Delhi High Court
Phool Wati vs Govt. Of Nct Of Delhi & Ors. on 8 May, 2013
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, V. Kameswar Rao
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: May 08, 2013
+ W.P.(C) 2216/2012
PHOOLWATI ..... Petitioner
Represented by: Mr.U.Srivastava, Advocate
versus
GOVT OF NCT OF DELHI & ORS ..... Respondents
Represented by: Ms.Sangeeta Sondhi, Advocate with
Mr.Sanjeev Narula, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V. KAMESWAR RAO
PRADEEP NANDRAJOG, J. (ORAL)
1. Rule 41 of the CCS (Pension) Rules requires that a Government servant who is dismissed or removed from service shall forfeit his pension and gratuity, but subject to the Proviso; as per which the Competent Authority may if the case is deserving of special consideration sanction a compassionate allowance not exceeding 2/3rd of pension or gratuity or both.
2. Petitioner's attempt to obtain a compassionate allowance from the Tribunal had failed when OA No.2287/2011 filed by her was dismissed by the Tribunal on November 24, 2011. Prior thereto, request made by her to be paid compassionate allowance was rejected by the Competent Authority.
3. The petitioner is relying upon a Government of India instruction issued vide OM No.3(2)-R-II/40 which reads as under:-
"(1) Guiding principles for the grant of Compassionate W.P.(C) 2216/2012 Page 1 of 7 Allowance - It is practically impossible in view of the wide variations that naturally exist in the circumstances attending each case, to lay down categorically precise principles that can uniformly be applied to individual cases. Each case has, therefore, to be considered on its merits and a conclusion has to be reached on the question whether there were any such extenuating features in the case as would make the punishment awarded, though it may have been necessary in the interests of Government, unduly hard on the individual. 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. Where the course of misconduct carries with it the legitimate inference that the officer's service has been dishonest, there can seldom be any good case for a Compassionate Allowance.
Poverty is not an essential condition precedent to the grant of a Compassionate Allowance, but special regards is also occasionally paid to the fact that the officer has a wife and children dependent upon him, though this factor by itself is not, except perhaps in the most exceptional circumstances, sufficient for the grant of a Compassionate Allowance."
4. Reason why petitioner relies as aforesaid is the fact that vide order dated May 20, 2011 rejecting prayer for being granted a compassionate allowance the Competent Authority passed an order as under:-
"Smt.Phoolwati Wife of Late Sh.Chandermani, (Ex.Constable) Village Jassor Kheri, District Jhajjar (Haryana) Subject: Regarding O.A.No.4175/2010 filed by Smt.Phoolwati w/o Late Sh.Chander Mani (Ex.Constable, No.8199/DAP) Vs. GNCT of Delhi & Ors.
Madam, W.P.(C) 2216/2012 Page 2 of 7 This is in continuation to this office letter No.6504/Estt/7th Bn.DAP, dated 3.7.2010, on the subject cited above.
Vide judgment, dated 21.3.2011, I have examined your case afresh as per direction of the Hon'ble CAT regarding relief of retrial benefits of your husband Late Sh.Chandermani and also grant of compassionate allowances under Rule 41 of CCS (Pension) Rules. This office had already paid pending dues as admissible i.e. GPF amount a sum of `1,33,550/- & CGEIS amount a sum of `15066/- vide cheque No.678937, dated 20.8.10 & cheque No.679390, dated 27.8.10 respectively.
Your request for grant of compassionate allowance in terms of Rule 41 of the CCS (Pension) Rules - 1972 read along with guiding principles for the grant of compassionate allowance has been examined. As per the guiding principles poverty is an essential condition precedent to the grant of Compassionate Allowance but this factor by itself is not sufficient for the grant of Compassionate Allowance but this factor by itself is not sufficient for the grant of Compassionate Allowance. In addition to this factor there have to be other extenuating circumstances which are missing in your case. Your husband Late Sh.Chandermani NO.8071/DAP, 8199/DAP (Constable Exe.) was a member of a disciplined force but habitually, wilfully and unauthorizedly absented himself on 52 different occasions during his career. He was awarded eight different punishments during his career and one more Departmental Enquiry was pending against him at the time of removal. There are no extenuating circumstances in the case of your husband that would make the punishment awarded unduly hard.
Keeping in view the reality of circumstances I have come to the conclusion that the case of your husband does not qualify to be covered under Rule 41 of the CCS (Pension) Rules 1972. Your representation is therefore rejected.
