Central Administrative Tribunal - Delhi
Phoolwati vs Govt. Of Nct Of Delhi on 21 March, 2011
Central Administrative Tribunal Principal Bench O.A.No.4175/2010 New Delhi, this the 21st day of March, 2011 Honble Shri Shailendra Pandey, Member (A) Phoolwati w/o Late Sh. Chander Mani (Const. No.8199/DAP) r/o Vill. Jaswer Kheri PS Sanpla Bahadurgarh, Distt. Rohtak Jhajjar, Haryana. Applicant (By Advocate: Shri U.Srivastava) Versus Govt. of NCT of Delhi, through The Chief Secretary Govt. of N.C.T. of Delhi, Delhi Secretariat New Delhi. The Commissioner of Police Police Head Quarters I.P.Estate (I.T.O.) New Delhi. The Dy. Commissioner of Police VII Bn. DAP, New Delhi. Respondents O R D E R
This OA has been filed against the order dated 30.07.2010 issued by Respondent No.3 declining grant of compassionate allowances to the applicant.
2. The brief facts of the case, as set out in the OA, are that the husband of the applicant, namely, Late Chander Mani was entrolled as a Constable in the Delhi Police on 30.04.1974 and was removed from service on 22.09.2003, after regular departmental inquiry proceedings. Thereafter, he expired on 22.12.2009. The applicant (widow of Late Chander Mani) submitted a mercy petition to the respondents for releasing the remaining retiral dues of her husband and grant of financial assistance admissible to her in accordance with the Sixth Pay Commissions recommendations as well as under Rule 41 of the CCS(Pension) Rules, 1972. The applicant also sent a reminder to the respondents on 06.03.2010 but receiving no reply from the respondents, filed OA No.1727/2010, which was disposed of by this Tribunal on 25.05.2010, directing the respondents to treat the OA as a representation of the applicant, and pass a speaking order. In compliance thereof, the respondents have passed order dated 30.07.2010 rejecting the claim of the applicant for grant of compassionate allowances. Hence, the present OA has been filed seeking the following relief:
to quash and set aside the impugned order dated 30.07.2010, rejecting the request of the applicant for grant of compassionate allowances, as it is illegal, unjust, arbitrary, malafide, unconstitutional and against the principles of natural justice and also in violation of Articles 14, 16 and 21 of the Constitution of India, with all other consequential benefits namely, interest on arrears and cost etc.
3. The learned counsel for the applicant submits that the husband of the applicant had joined on 30.04.1974 and had been removed from service on 22.09.2003, and had thus completed 29 years 4 months and 22 days of service and, therefore, the applicant is entitled for compassionate allowances in terms of Rule 41 of the CCS (Pension) Rules, 1972. In support of this contention, the learned counsel for the applicant has relied on the Judgement of the Honble High Court of Delhi in Ex. CT. Daya Nand v. Union of India & Ors., 2000 (1) ATJ (HC) 137.
4. I have heard the counsel for the applicant and have been through the contents of the OA and the particulars on record.
5. A perusal of the impugned order dated 30.07.2010 reveals that the respondents have taken action for release of the retiral benefits of Late Chandermani, husband of the applicant. The amount due to him under the Central Government Employees Insurance Scheme amounting to Rs.15066/- including interest has been sanctioned vide order dated 19.07.2010, and for the GPF amount, it is stated that the same has been submitted to PAO, New Delhi for sanction and payment, and that there are no other retiral benefits admissible to the applicant.
However, as regards compassionate allowances, it is stated that as per the records of the office, the husband of the applicant was enlisted in Delhi Police on 30.04.1974 and removed from service on 22.09.2003 but has qualifying service of only 19 years 1 month and 16 days as out of his total service of 29 years 4 months and 22 days, service of more than 10 years had been forfeited and treated as non-qualifying service for any purpose (due to his willful and unauthorized absence on 52 different occasions during his service period), which is below the eligibility of 20 years of qualifying service as stipulated in Rule 48-A of CCS (Pension) Rules. Therefore, his request for compassionate allowance under Rule 41 of the CCS (Pension) rules, 1972 has not been acceded to.
6. The learned counsel for the applicant has challenged the order of the respondents on two main grounds, viz., that the denial of the applicants request for compassionate allowance is arbitrary and without application of mind as the respondents are wrongly linking the issue of his entitlement for compassionate allowance with qualifying service which is a necessary requirement only for pension, and secondly that the denial of compassionate allowance to him is bad in view of the law lay down by the High Court of Delhi in the case of Ex. Ct. Dayanand v. Union of India & Others, 2000 (1) ATJ 137. The aforementioned grounds raised are discussed below.
