputy Commissioner of Police (Security)
Through Commissioner of Police
Police Head Quarters, IP Estate,
MSO Building, New Delhi
....Respondents
(Advocate: Mr. Ritika Chawla)
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O.A. No. 4416/2015
Item No. 29
O R D E R (ORAL)
Hon'ble Ms. Pratima K Gupta, Member (J) In the present Original Application, the applicant has sought the following reliefs:
"(a) Quash and set aside the order dated 03.07.2015, whereby the claim of the Applicant for grant of compassionate allowance/ pension under Rule 41 of CCS (Pension) Rules, 1972 has been denied. And
(b) Direct the respondents to consider grant compassionate allowance under Rule 41 of CCS (Pension) Rules 1972 to the Applicant from the due date with all consequential benefits viz. arrears etc. And
(c) Award cost in favour of the Applicant and against the respondent. And/or
(d) Pass any further order, which this Hon'ble Tribunal may deem fit, just equitable in the facts and circumstances of the case."
2. Brief facts that emerge from the Original Application are:
The Applicant was proceeded against, departmentally, for unauthorized absence of about 700 days. The said disciplinary proceedings culminated into an order of removal from service.
The Applicant challenged this order of removal from service before this Tribunal in OA No. 1342/2007, which was dismissed by this Tribunal on 31.10.2008. The Applicant preferred a Writ Petition no. 8791/2009 against order dated 31.10.2008 of this Tribunal before the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi dismissed the said 3 O.A. No. 4416/2015 Item No. 29 Petition. Accordingly, the order of removal from service stood confirmed.
3. The Applicant preferred a representation dated 01.06.2015 seeking Compassionate Allowance under Rule 41 CCS (Pension) Rules, 1972. During the pendency of the representation, the Applicant approached this Tribunal in OA No. 2412/2015 and the same was disposed on 08.07.2015 with following directions:
"4. In the light of the facts noted above, respondents are directed to dispose of the pending representation of the applicant within a period of 8 weeks from the date of receipt of copy of this order. Respondents shall pass a reasoned and speaking order and duly communicate it to the applicant within the period stated above.
5. OA is disposed of with the aforenoted directions with liberty to the applicant to initiate appropriate legal proceedings, if his grievance still persists thereafter, and if so advised."
4. In pursuance of the said order, the respondents vide order dated 03.07.2015 rejected the claim of the Applicant, which is impugned in the present Original Application. In support of his claim, the counsel for the Applicant argues, that while rejecting the claim of the Applicant, the respondents have not appreciated the family condition of the Applicant stating that the services of the Applicant were 'Dishonest'. He adds that since the Applicant was proceeded against departmentally for unauthorized absence, by no stretch of imagination dishonesty 4 O.A. No. 4416/2015 Item No. 29 could be attributed against him. He further submits that, the reasons for rejecting the claim for compassionate allowance are same as the reasons for removal of service, and the respondents have not applied their mind independently, with respect to the reasons for rejecting the Compassionate Allowance. He also submits that the said rejection is a complete violation of the judgment passed by the Hon'ble Supreme Court, Mahinder Dutt Sharma v/s Union of India & others, Civil Appeal No. 2111 of 2009 decided on 11.04.2014.
5. The counsel for the respondents, Ms. Ritika Chawla, vehemently opposes the Original Application and submits that the compassionate allowance cannot be sought as a matter of right. It is a beneficial piece of legislation and the rule itself incorporates the word 'may'. The Applicant cannot seek Compassionate Allowance as a matter of right. She states that the Applicant's previous conduct, while serving with the respondents, was dishonest as mentioned in the impugned order and according to her, this was a sufficient ground for rejecting the case for grant of the Compassionate Allowance. She submits that the case of the Applicant fell in exception (ii) envisaged in Para no.13 of the judgment of the Hon'ble 5 O.A. No. 4416/2015 Item No. 29 Supreme Court in, Mahinder Dutt Sharma v/s Union of India & others, Civil Appeal No. 2111 of 2009 and, therefore, the case of the Applicant rightly rejected by the respondents.
"(ii) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act of dishonesty towards his employer? Such an action of dishonesty would emerge from a behaviour which is untrustworthy, deceitful and insincere, resulting in prejudice to the interest of the employer. This could emerge from an unscrupulous, untrustworthy and crooked behaviour, which aims at cheating the employer. Such an act may or may not be aimed at personal gains. It may be aimed at benefiting a third party, to the prejudice of the employer."
