Central Administrative Tribunal - Delhi
Smt Bimla Devi vs Delhi Police on 7 April, 2025
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Item No. 100 (C-5) O.A. No. 3687/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.3687/2023
Reserved on: 27.03.2025
Pronounced on:07.04.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Smt Bimla Devi,
W/ 0 Late Sh. Rakesh Kumar,
R/O 25/469, Trilok Puri,
Delhi-110091.
...Applicant
(By Advocate: Mr. Dan Bahadur Yadav)
Versus
1. The·Commissioner Of Police,
Delhi Police Headquarters,
M.S.0. Building, I.P. Estate,
I.T.O., New Delhi.
2. The State (Govt. Of Nct Of Delhi),
New Secretariate, I.G. Stadium,
Premises, Ito, New Delhi,
Through Its. Secretary.
...Respondents
(By Advocate: Mr. Ramjan Khan)
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Item No. 100 (C-5) O.A. No. 3687/2023
ORDER
Hon'ble Mr. Manish Garg, Member (J) :
In the instant OA filed under Section - 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:-
"(i) to set aside order dated 01.07.2020 passed by the respondent and to provide all the benefits i.e. salary till the date of death of Constable Rakesh Kumar and thereafter the pension facilities and service to one of the legal heirs on the compassionate ground with immediate effect.
(ii) to pass cost of litigation in favour of the applicant.
(iii) Any other or further relief which this Hon'ble Tribunal deems fit and proper under the facts and circumstances of the case may kindly be passed in favour of the applicant and against the respondents."
2. Narrating the facts of the present case, learned counsel for the applicant stated as under:
2.1. The applicant, widow of Late Ct. Rakesh Kumar, a deceased employee of Delhi Police, has filed the present O.A. praying for the afore-quoted reliefs. Late Ct. Rakesh Kumar was terminated on 05.08.2004 while he was seriously ill, and he expired on 28.01.2009 without contesting his termination.3
Item No. 100 (C-5) O.A. No. 3687/2023 2.2. Thereafter, the applicant approached the respondents for pension and compassionate employment, but was denied relief. She then filed OA No. 1163/2015 challenging the termination of her deceased husband, which was partly allowed by this Tribunal on 19.12.2019. The Tribunal directed the respondents to consider the applicant's representation. Despite making a representation to the respondents on 10.02.2020, the applicant was denied the relief prayed for. The respondents instead passed an arbitrary order on 01.07.2020, which was against the principles of natural justice. The applicant approached the respondents' office several times after April 2022, but was again denied relief. Hence, this O.A.
3. Supporting the case of the applicant, learned counsel for the applicant contended that the applicant's husband, Late Rakesh Kumar, was illegally terminated from service on 08.08.2004 while he was seriously ill. The punishment was disproportionate to the alleged offense, and the respondents failed to provide a reasoned order. The termination was in violation of the principles of natural justice, and the applicant, as the widow, has the right to 4 Item No. 100 (C-5) O.A. No. 3687/2023 contest it. The applicant is now facing financial distress, being an illiterate housewife with no source of income. The deceased left behind six unemployed legal heirs, and the respondents ignored his 11 years of good service.
4. Relying upon the averments made in the counter affidavit, learned counsel for the respondents stated as under:
4.1. Learned counsel for the respondents submitted that the termination of Late Ct. Rakesh Kumar on 05.08.2004 was justified due to his habitual absence and indiscipline.
He stated that the respondents did not grant compassionate allowance to the applicant as the deceased's case was not covered under the guidelines laid down in Mahinder Dutt Sharma vs. Union of India (2014) 11 SCC
684. In this case, the Hon'ble Supreme Court held that compassionate allowance is not a matter of right, but rather a privilege granted by the employer out of compassion. The Hon'ble Court also laid down guidelines for granting compassionate allowance, including the requirement that the employee's conduct should not have 5 Item No. 100 (C-5) O.A. No. 3687/2023 been such as to disentitle him to the privilege. In the present case, learned counsel argued that the deceased's habitual absence and indiscipline made him ineligible for compassionate allowance. A speaking order was passed on 01.07.2020, after considering all the facts and circumstances of the case, and taking into account the judgment of the Hon'ble Tribunal dated 19.12.2019. 4.2. Furthermore, learned counsel argued that the present OA is barred by limitation as the impugned order is dated 01.07.2020. Overall, learned counsel for the respondents contended that the action of the respondents is legal and justified, and the reliefs sought by the applicant shall not be granted.
