Central Administrative Tribunal - Madras
G Lakshmi vs M/O Railways on 5 September, 2023
1 OA No.310/01244/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01244/2016
Dated Tuesday the 5th day of September Two Thousand Twenty Three
CORAM :
HON'BLE MS. LATA BASWARAJ PATNE, Member (J)
G.Lakshmi,
W/o.K.Ganapathy,
Ex.G.Man/Tirunelveli/S.Rly,
40, Maveerar Nagar,
Kumarapuram,
Tiruchendur. ... Applicant
By Advocate M/s.Ratio Legis
Vs
1. Union of India Represented by
The General Manager,
Southern Railway,
Park Town,
Chennai - 600 003.
2.Divisional Personnel Officer,
Southern Railway,
Madurai Division,
Madurai. ... Respondents
By Advocate Mr. J. Vasu
2 OA No.310/01244/2016
ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) By this Original Application the applicant is seeking the following relief:
"To call for the records related to impugned orders No.U/P 353/OA/533/2016 dated 23.05.2016 passed by the 2nd respondent and to quash the same and further to direct the respondents to do the necessary to direct the respondents to sanction compassionate allowance from the date of removal up to date of death of her husband and consequential family pension to the applicant with effect from the date of death of her husband and to pass such other order/orders as this Hon'ble Tribunal may deem fit and proper and thus to render justice."
2. The brief facts of the case in nutshell are as under:
The applicant is the widow of a railway employee initially engaged as a casual labourer and regularized as a Gang Man was suffering from horrendous ill-health which forced him to be irregular in attending to his duties and hence was alleged to have been on unauthorized absence, and as a result was removed from service with effect from 16.05.1999 flouting all the mandatory instructions. Also the respondent rejected the claim for compassionate allowance vide letter dated 06.02.2013 against which OA No.310/00533/2016 was preferred in which this Hon'ble Tribunal directed the respondents to consider and pass orders whereas the impugned order dated 23.05.2016 reiterating the same grounds and hence this original application is preferred before this Hon'ble Tribunal.3 OA No.310/01244/2016
3. After notice the respondents have appeared through their counsel and filed detailed reply and opposes the relief on the ground that the applicant's deceased husband was removed from service way back in the year 1999 on the ground of his unauthorised absence. Moreover the applicant's deceased husband has not approached the authority and requested for grant of either for compassionate allowance or for any other benefits against the services nor he had challenged the said termination order within 45 days before in appeal. Almost after a lapse of 17 years from the date of removal from service and 6 years after his date of death of applicant's husband on 24.04.2010 the applicant in the year 2016 has filed OA 533/2016 and this Tribunal disposed of the OA on 23.03.2016 with direction to consider the representation of the applicant. The respondents rejected the applicant's claim for compassionate allowance vide letter dated 23.05.2016 on the ground that the applicant's deceased husband has not completed 10 years minimum service which is required to grant compassionate allowance. The authorities have while rejecting the claim followed with the due process of law. Hence the respondents prayed for the dismissal of the OA.
4. Heard both sides. Perused the records.
5. Learned counsel for the applicant submits that to claim the said benefit for grant of compassionate allowance to the deceased employees wife occasion has been arisen after the Railway Boards letter dated 4 OA No.310/01244/2016 04.11.2008 wherein the Railway Board has with partial modification to Board's letter dated 09.05.2005 has taken a decision that out of the past cases in which the disciplinary authority had not passed any specific orders for or against grant of compassionate allowance if any case appears to be deserving for consideration being given, may be reviewed by the disciplinary authority concerned on receipt of representations of dismissed /removed employees or the family members of the deceased employee keeping in view the condition prescribed in the said letter "(i)Only those past cases can be reviewed where records pertaining to D&A proceedings and Service records are available. D&A proceedings are essential to take a fair decision duly considering the gravity of the offence and other aspects involved therein and to confirm that the question of sanction or otherwise of compassionate allowance was not considered by the competent authority at any stage. Service records are essential to adjudge the kind of service rendered by the dismissed/removed employee and to determine the net qualifying service for working out the quantum of compassionate allowance, if sanctioned.
