Central Administrative Tribunal - Delhi
Ram Lal Meena vs Comm. Of Police on 8 March, 2019
Central Administrative Tribunal
Principal Bench, New Delhi.
OA No.4043/2017
Reserved on: 27.02.2019
Pronounced on: 08.03.2019
Hon'ble Mr. A.K. Bishnoi, Member (A)
Ram Lal Meena
Aged about 53 years, Group D
Designation Constable
S/o Sh. Moodga Ram Meena
R/o Vill. & P.O. Bamanwas
Patti Khurdh, Boaparivar
District Sawai Madhopur
Rajasthan
-Applicant
(By Advocate: Shri Piyush Sharma)
Versus
1. The Govt. of NCT of Delhi
Through the Commissioner of Police
Police Headquarters
I.P. Estate, New Delhi.
2. The Addl. Commissioner of Police
PCR & Communication
Police Headquarters
I.P. Estate, New Delhi.
3. Dy. Commissioner of Police
Police Control Room, Delhi
Police Headquarters
I.P. Estate, New Delhi.
-Respondents
(By Advocate: Shri Sameer Sharma)
ORDER
The present OA has been filed seeking the following reliefs:-
"a) Set aside and quash the order. The present application is being made against the Order No.24286-88/WF/I/PCR 2 OA No.4043/2017 dt. 16.08.17 and also an unreasoned Order No.40511/WF(P-I)/PCR dated 19.10.16.
b) Direct the respondent to grant compassionate allowance as provided under Rule 41 of the CCS Pension Rules, 1972;
c) Award the cost of the present application;
and/or
d) Pass such other or further order (s) as this Hon'ble
Tribunal may deem fit in the facts and circumstances of the case".
2. The brief facts of the case are as follows:
2.1 The applicant was appointed as Constable in Delhi Police in the year 2002. On 20.03.2003, a departmental enquiry was initiated against him on account of remaining absent on numerous occasions. Thereafter, four absentee notices were issued to him.
However, he did not join the proceedings and enquiry report was submitted ex-parte. He also failed to submit any representation against the enquiry report and was finally dismissed from service on 21.05.2004. Thereafter, the applicant filed an appeal dated 30.06.2004, which was dismissed by the Appellate Authority on 31.08.2004 and the order of dismissal was confirmed.
2.2 The applicant approached this Tribunal through OA No.379/2005, which was dismissed on 21.08.2006. The said order was challenged before the Hon'ble High Court of Delhi, which was also dismissed on 26.03.2008. He also filed a Special Leave Petition before the Hon'ble Supreme Court, which too was dismissed.
3 OA No.4043/20172.3 Thereafter the applicant filed a representation on 05.09.2016 (Annexure A-5) for compassionate allowance in terms of Rule 41 of the CCS (Pension) Rules, 1972, which was rejected on 19.10.2016 (Annexure A-1) through a non-speaking order. In this representation, he submitted that he was fully covered by the guidelines made by the Hon'ble Apex Court in the case of Mahinder Dutt Sharma vs. Union of India and Others (2014) 11 SCC 684 with reference to compassionate allowance as per Rule 41 of CCS (Pension) Rules, 1972.
2.4 The applicant filed another representation dated 28.07.2017 (Annexure A-6) in which he gave reasons on account of financial and personal difficulties which included the death of his wife having no source of income, having an old mother who required medical treatment and having school and college going children. It was also mentioned that in the previous representation he had placed reliance upon the judgment of Mahinder Dutt Sharma (supra) and the same was rejected by an unreasoned order dated 09.10.2016.
This representation was also rejected by the respondents through order dated 16.08.2017 (Annexure A-1 colly).
2.5 In the grounds, the applicant has again submitted that his case is covered by the Hon'ble Apex Court judgment in Mahinder Dutt Sharma (supra). He has also mentioned that he has 4 OA No.4043/2017 submitted representations giving several reasons why his case was a deserving case for grant of compassionate allowance but none of them have been considered while rejecting the same.
3. The respondents, in their counter reply, have defended their action in rejecting the representations made by the applicant and have referred to the decision of Hon'ble High Court of Delhi in Kelo Devi vs. Govt. of NCT of Delhi & Ors. in W.P. (C) No. 3608/2017 decided on 02.05.2017.