5. Heard learned counsel for the respective parties and perused the material available on record.
6. ANALYSIS :
6.1. In Mahinder Dutt Sharma v. Union of India & others, (2014) 11 SCC 684, the Hon'ble Supreme Court has 6 Item No. 100 (C-5) O.A. No. 3687/2023 enumerated the following guidelines for grant of compassionate allowance:
"(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?
ii)Was the act of the delinquent, an act of dishonesty towards his employer?
iii) Was the act of delinquent, an act of designed for personal gains from the employer?
iv) Was the act of delinquent aimed at deliberately harming a third party interest?
v) Was the act of the delinquent, which resulted in the infliction of the punishment, otherwise unacceptable, for the conferment of the benefits flowing out of Rule 41 of the Pension Rules, 1972?
6.2. In Ex.L/Nk Mahabir Prasad vs UoI & Ors. decided on 26.08.2010, the Hon'ble Delhi High Court observed as under :-
"15. At this stage, we may notice the authoritative pronouncement of a Division Bench of this court which is reported at 2008 V AD(Delhi) 3 Shadi Ram (Ex.ASI) vs. Government of NCT of Delhi & Ors. (supra) which authoritatively lays down the applicable principles so far as the manner in which discretion for granting compassionate allowance in terms of rule 41 of the CCS(Pension) Rules and the Guidelines thereunder, has to be exercised. The observations and the findings of the court relevant for the present adjudication may usefully be extracted and read as follows :-
"13. In its judgment, particularly in paragraph 15 thereof, the learned Tribunal has agreed with the 7 Item No. 100 (C-5) O.A. No. 3687/2023 respondents' contention to the effect that the main ground emphasized by the Guidelines against grant of Compassionate Allowance under Rule 41, is dishonesty, and the main reason for the petitioner's dismissal was also dishonesty, therefore, the petitioner's case cannot be said to be one that deserves special consideration. To put it differently, the Tribunal has concluded that the Guidelines peremptorily disentitle officers whose dismissal happens to be occasioned by misconduct involving dishonesty, to Compassionate Allowance. To my mind, this is clearly misconceived. The relevant portion of Rule 41 provides that the Competent Authority may, "if the case is deserving of special consideration, sanction a compassionate allowance..." (emphasis added). Nothing more is specified under the Rule. It is thus evident that the sole criterion is that the, "case", must be, "deserving of special consideration". The word, "case" here has clearly been used to denote, the 'state of affairs', or "the circumstances involved", [refer to the Concise Oxford Dictionary of current English, 8th edition], while the words, "deserving of" are defined as, "showing qualities worthy of...help etc"; and, "consideration," is defined as, "a fact or circumstance to be taken into account" (the Shorter Oxford English Dictionary, 3rd Edition). Therefore, in the context, the phrase, "if the case is deserving of special consideration", can only mean that if the state of affairs or the circumstances involved bring out qualities that are worthy of help or assistance, the applicant should be granted Compassionate Allowance. For arriving at this conclusion, the field is left wide open for the Competent Authority. All that is required for the Competent Authority to entertain the matter, and to apply its mind thereto, is that the applicant must have been dismissed from service and his pension and gratuity forfeited. In particular, there is nothing whatsoever in Rule 41 to suggest that the application of any officer who has been 8 Item No. 100 (C-5) O.A. No. 3687/2023 dismissed for misconduct involving dishonesty, is to be rejected peremptorily.
14. In addition to Rule 41, on 22.4.1940, the Government of India has issued the aforesaid Guidelines which have been reproduced by me in paragraph 9 above. They are titled, "Guiding Principles for the Grant of Compassionate Allowance". They have obviously been issued with a view to ensuring uniformity in application and decision-making under Rule 41. At their very outset, the Guidelines make it clear that while each case has to be considered on its own merits, the question which is to be decided by the Competent Authority in every case is, whether the case has any such extenuating features that would make the punishment awarded unduly hard on the dismissed officer. They also seek to facilitate the task of decision-making entrusted to the Competent Authority under the said Rule by laying down certain principles for their application. Every aspect that is referred to in the Guidelines is aimed at determining the same question, i.e., whether the punishment awarded has been unduly hard on the dismissed officer. This approach is in consonance with the mandate of the Rule 41 that has been analysed by me above, which authorizes the Competent Authority to sanction Compassionate Allowance if the case is deserving of special consideration. It is in this context that the Guidelines have stated the following:
"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."