(ii) Each case will have to be considered on Its merits and conclusion reached on the question whether there were any extenuating factors associated with the case that would make the punishment of dismissal/removal, which though imposed in the interest of the Railways, appear unduly hard on the individual.
(iii) Not only the grounds on which the Railway servant was removed/dismissed, but also the kind of service rendered should be taken into account
(iv) Award of compassionate allowance should not be considered if the Railway servant had been dishonest, which was a ground for his removal/dismissal.
(v) Though poverty is not an essential condition precedent to the award of compassionate allowance, due consideration can be made of the individual's spouse and children dependent upon him.
5 OA No.310/01244/2016
4. On review of such cases, if the competent authority sanctions compassionate allowance to a dismissed/removed Railway servant, the same shall be effective from the date of removal/dismissal.• In case the competent authority decides to sanction family pension to the spouse or eligible family member of the deceased Railway servant, compassion,ite allowance shall be sanctioned notionally from the date of dismissal/removal to make the family eligible for family pension and in such cases family pension shall be payable for the period commencing from the date following the date of death of the removed/dismissed Railway servant."
6. Learned counsel for the applicant further relied upon the Railway Services Pension Manual 1950. Rule 309 and 310 is extracted hereunder:
"309. Removal or dismissal from service- No pensionary benefit may be granted to a Railway Servant on whom the penalty of removal or dismissal from service is imposed; but to a Railway Servant so removed or dismissed, the authority who removed or dismissed him from service may award compassionate grant(s)- corresponding to ordinary gratuity and /or death- cum-retirement gratuity-, and/or allowances- corresponding to ordinary pension-, when he is deserving a special consideration; provided that the compassionate grant(s) and/or allowance awarded to such a Railway Servant shall not exceed two-thirds of the pensionary benefits which would have been admissible to him if he had retired on medical certificate.
310. Para 309 vests the officer removing or dismissing the Railway servant from service with an absolute discretion to grant or not to award any compassionate grant(s) and/or allowances, the only restriction being that, if awarded, it shall not exceed the maximum of two-thirds of the pensionary benefits that would be admissible to the Railway servant concerned or retirement on invalid gratuity/pension. Each case has to be 6 OA No.310/01244/2016 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 imposed, though it may have been necessary in the interests of Government, unduly hard on the individual. In considering this question it has been practice to take into account not only the grounds on which the Railway servant was removed or dismissed, but also the kind of service he has rendered. Where it can be legitimately inferred that the Railway servant's service has been dishonest. There can seldom be any good case for award of compassionate grant(s) and /or allowances. Poverty is not an essential condition precedent to the award of compassionate grant(s) and/or allowances, but special regard is also occasionally paid to the fact that the `Railway servant 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 compassionate grant(s) and/or allowances.
7. Learned counsel for the applicant also submitted the statement of qualifying services on the basis of his service record. The learned counsel for the applicant argued that on bare perusal of the service records it is seen that the applicant's husband has rendered more than 10 years of qualifying service. The deceased employee has been granted with the temporary status on 21.01.1979 and he was regularly empanelled on 14.11.1988. According to the applicant, the applicant's deceased husband has rendered almost more than 11 years service from grant of temporary status till he was removed from service.
8. Learned counsel for the Applicant in support of his contention has 7 OA No.310/01244/2016 relied upon the order passed by the Hon'ble Supreme Court of India in the matter of Mahinder Dutt Sharma Vs. Union of India and Others in Civil Appeal No. 2111 of 2009 vide its order dated 11.04.2014 has dealt into the issue in respect of grant of compassionate allowance under Rule 41 of Central Civil Services (Pension) Rules 1972 wherein after going through the entire facts and relevant rules the Hon'ble Supreme Court observed that employees ought to have been granted compassionate allowance under Rule 41 of Pension Rules 1972. Therefore directed the authorities to reconsider the claim of the applicant therein for grant of compassionate appointment under the Rules.