4. The applicant has filed a rejoinder, more or less reiterating the contents of the OA and also cited the following cases in support of the arguments:-
"i) Ex.L/Nk Mahabir Prasad vs. Union of India & Ors.
[W.P. (C) No.2356/2010] decided on 26.08.2010;
ii) Ex ASI Shadi Ram vs. Govt. of NCT of Delhi [W.P. (C) No. 5544/2007] decided on 22.02.2008."
5. Heard Shri Piyush Sharma, learned counsel for the applicant and Shri Sameer Sharma, learned counsel for the respondents.
6. Shri Piyush Sharma, learned counsel appearing on behalf of the applicant heavily relied on the judgment of the Hon'ble Supreme Court in Mahinder Dutt Sharma (supra) and argued that the guidelines issued by the Hon'ble Apex Court in this case are very clear on the subject and that the respondents have gravely erred in not following them while rejecting the claim of the applicant. He has 5 OA No.4043/2017 also relied on the orders of this Tribunal in OA No. 3565/2017- Sunil Kumar vs. Govt. of NCT of Delhi & Anr. decided on 09.01.2017 and OA No.1992/2018-Anil Kumar vs. Govt. of NCT of Delhi & Anr. decided on 17.09.2018.
7. Shri Sameer Sharma, learned counsel appearing on behalf of the respondents relied on the judgment of the Hon'ble High Court of Delhi in Jai Bhagwan vs. Govt. of NCT of Delhi & Anr. [W.P. (C) No.13619/2018] decided on 17.12.2018.
8. I have carefully perused the pleadings on record as also the judgments that have been cited by the two sides.
9. Without going into the detailed discussion on each of the judgments that have been cited, it can safely be said that decisions in each of these cases were dependent upon the peculiar facts and circumstances that existed therein. As far as the law is concerned, the Hon'ble Apex Court in Mahinder Dutt Sharma (supra), has comprehensively dealt with the points in question in Paras 13,15,16,17 & 18, which are reproduced as below:-
"13. We are of the considered view, that the adjudication by the Courts below with reference to Rule 41 of the Pension Rules, 1972, is clearly misdirected. The Rule itself contemplates payment of compassionate allowance to an employee who has been dismissed or removed from service. Under the punishment rules, the above punishments are of the severest magnitude. These punishments can be inflicted, only for an act of extreme wrongdoing. It is on account of such wrongdoing, that the employee concerned, has already been subjected to the severest form of punishment. Sometimes even for being incorrigible.6 OA No.4043/2017
Despite that, the rule contemplates sanction of a compassionate allowance of, upto two-thirds of the pension or gratuity (or both), which would have been drawn by the punished employee, if he had retired on compassionate pension. The entire consideration upto the present juncture, by the Courts below, is directly or indirectly aimed at determining, whether the delinquency committed by the appellant, was sufficient and appropriate, for the infliction of the punishment of dismissal from service. This determination is relevant for examining the veracity of the punishment order itself. That, however, is not the scope of the exercise contemplated in the present consideration. Insofar as the determination of the admissibility of the benefits contemplated under Rule 41 of the Pension Rules, 1972 is concerned, the same has to be by accepting, that the delinquency committed by the punished employee was of a magnitude which is sufficient for the imposition of the most severe punishments. As in the present case, unauthorized and willful absence of the appellant for a period of 320 days, has resulted in the passing of the order of dismissal from service.
The punishment inflicted on the appellant, has been found to be legitimate and genuine, as also, commensurate to the delinquency of the appellant. The issue now is the evaluation of claim of the punished employee under Rule 41 of the Pension Rules, 1972.
14. xxx xxx xxx
15. 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.
