Central Administrative Tribunal - Delhi
Raj Kumari vs Govt. Of Nctd on 28 August, 2018
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1884/2017
Reserved on : 20.08.2018.
Pronounced on :28.08.2018.
Hon'ble Ms. Praveen Mahajan, Member (A)
1. Smt. Rajkumari W/o Late Sh. Rajkumar Singh
2. Ms. Priya D/o Late Sh. Rajkumar Singh
Both are R/o Shivpuri, Gali No.2,
Niwari Road, Modi Nagar,
Ghaziabad (UP). ..... Applicants
(through Sh. U. Srivastava, Advocate)
Versus
1. Govt. of NCT Delhi through the Chief Secretary,
Govt. of N.C.T. of Delhi, Secretariat,
New Delhi.
2. The Commissioner of Police, Police Head Quarters,
I.P. Estate (I.T.O.), New Delhi.
3. The Dy. Commissioner of Police,
III Bn, DAP Delhi. ..... Respondents
(through Sh. Vijay Pandita, Advocate)
ORDER
The applicant in the O.A. has impugned the order dated 22.03.2017 of the respondents by which her request for grant of compassionate allowance under Rule-41of CCS (Pension) Rules, 1972 has been rejected.
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2. Briefly stated, the facts of the case are that the husband of the applicant was working with Delhi Police as Constable on 01.11.1990. It is averred that on account of his unblemished service, he had earned number of commendation certificates etc., which are available at Annexure A/2. The applicant states that her husband while posted in traffic department, Civil Line Circle was transferred to Vikas Puri and got afflicted with severe psychiatric ailment since the year 2002. Information regarding his ailment was given to the respondents time and again along with supporting documents (medical certificates etc.) of his continuous treatment from 2002 to 10.01.2008 and December, 2011 (Annexure A/3 colly.)
3. Without taking cognizance of the same, the respondents initiated disciplinary proceedings against him and awarded penalty of dismissal from service vide their order dated 18.01.2008 on the ground that he remained absent from duty. He was termed as a habitual absentee and an ex-parte order was issued.
4. After prolonged treatment, the husband of the applicant expired on 26.05.2012 leaving behind a large family consisting of the widow (applicant in OA), his mother, two daughters and two sons. The applicant further avers that due to extreme financial stress, she requested that her case for releasing the retiral dues of the husband may be considered. Since her husband had about 18 years of 3 OA-1884/2017 satisfactory service with the department, hence her case for grant of compassionate allowance in terms of Rule-41 of the CCS (Pension) Rules, 1972 may be considered favorably by the respondents.
5. In their counter, the respondents state that the application is barred by Sections 19, 20 and 21 of the Administrative Tribunals Act, 1985 and is liable to be dismissed as such. It is contended that the husband of the applicant was required to report for duty on 01.01.2007 but he did not turn up nor did he give any information regarding non-attendance. Accordingly, three absentee notices were sent on 10.01.2007, 23.02.2007 and 21.03.2007. While two notices were deemed to have been served upon him, one notice came back with the remarks that he was not available.
6. Finally, a letter dated 26.04.2017 was sent through Special Messenger, namely, Const. Farooq Ahmed No. 7692/DAP, to find out the factual position. The said Constable met Constable Raj Kumar Singh, who told him that due to his ailment he could not report for duty and will be joining the duties after 2-3 days. He also showed his medical papers to this effect.
7. However, Sh. Raj Kumar Singh neither resumed duty nor appeared before Chief Medical Officer, Ghaziabad for a second medical opinion. The respondents state that the late Constable Raj Kumar Singh was a habitual absentee as is borne out from his leave 4 OA-1884/2017 record. A departmental enquiry against him was ordered by the then DCP vide order dated 07.06.2007. Though he was given the time and opportunity to submit a list of defence witnesses but he did not join the departmental enquiry and also failed to submit any defence witnesses. The prosecution examined 04 witnesses in support of the charges levelled against him. A copy of the enquiry report was served upon Sh. Raj Kumar Singh on 14.01.2007. Since no response was forthcoming, he was granted a last opportunity to appear before the DCP on 15.01.2008 at 4.00 P.M. He was finally dismissed from service w.e.f. 18.01.2008 with liberty to file an appeal to the Joint Commissioner of Police. However, no appeal was filed by him before the Appellate Authority against his dismissal.