9. Learned counsel for the applicant also relied upon the order passed by the Hon'ble High Court of Jharkhand and Ranchi in WP (S) No. 1772 of 2013 wherein Rule 75 of Railway Service Pension Rules 1993 has been considered while deciding the claim for grant of family pension and considering the service rendered by the employee therein affirmed the order passed by the Central Administrative Tribunal. Para 6 of the order reads as under:
""We have considered the submission of the learned counsel for the petitioners and the relevant pleadings on record. Upon persual of the records and due consideration, we find that is not in dispute that neither the order of removal was served on the employee or the applicant widow nor it was produced before the learned CAT during the proceedings for the instant OA. No contemporaneous documets such as framing of charge sheet, issuance of show cause notice or 8 OA No.310/01244/2016 proceedings of the enquiry leading to his removal produced to substantiate the plead taken before the learned CAT in spport of the order of rejection of the representation of the applicant dated 10.09.2008 regarding claim of retiral benefits. It is not in dispute that the employee had served Railway in regular service for the period 11.09.1970 till 03.06.1984 ie 14 years which not only entitled the employee to get pension, but also entitled the widow of such an employee to receive family pension as per Rule 75 of the Railway Service Pension Rules, 1993, which quoted hereunder:
"75 Family Pension Scheme for railway servants, 1965:-(1) The provisions of this rule shall apply:-
(a) to a railway servant entering service in a pensionale establishment on or after the 1st January, 1964; and
(b) to a railway servant who was in service on the 31st December, 1963 and came to be governed by the provisions of the Family Pension Scheme for railway employees, 1964, contained in the Railway Board's letter No.F(P) 63 PNI/40 dated the 2nd January 1964 as in force immediately before the commencement of these rules (2)Subject to the provisions of sub-rule (18 and without prejudice to the provisions contained in sub- rule (4) where a railway servant dies-
(a) after completion of one year of continuous service; or
(b) before completion of one year of continuous service, provided the deceased railway servant concerned immediately prior to his appointment to the service or post was examined by the appropriate medical authority and declared fit by that authority for railway service; or
(c) after retirement from service and was on the date of death in receipt of a pension, or compassionate allowance, referred to in these rules, the family of the deceased shall be entitled to family pension under the Family Pension Scheme for Railway Servants, 1964, the amount of which shall be determined at a uniform rate of thirty per cent of basic pay subject to a maximum 9 OA No.310/01244/2016 of three thousand and five hundred rupees per mensem and a maximum of twenty seven thousand rupees per mensem Explanation:- The expression ""one year of continuous service wherever it occurs in this rule, shall be construed to include less than one year of continuous service, as provided in clause (b)
10. Leaned counsel for the applicant also relied upon the order passed by the Hon'ble High Court of Madras in WP No. 26528 of 2015 in the matter of UOI Southern Railway Vs T N Krishnamoorthy and vide its order dated 14.03.2007 dealt into Rule 65 of Railway Service (Pension) Rules. Para 5 and 6 of the Judgment is extracted hereunder:
"5. The Railways discontinued the disbursement of pension primarily for the reason that for such grant, the employee should have served for a period of 10 years.
6. Rule 65 of the Railway Service (Pension) Rules provides for payment of Compassionate Allowance. There is no condition prescribed in the said Rule that the employee must have 10 years of service for claiming Compassionate Allowance. The grant of Compassionate Allowance is a matter of discretion of the competent authority. The competent authority has to consider the case of the employee, who was dismissed or removed from service. The authority must arrive at a satisfaction that the case of the employee deserves special consideration. No other condition is attached to the provision regarding grant of Compassionate Allowance."