This has the approval of Respondent No.2 in the O.A.No.4175/2010 i.e. Commissioner of Police/Delhi."W.P.(C) 2216/2012 Page 3 of 7
5. As per the petitioner the Authority was not justified in considering the financial status of the petitioner and as regards the service record of her late husband, relying upon the guideline issued by the Government of India she repeatedly projected that as per the same unless the misdemeanour had an element of dishonesty, compassionate allowance had to be allowed. She relied upon an instance of one ASI Shadi Ram to whom a compassionate allowance was sanctioned.
6. The relevant facts would be that the husband of the petitioner, till penalty of removal from service was inflicted upon him had rendered service of 29 years, 4 months and 22 days out of which 10 years and 16 days service was non-qualifying because he had remained wilfully and unauthorizedly absent on 52 different occasions. Petitioner's late husband was a constable in Delhi Police and did not challenge order removing him from service dated September 22, 2003. It was only after he died on December 22, 2009 that petitioner made a request that her husband be sanctioned a compassionate allowance and on his death such reduced compassionate allowance as would be payable to her as a widow should be paid. The request was declined as per the order dated May 20, 2011, contents whereof have been noted in para 4 above.
7. The Tribunal has negated challenge by the petitioner to the order dated May 20, 2011. Vide impugned order dated November 24, 2011 OA No.2287/2011 filed by the petitioner has been dismissed.
8. From a perusal of the Proviso to Rule 41 of the CCS (Pension) Rules it is apparent that compassionate allowance can be sanctioned 'if the case is deserving of special consideration'.
9. There may be various facets of 'deserving consideration'. One of which may be the grinding penury in which the dismissed Government W.P.(C) 2216/2012 Page 4 of 7 servant or one removed from service may find himself to be. Dependence of others may be another facet. Sickness of self or of independent may be another facet. Service rendered till when the misdemeanour was committed may also be a facet of a deserving consideration. In other words, no two cases can be similar and none can be cited as a precedent.
10. As regards ASI Shadi Lal we find that he was sanctioned a compassionate allowance because till he was removed from service he had rendered 26 years of prior unblemished service. The only wrong was the one which led to Shadi Lal being removed from service. On the positive side of his career, Shadi Lal was the recipient of commendation certificates in the year 1970, 1979, 1981 and 1982 besides having earned cash awards a number of times. Enlisted as a constable in Delhi Police on December 15, 1962 he earned two promotions and rose to the rank of an Assistant Sub Inspector till when ill luck struck him, as per Shadi Lal, leading to him facing a disciplinary inquiry.
11. As regards husband of the petitioner his service record shows a dismal performance as he could earn no promotion in 29 years; as a matter of fact for 1/3rd duration he did not even report for duties. 10 years and 6 months out of 29 years is to be treated as period not spent on duty. Absconding and remaining unauthorizedly absent was his habit. He did so 52 times. He was punished 8 times during his career and when he was removed from service one more departmental inquiry was pending.
12. The plea based upon the office memorandum noted in paragraph 3 above that as per the same only cases of such misconduct which have an element of dishonesty require compassionate allowance to be denied is based upon a misreading of the office memorandum. The argument is premised on the sentence in the office memorandum: 'where the course of W.P.(C) 2216/2012 Page 5 of 7 misconduct carries with it the legitimate inference that the officer's service has been dishonest, there can seldom be any good case for a Compassionate Allowance.'
13. The sentence is only illustrative and not exhaustive. It only highlights that where moral turpitude is an ingredient of the wrong which led to the services of a Government servant being dispensed with on being dismissed or removed from service, compassionate allowance should not be sanctioned. The intention behind said illustrative guideline is that those who pollute the stream of governance should not be entitled to any compassionate allowance and not that only under said circumstance should compassionate allowance be not sanctioned and in all other cases the same to be sanctioned.
14. That apart, a writ court cannot substitute its opinion with that of the executive. Concern of a writ court is not with the merits of a decision but the decision making process. If the writ court finds that the executive has properly drawn its attention to the law conferring a discretion upon it and has considered all relevant facts necessary for the inquiry and there is no unreasonableness (of the Wednesbury's kind), the hands of approach has to be adopted.
15. It is lastly urged by learned counsel for the petitioner that today we are concerned in the instant writ petition with the right of a widow and not of her late husband is noted and rejected for the reason , independent of her husband, the petitioner has no right. Till a compassionate allowance is sanctioned in the name of her husband, she cannot receive a portion thereof as a widow's compassionate allowance.
16. It may be her bad luck that the petitioner got married to a laggard and a lazy fellow who preferred not to work for 1/3rd of his career W.P.(C) 2216/2012 Page 6 of 7 span, but then we are not to indulge in charity.
17. The writ petition is dismissed but without any orders as to costs.
(PRADEEP NANDRAJOG) JUDGE (V. KAMESWAR RAO) JUDGE MAY 08, 2013 mamta W.P.(C) 2216/2012 Page 7 of 7