8. The respondents aver that the request of the applicant's wife for grant of compassionate allowance under Rule-41 of the CCS (Pension) Rules, 1972 was examined by the respondents as per Tribunal's order dated 16.01.2017 passed in OA-180/2017. The same has been rejected after due consideration on 22.03.2017.
9. During the course of hearing, the learned counsel for the respondents Sh. Vijay Pandita drew attention of the Bench to Rule- 41(1) of CCS (Pension) Rules, 1972, which reads as under:-
"A Government servant who is dismissed or removed from service shall forfeit his pension and gratuity:-
5 OA-1884/2017 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 pension or gratuity of both, which would have been admissible to him if had retired on compensation pension."
9.1 He submitted that each case has to be considered on its merits and a conclusion has to be drawn whether any extraneous circumstances exist, which would make the punishment awarded unduly hard on the individual. Quoting from the judgment of Hon'ble Supreme Court in the case of Mahinder Dutt Sharma Vs. UOI & Ors., (2014) 11 SCC 684 he stated that the case of the applicant for grant of compassionate allowance is not covered under the criterion mentioned in the aforesaid judgment as well as Rule-41 of CCS (Pension) Rules, 1972. He also emphasized that as per rule position, a Government servant, who is dismissed or removed from service shall forfeit his pension and gratuity and due to the removal/dismissal, employees are not entitled to retiral benefits.
10. Per contra, the learned counsel for the applicant Sh. U. Srivastava vehemently argued that the service record of the applicant's husband from inception till the time when he actually fell ill in 2002 has been more than satisfactory. He drew my attention to the commendation certificates received by him from time to time. He also referred to the medical treatment being undertaken by applicant's husband from 2003 onwards, medical certificates in support of which are available at Annexure A/3 Colly.
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11. He argued that when the alleged notices were sent to him in 2007, applicant's husband was undergoing severe mental depression and was not in a position to respond to the absentee notices. The order of the Disciplinary Authority itself makes a mention that one Constable Farooq Ahmed had met Constable Raj Kumar Singh, who had informed him about his illness and who had shown him the documents in this regard. This, he stated supports the stance of the applicant's wife that her husband was absent from duty on account of his illness and not due to any other reason.
12. Sh. U Srivastava stated that even in those cases where an employee is dismissed for dishonesty, Rule-41 can be invoked. He also relied upon the judgments of Hon'ble Supreme Court in the case of Mahinder Dutt Sharma (supra) and Hon'ble High Court of Delhi in the case of Ex. ASI Shadi Ram Vs. Govt. of NCT Delhi & Ors. [WP(C)-5544/2007] dated 22.02.2008. He emphasized that absence of the applicant's husband was only on account of his continued illness and depression. This fact, along with his earlier satisfactory service rendered by him prior to his illness, has not been considered by the respondents before rejecting claim of the applicant for compassionate allowance.
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13. I have gone through the facts of the case and the rival contentions raised by both sides. The service record of the applicant at Annexure A/2 shows that the applicant's husband had indeed received commendation certificates from the respondents in recognition for his exhibiting high sense of responsibility, on different occasions. The Commendation Rolls (available at pages-19 to 22) show that he was a disciplined officer and there was no other allegation against him till he started absenting himself without leave from 2002 onwards. The fact that he was actually ill and undergoing psychiatric treatment is supported by medical certificates produced in the O.A. The dismissal order dated 18.01.2008 itself mentions that the Constable who had gone to the applicant's husband to deliver the absentee notice was told by applicant's husband that he was unwell and that he had every intent to join duty after getting well. There is no allegation that the late Constable Raj Kumar Singh indulged in mal practice involving moral turpitude etc.