Immediately after this, and in the same context, that is, to examine and to see whether the punishment awarded has been unduly hard on the dismissed officer, a caution is added by the Guidelines qua those cases where the officer's dismissal was occasioned by a, "course of misconduct". This states as follows: 9
Item No. 100 (C-5) O.A. No. 3687/2023 "Where the course of misconduct carries with it legitimate inference that the officer's service has been dishonest, there can seldom be any good case for a compassionate allowance."
Unfortunately, the Tribunal appears to have taken this caution to mean that if the dismissal was the result of an incident that had an element of dishonesty, the Competent Authority is obliged to refuse the application peremptorily. To my mind, the word, "service", has been used in both the portions of the Guidelines extracted above, to denote, "a state or period of employment to work for an individual or organization", (refer the Concise Oxford Dictionary of current English, 8th edition). At the same time, the phrase, "kind of service", denotes that it is the nature of the service rendered by the officer during his entire tenure that needs to be assessed, and is not confined to the incident that led to his dismissal. It follows therefore that the Guidelines enjoin the authority to look at the officer's entire service record and then decide whether the punishment awarded has been unduly hard on the officer, and this requirement for the officer's service to be looked at from the point of view whether the punishment awarded has been unduly hard on him, cannot be peremptorily dispensed with on the ground that his dismissal was based on an incident of misconduct which had an element of dishonesty.
Unfortunately, both the Competent Authority, as well as the learned Tribunal, appear to have overlooked this aspect.
33. I also agree with the submission of the petitioner's counsel that the punishment of dismissal from service is employed only in the most grievous cases of misconduct by an officer, and the provision contemplating the grant of Compassionate Allowance can be invoked only by someone who have been dismissed from service. It is obvious that conduct that leads to an officer's dismissal is bound to be of a kind that tends to tarnish the image of his employer. After all, that is also one of the reasons for his dismissal. For the Competent Authority to thereafter say that he 10 Item No. 100 (C-5) O.A. No. 3687/2023 doesn't deserve Compassionate Allowance because he lowered his employer's image by the very act, or acts, that led to his dismissal, is to render the provision otiose. Furthermore, in the light of foregoing analysis of Rule 41 as well as the Guidelines, the issue before the Competent Authority is only whether the punishment imposed has been unduly hard on the officer. That is the point of view from which the whole thing is to be examined. That the dismissed officer's conduct has tarnished the image of the Force is irrelevant to the issue at hand. Such an approach on the part of the Competent Authority shows a lack of understanding of the object and purpose of the rule and the circumstances under which it is invoked.
34. I might add that, in my view, there is an element of decision-making involved in disposing of an application for grant of Compassionate Allowance. As the title suggests, it is an application seeking a, "compassionate" allowance. It is a plea whereby the authorities might be moved to show "compassion" for a former employee in straitened circumstances. I need hardly add that justice tempered with mercy always has a lasting effect. Furthermore, even in decisions taken by an Administrative Authority, there must be an element of uniformity and rationality. The power to grant or refuse Compassionate Allowance cannot be exercised on the mere whim of the officer who is designated as the Competent Authority at the relevant time."
6.3. The Competent Authority while examining the representation of the applicant has not taken note of the above guidelines dealt in Mahinder Dutt Sharma's case (Supra).
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Item No. 100 (C-5) O.A. No. 3687/2023 6.4. In WP (C) No.2139/2012 titled Ex. Sub Paras Ram v. The Union of India & Ors. decided on 10.7.2014, the Hon'ble Delhi High Court held as under:
""10. Therefore, what needs to be seen by the competent authority in an application under Rule 41 of CCS (Pension) Rules is whether the case is deserving of a special consideration. The "case" means all the facts of the case as exist on the date when the application is made. The facts cannot be circumscribed to the charges leading to the punishment that may have been meted out. While the petitioner has already been visited with the maximum punishment contemplated under the Rules for the offence for which he was charged, the same cannot be a ground for denial of compassionate allowance. By definition the consideration has to be an allowance on compassionate grounds, which would entail appreciating the entire tenure, nature and merit of the service the petitioner had rendered. The consideration cannot be constrained by, what could be termed as a perfunctory reappraisal/review of the final punishment meted out in the disciplinary proceedings. Compassionate consideration would encompass all circumstances prior to and after the punishment. It is an act of beneficence imbued in grace and unshackled by the cause for or the nature of the punishment. It is, as if that human entity's existential circumstances were being appraised, warts and all....."
