Central Administrative Tribunal - Chandigarh
Ajit Singh Son Of Late S. Partap Singh R/O ... vs Union Of India Through Its Secretary on 29 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH CHANDIGARH O.A. No. 339/PB/2011 Date of Decision: 29.09.2011 CORAM: HONBLE MRS. SHYAMA DOGRA, MEMBER (J) HONBLE MRS. PROMILLA ISSAR, MEMBER (A) Ajit Singh son of late S. Partap Singh R/o Village Nag Kalan, Tehsil and District Amritsar. ..Applicant Versus 1. Union of India through its Secretary, Deptt. Of Railway, CGO Complex, Lodhi Road, New Delhi. 2. Chief Works Manager, Northern Railway, Mechanical Workshop, Amritsar. 3. Senior Personnel Officer (SPO), Northern Railway, Mechanical Workshop, Amritsar. 4. Assistant Personnel Officer, Northern Railway, Mechanical Workshop, Amritsar. .Respondents Present: Mr. J.S. Thind, counsel for applicant Mr. Yogesh Putney, counsel for respondents. ORDER (ORAL)
(By Honble Mrs. Shyama Dogra, Member (J) This Original Application has been directed against the order passed by the respondents on 7.8.2009 (Annexure A/6), whereby the request of the applicant for grant of compassionate allowance has been rejected by the respondents. The applicant has prayed for quashing of this order and for granting him an opportunity to supply his service record and record of disciplinary proceedings initiated against him, to the respondents for review of his case for grant of compassionate allowance as per instructions issued by the respondents on 4.11.2008.
2. The brief facts as mentioned in the O.A. are that the applicant was appointed as Khalasi in the Northern Railway Workshop on 15.2.1958 and was removed from service on 10.12.1968. The applicant submits that since the charges for which he was removed from service were not of a serious nature involving no moral turpitude or misconduct or dishonesty his case is required to be reviewed for grant of compassionate allowance in view of the Railway Board instructions issued in March 2009 vide PS NO. 13522/08 which were issued in terms of the proviso to Rule 65(1) of Railway Services (Pension) Rules, 1993. The relevant provisions thereof are quoted herein below:-
In terms of proviso to Rule 65 (1) of Railway Services (Pension) Rules, 1993 the authority competently to dismiss or remove a Railway servant from service may, if the case is deserving of special consideration, sanction a Compassionate Allowance not exceeding two thirds of pension of gratuity or both which would have been admissible to him if he had retired on compensation pension. This is the discretionary power vested in the authority competent to dismiss or remove a Railway servant to be exercised by that authority suo-motu, at the time of passing orders of dismissal or removal from service or immediately thereafter.
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2. The matter has, therefore, been considered by the Board in consultation with Department of Pension and Pensioners Welfare and it has been decided to reiterate that in cases where a decision has already been taken by the disciplinary authority not to grant compassionate allowance, such a decision is final, which should not be reviewed at any later stage. However, in partial modification of Boards letter dated 9.5.08, it has been decided by the Board that out of the past cases in which the disciplinary authority had not passed any specific orders for or against grant of compassionate allowance, if any case appear to be deserving for consideration being given, may be reviewed by the disciplinary authority concerned on receipt of representations of dismissed/removed employees or the family members of the deceased employees keeping in view the following conditions:-
i) Only those past cases can be reviewed where records pertaining to D & A proceedings and Service Records are available. D & A proceedings are essential to take a fair decision only considering the gravity of the offence and other aspects involved therein and to confirm that the question of sanction or otherwise of compassionate allowance was not considered by the competent authority at any stage. Service records are essential to adjudge the kind of service rendered by the dismissed/removed employee and to determine the net qualifying service for working out the quantum of compassionate allowance, if sanctioned.
ii) Each case will have to be considered on its merits and conclusion reached on the question whether there were any extenuating factors associated with the case that would make the punishment of dismissal/removal, which though imposed in the interest of the Railways, appear unduly hard on the individual.
iii) Not only the grounds on which the Railway servant was removed/dismissed, but also the kind of service rendered should be taken into account.
iv) Award of compassionate allowance should not be considered if the Railway servant had been dishonest, which was a ground for his removal/dismissal.
v) Though poverty is not an essential condition precedent to the award of compassionate allowance, due consideration can be made of the individuals spouse and children dependent upon him.
