Central Administrative Tribunal - Delhi
Tarsem Chand Cm-Ii vs Union Of India Through Its Secretary on 5 October, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.151/2012 Friday, this the 5th day of October, 2012 Honble Shri G Goerge Paracken, Member (J) Honble Smt. Manjulika Gautam, Member (A) Tarsem Chand CM-II s/o late Khusi Ram Vill & Post Bhapoo Teh: Indora, Distt. Kangar (HP) Pin 176401 ..Applicant (By Advocate: Shri A K Trivedi) Versus 1. Union of India through its Secretary Ministry of Defence South Block, New Delhi 2. The Commandant 505, Army Base Workshop Delhi Cantt-110010 ..Respondents (By Advocate: Shri K M Singh for Shri R N Singh) O R D E R (ORAL)
Shri G George Paracken:
This is a second round of litigation by the applicant seeking the following reliefs:-
(a) This Honble Tribunal is pleased to call for record and pass order in the interest of Justice.
(b) To declare the action of respondents in not promoting the applicant to the Post of Lecturer/PGT English (Male) as well as promotion given to their juniors and similarly place person denied as illegal, arbitrary and discriminatory.
(c) To direct the respondents to promoted the applicant to the post of Lecturer/PGT English (Male) from the date of juniors and similarly placed person got promotion with all consequential benefits and arrears of pay.
(d) Cost of OA to be saddled on Respondents.
2. Earlier the applicant had approached this Tribunal vide O.A.3603/2011 and the same was against the alleged inaction on part of the respondents in not considering the representation dated 29.11.2010 for grant of compassionate allowance in terms of Rule 41 of CCS (Pension) Rules, 1972 (for short Rules 1972). The aforesaid OA was disposed of vide Annexure A-3 order dated 30.9.2011 directing the respondents to consider his representation and pass a reasoned and speaking order, within a period of two months from the date of receipt of a copy of that order.
3. Pursuant to the aforesaid direction, the respondents passed the impugned Annexure A-1 speaking order dated 28.11.2011. The relevant part of the said order reads as under:-
7. And whereas, the disciplinary authority after examining all aspect of the case and past record of the indl found that the applicant was not serious towards his duty and had absented from duty wef 10 Jun 2002 continuously. He being a supervisor, was required to be more responsible, than an ordinary worker. But he was setting a poor example to the junior staffers. Therefore, the disciplinary authority was of the view that he was not a fit person to be retained in Govt service and had imposed the penalty of removal from service which shall not be disqualification for future employment under the Govt by its order No.PF/P-3920/LC dated 25 Sep 2002.
4. The applicant has challenged the aforesaid order on the ground that he had already put in more than 21 years of service and he has a family consisting of his wife and two unmarried daughters and he has no other means of livelihood. Therefore, he is entitled to be considered for grant of compassionate allowance. He has also stated that had he not been removed from service, he would have been entitled to receive the pension and gratuity.
5. The applicant has also relied upon the judgment of the Honble High Court of Delhi in the case of Ex. Ct. Daya Nand v. Union of India & others, ATJ 2000 (1) 137 wherein it was held that the petitioner therein had admittedly served for more than 20 service and his services came to be terminated without any grant of pension and gratuity and under the circumstances, the applicant therein deserves to be granted compassionate allowance under Rule 41 of the Rules 1972.
6. He has also relied upon the judgment of the Honble High Court of Bombay in Anna Deoram Londhe v. State of Maharashtra, 1998 (5) SLR (Bombay) (DB) 480 wherein it was held that the petitioner therein had put in more than 30 years of service and he was otherwise eligible for superannuation or retiring pension and, therefore, he was entitled for compassionate pension.
7. Further, in the case of Mithlesh Saran Sharma v. The State of Rajasthan & others, 2004 (3) SLR 485, Honble High Court of Rajasthan has held that termination of service on change of absence from duty may disentitle a person from getting any pension but since he served as Sepoy since 17.11.1949 till 17.4.1979, he would be entitled for compassionate allowance.
