Central Administrative Tribunal - Delhi
Sunil Kumar vs Govt. Of Nctd on 9 January, 2018
1 O A 3565/17
CENTRAL ADMINISTRTIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.3565 OF 2017
New Delhi, this the 9th day of January, 2018
CORAM:
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
.............
Sunil Kumar,
S/o late Sh.Ved Prakash,
Aged 50 years,
Ex.Ct.of Delhi Police,
R/o Plot No.11, Vipin Garden Ext.,
North Block, Uttam Nagar,
New Delhi 110059
(Presently serving life imprisonment in
Central Jail, Tihar, New Delhi 110064)....... Applicant
(By Advocate:Shri B.S.Jarial)
Vs.
1. Govt. of NCT of Delhi through
Commissioner of Police,
PHQ, I.P.Estate,
New Delhi 110001
2. D.C.P. (Crime & Railway) PHQ,
I.P.Estate,
New Delhi 110001 ......... Respondents
(By Advocate: Ms.Harvinder Oberoi)
.........
ORDER
The applicant has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:
"i. Direct the respondents to consider his request for compassionate allowance benefits and allow 2/3rd of his compensation pension and 2/3rd of gratuity that may have been due to him at the time of conviction/dismissal, as per provisions of Rule 41 of Rules of 1972.
ii. Direct the respondents to grant compassionate allowance with all consequential benefits along with interest @ 18% per annum.
iii. Cost of the application be provided for; and Page 1 of 10 2 O A 3565/17 iv. To pass any such order/orders as may be deemed fit and proper by the Hon'ble Tribunal in the facts and circumstances of the case."
2. Brief facts of the case, which are not in dispute, are that the applicant was appointed as a Constable in Delhi Police on 1.10.1987. The applicant had unblemished record during about 23 years of service in Delhi Police. He had got 28 DCP commendation certificates, 2 Addl. CP commendation certificates, and 7 commendation certificates from Delhi Prison Authorities.
2.1 On the orders of the Hon'ble L.G., Delhi, case FIR No.453/97 dated 1.4.1997 under Section 302 read with Section 34 IPC was registered at Police Station Connaught Place, New Delhi, on the written complaint of Shri Dinesh Chand Gupta, r/o Y-45, Hauz Khas, New Delhi, against police officials of Delhi Police in the matter of death of Shri Pradeep Goel and Shri Jagjit Singh in a shoot-out on 31.3.1997 in the area of Police Station Connaught Place, and the investigation was immediately transferred to CBI, New Delhi, in pursuance of the orders of the Government of India, vide Ministry of Home Affairs' letter No.14036/46/97-UTP dated 1.4.1997. The C.B.I. took up the investigation by registering a fresh case vide RC No.10(S)/97-SIU.V/SIC-II (Connaught Place Shootout case). After investigation, the CBI filed charge-sheet against accused police officers/officials (1) ACP Satyavir Singh Rathi, (2) Inspector Anil Kumar No.D/2291, (3) SI Ashok Rana No.D/2836, (4) HC Shiv Kumar No.42/Crime, (5) HC Tejpal No.14/DRP, (6) HC Mahavir Singh Page 2 of 10 3 O A 3565/17 No.25/DRP, (7) Ct.Sunil Kumar NO.292/Crime (applicant herein), (8) Ct.Subhash Chand No.124/Crime, (9) Ct.Sumer Singh No.90/DRP, 189/DRP, and (10) Ct.Kothari Ram No.1681/DAP, 625/Crime under Sections 302 and 307 read with Section 34 IPC. The applicant and others were placed under suspension, vide order NO.204/279/Personal Section/Addl.CP/Crime, dated 31.3.1997. The learned Additional Sessions Judge, Patiala House Courts, New Delhi, held all the above said accused police officers guilty vide judgment dated 16.10.2007 and convicted them vide order dated 24.10.2007 to undergo the following sentences:
(1) Life imprisonment and fine Rs.100/- each under Section 302 IPC read with Section 120-B IPC to all;
(2) Life imprisonment and fine Rs.100/- each under Section 307 IPC read with Section 120-B to all;
(3) Rigorous Imprisonment for seven years and fine Rs.100/-
each under Section 103 IPC read with Section 120-B to all;
(4) Life imprisonment and fine Rs.100/- each under Section 120-B IPC to all;
(5) Rigorous imprisonment for seven years and fine Rs.100/-
each under Section 193 IPC to ACP Satyavir Singh Rathi and Inspr.Anil Kumar;
Page 3 of 10 4 O A 3565/17 (6) Rigorous imprisonment for seven years and fine Rs.100/-
each under Section 201 IPC to ACP Satyavir Singh Rathi and Inspector Anil Kumar;
(7) Rigorous imprisonment for two years under Section 203 IPC to ACP Satyavir Singh and Inspector Anil Kumar.
