Central Administrative Tribunal - Mumbai
Smt Surekha Suryakant Gunjal vs Defence on 18 June, 2024
t OA No. 717/2022 : Central Administrative Tribunal] Mumbai Bench: Mumbai : ainistrags e WAN OA No.717/2022 MA No.773/2022 Order reserved on: 07.03.2024 Order pronounced on: 18.06.2024 Hon'ble Mr. Justice M.G.Sewlikar, Member (J) Smt. Surekha Suryakant Gunjal Age 62 years Occ: Household R/o-.1202, Patil Vasti, Fergusson College Road, Shivajinagar, Pune-411004. .. Applicant (By Advocate: Mr. J.M.Tanpure) Versus 1. Union of India, . Through the Secretary, Ministry of Defence, South Block, New Delhi-110001. 2. The General Manager, Ammunition Factory, Khadki, Pune-411003. ... Respondents (By Advocate: Mr. P.Khosla) 2 OA No. 717/2022 ORDER
By this application the applicant is seeking compassionate allowance in terms of Rule 41 of CCS (Pension) Rules, 1972.
2. Facts leading to this application in nutshell are that husband of the applicant Sh. Suryakant Sahadu Gunjal was appointed as a Messenger Boy w.e.f. 15 May, 1963. On 15% June 1970 Sh. Suryakant .Sahadu Gunjal (Gunjal, for short) was declared as quasi permanent in the grade of Messenger Boy w.e.f. 1st July, 1966. An enquiry was initiated against Gunjal vide order dated 9t» March 1987 as he was guilty of some offence. By order dated 224 September, 1994, a penalty of withholding of increment for a period of one year was imposed upon him.
3. Gunjal (now deceased) had made an application for voluntary retirement stating therein that his younger son aged 15 years died in a road accident and that is why he was forced to stay at home. However, the Disciplinary Authority did not consider his application for voluntary retirement and passed an order of removal from service, It 3 OA No. 717/2022 is contended that deceased Gunjal, because of unfortunate ainistrag ra a fh s MWY and untimely death of his younger son, had gone in depression and he used to wander aimlessly. Deceased Gunjal died on 30" August, 2019 due to accident. Applicant had gone to office of respondent No.2 for venting out her grievances. Applicant had sent a departmental appeal dated 31st December, 2021 to respondent No.3 by RPAD for getting compassionate allowance. It is further contended that the applicant has been living life in penury since 1997 and today also at the age of 62 years she has to work as a maid servant. She had to incur heavy loans for marriage of her two daughters. Because of her old age applicant also has been suffering severe health problems. For want of money the applicant is'unable to get medical treatment for herself. She has, therefore, claimed compassionate allowance from the date of removal of her husband from service.
4. Along with OA the applicant also filed application for condonation of delay. It is contended in the application that because of loss of the son, the deceased Gunjal sustained a mental shock owing to which he used to 4 OA No. 717/2022 wander in wilderness. Medical certificate of Dr.5.G.Paranjape dated 19% August, 1987 shows that applicant was suffering from depression and was advised rest and abstinence from duties from 25th May, 1987 to 28% August, 1987. Gunjal died on 30 August, 2019. The cause of death was head injury. Since the dead body could not be identified, it was registered as death of an unknown person. Subsequently his body was identified to be that of husband of the applicant. Therefore, delay has-been caused in preferring the OA which deserves to be condoned.
5. Respondents filed their reply. They contended that the deceased Gunjal was removed from service by order dated 3 August, 1987. He was alive till 30% August, 2019. Deceased Gunjal did not prefer any appeal nor did he prefer any application for getting compassionate allowance. Penalty of withholding of increment for a period of one year was imposed on 2254 September, 1984, They contended that the service record of the applicant is not good. The records regarding removal of Gunjal from service is not available with the respondents, As per rules 5 OA No. 717/2022 the record regarding enquiry can be preserved for a period of three years. After three years it becomes due for disposal. The record is, therefore, not available. The applicant has preferred this OA after a period of 32 years, and therefore, it is hopelessly barred by limitation. They, therefore, prayed for dismissal of the application.
