Central Administrative Tribunal - Delhi
Jai Bhagwan vs Comm. Of Police on 31 August, 2018
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-225/2016
Reserved on : 07.08.2018.
Pronounced on : 31.08.2018.
Hon'ble Ms. Praveen Mahajan, Member (A)
Jai Bhagwan,
Head Constable in Delhi Police
PIS No. 28863148
Aged about 50 years
S/o Sh. Shish Ram,
R/o V & PO : Imlota,
PS Charkhi Dadri,
Distt : Bhiwani, Haryana. .... Applicant
(through Sh. Anil Singal, Advocate)
Versus
Govt. of NCT of Delhi through
1. Commissioner of Police,
PHQ, I.P. Estate, New Delhi.
2. D.C.P. (7th Bn.DAP)
Through Commissioner of Police,
PHQ, I.P. Estate, New Delhi. .... Respondents
(through Sh. Ankur Chhibber, Advocate)
ORDER
The applicant in this O.A. was appointed as Head Constable in Delhi Police. It is averred in the O.A. that due to ill health, he could not join his duties, therefore, he was dismissed from service vide order 2 OA-225/2016 dated 14.02.2011 on the charge of absence from duty. The grant of compassionate allowance was not considered in the said order.
2. The applicant submitted a representation dated 17.04.2012 to the respondents for grant of compassionate allowance on humanitarian grounds as provided in Rule-41 of CCS (Pension) Rules, 1972. The said request of the applicant was rejected by the respondents vide a non-speaking and cryptic order dated 24.12.2013.
3. The applicant then filed an OA-743/2014, which was disposed of on 27.07.2015 with direction to the respondents to re-visit the order dated 24.12.2013 and reconsider his claim in view of judgment of Hon'ble Supreme Court in the case of Mahinder Dutt Sharma Vs. UOI (Civil Appeal No.2111/2009) dated 11.04.2014. The request of the applicant for compassionate allowance was rejected vide order dated 14.12.2015 on an illegal ground that the applicant has only 14 years qualifying service which does not make him eligible for pensionary benefits under Rule-41 of CCS (Pension) Rules whereas the required qualifying service is only 10 years.
4. The applicant has placed reliance on the following judgments:-
(i) Hon'ble High Court of Delhi in the case of Addl. C.P. Vs. Anju (WP No. 20885/2005).
(ii) Hon'ble High Court of Delhi in the case of Ex.Ct. Daya Nand Vs. UOI, 2000(1) ATJ 137.
3 OA-225/2016
(iii) Hon'ble High Court of Delhi in the case of Ex.ASI Shadi Ram Vs. GNCT of Delhi [WP(C)-5544/2007] decided on 22.02.2008.
(iv) This Tribunal in the case of Neelam Vs. UOI (OA-1782/2005) decided on 04.05.2007 and upheld by Hon'ble High Court of Delhi.
(v) This Tribunal in the case of Shukla Vs. UOI, OA-482/2006 decided on 02.08.2006.
(vi) This Tribunal in the case of Ex. Const. (DVR) Surender Singh Vs. GNCT of Delhi (OA-1633/2006) decided on 22.01.2007).
5. The applicant has filed the current O.A. seeking the following relief:-
"(i) To call for records of the case and quash/set aside the impugned order dt. 14.12.2015 and direct the respondents to grant Compassionate Allowance to applicant w.e.f. 14.02.2011 at the earliest.
(ii) To award cost in favor of the applicant.
(iii) To pass any other order or orders, which this Hon'ble Tribunal may deem just and equitable in the facts & circumstances of the case."
6. The respondents have filed a counter reply in which they submit that the applicant was detailed for duty at TML, but he did not turn up and was marked absent vide DD No. 30 dated 04.10.2008. Three absentee notices were issued to him with the direction to report for duty. He was also directed to report to the CMO/Bhiwani for medical examination in case he was ill. The applicant neither joined his duty nor reported to CMO, Bhiwani.
4 OA-225/2016
7. He was placed under suspension vide Office Order No. 5553- 565/HAP-VII Bn. DAP dated 15.09.2010 and was reinstated vide Office Order No. 7352-7370/HAP-VII Bn. DAP dated 22.11.2010 without prejudice to the pending departmental enquiry and without deciding his suspension period. Later DCP/7th Bn. DAP awarded him the punishment of dismissal from service with immediate effect vide Order No. 991-1045/HAP-7th Bn. DAP dated 14.02.2011. His absence and suspension period were decided as "Not spent on duty" on the principle of "No work no pay".