7. The applicant in his representation (mercy petition) had sought grant of compassionate allowance on two counts (i) that her late husband though removed from service on the ground of unauthorized absence had almost 29 years of satisfactory service in the department and further that in terms of the Sixth Pay Commissions recommendation an employee would be entitled for pensionary benefits even if he has completed 20 years of service whereas my husband had almost 29 years of satisfactory service with the department and, therefore, deserved special consideration for compassionate allowance, and (ii) that the family of the deceased Government servant was suffering from starvation having no source of income.
8. Evidently, keeping the above submission of the applicant in mind, the respondents have pointed out that the applicant did not have, due to his indifferent service record and absence without salary on different occasions, the qualifying service of more than 20 years stipulated in the CCS (Pension) Rules for entitlement of pension. Therefore, his request for compassionate allowance has not been acceded to. It is also stated that his appeal against the order of dismissal has already been considered and rejected and that there is no provision for a second appeal and so his mercy petition is not accepted.
9. Rule 41 of the CCS (Pension) Rules, which deals with compassionate allowance, reads as follows:
41. Compassionate Allowances:-
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 provisions of sub Rule (1) shall not be less than the (amount of Rupees sixty per mensem).
10. The guiding principles for grant of compassionate allowance are laid down in Government of Indias decision mentioned under Rule 41 of the CCS (Pension) Rules, which is extracted below:
(1) Guiding principles for the grant of Compassionate Allowance.- It is practically impossible in view of the wide variations that naturally exist in the circumstances attending each case, to lay down categorically precise principles that can uniformly be applied to individual cases. Each case has, therefore, to be considered on its merits and a conclusion has to be reached on the question whether there were any such extenuating features in the case as would make the punishment awarded, through it may have been necessary in the interests of Government, unduly hard on the individual. In considering this question, it has been the practice to take into account not only the actual misconduct or course of misconduct which occasioned the dismissal or removal of the officer, but also the kind of service he has rendered. Where the course of misconduct carries with it the legitimate inference that the officers service has been dishonest, there can seldom be any good case for a Compassionate Allowance. Poverty it not an essential condition precedent to the grant of a Compassionate Allowance, but special regard is also occasionally paid to the fact that the officer has a wife and children dependent upon him, though this factor by itself is not, except perhaps in the most exceptional circumstances, sufficient for the grant of a Compassionate Allowance. It would thus be seen that each request for compassionate allowance has to be decided based on the merits and circumstances of each case but the following would merit consideration in each case before arriving at a decision whether the case is one in which compassionate allowance should be sanctioned:
the actual misconduct for which the applicant was dismissed from service resulting in forfeiture of his pension and gratuity.
Whether there were/are any extenuating circumstances in the case of the applicant that would making the punishment awarded, though it may have been necessary in the Government interest, unduly hard on the Government servant concerned.
Of course, the financial condition of the Government servants family would also be a factor to be considered though not the deciding factor.
That the above factors have been considered by the respondents is not evident from the order dated 30.07.2010 passed by them. Therefore, it must be held that the request of the applicant for grant of compassionate allowance has not received full and proper consideration at the hands of the respondents.
11. The Judgement relied by the applicants counsel (Constable Dayanand v. Union of India & Others), however, may not advance the cause of the applicant as in that case the applicant admittedly had served for more than 20 years and both pension and gratuity would have been admissible to him if he had retired on (compensation pension). The relevant portion of the High Courts Judgement is extracted below in this connection:
The respondent, in the counter-affidavit has stated that the representation for compassionate allowance under Rule 41 of the said Rules was not considered by the competent authority due to devoid of merits. The petitioner is admittedly not granted the pension. It is difficult to accept the contention of the respondent in the counter-affidavit as to how the request for grant of compassionate allowance under Rule 41 would be devoid of merits.
As pointed out above, Rule 41 of said Rules specifically requires the authority competent to dismiss or remove from service to consider 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). However, in the present OA the applicant has not completed the 20 years of service as required under the Rules for entitlement of pension that would have been admissible to him had he retired on (compensation pension), and the above judgement of the High Court would not automatically entitle his case to be a deserving case for sanction of compassionate allowance. But, as already observed, the facts and circumstances of his case have to receive proper consideration keeping in view inter alia the three factors mentioned in the Government of Indias decision para 10 above.
12. In view of the above discussion, it is considered appropriate to quash the impugned order and remit the matter back to the respondents with a direction to them to consider the matter afresh keeping the guiding principles given in the Government of Indias decision referred to in mind. It is, however, made clear that the decision in the matter must necessarily be a decision of the respondents considering the facts and circumstances of the case, and that this Tribunal has not expressed any view on the merits of the matter in this OA . The decision taken in the matter, after fresh consideration, may be taken with the approval of Respondent No.2 and communicated to the applicant within two months of the receipt of this order.
The OA stands disposed of in terms of the above directions. No costs.
(Shailendra Pandey) Member (A) /nsnrsp/