The Criminal Appeals filed by the applicant and others challenging the judgment and order of conviction passed by the learned trial court were partly allowed by the Hon'ble High Court, vide judgment dated 18.9.2009, to the extent that the impugned conviction and sentence of all the appellants under Sections 120-B and under Sections 193 and 120-IPC were set aside and they were acquitted of the said charges. The conviction and sentence of the appellants under Sections 302 and 307 IPC were maintained, but the same were converted into one under Section 302 IPC read with Section 34 IPC and under Section 307 IPC read with Section 34 IPC. The conviction and sentence of appellants ACP Satyavir Singh Rathi and Inspector Anil Kumar under Sections 193 and 201 read with Section 34 IPC and under Section 203 read with Section 34 IPC were maintained, and the Criminal Appeals on their behalf respect of these charges are dismissed. 2.2 After passing of the above judgment dated 18.9.2009 by the Hon'ble High Court, the applicant and others including ACP Satyavir Singh Rathi were dismissed from service with effect from the date(s) of orders passed by the competent authority in the years 2010 and 2011. Page 4 of 10 5 O A 3565/17 2.3 While serving the sentence in Tihar Central Jail, the applicant made a representation dated 31.7.2012 requesting the respondent- departmental authorities to consider and grant him compassionate allowance under Rule 41 of the Central Civil Services (Pension) Rules, 1972. The applicant's representation was considered but could not be acceded to by the respondent-departmental authorities, vide letter dated 16.8.2012. 2.4 While so, the convict-ACP Satyavir Singh Rathi made a representation requesting the competent authority to grant him compassionate allowance under Rule 41 of the CCS (Pension) Rules, 1972. There being no response, he filed a writ petition before the Hon'ble High Court of Delhi. The said writ petition was transferred by the Hon'ble High Court to the Tribunal and was accordingly registered as TA No.7 of 2015 on the file of this Bench of the Tribunal. The Tribunal, vide order dated 24.4.2015, disposed of TA No.7 of 2015 and directed the respondent- departmental authorities to consider and decide the representation made by the convict-ACP Satyavir Singh Rathi within the stipulated period. After considering the representation of ACP Satyavir Singh Rathi, the respondents, vide order dated 7.4.21016 (Annexure A/5), sanctioned 50% of compensation pension and 50% of gratuity in favour of the convict-ACP Satyavir Singh Rathi with effect from 27.7.2011, i.e., the date following the date of his dismissal from service.
2.5 The applicant once again submitted a representation dated 27.6.2016 requesting the respondent-departmental authorities to grant him Page 5 of 10 6 O A 3565/17 compassionate allowance. It was pleaded by the applicant that the convict- ACP Satyavir Singh Rathi was leading the entire operation leading to initiation of criminal case which ended in conviction and sentence of all the 10 police officials. When ACP Satyavir Singh Rathi was granted compassionate allowance in terms of the proviso to Rule 41 of the CCS (Pension) Rules, 1972, he was entitled for such compassionate allowance. 2.6 There being no response, the applicant filed the present O.A. on 6.10.2017 seeking the reliefs as aforesaid.
3. In the above context, it has been submitted by Shri B.S.Jarial, learned counsel appearing for the applicant, that the applicant's earlier representation seeking compassionate allowance was rejected by the respondent-departmental authorities by a non-speaking order without taking into consideration the unblemished service record of the applicant and the commendations received by the applicant during 23 years of service. It has also been submitted by Shri B.S.Jarial that when the convict-ACP Satyavir Singh Rathi was granted compassionate allowance in April 2016, the respondent-departmental authorities ought to have considered the applicant's representation dated 28.6.2016 and granted him compassionate allowance in terms of the proviso to Rule 41(1) of the CCS (Pension) Rules, 1972. Therefore, the respondent-departmental authorities have acted arbitrarily and unreasonably in not considering the applicant's representation dated 28.6.2016 and in not granting compassionate allowance to the applicant. Page 6 of 10 7 O A 3565/17
4. Per contra, it has been submitted by Ms.Harvinder Oberoi, learned counsel appearing for the respondents, that the applicant's request for granting him compassionate allowance was rejected by the respondents, vide order dated 16.8.2012, whereas the applicant approached the Tribunal by filing the present O.A. on 4.10.2017. Therefore, there is a delay of more than five years in the filing of the O.A, and the O.A. is barred by limitation. As the convict-ACP Satyavir Singh Rathi was continuously agitating the issue of grant of compassionate allowance and the respondent-departmental authorities took the decision only in April 2016 to grant him compassionate allowance, the applicant cannot be said to be similarly placed as the convict- ACP Satyavir Singh Rathi.
