Central Administrative Tribunal - Delhi
Mohan Lal Walia vs Comm. Of Police on 9 August, 2016
1 OA No.3844/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA No. 3844/2014
New Delhi this the 9th day of August, 2016
Hon'ble Mr. Justice, M. S. Sullar, Member (J)
Hon'ble Shri V. N. Gaur, Member (A)
Shri Mohan Lal Walia, 62 years,
S/o. Shri Hukum Chand,
R/o. H. No. 222, Bhola Nath Nagar,
Shahdara, Delhi-110 032. ....Applicant
(Argued by: Mr. Sachin Chauhan, Advocate)
Versus
1. Govt. of NCTD through
The Commissioner of Police,
Delhi Police,
Police Headquarters, I.P. Estate,
M.S.O Building, New Delhi.
2. The Dy. Commissioner of Police,
III Bn. DAP,
Vikas Puri Police Lines,
New Delhi. ....Respondents
(By Advocate : Mr. K. M. Singh for Ms. Avnish Ahlawat)
ORDER (ORAL)
Justice M. S. Sullar, Member (J) Applicant, ASI Mohan Lal Walia, S/o Shri Hukum Chand, has preferred the instant Original Application (OA), challenging the impugned order dated 01.08.2013 (Annexure A-
1), whereby his representation for grant of compassionate allowance under Rule 41 of Central Civil Services (Pension) Rules, 1972 [hereinafter to be referred as "CCS(Pension)Rules"), was rejected by the competent authority.
2 OA No.3844/2014
2. The crux of the facts and material, which needs a necessary mention, relevant for deciding the instant OA, exposited from the record, is that, applicant was working as ASI in Delhi Police. One complainant, Shri Purshottam Singh, made a complaint dated 21.09.1996 to CBI with the allegations that the applicant demanded Rs.2000/- in a criminal case registered against him (complainant), on accusation of having committed the offences punishable under Sections 308/323/34 IPC vide FIR No.645/1996 by the police of Police Station, Gokul Puri, Delhi.
3. At the same time, the applicant was convicted in the criminal case for commission of offence punishable under Sections 7/13 of the Prevention of Corruption Act (POC), 1988, vide judgment 13.02.2013 by Special Judge, Delhi. His conviction was upheld vide judgment dated 21.04.2011 in Criminal Appeal No.113/2003 by Hon'ble High Court of Delhi. As a consequence thereof, the applicant was dismissed from service, vide order dated 18.08.2011 (Annexure A-3) by the competent authority. It is not a matter of dispute that order of dismissal of the applicant has already attained the finality.
4. Thereafter, the applicant moved an application/representation dated Nil (Annexure A-2) for compensation pension. The representation was rejected vide impugned order dated 01.08.2013 (Annexure A-1) by the competent authority, with a very brief and cryptic order, which reads as under:-
3 OA No.3844/2014
"OFFICE OF THE DEPUTY COMMISSIONER OF POLICE: III BN. DAP VIKAS PURI POLICE LINES: NEW DELHI-110018 No.12787/Estt.III Bn. DAP, DAP dated New Delhi, the 01/08/2013 To Shri Mohan Lal Walia S/o Shri Hukum Chand Ex.ASI No.4938-D R/o H.No.222, Bohla Nath Nagar, Shahdara, Delhi-110032.
Sub: Application for compassionate pension.
Sir, With reference to your representation dated Nil, on the subject cited above.
In this regard, it is stated that the case of Smt. Neeta W/o Late Const. Gulab Singh, No.2712/DAP regarding the grant of compassionate allowance under Rule 31 of CCS (Pension) Rules, 1972 has been examined by LA to CP/Delhi as well as by CP/Delhi but could not be acceded to. It is also stated that compassionate allowance only be sanctioned by the competent authority on the directions of the Hon'ble Court in earlier cases. However, your request for the grant of compassionate allowance/pension has been considered by the competent authority but could not be acceded to".
5. Aggrieved thereby, the applicant has preferred the present OA challenging the impugned order (Annexure A-1), invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985, on the following grounds:-
"5.1 That the case of the applicant for the grant of compassionate allowance under Rule 41 of Pension Rules, 1972 has not been considered under the guideline as laid down by Hon'ble Apex Court Judgment dated 11.04.2014 in Civil Appeal No. 2111 of 2009 (Mahinder Dutt Sharma Vs. UOI & Ors.) dated 11.04.2014.
