Central Administrative Tribunal - Delhi
Raj Kumar vs Commissioner Of Police on 30 January, 2025
1
Item No.29/ Court-V O.A. No.536/2022
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.536/2022
Order reserved on 14.01.2025
Order pronounced on 30.01.2025
Hon'ble Mr. Manish Garg, Member (J)
Ex. Ct. (Dvr.) Raj Kumar, Age55 years,
Son of Shri Dulichand
Resident of village Samaspur Majra,
Tehsil Jhajjar, District Jhajjar, (Haryana)
......Applicant
(By Advocate: Mr. Somvir Singh Deswal)
Versus
1. Commissioner of Police,
PHQ, I.P. Estate, I.T.O.,
New Delhi - 110002
2. Joint Commissioner of Police Operations,
PHQ, I.P. Estate, I.T.O.,
New Delhi - 110002
3. Dy. Commissioner of Police (GA)
Police Control Room,
PHQ, I.P. Estate, I.T.O.,
New Delhi - 110002.
4. Additional Dy Commissioner of Police,
(GA) Police Control Room, New Delhi.
...Respondents
(By Advocate: Mr. N D Kaushik)
2
Item No.29/ Court-V O.A. No.536/2022
ORDER
By Hon''ble Mr. Manish Garg, Member (J):
In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant seeks the following reliefs:-
"a) Allow this Original Application of the applicant;
b) Award the costs;
c) issue appropriate direction or directions or orders to:
(i) quash the impugned order dated 14.10.2020 passed by respondent No.3 - Commissioner of Police, Police Control Room, Delhi (Annexure A-1);
(ii) direct the respondents to set-aside/re-call the order dated 14.10.2020 and keeping in view of the long unblemished service of 24 years of the applicant, his case may be considered for granting the compassionate allowance under Rule 41 of CCS (Pension) Rules, 1972 and Government of India Guidelines dated 22.4.1940.
(d) grant any other relief as this Hon'ble Tribunal deems fit and proper and in the facts and circumstances of the case and in the interest of justice."
2. Brief facts of the case as narrated by learned counsel for the applicant are as under:-
2.1 The applicant, a reserved category employee from a rural background, had dedicated 24 years of service to the Delhi Police. However, his career was 3 Item No.29/ Court-V O.A. No.536/2022 cut short when he was dismissed from service for unauthorized absence. This dismissal was challenged by the applicant before various legal forums.
2.2 Initially, the applicant filed OA 1407/2015, seeking to quash the appellate order, penalty order, and findings dated 14.8.2014, 16.8.2013, and 24.6.2013, respectively. He also sought reinstatement in service with consequential benefits. The applicant's case was built around the fact that he had submitted medical papers from Safdarjang Hospital, Delhi, to explain his unauthorized absence. However, the department questioned the authenticity of these papers. The matter eventually reached the Hon'ble High Court, which directed the respondents to consider the applicant's claim for compassionate allowance under Rule 41 of CCS Pension Rules. This direction was issued in Writ Petition (Civil) No.5024 of 2019.
However, the respondents failed to comply with the Hon'ble High Court's direction and rejected the applicant's claim for compassionate allowance, 4 Item No.29/ Court-V O.A. No.536/2022 relying on an unrelated judgment. This rejection prompted the applicant to file OA No.1049 of 2020.
Thereafter, this Tribunal allowed OA No.1049 of 2020, setting aside the impugned order and directing the respondents to pass a fresh order within 4 weeks. However, the respondents again erred by applying an unrelated judgment and rejected the applicant's case for compassionate allowance vide impugned order dated 14.10.2020.
2.3 Learned counsel for the applicant further submitted that the Hon'ble Supreme Court's judgment in Mahinder Dutt Sharma vs. Union of India & ors. reported in AIR 2014 SC 2019 has established clear parameters for granting compassionate allowance. The applicant's case falls outside these parameters, making him eligible for compassionate allowance. In light of these developments, the applicant is seeking justice and urging the Tribunal to direct the respondents to grant compassionate allowance under Rule 41 of CCS Pension Rules.
5Item No.29/ Court-V O.A. No.536/2022 2.4 In support of his case, learned counsel for the respondents relied upon the following documents and case laws :-
(i) CCS Pension Rules, 1972;
(ii) Mahinder Dutt Sharma Vs. Union of India & ors. reported in AIR 2014 SC 2019;
(iii) Writ Petition (C) NO.2461/2019 titled DTC vs. Jagdish Chander
(iv) Rajinder Kumar vs. State of Haryana reported in 2016 (15) SCC 693
(v) Pepsu RTC vs. Rawel Singh reported in 2008 (4) SCC 42;
(vi) Ex ASI Shadi Ram vs. Govt. of NCT of Delhi & ors. reported in 2008 SSC OnLine Del1396.