5. After having given my thoughtful consideration to the rival contentions and the admitted factual position narrated in paragraph 2 of this order, I have found no substance in the contentions of Ms. Harvinder Oberoi, learned counsel appearing for the respondents.
6. Rule 41 of the CCS (Pension) Rules, 1972 stipulates that a Government servant who is dismissed or removed from service shall forfeit his pension and gratuity. The Proviso to Rule 41(1),ibid, stipulates that the authority competent to dismiss or remove the Government servant 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/she had retired on compensation pension. It is, thus, clear that the compassionate allowance to a Government Page 7 of 10 8 O A 3565/17 servant who is dismissed or removed from service partakes the nature and character a pensionary benefit payable to a Government servant. The competent authority has the discretion to grant compassionate allowance to a Government servant who is dismissed or removed from service from the date following the date of dismissal or removal of the Government from service and such compassionate allowance is payable to him/her every month. The non-consideration of the request made by such Government servant for compassionate allowance or non-grant of compassionate allowance gives rise to recurring cause of action inasmuch as he/she is denied compassionate allowance every month and such denial continues till the date of initiation of any proceedings before judicial forum. Therefore, I am of the considered view that in the present case, the cause of action is a recurring one and/or continuing one, and the O.A. cannot be held to be hit by the doctrine of delay and laches. This view is fortified by the decisions of the Hon'ble Supreme Court in M.R.Gupta v. Union of India and others, (1995) 5 SCC 628, and in Union of India and others v. Tarsem Singh, (2008) 8 SCC
648. In M.R.Gupta v. Union of India and others (supra), it has been held by the Hon'ble Supreme Court that where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. In Union of India and others v. Tarsem Singh (supra), it has been observed by the Hon'ble Supreme Court that the principles underlying continuing Page 8 of 10 9 O A 3565/17 wrongs and recurring/successive wrongs have been applied to service law disputes. A "continuing wrong" refers to a single wrongful act which causes a continuing injury. "Recurring/successive wrongs" are those which occur periodically; each wrong giving rise to a distinct and separate cause of action. A belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to be said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. Having considered the facts and circumstances of the case in the light of the above decisions, this Tribunal overrules the plea of limitation raised by the respondents.
7. Admittedly, as per the judgment passed by the Hon'ble High Court of Delhi in the Criminal Appeals, the conviction and sentence of the applicant and all other accused officials including ACP Satyavir Singh Rathi under Sections 302 and 307 IPC were converted into one under Section 302 IPC read with Section 34 IPC and under Section 307 IPC read with Section 34 IPC. The conviction and sentence of appellants ACP Satyavir Singh Rathi and Inspector Anil Kumar under Sections 193 and 201 read with Section 34 IPC and under Section 203 read with Section 34 IPC were Page 9 of 10 10 OA 3565/17 maintained, and the Criminal Appeals on their behalf respect of these charges were dismissed. Thus, it is clear that the convict-ACP Satyavir Singh Rathi had committed more offences than the ones committed by the applicant. It is also the admitted position between the parties that the applicant had unblemished record during about 23 years of service in Delhi Police and had got 28 DCP commendation certificates, 2 Addl. CP commendation certificates, and 7 commendation certificates from Delhi Prison Authorities till the date of his dismissal from service. In the above view of the matter, I have found considerable force in the contentions of the applicant that when the convict-ACP Satyavir Singh Rathi was granted compassionate allowance, the respondent-departmental authorities ought to have considered the applicant's request and granted him compassionate allowance under Rule 41 of the CCS (Pension) Rules, 1972, and that the non-consideration/non-grant of compassionate allowance to him in the light of the decision taken by the respondents in the case of the convict-ACP Satyavir Singh Rathi is arbitrary and unreasonable.
8. In the light of what has been discussed above, I direct the respondents to consider and grant compassionate allowance to the applicant under Rule 41 of the CCS (Pension) Rules, 1972 within a period of three months from today.
9. Resultantly, the O.A. is partly allowed to the extent indicated above. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER Page 10 of 10 11 OA 3565/17 AN Page 11 of 10