8. The respondents have given details of various show cause notices issued to the applicant starting from the year 2000 till his dismissal, details of which are given below.
The applicant was issued a show cause notice, (subsequently confirmed) to treat the period of willful and unauthorized absence period of 56 days, 95 hours and 130 minutes as dies non vide Order No. 10320-24/SIP/SD dated 18.04.2000. He was issued another show cause notice (confirmed later) proposing to treat the period of willful and unauthorized absence period of 56 days, 05 hours and 10 minutes as dies non vide Order No. 30098-102/SIP/SD dated 05.12.2000. A third show cause notice proposing to treat his period of willful and unauthorized absence for a period of 25 days from 25.04.2000 to 20.05.2000 was also issued and confirmed as dies non vide order No. 907-1111/SIP/SD dated 11.01.2001. A fourth show 5 OA-225/2016 cause notice proposing to treat the period of willful and unauthorized absence of 26 days, 06 hours and 35 minutes from 27.02.2001 to 20.03.2001 was issued and confirmed on 24.04.2002. Again, a fifth notice proposing to treat the period of willful and unauthorized absence of 17 days, 21 hours and 10 minutes from 18.09.2001 to 06.10.2001 was issued and confirmed as dies non on 24.04.2002. Finally, a sixth show cause notice was issued proposing to treat the period of willful and unauthorized absence of 42 days, 01 hour and 30 minutes from 21.07.2003 to 02.09.2003, which was again confirmed as dies non on 17.03.2004.
9. The applicant was removed from service vide Order No. 2725- 75/HAP/VII Bn. DAP dated 30.03.2005. Appeal against the punishment of removal from service was rejected by Joint CP/AP vide order No. 1506-09/P.Sec.(AP) dated 15.07.2005. In pursuance of CAT judgment dated 03.01.2007 in OA-1740/05 the removal order was quashed and set aside and the applicant was reinstated in service on 14.03.2007. However, he was deemed to be placed under suspension from the date of issue of order dated 14.03.2007. The departmental enquiry was remitted back to the Enquiry Officer to submit supplementary enquiry, to examine the issue of absence of the applicant and his past habitual absenteeism.
6 OA-225/2016
10. The applicant again absented himself from duty for a period of 119 days 07 hours and 25 minutes on different occasions, which were decided as periods not spent on duty. The suspension period from 14.03.2007 to 10.12.2007 as well as the intervening period of removal from service to the date of reinstatement in service i.e. from 30.03.2005 to 13.03.2007 was decided as period not spent on duty, coupled with forfeiture of his three years service for a period of one year entailing proportionate reduction is his pay vide Order No. 6855- 6878/HAP/7th Bn. DAP dated 11.06.2007. One year approved service was forfeited temporarily for a period of two years entailing proportionate reduction in his pay for negligence and carelessness in handling the charge of MHC(M) by DCP/7th Bn. DAP vide Order No. 2358-83/HAP/7th Bn. DAP dated 01.04.2008.
11. The respondents contend that the applicant has a past history of being a habitual absentee and taking his duty in a negligent and casual manner. In view of these facts, the applicant's request for compassionate allowance under Rule 41 of CCS (Pension) Rules, 1972 was rejected by the Competent Authority and conveyed to the applicant vide Office Order No 9892/Estt./7th Bn. DAP dated 24.12.2013.
12. During the course of hearing, the learned counsel for the applicant reiterated the arguments already advanced in the O.A. 7 OA-225/2016 He once again placed reliance on the judgment of Hon'ble High Court of Delhi in the case of Ramesh Kumar Singh Vs. UOI & Ors. [WP(C)-5127/2127] dated 23.08.2012. He argued that in the said order it has been held that compassionate allowance is referable to compensation pension. Para-9 of the order reads as under:-
"xxxx
9...... Thus, declaring that the Compassionate Allowance is referable to Compensation Pension, which pension has no concern to a minimum number of years served but is payable with reference to the number of years of service rendered, we dispose of the writ petition directing the Competent Authority to pass an order with respect to Compensation Allowance and for which we may note that the same is not a matter of right but a matter of a considered decision and if it is shown that the case is deserving of special consideration, which obviously would have to be the financial condition of the government servant concerned; and thus requiring the petitioner to submit a proper application addressed to the Director General BSF. We guide the petitioner that in the application he should bring out such circumstances which he considers would make out a deserving case for Compensation Allowance to be paid to him. Upon the application being filed, and for which we grant petitioner 12 weeks time, the same shall be decided within further 12 weeks thereafter."