3. Per contra, learned counsel for the respondents opposed the present Original Application as well as the grounds stated by learned counsel for the applicant and relied upon the averments made in the counter affidavit. He argued that the applicant's request for compassionate 6 Item No.29/ Court-V O.A. No.536/2022 allowance under Rule 41 of CCS Pension Rules-
1972 was duly considered and rejected by the Competent Authority vide order dated 07.10.2019.
Thereafter, OA No. 1049/2020 was disposed of by the Tribunal, directing the respondents to pass a fresh order within 4 weeks. Upon re-examination, the respondents found no reason to grant compassionate allowance to the applicant.
Subsequently OA No. 511 of 2021 was dismissed as withdrawn with liberty to file a fresh OA. The applicant has now filed the instant fresh OA No. 536/2022. Learned counsel for the respondents submitted that the applicant's claim for compassionate allowance is not maintainable, as the same has already been rejected by the Competent Authority and the Tribunal has already disposed of OA No. 1049/2020. He further submitted that the applicant has not made out any new grounds or circumstances warranting reconsideration of his claim for compassionate allowance. Therefore, the case may be dismissed, 7 Item No.29/ Court-V O.A. No.536/2022 and the applicant's claim for compassionate allowance be rejected.
3.1 Further, learned counsel for the respondents places on record a list of Good entry and Bad entry record in respect of the applicant, which reads as under:-
Major/Minor Punishment:-
1. Censure Awarded Censure by DCP/PCR vide order No.3301/HAP--III dated 26.02.1999 (For Absent)
2. With Holding of Awarded with his next increment holding of his next (Major) increment for a period of 4 years vide order no.
4251-
55/HAP/NDD
Dt.04.09.2006 (For
Unauthorized
Absence for a
period of 130 days
4 different
occasions)
3 Forfeiture of one Awarded
year approved punishment one
Service Temp. year approved
(Major) service temp. for a
period of 1 Year
vide order
no.25707-
41/HAP/PCR
Dt.28.09.2010 (For
Unauthorized
Absence for a
period of 174 days
different
8
Item No.29/ Court-V O.A. No.536/2022
occasions)
4 Forfeiture of one Awarded
year approved punishment one
Service Temp. year approved
(Major) service temp. for a
period of 1 year
vide order
no.3472-
506/HAP/PCR Dt.
17.07.2011 (For
Absent)
5 With holding of Awarded with
Next increment holding of his next
Temp. (Major) increment for a
period of 1 years
vide order
no.29336-
69/HAP/PCR Dt.
18.11.2012 (On
the allegation that
he Consume
alcohol)
4. Heard learned counsel for both the parties and perused the material available on record.
5. ANALYSIS:
5.1 For the sake of brevity, a comparative chart of the order dated 07.10.2019 and impugned order dated 14.10.2020 is reproduced as below:-
Order dated 07.10.2019 Impugned order dated 14.10.2020 In pursuance the above- The Double bench of Hon'ble mentioned judgement/order High Court of Delhi has dated 06.10.2017 1 passed recently announced a by Hon'ble CAT, New Delhi judgment on dated on O.A. 1212/2016, his 02.05.2017 in W.P. © representation was carefully 3608/2017 Kelo Devi Vs. 9 Item No.29/ Court-V O.A. No.536/2022 re-examined in the light of Govt. NCT, Delhi Ors.
rule 41 of C.C.S (Pension) Extract concluding para of Rules-1972 as already the judgment is re-produced explained above. It is below:-
pertinent to mentioned here that the Double bench of Compassionate allowance" as Hon'ble High Court of Delhi the words themselves has recently announced a suggest is granted by the judgment on dated employer out of compassion. 02.05.2017 in W.P. It is for the respondents to 3608/2017 Kelo Devi Vs. determine as to whether a Govt. NCT, Delhi Ors. Extract particular case is deserving concluding para of the of compassion keeping in judgment is re- produced view the guidelines laid down below:- inter alia in Mahinder Dutt Sharma's case (supra). There "Compassionate allowance" is no vested right either in as the words themselves ex-employée or his heirs to suggest is granted by the claim compassionate employer out of compassion. allowance irrespective of the It is for the respondents to circumstances in which the determine as to whether a ex- employee may have been particular case is deserving of removed from service. If the compassion keeping in view said course of action was to the guidelines laid down inter be adopted, it would lead to alia in Mahinder Dutt sending a very wrong signal Sharma's case (supra). There to the serving employees that is no vested right either in they may eventually secure ex-employee or his heirs to compassionate allowance claim compassionate which could be as high as allowance irrespective of the 2/3rd of the pension despite circumstances in which the being incorrigible in their ex- employee may have been conduct while in service and removed from service. If the despite their being removed said course of action was to from service after enquiry".