11. The Hon'ble High Court has rejected the stand taken by the Railways that for grant of compassionate allowance 10 years qualifying service is required under the Rule and affirmed the order passed by the Central Administrative Tribunal in favour of the employee. 10 OA No.310/01244/2016
12. Learned counsel for the applicant also relied upon the order passed by co-ordinate Bench Jabalpur in OA 201/00218/2019 in the matter of Dhanna Vs. UOI Western Railway and others vide its order dated 20.01.2023 considered the objection raised on the limitation in the light of the Rule 65 of Railway Service pension Rules 1993 for pension / family pension claim relying upon the various orders passed by the Hon'ble Supreme Court of India and observed thus:
"9. ..........In the present case, it could be seen on perusal of the records that the competent authority has not passed any order with regard to grant of compassionate allowance. In letter dated 12.06.2000 (Annexure A/2), it is stated that there should be no need to wait for a formal request to be made by the Railway servant who was removed or dismissed. If timely action is taken in such cases, payment of compassionate grant and /or allowance where sanctioned by the competent authority can be made within two months of removal/dismissal. Thus, it was obligatory on the part of respondent to settle all dues admissible to the applicant within two months from the date of removal of the applicant. The applicant was removed from service and thereby his pension and gratuity had been forfeited. A compassionate allowance sanctioned is purely for the reason of sustaining the livelihood of the applicant. The applicant has relied upon the judgment passed by the Hon'ble Supreme Court in the case of S.K. Mastan Bee vs. General Manager South Central Railway and Another 2003 SCC (L&S) 93 has held as under:-
"It is on record that the appellant is an illiterate who at that time did not know of her legal right and had no access to any information as to her right to family pension and to enforce her such right. On the death of the husband of the appellant, it was obligatory for her husband's employer, viz., Railways, in this case to have 11 OA No.310/01244/2016 computed the family pension payable to the appellant and offered the same to her without her having to make a claim or without driving her to a litigation. The very denial of her right to family pension as held by the learned Single Judge as well as the Division Bench is an erroneous decision on the part of the Railways and in fact amounting to a violation of the guarantee assured to the appellant under Article 21 of the Constitution. The factum of the appellant's lack of resources to approach the legal forum timely is not disputed by the Railways. Question then arises on facts and circumstances of this case, the Appellate Bench was justified in restricting the past arrears of pension to a period much subsequent to the death of appellant's husband on which date she had legally become entitled to the grant of pension ? In this case as noticed by us herein above, the learned Single Judge had rejected the contention of delay put forth by the Railways and taking note of the appellant's right to pension and the denial of the same by the Railways illegally considered it appropriate to grant the pension with retrospective effect from the date on which it became due to her. The Division Bench also while agreeing with the learned Single Judge observed that the delay in approaching the Railways by the appellant for the grant of family pension was not fatal inspite of the same it restricted the payment of family pension from a date on which the appellant issued a legal notice to the Railways i.e. on 1.4.1992. We think on the facts of this case inasmuch as it was an obligation of the Railways to have computed the family pension and offered the same to the widow of its employee as soon as it became due to her and also in view of the fact her husband was only a Gangman in the Railways who might not have left behind sufficient resources for the appellant to agitate her rights and also in view of the fact that the appellant is an illiterate. The learned Single Judge, in our opinion, was justified in granting the relief to the appellant from the date from which it became due to her, that is the date of the death of 12 OA No.310/01244/2016 her husband. Consequently, we are of the considered opinion that the Division Bench fell in error in restricting that period to a date subsequent to 1.4.1992. In the said view of the matter, we allow this appeal, set aside the impugned order of the Division Bench to the extent that it restricts the right of the appellant to receive family pension only from 1.4.1992 and restore that right of the appellant as conferred on her by the learned Single Judge, that is from the date 21.11.1969. The Railways will take steps forthwith to compute the arrears of pension payable to the appellant w.e.f 21.11.1969 and pay the entire arrears within three months from the date of the receipt of this order and continue to pay her future pension. For the reasons stated above, this appeal succeeds to the extent mentioned herein above and the same is allowed with costs of Rs.10,000/-(Rs. Ten thousand only).