6.5. What we are concerned with is whether the present case is deserving of special consideration depending upon the financial condition of the dismissed employee. There is no iota of finding or fact finding report as to economic/financial and social status of the dismissed employee. There is such no assessment in this regard which ought to be paramount consideration while 12 Item No. 100 (C-5) O.A. No. 3687/2023 adjudicating the claim for compensate pension. It is only when the employer finds that the dismissed employee is suffering from grave financial hardships that the employer may despite his/her dismissal sanction compassionate allowance. In absence of such an independent finding the impugned order cannot sustain and the rejection of the representation should not have been done solely on the ground of his absence from duty for which he stood removed from service.
6.6. The applicant has made out a case of hardship inasmuch as the applicant has been agitating her cause. The present case culminates from observations made in para 13 of judgment dated 19.12.2019 in OA No.1163/15, which is an independent right altogether. The relevant para reads as under :-
"13. However, before parting with the judgment, considering that the widow is illiterate and has a family of five children to support and keeping in view the provisions of Rule 41 of CCS (Pension) Rules, 1972 wherein a provision has been kept for grant of compassionate allowance even in case of extreme punishment of dismissal from service in deserving cases, the Tribunal observes that on purely humanitarian consideration, the instant dismissal of OA does not prevent the respondents from considering the case of the applicant for grant of compassionate allowance and/or extending a helping hand to the applicant as a staff 13 Item No. 100 (C-5) O.A. No. 3687/2023 welfare measure as the late husband of the applicant was an employee of the respondents at some point of time.
Rule 41 of CCS (Pension) Rules, 1972 is reproduced 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 compensation pension."
6.7. The justification given by the respondents for denial of allowance is on account of dismissal of late husband of the applicant due to 506 un-authorized leave. A comparative table of Mahinder Dutt Sharma v. Union of India & others (supra) case vis-a-vis facts of the present case has been highlighted in impugned order without assessment of financial/social status of the deceased. The said comparative table reads as under:
Sr. No. Mohinder Dutt Sharma Late Ct. Rakesh Kumar, 3084/PCR 1 He did not submitted He did not submit any any reply & also not written reply & not also appear before senior appear before the competent officer and take ex-parte authority and his case was decision and he was decided as ex-parte. He was dismissed from service dismissed from service on on 17.05.1996 by 05.08.04 by DCP/PCR for DCP/2nd Bn. DAP, Delhi his 506 days un-authorized for unauthorized absence period.14
Item No. 100 (C-5) O.A. No. 3687/2023
absence for a period of
320 days.
2 Plea taken by the Plea taken by the wife of late
applicant that1. His wife Ct. Rakesh Kumar that she
suffering from cancer. is illiterate and has a family
2.He was arrest in of five children.
criminal case. 3. His
Brother dies, thereafter
his father and brother's
wife had also passed
away & He was also
suffering from
hypertension & diabetic
and he failed to filled
the appeal in time.
3 He rendered 24 years He rendered only about 11
pensionable service and years service.
also he was granted 34
good entries entire
service including 02 C.
Roll, 04 C. Certificate &
24 C. Card.
6.8. The purport of Kelo Devi vs. Govt. of NCT, Delhi (W.P. No. 3608/2017), confining to one para of said decision, has been given in impugned order, touching upon the merits of the present case drawing comparison rather than considering the guidelines as highlighted in preceding para(s), which fell for consideration in Mahinder Dutt Sharma's case.15
Item No. 100 (C-5) O.A. No. 3687/2023 7. CONCLUSION :
7.1. In the above background and in the peculiar facts and circumstances of the case, we hold that the applicant may be entitled to award of compassionate allowance in terms of the applicable rules and guidelines based on fact finding report regarding his financial status/social status.
Accordingly, we pass the following order:- 7.2. The impugned order dated 01.07.2020 is unsustainable on facts and law and as such the same is quashed and set aside.
7.3. The respondents shall ascertain the financial and social status of the applicant and thereafter, if the applicant is found suitable, the respondents shall pass an appropriate order in accordance with rule 41 of the CCS (Pension) Rules in the case of the applicant within a period of eight weeks from today. The order so passed shall be communicated to the applicant immediately. 7.4. Further in case the applicant is found suitable for grant of compassionate allowance, the respondents shall 16 Item No. 100 (C-5) O.A. No. 3687/2023 effect payment of all arrears of the compassionate allowance to the applicant and the amount which may be due to her from the date of death of her husband within a period of twelve weeks.
7.5. The O.A. is allowed to the above extent. Pending MAs, if any, shall also stand disposed of. No Costs.
(Dr. Anand S. Khati) (Manish Garg) Member (A) Member (J) /as/