5.2 That the order dated 01.08.2013 whereby the grievance of applicant regarding grant of compassionate allowance has been rejected is bad in law as the authority does not applied its mind on the judgment of the criminal court and High Court and further all the facts (sic) & circumstances (sic) of the case as conduct of the applicant which led to conviction needs to be considered. For considering the same the Authority have taken into account the entire conduct of the applicant, the gravity of the misconduct committed by the applicant, the impact which misconduct of the applicant is likely to have on the administration and other extenuating circumstances or redeeming features. In the present case no such application of mind has been there on behalf of authority thus making the same order is bad in law.
5.3 That the authorities are under an obligation to 'properly consider' the case of the applicant for grant of compassionate allowance before passing the impugned order dated 01.08.2013 but in present case no such act has been done by the respondent this making the order dated 01.08.2013 is bad in law.4 OA No.3844/2014
5.4 That the applicant's (sic) life as on today is in shambles and it is difficult to make even both ends meet and the compassionate allowance under Rule 41 of CCS (Pension) Rules, 1972 is only ray of (sic) hope in life of applicant.
5.5 That the applicant was (sic) admittedly appointed (sic) with Delhi Police in the year 1970 and till the dismissal has completed 31 years of qualifying service. The applicant during the entire career other than the present FIR is having a clean service record and further as per rule a Govt. employee is entitle for pensionary benefit after completing (sic) 20 years of qualifying service.
5.6 That the authority needs to considered the present socio economic condition of the applicant and his family as the applicant is having family to support which consist of wife who is suffering from disease which requires continuous medical treatment.
5.7 That the applicant is placing its reliance on the Hon'ble Apex Court judgment dated 11.04.2014 in Civil Appeal No. 2111 of 2009 (Mahinder Dutt Sharma Vs. UOI & Ors.) and the case of the applicant is covered by aforesaid Hon'ble Apex Court judgment.
5.8 That the applicant is placing its reliance on the judgment of Hon'ble Delhi High Court in the case of Ex. Const. Daya Nand Vs. Union of India & Others (copy annexed). The applicant is further placing its reliance on the judgment of Hon'ble High Court in Shadi Ram (Ex. ASI) Vs. Govt. of NCTD & Others as the case of the applicant is purely covered by the aforesaid judgments.
5.9 That the applicant is further placing its reliance on Rule 41 of CCS (Pension) Rules, 1972 and the same is reproduced below:-
"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 have been admissible to him if he had retired on compensation pension".
5.10 That the applicant is further placing its reliance on GI, FD Office Memo No.3(2)-R-II/40.
That the competent authority is under an obligation to record its finding on the request of the applicant for the grant of compensation allowance by applying its mind on Rule 41 of CCS (Pension) Rules and GI, FD Office Memo No.3(2)-R-II/40".
6. The respondents refuted the claim of the applicant and filed the reply, wherein it was pleaded, that the representation of the applicant was rejected after taking into consideration the law laid down in the judgments mentioned therein (in the reply), by the competent authority.
7. Virtually acknowledging the factual matrix and reiterating the validity of the impugned order, the respondents 5 OA No.3844/2014 have denied all other allegations and grounds contained in the OA and prayed for its dismissal.
8. Controverting the allegations contained in the reply of the respondents and reiterating the grounds taken in the OA, the applicant filed his rejoinder. That is how we are seized of the matter.
9. At the very outset, it will not be out of place to mention here that the applicant has challenged the impugned order on various indicated grounds, but during the course of arguments, learned counsel for applicant has only contended that the impugned order is cryptic, non-speaking, result of non-application of mind and against the ratio of judgment of Hon'ble Apex Court in case Civil Appeal No.2111/2009 titled as Mahinder Dutt Sharma VS. UOI & Others decided on 11.04.2014.
10. On the contrary, the learned counsel for the respondents has argued that applicant is not entitled to any relief under Rule 41 of the CCS (Pension) Rules, so his representation was rightly rejected.
11. After hearing the learned counsel for the parties, going through the record with their valuable help and after bestowal of thoughts over the entire matter, we are of the firm view that the instant OA deserves to be partly accepted in the following manner.
12. It is not a matter of dispute that Rule 41 of the CCS(CCA) Rules, postulates that a Government servant who is dismissed 6 OA No.3844/2014 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 2/3rd (two-thirds) of pension or gratuity or both, which would have been admissible to him, if he had retired on compensation pension.
13. Sequelly, the Hon'ble Apex Court in case Civil Appeal No.2111/2009 titled as Mahinder Dutt Sharma VS. UOI & Others decided on 11.04.2014, had laid down detailed guidelines regarding consideration of the claim for compassionate allowance & compensation pension in terms of Rule 41 of CCS(Pension) Rules.
