Central Administrative Tribunal - Delhi
Rekha Devi vs Govt. Of Nct Of Delhi Through on 23 December, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.3069 of 2011 New Delhi this the 23rd day of December, 2011 Honble Dr. Dharam Paul Sharma, Member (J) Rekha Devi W/o Late Sh. Satender Kumar Constable in Delhi Police, PIS NO.28903088 R/o S-4/17, Old Mahavir Nagar, Tilak Nagar, New Delhi-18. .... Applicant ( By Advocate Shri Anil Singal) VERSUS Govt. of NCT of Delhi through 1. Commissioner of Police, Police Head Quarter, I.P. Estate, New Delhi. 2. Addl. C.P. (West Distt) Through Commissioner of Police, PHQ, I.P. Estate, New Delh. .. Respondents ( By Advocate Ms. Harvinder Oberai ) O R D E R (Oral)
This Application is directed against the respondents communication dated 14.7.2011 addressed to the applicant at Annexure A/1, whereby the applicant was informed by the respondents that her request for grant of Compassionate Allowance has been considered in their office but the same could not be acceded to as there was no such provision in the rules to grant the said Compassionate Allowance to the deceased family of the Government servant who was dismissed from service. The prayer of the applicant is for quashing of this order and for issuing further directions to the respondents to grant Compassionate Allowance to the applicant at the earliest.
2. The main thrust of the applicants challenge as put forth by Shri Anil Singal, applicants counsel, is that the impugned order ex facie is based on incorrect premises in view of Rule 41 of the CCS (Pension) Rules, 1972 providing for Compassionate Allowance to mitigate hardship in case of employee was either dismissed or removed from service. Rule 41 of the CCS (Pension) Rules, 1972 reads as follows:-
41. Compassionate allowance (1) A Government servant who is dismissed or removed from service shall forfeit his pension and gratuity :
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 or both which would have been admissible to him if he had retired on compensation pension.
(2) A compassionate allowance sanctioned under the proviso to sub-rule (1) shall not be less than the amount of 1(Rupees three hundred and seventy-five from 1-1-2006. See GID below Rule 49) per mensem. 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 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 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.
[G.I., F.D., Office Memo. No. 3(2)-R-II/40, dated the 22nd April, 1940.]
3. In view of this Rule, the respondents are not right when they stated that the applicants request for Compassionate Allowance could not be acceded to as there was no such provision in the Rules to grant Compassionate Allowance to the deceased family of the Government servant who was dismissed from service. As such, the impugned order is liable to be quashed on this very ground alone. Furthermore, the applicants counsel placed reliance on the judgment of the Delhi High Court dated 6.4.2011 in Writ Petition (Civil) No.20885/2005 in the matter of Additional Deputy Commissioner of Police vs. Ms. Anju, a copy of which is at Annexure A-4, and order of this Tribunal dated 9.4.2009 in OA No.1833/2008 in the matter of Kamlesh Devi vs. Govt. of NCT of Delhi and another, a copy of which is at Annexure A-5. Both these cases relate to Delhi Police. In the case of Ms. Anju Writ Petition filed by the Delhi Police against the order of this Tribunal granting Compassionate Allowance under Rule 41 of the CCS (Pension) Rules, 1972 to the applicant who was widow of deceased constable Shri Nidhi Kumar was dismissed. In the case of Kamlesh Devi, the respondents were directed to reconsider the claim of the applicant in the light of the decision of the Delhi High Court and of this Tribunal referred therein and pass appropriate order within a stipulated period. The learned counsel for the applicant Shri Anil Singal strongly urged that the Application be allowed by quashing the impugned order and the respondents be directed to consider the applicants claim for grant of Compassionate Allowance.
4. Ms. Harvinder Oberai, learned counsel appearing on behalf of the respondents strongly opposed the Application on the ground of latches as the Application was filed after more than six years of death of the deceased employee. Since she could survive for such a long period, there is obviously no hardship required to be mitigated by grant of Compassionate Allowance. Furthermore, while considering the cases for such allowances, the conduct of the deceased employee is required to be taken into consideration. In view of the fact that he was dismissed from service after a departmental inquiry initiated against him, ipso facto shows that the applicant is not entitled to Compassionate Allowance. Furthermore, a plain reading of the Rule indicates that the grant of Compassionate Allowance is discretionary. There is no vested right to the applicant under the Rules to have certain allowances as a matter of right. Furthermore, the administrative instructions issued under the said Rule clearly indicate that poverty by itself is no ground for grant of Compassionate Allowance.
5. I have given my careful consideration to the respective submissions made by both the parties. I have also carefully examined the records of the case. Denying Compassionate Allowance as claimed by the applicant on account of absence of Rule for it, is apparently not factually correct and misconceived. The respondents are not right when they stated that there was no such provision in the Rules to grant Compassionate Allowance to the family of the deceased employee who was dismissed from service. Rule 41 of the Rules ibid is crystal clear on this aspect of the matter. The impugned order having been proceeded on an incorrect premise cannot be sustained. As such it is quashed and set aside. However, as regards the applicants other prayer for issuance of directions to the respondents to grant Compassionate Allowance to the applicant at the earliest, I am of the considered view that such a direction cannot be issued at the present stage of the case for the respondents are yet to consider the applicants claim on merit and take an appropriate view on the applicants prayer for grant of Compassionate Allowance. So far the respondents have merely declined to accede to the applicants request on account of absence of any Rule for that purpose. Thus, the respondents have not given due consideration to the applicants request for grant of Compassionate Allowance on merits. That being so, the only direction that can be issued to the respondents is to consider the claim of the applicant, widow of late Shri Satender Kumar, Constable in Delhi Police, for grant of Compassionate Allowance in the light of the decision of the Delhi High Court, orders of this Tribunal as well as administrative instructions issued under Rule 41 of the CCS (Pension) Rules, 1972 and take an appropriate decision thereon. In case, the respondents find the applicant entitled to the relief claimed by her, the same shall be extended to her in accordance with the Rules. In case, the respondents decide not to accede to the request of the applicant for any valid reasons, the same shall be duly informed to the applicant through a reasoned and speaking order. This exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.
6. The present Application is disposed of in the above terms. No order as to cost.
(Dr. Dharam Paul Sharma) Member (J) /ravi/