Central Administrative Tribunal - Mumbai
Smt Sunita Suresh More vs Central Railway on 9 October, 2024
1 OA No.719/2022
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.719 OF 2022
Dated this Wednesday, the 09th day of October, 2024
CORAM : HON'BLE MR. UMESH GAJANKUSH, MEMBER (J)
Smt. Sunita Suresh More, (Widow of late Suresh Shravan More)
Age : 62 years around, Occ : Household,
R/at : Kamal Kunj, Ward No.5, Nr. Ashirwad, General Store,
Jaibhim Nagar, Dapodi, Pune 411 012,
(M) 9689110102 / 9011104102,
Email : [email protected]. - Applicant
(By Advocate Shri J.M.Tanpure)
Versus
1. Union of India, Through the General Manager,
Central Railway, Chatrapati Shivaji Maharaj Terminus,
Mumbai 400 001.
2. The Additional Divisional Signal and Telecommunication
Engineer, Central Railway,
Chatrapati Shivaji Maharaj Terminus,
Mumbai 400 001. - Respondents
(By Advocate Shri D.A.Dube)
Reserved on 05.08.2024
Pronounced on 09.10.2024
ORDER
The applicant before this Tribunal is challenging the impugned action of the respondents in not granting the compassionate allowance.
2 OA No.719/2022
2. The brief facts necessary for disposal of the case are that the husband of the applicant late Shri Suresh Shravan was working in the Railway Administration since 1980 as Khalasi. He was initially working at Lonavala and then he was transferred to Thane. Vide order dated 25.04.1990, he was newly appointed on Mercy Appeal.
Thereafter, he was charge-sheeted vide SF-5 No.BB/N/441/DAR/SSM/166 for remaining unauthorized absent from 19.02.1995 to 30.08.1999. Prior to that Chief Signal Inspector (M) Thane vide his letter dated 25.06.1996 has requested DRMP (S&T) MB to send the applicant's husband for special medical. 2(a). It was further stated that on 18.12.1994 (Annexure A-2) while he was on duty, he fell down on the railway track while crossing the railway lines and had a severe/heavy injury CLW Scalp. Hence, he was admitted in the Mail Ward of the Railway Hospital for about six days. Thereafter, his health started going bad to worst day by day, his health was deteriorating. Medical Certificate to that effect is placed on record.
2(b). In pursuance of the charge-sheet, penalty of removal of service was inflicted on the deceased employee vide order dated 19.09.2003. It was stated that against the said order, appeal was submitted on 31.10.2006 but the same was not disposed of by the 3 OA No.719/2022 Appellate Authority. Therefore, the appeal was resubmitted on 23.10.2007 by hand, in person in the office of the Appellate Authority on 23.10.2007. The applicant's husband expired on 10.09.2013 without getting Gratuity, Provident Fund, Group Insurance Scheme Amount etc. Applicant's sought information under the Right to Information Act in respect of enquiry report and vide communication dated 21.09.2015, it was not informed that papers are not made available from the concerned office.
2(c). Thereafter, the applicant has submitted representation dated 15.11.2021 (Annexure A-12) by mentioning detailed facts with a prayer for grant of compassionate allowance by invoking provisions of Rule 65 of Railway Services (Pension) Rules, 1993 and retiral dues like Provident Fund, Gratuity, Group Insurance Scheme, Leave etc. 2(d). Separate application for condonation of delay was also filed which is registered as MA No.772/2022. Since the applicant is claiming the benefit of compassionate allowance and in view of the detailed facts mentioned in the application, in the interest of justice, delay may be condoned.
3. After notice, the official respondents have filed reply on merits as well as for delay condonation application.
4 OA No.719/20223(a). The basic stand of the official respondents is that the Disciplinary Authority vide order dated 19.09.2003 has imposed the penalty of removal from service with immediate effect without pensionary benefits and late Shri More did not file any appeal against this penalty. Hence, said penalty attained finality. Now at this belated stage, applicant cannot file any request for grant of compassionate allowance as same has already decided by the Disciplinary Authority on 19.09.2003. Therefore, after lapse of more than 19 years from the order of the Disciplinary Authority, this application is not maintainable under the law of being barred by limitation and, therefore, liable to be dismissed.