14. A bare perusal of the impugned order would reveal that the competent authority has not considered the representation of the applicant in the right perspective. It appears to have decided case of one Smt. Neeta W/o Late Constable Gulab Singh, instead of deciding the representation of applicant, vide very brief and non-speaking impugned order dated Nil (Annexure A-2).
15. What cannot possibly be disputed here is that Central Vigilance Commission in its wisdom has taken a conscious decision with regard to passing of speaking order and issued instructions vide Office Order No.51/09/03 dated 15.09.2003, which reads as under:-
7 OA No.3844/2014
"Subject: - Need for self-contained speaking and reasoned order to be issued by the authorities exercising disciplinary powers.
Sir/Madam, It was clarified in the Department of Personnel & Administrative Reforms' OM No. 134/11/81/AVD-I dated 13.07.1981 that the disciplinary proceedings against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under any other corresponding rules, are quasi-judicial in nature and therefore, it is necessary that orders issued by such authorities should have the attributes of a judicial order. It was also clarified that the recording of reasons in support of a decision by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy, or reached on ground of policy or expediency. Such orders passed by the competent disciplinary/appellate authority as do not contain the reasons on the basis whereof the decisions communicated by that order were reached, are liable to be held invalid if challenged in a court of law.
2. It is also a well-settled law that the disciplinary/appellate authority is required to apply its own mind to the facts and circumstances of the case and to come to its own conclusions, though it may consult an outside agency like the CVC. There have been some cases in which the orders passed by the competent authorities did not indicate application of mind, but a mere endorsement of the Commission's recommendations. In one case, the competent authority had merely endorsed the Commission's recommendations for dropping the proposal for criminal proceedings against the employee. In other case, the disciplinary authority had imposed the penalty of removal from service on an employee, on the recommendations of the Commission, but had not discussed, in the order passed by it, the reasons for not accepting the representation of the concerned employee on the findings of the inquiring authority. Courts have quashed both the orders on the ground of non-application of kind by the concerned authorities.
3. It is once again brought to the notice of all disciplinary/appellate authorities that Disciplinary Authorities should issue a self-contained, speaking and reasoned orders conforming to the aforesaid legal requirements, which must indicate, inter-alia, the application of mind by the authority issuing the order."
16. Exhibiting the necessity of passing of speaking orders, the Hon'ble Apex Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others (2009) 4 SCC 240 has in para 8 held as under:-
8 OA No.3844/2014
"8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N.Mukherjee vs. Union of India reported in (1990) 4 SCC 594, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation".
17. An identical question came to be decided by Hon'ble Apex Court in a celebrated judgment in the case of M/s Mahavir Prasad Santosh Kumar Vs. State of U.P. & Others 1970 SCC (1) 764 which was subsequently followed in a line of judgments. Having considered the legal requirement of passing speaking order by the authority, it was ruled that "recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons, the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just". It was also held that "while it must appear that the authority entrusted with the quasi-judicial authority has reached a conclusion of the problem before him: it must appear that he has reached a conclusion which is according 9 OA No.3844/2014 to law and just, and for ensuring that he must record the ultimate mental process leading from the dispute to its solution". Such authorities are required to pass reasoned and speaking order. The same view was again reiterated by Hon'ble Apex Court in the case of Divisional Forest Officer Vs. Madhuusudan Rao JT 2008 (2) SC 253.
18. Meaning thereby, as to whether (i) all the essential ingredients of Rule 41 of CCS(Pension) Rules and terms and conditions tabulated by Hon'ble Apex Court in Mahinder Dutt Sharma's case (supra), are complete and (ii) applicant is entitled to the indicated benefit or not, would be the moot issues for deciding the claim of compassionate allowance & compensation pension of the applicant. Then to decide the representation (Annexure A-2) filed by the applicant by passing a reasoned order by the competent authority at the first instance, which is totally lacking in the instant case.
19. In the light of the aforesaid reasons, the main OA is allowed. The impugned order dated 01.08.2013 (Annexure A-1) is set aside. The matter is remitted back and competent authority is directed to decide the representation dated Nil (Annexure A-2) and entitlement of the applicant for compassionate allowance & compensation pension in terms of Rule 41 of CCS(Pension) Rules, ratio of law laid down in Mahinder Dutt Sharma's case (supra) and in accordance with law, by passing a speaking order, within a period of 2 10 OA No.3844/2014 months from the date of receipt of a certified copy of this order positively. However, the parties are left to bear their own costs.
Needless to mention, if the applicant remains aggrieved by the order passed by the competent authority, he would be at liberty to challenge the same by filing independent OA subject to all just exceptions and in accordance with law.
(V.N. GAUR) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
09.08.2016
Rakesh