Central Administrative Tribunal - Delhi
Smt. Kashmiri vs All India Institute Of Medical Science on 21 August, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 2210/2013 Reserved on : 04.08.2014 Pronounced on : 21.08.2014 HONBLE MR. V. AJAY KUMAR, MEMBER (J) Smt. Kashmiri, Widow of Late Shri Satbir Singh, R/o Village Samaspur Khalsa, H.No.205, Delhi-110073. .. Applicant (By Advocate : Shri Yogesh Sharma) Versus 1. All India Institute of Medical Science, Through its Director, Ansari Nagar, New Delhi. 2. The Medical Superintendent, All India Institute of Medical Science, Hospital Establishment Department, Ansari Nagar, New Delhi. .. Respondents (By Advocate : Shri Rishab Kaushik) O R D E R
The applicants husband Late Shri Satbir Singh was removed from service while working as Hospital Attendant Grade-III for the charge of unauthorized absence, after following due procedure and after conducting enquiry vide order No.17-91/72-Estt.(H) dated 16.03.2006. However, the husband of the applicant died on 24.07.2011 leaving his wife, i.e. the applicant, and two sons and two daughters as his legal heirs. In view of removal of her husband from service and due to his subsequent death, the applicant and other family members become income-less as none of them are employed. Both the daughters are unmarried and both the sons are unemployed. In view of the same, the applicant made a representation to the respondents AIIMS requesting for grant of compassionate allowance. When the respondents have not considered the same, the applicant initially filed O.A. No.355/2013 and the same was disposed of by an order dated 30.01.2013 directing the respondents to consider the representation of the applicant and to pass an appropriate orders thereon.
2. In pursuance of the aforesaid orders of this Tribunal, the respondents vide the impugned order dated 04.04.2013 (Annexure A-1), after considering the representation of the applicant, rejected the same on the ground that the deceased husband of the applicant was unauthorizedly absent for a long period, and hence, the facts are not justifying the claim of a compassionate allowance. Hence, the present O.A.
3. Shri Yogesh Sharma, the learned counsel for the applicant, submits that the action of the respondents is against the true spirit of Rule 41 of the CCS (Pension) Rules, 1972 and also against the law laid down on the subject.
4. Per contra, Shri Rishab Kaushik, the learned counsel appearing for the respondents, would submit that the O.A. is liable to be dismissed on the ground of unexplained and inordinate delay of seven years. The learned counsel would further submit that in terms of Rule 41 of CCS (Pension) Rules, 1972, 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 compassionate allowance and that poverty is not an essential condition precedent to the grant of a compassionate allowance.
5. It is further submitted that the deceased husband of the applicant has not even completed the mandatory 20 years of service in view of his continuous unauthorised absence. As per the records with the respondents, the applicant is the only legal heir and there is no other record available with respect to the children of the applicant. In view of all these facts, the applicant is not entitled for grant of compassionate allowance.
6. Heard both the sides and gone through the records carefully.
7. It is true that the applicants husband was removed from service on 16.03.2006 and he died on 24.07.2011. The applicant preferred the claim for grant of compassionate allowance, only thereafter. However, it is to be seen that the order of removal of the applicants husband was served on the applicant only along with the letter of the respondents dated 28.04.2012. Further, the claim is for payment of compassionate allowance month after month, which was denied by the respondents by issuing the impugned order dated 04.04.2013 passed in pursuance of a direction of this Tribunal dated 30.01.2013.
8. In view of dicta laid down by the Honble Apex Court in M.R. Gupta Vs. Union of India (1995) 5 SCC 628, the payment of salary, pension or any allowance is a continuous cause of action as the same is required to be paid month after month, and hence, the principle of limitation has no application to the facts of the present case.
9. A careful examination of the impugned order of rejection of compassionate allowance reveals that the respondents, while passing the said order, only kept the long period of unauthorized absence by the applicants husband in mind and forgotten the other principles required to be considered while deciding the application for grant of compassionate allowance under Rule 41(1) of CCS (Pension) Rules, 1972.
10. Rule 41 of CCS (Pension) Rules, 1972 and the relevant Government of Indias instructions issued thereunder, are being extracted below:
41. Compassionate allowance (1) 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 1[compensation pension].
A compassionate allowance sanctioned under the proviso to sub-rule (1) shall not be less than the amount of 2[Rupees three hundred and seventy-five] per mensem.
GOVERNMENT OF INDIAS DECISIONS 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, though 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 compassionate allowance. Poverty is not an essential condition precedent to the grant of a compassionate allowance, but special regard is also occasionally paid to be fact that the officer has a wife and children dependent upon him, except perhaps in the most exceptional circumstances, sufficient for the grant of a compassionate allowance.
[G.I., F.D., Office Memo. No.3(2)-R-II/40, dated the 22nd April, 1940.]
11. In a very recent Judgment of the Honble Apex Court in Mahinder Dutt Sharma Vs. Union of India & Others, [Civil Appeal No.2111 of 2009, decided on 11.04.2014] while considering an order of rejection for grant of compassionate allowance, it was held 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 concerned persons 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 employees 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, 1972? Illustratively, any action which is considered as 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 endeavour 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 misdemeanour 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.
12. A Coordinate Bench of this Tribunal in O.A. No.4175/2010 (Phoolwati Vs. Govt. of NCT of Delhi & Others), decided on 21.03.2011, observed as under :
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:
(i) the actual misconduct for which the applicant was dismissed from service resulting in forfeiture of his pension and gratuity.
(ii) 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.
(iii) 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. (Emphasis added)
13. In view of the categorical declaration of law by the Honble Apex Court in the aforesaid judgment of Mahinder Dutt Sharma Vs. Union of India & Others, we are not proposing to deal with the various judgments of the Honble High Court and this Tribunal, relied on by the learned counsel for the applicant.
14. Admittedly, the applicants husband was removed from service not on the charges of corruption or on committing any dishonest acts, but only on the ground of unauthorized absence. The respondents while rejecting the claim of the applicant failed to consider the said aspect. They are also failed to consider the aspect of poverty of the applicant and the burden of maintaining the big family consisting of two unmarried daughters and two unemployed sons, that too being an unemployed widowed mother.
15. In the circumstances, the impugned order dated 04.04.2013 is quashed and set aside and the matter is remitted back to the respondents for re-consideration of the case of the applicant for grant of compassionate allowance, in terms of the observations made above and to pass an appropriate speaking and reasoned order, in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order. However, in the circumstances, the applicant is entitled for arrears of compassionate allowance w.e.f. 30.01.2013 only, i.e. the date of filing of the earlier O.A. No.355/2013 by the applicant, if the respondents find her case fit for granting the same in pursuance of the orders now passed. No order as to costs.
(V. AJAY KUMAR) Member (J) /Jyoti/