8. Again the applicant has relied upon the judgment of the Honble High Court of Delhi in Shadi Ram Ex. ASI v. Government of NCT of Delhi & others, WP (C) No.5544/2007 decided on 22.2.2008. In the said case, the High Court dealt with the concept of grant of compassionate allowance in detail and directed the authorities to consider the case of the applicant therein. Consequently the respondents granted compassionate allowance to the applicant therein. The relevant part of the said direction reads as under:-
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 if 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 office who is designated as the Competent Authority at the relevant time.
9. He has also relied upon the judgment of the Honble High Court of Kerela in Thankappan Nair v. State of Kerala, 2001 (3) ILR Kerala 464 wherein the Honble High Court thought fit to direct reconsideration of a dismissed officers request for compassionate allowance for which he applied 28 years after the dismissal.
10. Further, the applicant has relied upon the decision of the Honble High Court of Bombay in the case of R.S. Sharma v. Union of India & others, (2004) III LLJ 191 Bombay wherein the Honble High Court directed reconsideration of a dismissed officers request for compassionate allowance for which he applied 11 years after his dismissal.
11. He has also relied upon the G.I., F.D., Office Memo No.3 (2)-R-II/40, dated 22.4.1940, which reads as under:-
Government of Indias decisions (1) Guiding principles for the grant of Compassionate 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 officers service has been dishonest, there can seldom be any good case for a Compassionate Allowance, but special regard 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.
12. The respondents have filed their reply stating that Shri Tarsem Chand, Ex. P-3920 CM-II (the applicant herein) was an employee of 505 Army Base Workshop, Delhi Cantt. He was served a charge sheet under Rule 14 of CCS (CCA) Rules, 1965 bearing No.PF/P-3920/LC dated 8.1.2002 as he had absented himself from duty since 8.11.2001 to 8.1.2002 without prior permission/sanction of leave thereby violating the instructions contained in the paragraphs 644 to 650 and 706 to 707 of the Unit Standing Order reproduced from time to time in Special Daily Order Part-I No.37 dated 11.5.1994 and Special Daily Order Part-I No.420 dated 23.7.1998, thereby violating the provisions of Rule 3 of CCS (Conduct) Rules, 1964, and thus liable for disciplinary action under CCS (CCA) Rules, 1965. They have also stated that the applicant was in the habit of absenting from duty frequently and in the past also he has been imposed the following punishments:
(a) Reduction to a lower stage from Rs.5750/- p.m. to Rs.5600/- p.m. in the time scale of pay of Rs.5000-150-8000 for a period of two years without cumulative effect, was imposed by Disciplinary Authority vide order No.PF/P-3920/LC dated 20 Sep 99.
(b) Reduction to a lower stage from Rs.5750/- p.m. to Rs.5600/- p.m. in the time scale of pay of Rs.5000-150-8000 for a period of three years without cumulative effect and not adversely affecting his pension was imposed by Disciplinary Authority vide order No.PF/P-3920/LC dated 16 Nov 2001.