16. We shall now venture to apply the aforesaid criterion, to the facts and circumstances of the case in hand, and decipher therefrom, whether the appellant before this Court ought to have been granted compassionate allowance under Rule 41 of the Pension Rules, 1972. The appellant was punished by an 7 OA No.4043/2017 order dated 17.5.1996 with dismissal from service. The accusations levelled against the appellant were limited to his unauthorized and willful absence from service from 18.1.1995 to 4.12.1995 (i.e., for a period of 320 days, 18 hours and 30 minutes). The above order of punishment also notices, that not taking stern action against the appellant, would create a bad impression, on the new entrants in the police service. The punishing authority while making a choice of the punishment imposed on the appellant, also recorded, that the appellant's behaviour was incorrigible. Thus viewed, there can be no doubt, that the order of dismissal from service imposed on the appellant was fully justified. For determining the question of compassionate allowance, so as to bring it within the realm of the parameters laid down in Rule 41 of the Pension Rules, 1972, it is first necessary to evaluate, whether the wrongdoing alleged against the appellant, was of a nature expressed in paragraph 13 of the instant judgment. Having given our thoughtful consideration on the above aspect of the matter, we do not find the delinquency for which the appellant was punished, as being one which can be described as an act of moral turpitude, nor can it be concluded that the allegations made against the appellant constituted acts of dishonesty towards his employer. The appellant's behaviour, was not one which can be expressed as an act designed for illegitimate personal gains, from his employer. The appellant, cannot also be stated to have indulged in an activity to harm a third party interest, based on the authority vested in him, nor was the behaviour of the appellant depraved, perverted, wicked or treacherous. Accordingly, even though the delinquency alleged and proved against the appellant was sufficient for imposition of punishment of dismissal from service, it does not fall in any of the classifications/categories depicted in paragraph 13 of the instant judgment. Therefore, the availability of compassionate consideration, even of a lesser degree should ordinarily satisfy the competent authority, about the appellant's deservedness for an affirmative consideration.
17. We shall only endeavour to delineate a few of the considerations which ought to have been considered, in the present case for determining whether or not, the appellant was entitled to compassionate allowance under Rule 41 of the Pension Rules, 1972. In this behalf it may be noticed, that the appellant had rendered about 24 years of service, prior to his dismissal from service, vide order dated 17.5.1996. During the above tenure, he was granted 34 good entries, including 2 commendation rolls awarded by Commissioner of Police, 4 commendation certificates awarded by the Additional Commissioner of Police and 28 commendation cards awarded by the Deputy Commissioner of Police. Even though the charge proved against the appellant pertains to his unauthorized and wilful absence from service, there is nothing on the record to reveal, that his absence from service was aimed at seeking better pastures elsewhere. No such inference is even otherwise possible, keeping in view the length of service rendered by the appellant. There is no denial, that the appellant was involved, 8 OA No.4043/2017 during the period under consideration, in a criminal case, from which he was subsequently acquitted. One of his brothers died, and thereafter, his father and brother's wife also passed away. His own wife was suffering from cancer. All these tribulations led to his own ill-health, decipherable from the fact that he was suffering from hypertension and diabetes. It is these considerations, which ought to have been evaluated by the competent authority, to determine whether the claim of the appellant deserved special consideration, as would entitle him to compassionate allowance under Rule 41 of the Pension Rules, 1972.
18. None of the authorities on the administrative side, not even the Tribunal or the High Court, applied the above parameters to determine the claim 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."
10. While disposing of the representation of the applicant dated 16.08.2017, the respondents have noted as follows:-
"As per decision No.1 of Govt. of India below rule 41 of C.C.S. (Pension) Rules, 1972, poverty is not an essential condition precedent to the grant of a compassionate allowance, but special regard is also occasionally paid to the fact that the officer has a wife and children depended upon him, though this factor by itself is not except perhaps in the most exceptional circumstances, sufficient for the grant of a compassionate allowance.
Keeping in view the overall facts it has emerged that there is no vested right either in ex-employee or his heir to claim compassionate allowance. If the said allowance is granted to a dismissed employee, it would lead to sending a very wrong signal to the serving employees that they may eventually secure compassionate allowance which would be 2/3rd of the pension 9 OA No.4043/2017 despite being incorrigible in their conduct while in service and despite their dismissed/removed from service".
11. The same line of argument has been advanced in the counter reply of the present OA. It is abundantly clear that while taking a decision on the representation of the applicant, the respondents did not consider the submissions made by the applicant nor have taken into account any other factors and arrived at a conclusion based on their preconceived notions. While doing so, they totally failed to comply with the law as laid down by the Hon'ble Apex Court in Mahinder Dutt Sharma (supra).
12. In view of the above, the OA is partly allowed. The orders of the respondents dated 16.08.2017 and dated 19.10.2016 are hereby set aside and the respondents are directed to consider the claim of the applicant afresh for grant of compassionate allowance under Rule-41 of CCS (Pension) Rules, 1972 based on the parameters laid down by the Hon'ble Apex Court in Mahinder Dutt Sharma (supra).
No order as to costs.
(A.K. BISHNOI) MEMBER (A) cc.