He pointed out that same view has been followed by the Tribunal in the case of Sumlesh Devi Vs. GNCTD & Ors. (OA-3373/2016) on 26.04.2018, and strongly emphasized that pensionary benefits under Rule-41 of CCS (Pension) Rules, 1972 cannot be denied merely on the ground that the applicant has only 14 years of qualifying service in view of the clear observations of the Hon'ble High Court, holding otherwise.
13. The learned counsel for the respondents, on the other hand, submitted that the applicant has been negligent in discharge of his 8 OA-225/2016 duties throughout his service career and no special circumstances exist for the respondents to consider his claim for compassionate allowance.
14. I have gone through the facts of the case and perused the record carefully. In their counter, the respondents have painstakingly detailed the habit of compulsive absenteeism of the applicant. Almost half a dozen show cause notices have been issued to him for his continued absence from duty, at different points of time. No further elaboration is required to show his consistent incorrigible behaviour and lack of devotion to duty.
15. The reasons given by the applicant for grant of compassionate allowance are that he was suffering from mental illness due to which he was absent from his place of work. No supporting documents, however, have been produced in support of his plea that he was mentally ill, in the absence of which, his claim of being ill stands totally diluted.
16. As per Order dated 14.12.2015 reportedly, out of total 24 years of service, the applicant remained absent for more than ten years. The periods when he absented himself from duty are given below:-
"50 days 95 hours 130 minutes (On different occasion) 56 days 5 hours 10 minutes (7.7.2000 to 1.9.2000) 25 days - - (25.4.2000 to 20.05.2000) 21 days 6 hours 35 minutes (27.2.2001 to 20.3.2001)
17 days 21 hours 10 minutes (18.9.2001 to 6.10.2001) 119 days 07 hours 25 minutes (On different occasion) 9 OA-225/2016 237 days - (7.11.2002 to 02.07.203) 42 days 01 hours 30 minutes (21.07.2003 to 02.09.2003) 223 days (05.02.2004 to 14.09.2014)(U/S period) 41 days (15.09.2004 to 25.10.2004) 3 years Approved service forfeited permanently 714 days (30.03.2005 to 13.03.2007)(Intervening period) 274 days (14.03.2007 to 10.12.2007)(U/S period) 711 days (04.10.2008 to 14.09.2010)(Absent period) 69 days (15.09.2010 to 22.11.2010)(Suspension period) 84 days (23.11.2010 to 14.02.2011)(From absent till dismissed)"
The respondents continued to give him show cause notices for his absence and when he failed to mend his ways, he was removed from service on 30.03.2005. In pursuance of judgment of the Tribunal in OA-1740/2005, he was reinstated on 14.03.2007 after which another enquiry was held to examine the issue of his absence. The flip flop between the applicant and respondents continued almost without an interval (as discussed in the foregoing paras) till he was dismissed from service on 14.02.2011.
17. In the impugned order, it has been held that even though the applicant rendered 24 years 9 months and 12 days of service but out of the same 10 years 04 months and 14 days has been treated as non-qualifying service. Thus, he was left with 14 years 04 months and 28 days of qualifying service, and accordingly was not eligible for any pensionary benefits on account of having less than the qualifying service.
18. It is relevant to go through the provisions of Rule-41(1) of CCS (Pension) Rules, 1972 before adjudicating the issue. The same is reproduced below:-
10 OA-225/2016 "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."
19. In my view, the case of the applicant cannot be considered and rejected for non grant of compassionate allowance merely on his having less than qualifying years of service. What is relevant is the fact that the applicant was totally negligent in the discharge of his duties from inception. As observed by the Hon'ble High Court in the case of Ramesh Kumar Singh (supra), compassionate allowance cannot be claimed as a matter of right. The rule contains a clause that case of a dismissed government servant can be considered if there are "special circumstances" justifying the grant of such allowance, clearly implying that the respondents have to take into account all the facts before granting the compassionate allowance.
21. Almost 50% service of the applicant has been spent in dodging the respondents and in not discharging his duties seriously. Various opportunities were granted to him to do so but all in vain, ultimately, resulting in removal and subsequent dismissal of the applicant, which too did not have any salutary effect on his behaviour. If all such officers who have shown scant regard for the government, all along 11 OA-225/2016 are shown indulgence, it is likely to send a wrong message and encourage indiscipline.
22. In my view, the applicant has not been able t make out a convincing case for grant of compassionate allowance, deserving of special consideration. Thus, the O.A. lacks merit and is accordingly dismissed. No costs.
(Praveen Mahajan) Member(A) /vinita/