14. In the case of Mahinder Dutt Sharma (supra), the Hon'ble Supreme Court has held that:-
"14. In our considered view, the determination of a claim based under Rule 41 of the Pension Rules, 1972, will necessarily have to be sieved through an evaluation based on a series of distinct considerations, some of which are illustratively being expressed hereunder:-
14.1. 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? An act of moral turpitude, is an act which has an inherent quality of baseness, vileness or depravity with respect to a 8 OA-1884/2017 concerned person's duty towards another, or to the society in general. In criminal law, the phrase is used generally to describe a conduct which is contrary to community standards of justice, honesty and good morals. Any debauched, degenerate or evil behaviour would fall in this classification.
14.2. Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act of dishonesty towards his employer? Such an action of dishonesty would emerge from a behaviour which is untrustworthy, deceitful and insincere, resulting in prejudice to the interest of the employer.
This could emerge from an unscrupulous, untrustworthy and crooked behaviour, which aims at cheating the employer. Such an act may or may not be aimed at personal gains. It may be aimed at benefiting a third party, to the prejudice of the employer. 14.3. Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act designed for personal gains, from the employer? This would involve acts of corruption, fraud or personal profiteering, through impermissible means by misusing the responsibility bestowed in an employee by an employer. And would include, acts of double dealing or racketeering, or the like. Such an act may or may not be aimed at causing loss to the employer. The benefit of the delinquent, could be at the peril and prejudice of a third party.
14.4. Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, aimed at deliberately harming a third party interest? Situations hereunder would emerge out of acts of disservice causing damage, loss, prejudice or even anguish to third parties, on account of misuse of the employee's authority to control, regulate or administer activities of third parties. Actions of dealing with similar issues differently, or in an iniquitous manner, by adopting double standards or by foul play, would fall in this category.
14.5. Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, otherwise unacceptable, for the conferment of the benefits flowing out of Rule 41 of the Pension Rules, 1972? Illustratively, any action which is considered as depraved, perverted, wicked, treacherous or the like, as would disentitle an employee for such compassionate 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 9 OA-1884/2017 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 willful 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, 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."
15. Rule-41 provides that competent authority may, "if the case is deserving of special consideration, sanction a compassionate allowance..." This aspect has been lucidly dealt with by Hon'ble High Court of Delhi in the case of Ex. ASI Shadi Ram Vs. GNCTD & Ors. [WP(C)-5544/2007] on 22.02.2008, para-13 of which reads as under:-
"13........ It is thus evident that the sole 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."
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16. From the facts discussed in the fore mentioned paragraphs, it is clear that the circumstances leading to dismissal of the late Sh. Raj Kumar Singh are based merely on the factum of his absence from duty without taking into account that he was genuinely suffering from a problem over which he did not have much control. He did not indulge in any act unbecoming of a government servant till his illness. His past service record was reasonably good. The rejection seems to be based solely on the ground that the officer was dismissed on account of his misconduct without taking into account that the alleged misconduct was a result of psychiatric problem/condition.
17. Mere removal or dismissal of an officer does not disentitle an employee for grant of compassionate appointment. In the case at hand, there are sufficient grounds to explain the extenuating circumstances due to which the applicant's husband remained absent and for those very reasons, he could not challenge the penalty of dismissal.
18. I am convinced that the facts of the case, examined in the light of the two land mark judgments viz. Mahinder Dutt Sharma and Shaadi Ram (supra) bring it under the category of a case which deserves special consideration. There are sufficient grounds to allow the O.A. and grant compassionate allowance to the applicant. I order 11 OA-1884/2017 accordingly. The impugned order dated 22.03.2017 is set aside. The respondents are directed to grant compassionate allowance admissible to the applicant as per law. Her remaining retiral dues (like PF etc.) and other consequential benefits may also be finalized as per eligibility. This exercise must be completed within 90 days of the receipt of a certified copy of this order. No costs.
(Praveen Mahajan) Member (A) /vinita/