10. In regard to non completion of 10 years qualifying service of the applicant is concerned, as per RBE No.88/1993 a qualifying service of 9 years 9 months and above at the time of retirement shall be treated as ten years of service for the purpose of pension and death/retirement gratuity. In the case of Ramesh Kumar Singh Vs. Union of India and Ors. 2012 SCC OnLine Del 4342, Hon'ble High Court of Delhi has relied upon another decision in Ex.Ram Niwas Vs. Union of India 2012 SCC OnLine Del 4225 to hold that compensation pension is not related to any length of service rendered and it is to be paid if a government servant is discharged owing to a permanent post being abolished and the quantum is relatable to the years of service rendered. It was further held that Compassionate Allowance is referable to Compensation Pension, pension has no concern to a minimum number of years served but is payable with reference to the number of years of service rendered and if the financial condition of the government servant is a matter of special consideration, it has to be considered by the competent authority. Further in the case of Attar Singh vs. State of NCT of Delhi and Ors. 2013 SCC OnLine Del 192, Hon'ble High Court of Delhi held that the petitioner who had joined service in 13 OA No.310/01244/2016 Delhi Police on February 15, 1989 and the penalty of removal from service was inflicted upon him on June 8, 1998, had permitted the petitioner to seek compassionate allowance from the competent authority while holding that Rule 41 of the CCS Pension Rules, 1972 permits compassionate allowance to be sanctioned to a government servant who is dismissed or removed from service, which amount if sanctioned cannot exceed 2/3rd of the pension admissible if the government servant was retired on compensation pension. Further held that Rule 39 of the Rules provide for compensation pension and the said rule do not have any minimum qualifying service. In Ex. Const. Ram Niwas (supra), this Court had dealt with a case where the respondent/BSF had contended that petitioner therein had joined service in April 1988 and pensionable service being 20 years and petitioner being dismissed from service on June 22, 1998, was not entitled to any compassionate allowance, the Court had held that the Compassionate Allowance is referrable to Compensation Pension, which has no concern to a minimum number of years served but is payable with reference to the number of years of service rendered and directed the competent authority to consider if the case of government servant deserved any special consideration."
13. Learned counsel for the applicant further contended that the compassionate allowance is referred to compensation pension which is no concern to minimum number of years served but is payable with reference to the number of years of service rendered.
14. Learned counsel for the applicant also relied upon the order passed by this Bench in OA 89/2020 in the matter of P. Shanmugavelu Vs. UOI, Southern Railway vide its order dated 21.04.2023 has considered the matter at length and allowed the OA to grant the compassionate allowance.
15. On the other hand, learned counsel for the respondents vehemently 14 OA No.310/01244/2016 opposes the said arguments and raised objections on the ground of delay stating that when the applicant's deceased husband was removed in the year 1999 he has neither challenged the said order in appeal within 45 days nor he approached to the authorities for any of the claim.
16. Learned counsel for the respondents further argued that the applicant who is the wife of the deceased employee approached the authorities for the first time only in the year 2011. After going through the service record the authorities has found that the applicant's husband has not rendered 10 years of qualifying service which is the minimum requirement for grant of compassionate allowance. The learned counsel in his support has relied upon the orders passed by this Tribunal as well as co-ordinate bench Mumbai, Hon'ble High Court of Kerala and Hon'ble High Court of Madras.
17. The learned counsel for the respondents further contended that while considering the similar claim wherein this Tribunal has declined to grant any relief. The employees as well as widow of the deceased employees have approached the High Court against Tribunal's order in WP No. 36782/2015, 40447/2015, 40448/2015 and 20500/2016 and vide its order dated 16.09.2016 dismissed the said W.Ps.
18. He further contended that the Hon'ble Apex Court of India has dealt in detail while recording the facts in the matter of Mahinder Dutt Sharma Vs U.O.I and Ors in respect of observation that the unauthorised absence is 15 OA No.310/01244/2016 not a grave case of moral turpitude or dishonesty. Para13 is extracted hereunder:
"13. In our considered view, the determination of a claim based under Rule 41 of the Pension Rules, 1972, will necessarily have to be sieved through an evaluation based on a series of distinct considerations, some of which are illustratively being expressed hereunder:-
(i) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act of moral turpitude? An act of moral turpitude, is an act which has an inherent quality of baseness, vileness or depravity with respect to a concerned person's duty towards another, or to the society in general. In criminal law, the phrase is used generally to describe a conduct which is contrary to community standards of justice, honesty and good morals. Any debauched, degenerate or evil behaviour would fall in this classification.
(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.