4. Thereafter, rejoinder was filed by the applicant explaining her stand and by elaborating the facts.
5. Heard the learned counsels for the parties and perused the pleadings and documents available on record.
6. Learned counsel for the applicant vehemently argued that due to accident in the year 1994, deceased employee suffered severe and heavy injury and thereafter, his health was deteriorated and he expired on 10.09.2013. The penalty order dated 19.09.2003 was passed against the deceased employee ex-parte. The respondents have not supplied the copy of the enquiry report in spite of 5 OA No.719/2022 application under the Right to Information Act. It was also contended that after collecting the relevant information, a detailed representation dated 15.11.2021 (Annexure A-12) was submitted to the authority. However, since the respondents have failed to grant compassionate allowance under Rule 65 of the Pension Rules, 1993, therefore, the Original Application was submitted. 6(a). It is further submitted that the detailed facts have been mentioned in application for condonation of delay and, therefore, liberal approach should be adopted as the applicant is illiterate and leading her life in extreme poverty. Representation dated 15.11.2021 (Annexure A-12) was still pending with the respondents. 6(b). During the course of the arguments, the learned counsel for the applicant placed reliance upon the order passed in the case of Ex. CT Daya Nand Vs. Union of India and others by the Hon'ble Division Bench of the Delhi High Court in CWP No.1877 and CMP No.2966 of 1999 dated 26.11.1999, order passed in OA Nos.52/2008 and 450/2008 passed by the Central Administrative Tribunal, Mumbai Bench in the case of Smt. Sunanda Saba Vikari Vs. Union of India and others decided on 28.02.2012 and further he has placed reliance upon the order passed in OA No.717/2022 by the CAT Mumbai Bench in the case of Smt. Surekha Suryakant Gunjal 6 OA No.719/2022 Vs. Union of India & Another decided on 18.06.2024.
7. On the other hand, the learned counsel for the respondents on the basis of the stand taken in the reply submitted that the in penalty order dated 19.09.2003, it was specifically mentioned that same is without pensionary benefits and the said order attained finality and, therefore, the applicant is not entitled for compassionate allowance. It was also contended that as per the proviso to Rule 65 of Pension Rules of 1993, the compassionate allowance is a discretion of the Competent Authority in the cases of deserving of special consideration and, therefore, the same cannot be claimed as a matter of right. Delay in filing present OA is also contested. It is submitted that no good and sufficient cause was explained. 7(a). Learned counsel for the respondents has also placed reliance on the following judgments :
i. V. Kesavan Nair Vs. Union of India, reported as 2021 3 ILR (Ker) 725.
ii. N. Sreedharan Vs. State of Kerela, reported as 2022 0 Supreme (Ker) 281.
iii. Subhakant Agnihotri Vs. Union of India, reported as 2012 0 Supreme (Del) 2907.7 OA No.719/2022
8. After hearing both the learned counsels for the parties and perusal of record, it is not in much dispute that the applicant was working with the railways on the post of Khalasi and on the charge of absentism from 19.02.1995 to 30.08.1999, enquiry was conducted against the deceased employee and then ex-parte order dated 19.09.2003 was passed imposing penalty of removal.
9. Considered MA No.772/2022, looking to the fact that the detailed facts have been stated by the applicant in the abovementioned MA explaining the delay. Under these circumstances, keeping in view the preposition of law laid down by the Hon'ble Supreme Court in the case of Union of India Vs. Tarsem Singh, reported in (2008) 8 SCC 648, the delay is properly explained and is accordingly condoned.
10. In the present case, the principle question for consideration before this Tribunal is whether under Rule 65 of the Pension Rules, 1993, applicant is entitled to claim compassionate allowance or not and for the said purpose, it is important to produce the Rule 65 of the Pension Rules as under :
"65. Compassionate allowance - (1) A railway 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 8 OA No.719/2022 two-thirds of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension."
11. Looking to the aforesaid provisions, it is clear that a railway servant who is dismissed or removed from service shall forfeit his pension and gratuity, however, if the cases is deserving of special consideration for grant of compassionate allowances same can be granted. What be the special consideration is depended upon the facts and circumstances of each case.