be adopted, it would lead to sending a very wrong signal Keeping in view the overall to the serving employees that facts it has emerged that they may eventually secure there is no vested right either compassionate allowance in ex-employee or his heir to which could be as high as claim compassionate 2/3nd of the pension despite allowance. If the said being incorrigible in their allowance is granted to a conduct while in service and dismissed employee it would despite their being removed lead to sending a very wrong from service after enquiry signal to the serving Keeping in view the overall employees that they may facts it has emerged that eventually secure there is no vested right either compassionate allowance in ex-employee or his heir to which would be 2/3rd of the claim compassionate pension despite being incorrigible in their conduct 10 Item No.29/ Court-V O.A. No.536/2022 allowance. If the said while in service and despite allowance is granted to a their dismissed /removed dismissed employee it would from service. lead to sending a very wrong signal to the serving In view of the above, I do not employees that they may find any reason and weight eventually secure to grant compassionate compassionate allowance allowance to Ex. Const. (Dvr.) which would be 2/3rd of the Raj Kumar, No.4851/PCR pension despite being under rule 41 of C.C.S. incorrigible in their conduct (Pension) Rules-1972. while in service and despite Let the applicant be informed their dismissed /removed accordingly. from service.
In view of the above, I do not find any reason and weight to grant compassionate allowance to Ex. Const. (Dvr.) Raj Kumar, No.4851/PCR under rule 41 of C.C.S (Pension) Rules-1972.
Let the applicant be informed accordingly.
5.2 This Tribunal is of the view that the competent authority's decision lacks independent thought and is instead influenced by a previous order. This is evident from a bare perusal of the impugned order dated 14.10.2020, which fails to demonstrate any application of mind by the competent authority. In W.P. (C) No.5024/2019 titled Ex. CT. (DVR.) Raj Kumar vs. Commissioner of Police and ors. dated 20.05.2019, the Hon'ble High Court of Delhi has held as under:-
11Item No.29/ Court-V O.A. No.536/2022 "Having heard learned counsels, we are of the view that the punishment imposed upon the petitioner is not disproportionate to his aforesaid misconduct. At the same time, the impact of the said punishment has been very harsh in as much, as the petitioner has been denied his entire pension and retiral benefits despite having rendered 24 years of service with the respondent.
It is situations like this, which are sought to be addressed by Rule 41 of the CCS Pension Rules, which provides for payment of Compassionate Allowance to a Government servant, who is dismissed or removed from service, and who otherwise would forfeit his pension and gratuity. Even in such cases, the competent authority authorised to dismiss or remove the Government servant from service may, in cases deserving special consideration, sanction Compassionate Allowance not exceeding two-thirds of the pension or gratuity or both, which would have been admissible to the Government servant, if he had retired on compensation pension.
While dismissing the present petition, we direct the respondents to consider the petitioners claim for compassionate allowance under Rule 41 of the CCS Pension Rules in case he makes an application thereof. The same shall be considered in accordance with the rules.
The petition stands disposed of in the aforesaid terms."
5.3 In Mahinder Dutt Sharma v. Union of India & others reported in (2014) 11 SCC 684, the Hon'ble Supreme Court has enumerated following guidelines for grant of compassionate allowance.
The guidelines are extracted herein as under:-
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?12
Item No.29/ Court-V O.A. No.536/2022
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?
5.4 In Ex.L/Nk Mahabir Prasad vs Uoi & Ors.
decided on 26 August, 2010, the Hon'ble 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 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 13 Item No.29/ Court-V O.A. No.536/2022 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 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 14 Item No.29/ Court-V O.A. No.536/2022 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:
"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 15 Item No.29/ Court-V O.A. No.536/2022 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 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."
16Item No.29/ Court-V O.A. No.536/2022 5.5 The Competent Authority while examining the representation has not taken note of above guidelines dealt in Mahinder Dutt Sharma (Supra). 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 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....."
5.6 What we are concerned is, as to whether, the present case deserves special consideration depending upon the financial condition of the 17 Item No.29/ Court-V O.A. No.536/2022 dismissed employee. There is no iota of finding or fact finding report as to economic/financial and social status of dismissed employee. There is no such assessment in this regard which ought to be paramount consideration while adjudicating the claim for compensate pension. The employer may sanction compassionate allowance to an employee despite his/her dismissal depending upon the financial condition of the employee. In absence of such an independent finding the impugned order (Annexure -A1) cannot sustain and the rejection of his representation could not premise solely on his absence from duty, for which he stood removed from service.
6. CONCLUSION:
6.1 In view of the aforesaid and in peculiar facts and circumstances of the case, this tribunal is of the view that the applicant may be entitled to award of compassionate allowance in terms of the applicable rules and guidelines subject to fact finding report regarding his financial status/social 18 Item No.29/ Court-V O.A. No.536/2022 status. Further, the respondents are directed as follows:
(i) The respondents shall pass an appropriate order for granting compassionate allowance under rule 41 of the CCS(Pension) Rules, 1972 to the applicant as per his entitlement and for the period for which compassionate allowance is admissible to him subject to fact finding report regarding his financial status/social status within a period of eight weeks from the today.
(ii) The respondents shall effect payment of all arrears of compassionate allowance to the applicant within a period of four weeks thereafter.
6.2 The OA is allowed in aforesaid terms.
Pending MAs, if any, shall also stand disposed of accordingly. No order as to costs.
(Manish Garg) Member (J) /sm/