6. Respondents also filed reply to application for condonation of delay. It is contended in the reply that the .
application is preferred after 34 years from the date of removal of deceased Gunjal. The reason assigned by applicant is not sufficient for condonation of delay. They, therefore, prayed for dismissal of application.
7. I have heard Sh. J.M.Tanpure, learned counsel for applicant and Sh. P.Khosla, learned counsel for respondents.
8. Sh. Tanpure submitted that the applicant is the wife of Late Suryakant Sahadu Gunjal. Deceased Gunjal had remained absent from duty as he had gone in depression because of the unfortunate and untimely death of his son. He submitted that the deceased Gunjal used to roam aimlessly on account of depression caused due to death of 6 OA No, 7417/2022 his son who was 15 years of age. Medical certificate has also been attached indicating that deceased Gunjal was suffering from depression. He submitted that the deceased Gunjal had unblemished service record, except a penalty of stoppage of increment was imposed on him. However, the details regarding the misconduct, for which penalty of withholding of increment was imposed on him, are not available. He submitted that the deceased Gunjal was removed from service because of unauthorised absence. He was not guilty of serious misconduct involving moral turpitude. He had filed an application for getting voluntary retirement on 26% March, 1987 which was received by the respondents on 26 March 1987 itself. Instead of granting voluntary retirement he was removed from service. Deceased Gunjal was not in good mental state to claim compassionate allowance. The applicant has, therefore, | claimed compassionate allowance from the date of removal of the deceased Gunjal from service. Learned counsel for applicant has placed reliance on the case of Ex. CT. Daya Nand vs. Union of India & ors., CWP No.1877 and CMP No.2966 of 1999 decided on 26t8 November, 1999 {Hon'ble High Court of Delhi) and the case of Mumbai Bench of this 7 OA No. 717/2022 Tribunal titled Smt. Sunanda Saba Vikari vs. Union of India passed in OA No.52/2009 with Smt. Kantabai vs. Union of India in OA No.450/2008 decided on 28.02.2012. Learned counsel for applicant has further placed reliance on the decisions of Hon'ble Supreme Court in the case titled S.K.Mastan Bee vs. The General Manager, South Central Railway & Anr., Civil Appeal No. 8089/2002 decided on 4% December, 2002 and State of Karnataka vs. S.M.Kotrayya, 1996 (6) SCC 267.
9. Sh. P.Khosla, learned counsel for respondents submitted that the deceased Gunjal did not have a good service record. Penalty of withholding of one increment was imposed on the deceased Gunjal. He submitted that 'deceased Gunjal himself never claimed compassionate allowance during his life time which goes to show that the deceased employee did not find any need of compassionate allowance. The applicant, who is the wife of deceased Gunjal cannot have any legal right to claim compassionate allowance. Compassionate allowance cannot be claimed as a matter of right. It is the discretion of the competent authority having regard to special consideration to the 8 OA No. 717/2022 concerned employee. In the case at hand, the case of deceased Gunjal deserves no special consideration because a penalty of withholding of increment was imposed on him. In such circumstances, the applicant is not entitled to compassionate allowance. The respondents have placed reliance on the decision of Hon'ble High Court of Punjab and Haryana in 8.C.Sharma vs. Union of India and others, 2019 SCC OnLine P&H 282.
10. I have given thoughtful consideration to the submissions made by the learned counsel for the respective parties.
11. Itis not in dispute that the husband of the applicant had served during the period from 15% May 1963 to the date of his removal from service, i.e. 34 August, 1987. Thus, he had rendered more than 24 years of continuous service. He was removed on account of his absenteeism. The competent authority while removing him did not find it appropriate to grant him compassionate allowance. Compassionate allowance is admissible in terms of Rule 41 of CCS (Pensions) Rules, 1972. It would be apposite to reproduce Rule 41 which reads as follows:
) OA No. 717/2022"(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 [compensation pension}.
(2) A compassionate allowance sanctioned under the proviso to sub-rule (1) shall not be less than the amount _of [Rupees three hundred and seventy-five] per mensem."
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, 1.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 10 OA No. 7147/2022 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 reads 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 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 11 OA No. 717/2022 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.
we ainistr at
(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, 1972? lIllustratively, 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 12 OA No. 717/2022 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."