12. In the present case, the Original Application in paragraph No.4.15. the present applicant has mentioned the circumstances for grant of compassionate allowances. It is stated that the applicant is leading her life in her extreme poverty by working as an agricultural labour/maid servant and looking after her mentally retarded husband till his death and two minor sons. It was not possible for the applicant to educate her sons properly for want of money. In reply to it, the official respondents have not specifically denied this aspect, in fact, a reply in para Nos.4.11 to 4.15 was collectively filed. In the given facts and circumstances, it was obligatory on the part of the official respondents to get the aforesaid factual aspects verified from the Welfare Inspector of the Railways. But it appears that in spite of representation dated 15.11.2021 (Annexure A-12), no steps have been taken by the Competent Authority in this regard. 9 OA No.719/2022
13. The similar question in respect of grant of compassionate allowance was subject matter of OA No.717/2022 and the Coordinate Bench of this Tribunal while taking note of the relevant provisions and the propositions of the law laid down by the Hon'ble Supreme Court in the case of Mahinder Dutt Sharma Vs. Union of India, (2014) 11 SCC 684 passed a detailed order and the relevant paragraphs are reproduced herein below :
"12. In terms of this rule a Government servant who is dismissed or removed from service shall forfeit his pension and gratuity. Proviso to this rule states that the . competent authority may sanction compassionate allowance if the case is deserving of special consideration. From the bare reading of this Section it is axiomatic that the thrust is on "the case is deserving of special consideration". These words, i.e., "the case is deserving of special consideration" had come up for consideration before the Hon'ble Supreme Court in the case of Mahinder Dutt Sharma vs. Union of India, (2014) 11 SCC 684. The Apex Court observed that for testing upon the special circumstances, there has to be some mitigating factors which would make the competent authority to hold that even though the person was dismissed or removed from service, he ought to be given compassionate allowance. The Apex Court indicated the manner in which the process of evaluation should be undertaken and the distinct considerations that would disentitle a Government servant from being considered for compassionate allowance. In the case of Mahinder Dutt Sharma (supra) in paras 13 and 14, the Apex Court has delineated these "considerations, which read as under:
"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 10 OA No.719/2022 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 flowing out of Rule 41 of the Pension Rules, 19727 Ilustratively, any action which is considered as 11 OA No.719/2022 depraved, perverted, wicked, treacherous or the like, as would disentitle an employee for such compassionate consideration.
14. While evaluating the claim of a dismissed (or removed from service) employee, for the grant of compassionate allowance, the. rule postulates a window for hope, "..if the case is deserving of special consideration...". Where the delinquency leading to punishment, falls in one of the five classifications delineated in the foregoing paragraph, it would ordinarily disentitle an employee from such compassionate consideration. An employee who falls in any of the above five categories, would therefore ordinarily not be a deserving employee, for the grant of compassionate allowance. In a situation like this, the deserving special consideration, will have to be momentous. It is not possible to effectively define the term "deserving special consideration" used in Rule 41 of the Pension Rules, 1972. We shall therefore not endeavor any attempt in the said direction. Circumstances deserving special consideration, would ordinarily be unlimited, keeping in mind unlimited variability of human environment. But surely where the delinquency leveled and proved against the punished employee, does not fall in the realm of misdemeanor illustratively categorized in the foregoing paragraph, it would be easier than otherwise, to extend such benefit to the punished employee, of course, subject to availability of factors of compassionate consideration."
13. From these observations of the Apex Court it is clear that the mitigating factor should be whether the act of the charged officer involved an act of moral turpitude, whether act of the charged officer was an act of dishonesty towards his employer, whether the act of delinquent was an act designed for personal gains from the employer, whether the act of the charged officer aimed at deliberately harming the third party interest and whether the act which resulted in the infliction of punishment of removal from service was otherwise acceptable for confirmation of benefits flowing from Rule 41 of CCS (Pension) Rules.