6. Heard the counsel for the parties at length. It is seen that the Applicant was proceeded against for willful unauthorized absence of about 700 odd days for which he has already been removed from service. In order to decide the Original Application, we may have to refer to Rule 41 of the CCS (Pension) Rules, 1972, which reads as under:
"41. Compassionate allowance (1) A Government servant who is dismissed or removed from service shall forfeit his pension and gratuity:
Provided that the authority competent to dismiss or remove him from service may, if the case is deserving of special consideration, sanction a compassionate allowance not exceeding two-thirds of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension.
(2) A compassionate allowance sanctioned under the proviso to sub-rule (1) shall not be less than the amount of Rupees three hundred and seventy-five per mensem."
7. From a plain reading of the Rule, it is clear that the Compassionate Allowance is not a matter of right, as the word 6 O.A. No. 4416/2015 Item No. 29 mentioned is "May" in the said Rule. However, it also stipulates that if the case is deserving, special consideration of Compassionate Allowance not exceeding two-third of pension, gratuity or both are admissible.
8. Further, the said case is examined in the light of the judgment passed by the Hon'ble Supreme Court, in Mahinder Dutt Sharma v/s Union of India & others, Civil Appeal No. 2111 of 2009, wherein it has been held as follows:
"15. We shall now venture to apply the aforesaid criterion, to the facts and circumstances of the case in hand, and decipher therefrom, whether the appellant before this Court ought to have been granted compassionate allowance under Rule 41 of the Pension Rules, 1972. The appellant was punished by an order dated 17.5.1996 with dismissal from service. The accusations levelled against the appellant were limited to his unauthorized and willful absence from service from 18.1.1995 to 4.12.1995 (i.e., for a period of 320 days, 18 hours and 30 minutes). The above order of punishment also notices, that not taking stern action against the appellant would create a bad impression, on the new entrants in the police service. The punishing authority while making a choice of the punishment imposed on the appellant, also recorded, that the appellant's behaviour was incorrigible. Thus viewed, there can be no doubt, that the order of dismissal from service imposed on the appellant was fully justified. For determining the question of compassionate allowance, so as to bring it within the realm of the parameters laid down in Rule 41 of the Pension Rules, 1972, it is first necessary to evaluate, whether the wrongdoing alleged against the appellant, was of a nature expressed in paragraph 13 of the instant judgment. Having given our thoughtful consideration on the above aspect of the matter, we do not find the delinquency for which the appellant was punished, as being one which can be described as an act of moral turpitude, nor can it be concluded that the allegations made against the appellant constituted acts of dishonesty towards his employer. The appellant's behaviour, was not one which can be expressed as an act designed for illegitimate personal gains, from his employer. The appellant cannot also be stated to have indulged in an activity to harm a third party interest, based on the authority vested in him, nor was the behaviour of the appellant depraved, perverted, wicked or treacherous. Accordingly, even though the delinquency alleged and proved against the appellant was sufficient for imposition of punishment of dismissal from service, it does not fall in any of the classifications/categories depicted in paragraph 13 of the instant judgment Therefore, the availability of compassionate consideration, 7 O.A. No. 4416/2015 Item No. 29 even of a lesser degree should ordinarily satisfy the competent authority, about the appellant's deservedness for an affirmative consideration."
9. It is not in dispute that the Applicant was unauthorizedly absent, 'Dishonesty' cannot be attributed to willful unauthorized absence. Secondly, for misconduct of unauthorized absence the Applicant has already been inflicted with the harsh punishment of removal from service which stands confirmed. Thirdly, from the impugned order, it is clear that the respondents have not examined the case of the Applicant while rejecting his case in true letter & spirit as the reasons so existing, resulted in the order of removal from service which have in fact been the reason for rejecting the case of the Applicant for Compassionate Allowance. Lastly, the facts of this case are squarely covered by the Judgment passed by the Apex Court in Mahinder Dutt Sharma (supra).
10. The counsel for respondents submits that it will be appropriate that the said OA is remitted back to the respondents, however, since it is a second round of litigation and the Applicant has been litigating this matter in 2015 which is 7 years from his removal, this being a second round of litigation, no purpose will be served in remitting this matter back to the respondents once again.
8O.A. No. 4416/2015 Item No. 29
11. Accordingly, in the fitness of things, for the reasons stated hereinabove, the impugned order is quashed. The OA is allowed with a direction to the respondents to grant the Compassionate Allowance to the Applicant from the date of his removal. It is made clear that he will not be entitled to any interest.
(Pratima K Gupta) Member(J) /aks/