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 13 OA No. 717/2022 absenteeism has been dealt with by the Hon'ble Supreme Court 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 clair 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 absenteeism 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 OA No. 717/2022 14 and therefore he has sought voluntary retirement. Thus, the cause for absenteeism appears to have been the death It appears that the of younger son of the deceased Gunjal.
deceased Gunjal was unable to come out of this incident.
Cenirgr Ie 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 Therefore, it was a fit case for grant of Sharma (supra).
compassionate allowance, It was vehemently argued by learned counsel for
16. respondents 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 It is show the misconduct for which the deceased Gunjal was imposed punishment of stoppage of one increment.
not known whether this punishment imposed on him was because of any misconduct, moral turpitude or dishonesty In the or any conduct harming the interest of third party.
15 OA No. 717/2022absence 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 Gunyjal 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 28t 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.
18. It was further argued with vehemence that deceased Gunjal did not claim compassionate allowance during his life time. Learned counsel for respondents submitted that deceased Gunjal was alive for a period of 32 years after removal from service. He did not claim compassionate allowance during his life time. Therefore, the applicant is 16 OA No, 717/2022 not entitled to claim compassionate allowance. This argument is stated to be rejected. It is the case of the applicant that deceased Gunjal was battling with depression. Applicant has produced medical certificate to that effect. This medical certificate dated 28th August 1987 shows that the deceased Gunjal was suffering from depression and was advised rest and abstinence from duty from 25% May, 1987 to 28t August, 1987. The cause of depression probably was the untimely death of his younger son. The case of the applicant is that the deceased Gunjal was not in a right frame of mind which is evident from the fact that deceased Gunjal did not collect his retirement dues. The retirement dues, i.e., provident fund and leave encashment were collected by the applicant after the death of the deceased Gunjal. It is also the case of the applicant that deceased Gunjal used to wander in wilderness. The death certificate of deceased Gunjal bears a testimony to- this contention of the applicant. The death certificate is dated 30% August, 2019. A bare perusal of this certificate shows that initially the name of the deceased and his address was not known, and therefore, his death was registered as unknown male and address not known.
17 OA No. 7147/2022Subsequently, after identification of the dead body, his name was mentioned in the death certificate. The cause of death is shown to be head injury. This document clearly shows that the death of the applicant was not known even to the applicant, she being his wife. Even otherwise a person in right state of mind will never forego his rightful dues, ie., provident fund and_ leave encashment. Only a person who is not in the right frame of mind will not collect his retrial dues. Therefore, I find force in the contention of the applicant that the deceased Gunjal did not claim compassionate allowance as he was struggling with depression.
19. It was further argued by the learned counsel for the respondents that there is an inordinate delay of 34 years in claiming compassionate allowance. The circumstances discussed above clearly indicate that for medical reasons deceased Gunjal did not claim compassionate allowance. It was claimed by the applicant only after his death. Therefore, I do not think that there is delay in filing the application for compassionate allowance.
18 OA No. 717/202220. Learned counsel for applicant submitted that once her right is established, then only she can claim compassionate allowance. For this purpose, he placed reliance on the decision of Hon'ble Supreme Court in S.K.Mastan Bee (supra). Relevant part of the judgment reads as under:
"6. We notice that the appellant's husband was working as a Gangman who died while in service. 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 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 19 OA No. 717/2022 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 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,"
21. Ido not find any force in the submissions. This case relates to family pension and the family pension is the right
-of the pensioner's wife. Compassionate allowance cannot be claimed as a matter of right. It is the discretion of the competent authority. In this view of the matter, since compassionate allowance was not claimed by the deceased during his life time though he was entitled to, I deem it appropriate to grant compassionate allowance to the applicant from the date of death of deceased Gunjal. Therefore, decision in S.K.Mastan Bee (supra) has no application to the facts of the case at hand.
22. In this view of the matter, the Original Application is partly allowed. Respondents are directed to pay compassionate allowance to the applicant from the date of death of deceased Gunjal as per rules.
20 OA No. 717/202223. As discussed above, Miscellaneous Application seeking condonation of delay is also allowed.
24. No order as to costs.
(M.G.Sewlikar) Member (J) 'Sry'