13. The respondents have further stated that that the applicant had furnished an undertaking on 13.7.2001 (Annexure-R-1) that he would not absent from duty without prior permission otherwise he would be liable to be punished. Since the applicant was again absent from duty, a Memorandum of Charge was sent at his home town address under Registered AD Post, which was acknowledged by him on 16.1.2002 in which he was directed to submit his representation within 10 days of receipt of same. But he failed to submit his reply/submission of representation within the stipulated period. Therefore, the disciplinary authority ordered an inquiry under Rule 14 (3) to (23) of the CCS (CCA) Rules, 1965, in which Executive Engineer J. P. Malviya was appointed as an Inquiry Officer. During the course of inquiry, the applicant pleaded guilty of the article of charges framed against him. A copy of Inquiry Officers report dated 25.4.2002 was sent to the applicant through his OIC Group vide letter No.PF/P-3920/LC dated 254.2002, which was received by him on 29.4.2002 wherein he was advised to submit his representation/submission against the Inquiry Officers report in spite of ample opportunity given to him and reminder issued vide letter No.PF/P-3920/LC dated 23.7.2002. Rather he had again absented himself from duty from 9.5.2002 to 6.6.2002 and he was later continuously absented him from duty w.e.f. 10.6.2002. The disciplinary authority has, therefore, after examining all aspects of the case of the applicant and his past record, found that he was not serious towards his duty and had absented from duty w.e.f. 10.6.2002 continuously. He, being a supervisor, was required to be more responsible than an ordinary worker. But he was setting a poor example to the junior staffers. Therefore, the disciplinary authority was of the view that he was not a fit person to be retained in government service and, vide its order No.PF/P-3920/LC dated 25.9.2002, had imposed the penalty of removal from service, which shall not be disqualification for future employment under the Government.
14. Thereafter the applicant submitted a representation dated 29.11.2010 to the respondents for grant of compassionate allowance. However, before his representation could be decided by the competent authority, the applicant filed OA No.3603/2011 before this Tribunal, which was disposed of by this Tribunal, vide order/judgment dated 30.9.2011 with direction to respondents to consider the aforesaid representation of the applicant and to pass a reasoned and speaking order. In compliance of the aforesaid directions of this Tribunal, the respondents considered the representation of the applicant and passed the speaking order dated 28.11.2011 (Annexure-A-1 to OA). Now the applicant has filed the present OA without any cause of action and without indicating any illegality and/or infirmity in the order dated 28.11.2011 passed by the respondents. It is submitted that the case of the applicant does not fall for grant of any compassionate allowance in terms of Rule 41(1) of Rules 1972 as a government servant, who is dismissed or removed from service, shall forfeit his pension and gratuity and the competent authority has nowhere sanctioned any compassionate allowance to the applicant based on his past bad record of his service. The respondents have further stated that the OA is barred by limitation, delay and latches and, therefore, the same deserves to be dismissed on this ground alone. They have also submitted that the applicant was removed from service vide order dated 25.9.2002 and he had submitted representation for compassionate allowance only on 29.11.2010 which was considered and disposed of by the respondents vide order dated 28.11.2011 and, therefore he cannot claim any compassionate allowance as a matter of right.
15. We have heard the learned counsel for the applicant, Shri A K Trivedi and learned proxy counsel for the respondents, Shri K.M. Singh. It is seen that the respondents have not examined the case of the applicant for grant of compassionate allowance in terms of the guidelines of the Government of India in the matter. From the impugned order, it is seen that the respondents are guided by the facts which led to his dismissal from service. The respondents should have kept in mind that compassionate allowances are given to the employees who have been dismissed/removed from service and who are not given the pensionary benefits even though they have put in sufficient number of years to earn the pension and gratuity. This Tribunal, the various Honble High Courts and the Honble Apex Court have considered the concept of compassionate allowance in various judgments relied upon by the applicant. In our considered view, the respondents have not considered the case of the applicant for grant of compassionate allowance in the right perspective as held by the Tribunal/Honble High Court/Honble Apex Court in the various judgments. No doubt, it is a discretionary power of the competent authority to grant the compassionate allowance and this Court cannot pass any orders granting any compassionate allowance to the dismissed/removed employees but at the same time, this Tribunal can definitely interfere when the consideration has not been done in the right perspective, or the consideration on inapplicable factors.
16. We, in the light of the above discussion and the various judgments relied upon by the applicants counsel, remit this case once again to the competent authority to look into the case of the applicant for grant of compassionate allowance and to pass a reasoned and speaking order within a period of two months from the date of receipt of a copy of this order.
17. With the aforesaid directions, the OA is disposed of. There shall be no order as to costs.
( Smt. Manjulika Gautam ) ( G George Paracken ) Member (A) Member (J) /vb/