(iii) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act designed for personal gains, from the employer?
This would involve acts of corruption, fraud or personal profiteering, through impermissible means by misusing the responsibility bestowed in an employee by an employer. And would include, acts of double dealing or racketeering, or the like. Such an act may or may not be aimed at causing loss to the employer. The benefit of the delinquent, could be at the peril and prejudice of a third party.
(iv) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, aimed at deliberately harming a third party interest? Situations hereunder would emerge out of acts of disservice causing damage, loss, prejudice or even anguish to third parties, on account of misuse of the employee's authority to control, regulate or administer activities of third parties. Actions of dealing with similar issues differently, or in an iniquitous manner, by adopting double standards or by foul play, would fall in this category.
(v) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, otherwise unacceptable, for the conferment of the benefits 16 OA No.310/01244/2016 flowing out of Rule 41 of the Pension Rules, 1972?
Illustratively, any action which is considered as depraved, perverted, wicked, treacherous or the like, as would disentitle an employee for such compassionate consideration."
19. Learned counsel for the respondents relied the order passed by Hon'ble High Court of Kerala in the matter of V.Kesavan Nair Vs UOI and others in Writ Appeal No. 2210/2019 vide its order dated 18.05.2021. Paras 5, 33,34 36, 37, 38 of the judgment reads as under:
"5. On 14-08-2014, the appellant submitted a representation before the Director of General, CISF (respondent No.2) and requested sanctioning of compassionate allowance. The said representation was also rejected as per order dated 15-12-2014. The appellant, thereafter, filed W.P(C) No.7653/2015 before this Court, challenging the order rejecting his request for compassionate allowance. By judgment dated 28-06-2016 in W.P(C) No.7653/2015, this Court set aside the order of rejection passed by the official respondents and directed them to consider the representation submitted by the appellant in the light of the directions contained in the judgment of the Apex Court in Mahinder Dutta Sharma v. Union of India [(2014) 11 SCC 654].
33. The analysis of the statutory provisions, precedents and the Government decisions relied on by the appellant, does not lead us to enter into a conclusion that compassionate allowance is to be granted to a government employee from the date of imposition of the punishment itself as a matter of right.
34. From the discussion made above we come to the following conclusions: (i) Compassionate allowance provided under Rule 41 of CCS (Pension) Rules, 1972 does not have all the characteristics and attributes of the pensions covered by Rules 35 to 40 of the Pension Rules. (ii) Compassionate allowance under Rule 41 cannot be treated as a payment in lieu of the aforesaid pensions supra. (iii) The authority competent to dismiss or remove a government servant from service has the discretion in the grant of compassionate allowance, in the sense that, the authority may grant the allowance if the case is deserving of special consideration. (iv) While granting compassionate allowance the authority has absolute discretion to decide as to the time period from which the allowance is to be paid and a government employee who suffered dismissal or removal from service and was granted compassionate allowance cannot claim that he is eligible to have same with effect from the date of dismissal or removal as a matter of right.17 OA No.310/01244/2016
36. The appellant has not made any specific pleading as to whether he was working or not during the period after his dismissal till the submission of application seeking compassionate allowance.
37. The representation, stated to have been submitted by the appellant, has not been produced for perusal. It appears from Ext.P1 that he had requested to the effect that, as he was aged 65 years and was almost invalid and living in poverty his case deserves sympathetic consideration. The competent authority while passing Ext.P1 had taken into account all the circumstances and granted compassionate allowance to the appellant prospectively with effect from 16-11-2016. 38. The learned Single Judge recorded a finding that a government employee who suffered dismissal or removal from service and was granted compassionate allowance cannot claim that he is eligible to have same with effect from the date of dismissal or removal as a matter of right. We are of the view that the learned Single Judge rightly recorded a finding to that effect. "
20. He further refers upon the order passed by this Tribunal in OA 1721/2017 in the matter of T. Shanmugam Vs Chief Post Master General, TN Circle vide its order dated 21.10.2019 relying upon the order passed in the matter of Mahinder Dutt Sharma as well as in the other matters has observed that grant of compassionate allowance is one of the discretion vested with the authorities in deserving cases and not a statutory right of the applicant. While considering the same, the competent authority takes into consideration apart from the gravity of the offence, the conduct of the delinquent official in the past and other attendant factors and accordingly considering the ground of delay this Tribunal declined the relief in favour of the employee.