3. The Applicant has further submitted that the delay in filing the present O.A. is because of his being more than 70 years old and because he is suffering from various ailments. He claims that the life of service record of Railway employees is 15 years after retirement as per instructions circulated under PS No. 1666 and the life of disciplinary proceedings is 10 years; or three years after the final disposal of appeal or final judgment under the normal course of law, whichever is later, as per instructions circulated vide PS No. 9886. In the relief clause, he has also submitted that his case may be considered by the respondents while giving him an opportunity to give his service record and the record of disciplinary proceedings available with him to the respondents so that his case is considered under the aforesaid instructions.
4. The respondents contested this application on the ground of limitation and on merits also. They submit that since the record relating to the year 1968, when the applicant was removed from service, has been weeded out and is not available, therefore the applicant cannot claim his case to be covered under the aforesaid instructions. The applicant has failed to avail of the statutory remedy at the relevant time when the cause of action, if any, arose in his favour in 1968. The respondents have also referred to the proviso to Rule 65 (1) of the Railway Services (Pension) Rules, 1993 and paragraphs 309 and 310nof the Manual of Railway Pension Rules, 1950, whereby it has been specifically mentioned that the 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 two-thirds of his pension or gratuity or both, which would have been admissible to him if he had retired on compensation pension. Thus respondents submit that there is a delay of 43 years in the filing of this O.A. and that too without any application for condonation of delay and therefore this O.A. deserves to be dismissed.
5. So far as applicability of circulars/instructions quoted herein above are concerned, it is submitted by the respondents that applicants case is not covered under these instructions as the past cases can be reopened for review in special circumstances which are missing in the present case, as the service record which is essential to adjudge the service rendered by the dismissed/removed employee stands destroyed and therefore no relief can be granted to the applicant. They have supported their submissions with case law cited in JT 1993 (3) SC 418 titled R.C. Sammanta and Ors. Vs. Union of India & Ors. and SLJ 1990 (1) SC 1998 titled S.S. Rathore Vs. State of Madhya Pradesh.
6. The applicant has not filed any rejoinder.
7. We have heard the learned counsels for the parties and carefully gone through the record.
8. The applicant in the present case claims that the competent authority who is vested with discretionary powers to grant compassionate allowance should exercise these powers while reviewing his past case in terms of the instructions referred herein above (P-4). Undoubtedly to open deserving cases, the powers lie with the competent authority but certain conditions are also required to be satisfied to review the past cases . The first condition is the availability of D & A proceedings and service record of the persons concerned. The record of D & A proceedings are essential to take a fair decision and to duly consider the gravity of the offence and other aspects involved therein. Each case has to be considered on its merits and the conclusion reached on the question where there were any extenuating factors associated with the case that make the punishment of dismissal/removal, which though imposed in the interest of the Railways, appear unduly hard on the individual. Award of compassionate allowance should not be considered if the Railway servant had been dishonest, which was a ground for his removal/dismissal.
9. After careful consideration of the matter and perusal of instructions quoted herein above, we are of the view that since in order to invoke the instructions for review of the past cases on the point involved in the present case, the relevant service record of the employee along with D&A proceedings initiated against the delinquent employee is not available, therefore, no relief can be granted to the applicant at this stage, whose record is not available with the respondents which relates back to 1968 and the same stands destroyed as per instructions cited for destruction of records. The claim of the applicant is otherwise also hopelessly time-barred. So far as the plea of the applicant that he may be allowed to produce some relevant record that he can show to the concerned authorities, such instructions cannot be issued, keeping in view that fact that the respondents have no record to tally the same with the documents, if any, to be produced by the applicant and to verify the authenticity of these documents and that too at such a belated stage.
10. Therefore, in view of the observations made herein above, we find no reason to interfere with the impugned order Annexure P-6 dated 07.8.2009 and the same is held to be valid in view of the instructions Annexure P-4.
11. Hence this O.A. is found to be devoid of merits and is hereby dismissed and disposed of accordingly with no orders as to costs.
(PROMILLA ISSAR) (SHYAMA DOGRA)
MEMBER (A) MEMBER (J)
PLACE: CHANDIGARH
DATED: 29.09.2011
SK:
(OA No. 339/PB/2011) 1