14. Undoubtedly, the husband of the applicant was removed from service because of absenteeism. That is the reason the case of the applicant does not fit in any of the criteria mentioned by the Hon'ble Supreme Court. Absenteeism is not an act of moral turpitude nor it affects the interest of third party nor it has caused any loss to the employer nor it is an act of dishonesty. The aspect of absenteeism has been dealt with by the Hon'ble Supreme Court 12 OA No.719/2022 in the case of Mahinder Dutt Sharma (supra) in para 17, which reads as follows:
"17. None of the authorities on the administrative side, not even the Tribunal or the High Court, applied the above parameters to determine the claim of the appellant for compassionate allowance. We are of the view, that the consideration of the appellant's claim, was -clearly misdirected. All the authorities merely examined the legitimacy of the order of dismissal. And also, whether the delay by the appellant, in filing the appeal against the punishment order dated 17.5.1996, was legitimate. The basis, as well as, the manner of consideration, for a claim for compassionate allowance, has nothing to do with the above aspects. Accordingly, while accepting the instant appeal, we set aside the order dated 25.4.2005 (passed by the Deputy Commissioner of Police, IInd Battalion, Delhi Armed Police, Delhi), rejecting the prayer made by the appellant for grant of compassionate allowance. The order passed by the Tribunal dated 28.2.2006, and the order passed by the High Court dated 13.11.2006, are also accordingly hereby set aside. Having held as above, we direct the competent authority to reconsider the claim of the appellant, for the grant of compassionate allowance under Rule 41 of the Pension Rules, 1972, based on the parameters laid down hereinabove."
15. In the case at hand also nothing has been placed on record to show that the absenteeismm was for any ulterior motive. Learned counsel for the applicant invited my attention to the letter dated 26th March, 1997 addressed by the deceased Gunjal to the General Manager, Ammunition Factory, Kirkee, Pune in which the applicant stated that his younger son died in an accident because of which he used to get upset and was unable to concentrate on his work and therefore he has sought voluntary retirement. Thus, the cause for absenteeism appears to have been the death of younger son of the deceased Gunjal. It appears that the deceased Gunjal was unable to come out of this incident. The respondents instead of accepting his application for voluntary retirement removed him from service. As indicated earlier, the removal of deceased Gunjal was not on account of an act which constituted moral turpitude or act of any dishonesty or any other act as mentioned by the Hon'ble Supreme Court in the case of Mahinder Dutt Sharma (supra). Therefore, it was a fit case for grant of compassionate allowance.
16. It was vehemently argued by learned counsel for respondents 13 OA No.719/2022 that record of the deceased Gunjal was not good. His one increment was stopped in the year 1984. The respondents have not brought anything on record to show the misconduct for which the deceased Gunjal was imposed punishment of stoppage of one increment. It is not known whether this punishment imposed on him was because of any misconduct, moral turpitude or dishonesty or any conduct harming the interest of third party. In the absence of these details, it cannot be said that simply because one increment was stopped the deceased Gunjal was disentitled to compassionate allowance.
17. It was further argued that the deceased Gunjal did not claim compassionate allowance. Therefore, his wife cannot claim it after his death. To counter this argument, Sh. Tanpure, learned counsel for the applicant placed reliance on the judgment of Mumbai Bench of this Tribunal in OA No.52/2008 and 450/2008 dated 28% February, 2012. On perusal of the judgment it is seen that compassionate allowance was granted to the wife of the employee. Respondents could not bring anything on record to show that compassionate allowance cannot be granted to the wife of the deceased employee. Therefore, this argument stands rejected."
14. So far as, the judgments relied by the learned counsel for the respondents is concerned in the case of V. Kesavan Nair (Supra), the Hon'ble High Court of Kerela as held that powers grant of compassionate allowance is discretionary one. However, discretion is to be exercised by the Competent Authority fairly, properly and considering the facts and circumstances of the case. So far as, case of N. Sreedharan (supra) and Subhakant Agnihotri (supra) same are distinguishable.
15. In the present case, there is no dispute that the removal of the deceased employee was on the charge of absenteeism, there were no allegation about the misconduct which has been stated out by the Hon'ble Supreme Court in case of Mahinder Dutt Sharma (supra). 14 OA No.719/2022 Further, applicant has submitted dated 15.11.2021 (Annexure A-12) and in reply it has not been disclosed that the said representation has considered or decided. Under these circumstances, the present Original Application is disposed of.
15a. In view of the aforesaid, the present OA is disposed of with the following directions :
(a) the Competent Authority of the respondents is directed to consider the pending representation of the applicant dated 15.11.2021 (Annexure A-12) and pass a reasoned and speaking order, keeping in view the rules and the observations made above, within a period of 90 days from the date of receipt of a certified copy of this order.
(b) If the applicant is found to entitled then benefits shall be released in the aforesaid period.
(c) There shall be no order as to costs.
(d). Pending MA, if any, also stand disposed of.
(Umesh Gajankush) Member (J) kmg*