21. It is to be noted that the applicant's deceased husband was serving in the office of the respondents. Though he has joined temporarily in the year 1978, however, after completion of 4 months continuos service he has 18 OA No.310/01244/2016 been granted temporary status on 21.01.1979. Thereafter the applicant's husband was continuously working. Therefore in the year 1988 the applicant's deceased husband has been regularly empanelled.
22. Upon perusal of the service book as recorded in the leave record the applicant's husband was on leave from 1992 for some days has been recorded as unauthorised absence. From 1992 onwards till the date of removal in different spells in the middle of the said years the applicant's husband has joined to the duties. However finally in the year 1999 the applicant's deceased husband was removed from service vide its order dt. 03.05.1999.
23. It is also to be noted that the respondent department has issued a letter dated 04.11.2008 in partial modification to letter issued in the year 09.05.2005 wherein the decision has been taken by the Board that in the past cases in which the Disciplinary Authority has not passed any specific orders for grant of compassionate allowance in favour or against the employee, if any cases appears to be deserving for consideration being given, may be reviewed by the Disciplinary Authority concerned on receipt of representation of dismissed / removed employees or family members of the deceased employees wherein along with other conditions it has been categorically stated that though poverty is not an essential condition precedent to the award of compassionate appointment, due consideration can be made of the individual's spouse and children 19 OA No.310/01244/2016 dependant upon him.
24. It is to be noted that the applicant upon knowing such type of information has submitted her representation in the year 2011 which was rejected in the year 2013 and subsequently in the year 2016 and the said rejection issued in the year 2016 is impugned in the present OA.
25. It is to be noted that as observed by the co-ordinate Bench Jabalpur in OA 218/2019, compassionate allowance is referable to compensation pension which has no concern to a minimum number of years served but is payable with reference to the number of years of service rendered.
26. It is also to be noted that if the employee who has rendered 10 years qualifying service he is eligible for grant of minimum pension and for the compassionate allowance such guidelines are not in the rules as observed by the Hon'ble High Court of Madras. Therefore rejection on the ground of minimum qualifying service of 10 years is not sustainable in the eyes of the law.
27. It is to be noted that when the respondents themselves have decided in the year 2008 to consider such cases wherein no specific order has been passed for grant of compassionate allowance either in favour or against. Such case to be reconsidered again following with the certain parameters. It is to be noted that in the matter of the applicant the respondents have relied on the qualifying service criteria as well as delay in the application. It is also to be noted that there is no need to wait for formal request from 20 OA No.310/01244/2016 the employee whom the railway officials have removed or dismissed and when there is no specific order in respect of rejection for grant of compassionate appointment then authority has to take the timely decision within two months from removal or dismissal. Thus it was obligatory on the part of the respondents to settle all the dues admissible to the applicant within two months from the date of removal of the applicant.
28. Moreover the compassionate appointment sanctioned purely for the reason on sustainability of the livelihood of the applicant therefore the railway board vide its order dated 04.11.2008 has decided to modify the earlier decision.
29. It is to be noted that the orders relied by the learned counsel for the respondents in support of his contention no where the case has been considered with such observation and hence not applicable to the present case.
30. In view of the submissions made by the parties and relying upon the orders placed by both the counsels I am of the considered view that impugned order dated 23.05.2016 does not stand in the scrutiny of the eyes of law and in the light of the parameters of the judgments relied by the learned counsel for the applicant the impugned order is hereby quashed and set aside. The respondents are directed to reconsider the claim of the applicant who is the wife of the deceased employee for grant of compassionate allowance under the said special consideration applicant's 21 OA No.310/01244/2016 case within three months from the date of receipt of copy of this order.
31. OA is allowed in the above terms. No order as to costs.
(Lata Baswaraj Patne) Member (J) 05.09.2023 AS