Rajasthan High Court - Jaipur
We Have Heard Counsel For The Parties And ... vs Pratap Singh & Ors on 18 May, 2015
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan
Jaipur Bench
DB Special Appeal (W) 603/2014
Order reserved on 30th April, 2015
Date of Order ::: 18st May, 2015
Hon'ble Mr. Justice Ajay Rastogi
Hon'ble Mr. Justice JK Ranka
REPORTABLE
Mr. NK Maloo, Sr. Counsel assisted by
Mr. VK Tamoliya, Counsel for appellant.
Mr. MC Taylor,
Mr. HP Bairwa, Counsel for respondent.
Instant intra court appeal is directed against order of the Ld. Single Judge dt.29.1.2014 directing the appellant to grant compassionate allowance not exceeding 2/3 of the pension in terms of Rule 172 of the Rajasthan Service Rules (RSR) and same shall be paid from the date of removal from service i.e. 11.3.1993 and shall be paid within three months.
Brief facts of the case culled out are that the respondent initially joined service in the cadre of Class-IV on 2.11.1974 and thereafter he started working as Lower Division Clerk from 28.9.1976 in the Court of Munsif & Judicial Magistrate, Bhawanimandi, Jhalawar. While working as LDC & looking after the work of criminal section in the absence of Shri Ram Gopal Gupta who at that time was on leave, he received an envelope containing copy of dying declaration of one Kalu Singh but it was misplaced by him. Explanation was called for by the Munsif & Judicial Magistrate vide letter dt.30.4.1987. In response thereto, his defence was that he handed over the complete papers to Shri Ram Gopal Gupta on his return from casual leave but his explanation was not accepted and served with charge sheet u/R.16 of Rajasthan Civil Services (CCA) Rules, 1958 (Rules 1958) dt.13.10.1987. The disciplinary enquiry was held and on conclusion he was found guilty & punished with penalty of removal from service vide order dt.11.3.1993, however, penalty of removal from service was not a disqualification for future employment. Departmental appeal preferred by the respondent also came to be dismissed by a detailed order dt.2.1.1996 upholding the finding of guilt, copy of which is on record as Ann.R/2/1. Order of penalty of removal from service dt.11.3.1993 came to be challenged by filing of a writ petition and finally upheld by the Apex Court on rejection of SLP vide order dt.6.2.1997.
After penalty of removal from service attained finality, the respondent made a request for grant of compassionate allowance u/R.172 of RSR r/w R.43 of the Rajasthan Civil Services (Pension) Rules, 1996 (Rules 1996). His case was forwarded to the State Govt. by the Establishment of the Rajasthan High Court and the Govt. conveyed to the Registrar General of Rajasthan High Court vide letter dt.20.11.1996 that the District & Sessions Judge himself is competent to pass appropriate orders for grant of compassionate allowance and accordingly the Registrar General of the Rajasthan High Court wrote to the District & Sessions Judge, Jhalawar to do the needful vide letter dt.20.2.1996 and in compliance thereof, the District & Sessions Judge, Jhalawar examined the grievance of the respondent and did not find favour and rejected his request vide order dt.20.4.2006. That came to be challenged by the respondent by filing SBCWP-7562/2009 which came to be disposed of vide order dt.18.5.2010 by the Single Bench of this Court directing the authority to decide the representation of the respondent afresh in accordance with law.
On the said representation, the District & Sessions Judge, before taking decision constituted a committee of three judicial officers to examine the grievance of the respondent employee. The committee afforded opportunity of hearing to the respondent employee and the report reveals that the respondent appeared before the committee and put his grievance to consider for grant of compassionate allowance and all the aspects in detail were considered regarding nature of act of the respondent for which he was held guilty and punished with penalty of removal from service on account of gross negligence which has been committed by him that original dying declaration of deceased could not have come on record and its consequence caused that the accused person got ultimately acquittal in the High Court for the offence u/S.302 IPC so also the fact that even during the service which he rendered in the year 1984 & 1987, for his negligence he was warned to be careful in future and even in the APAR of 1984 his integrity found to be doubtful and also the fact that his behaviour was unsatisfactory and always negligent in discharge of duties and there were remarks in his APARs that he was not fit to be appointed as Lower Division Clerk and his total service which he has rendered prior to punishment was found to be unsatisfactory.
Mr. NK Maloo, Sr. Adv. for the appellant submits that the govt. servant who has been dismissed or removed from service forfeit his gratuity & pension and compassionate allowance u/R.172 of RSR cannot be claimed as a matter of right and in exercising this discretion each case has to be considered on its merits and if there are any extenuating features in the case which would make the punishment awarded though justified in the interest of govt., unduly hard on the individual concerned and when one is deserving of special consideration may provide allowance to govt. servant and if the authority comes to the conclusion that his case deserves special consideration for grant of compassionate allowance it shall not exceed 2/3 of the pension or gratuity which would have been admissible to him if he had retired on medical certificate.
Counsel for appellant submits that in the instant case, the District & Sessions Judge, constituted committee of three judicial officers and the respondent appeared before the committee and substantiated his claim for grant of compassionate allowance and that was extensively considered by the committee in its report and taking note of facts into consideration including nature of allegation based on service record, dependency of family members and the period after the application was filed for grant of compassionate allowance in 2005 after being removed from service on 11.3.1993 almost 12 years after penalty of removal being inflicted on him and the period which remained for retirement in service arrived to the conclusion that no case is made out of such special consideration which could invoke R.172 of RSR for grant of compassionate allowance and rejected his application vide order dt.3.8.2010.
Counsel for appellant submits that the Ld. Single Judge has neither examined the scope of R.172 of the RSR nor considered the detail report submitted by the committee which is the basis for the District Judge in passing of order dt.3.8.2010 and in absence of finding recorded regarding deserving of special consideration by the Ld. Single Judge granting compassionate allowance to the respondent employee is wholly perverse and that requires interference of this Court.
Counsel for appellant submits that the Ld. Single Judge has referred to the detail findings as extract from the reply at page 10 of the impugned judgment in inverted commas which reads ad infra-
The case of the petitioner is not a case of special consideration because his removal was held upto the Apex Court. The case of the petitioner is a case of misconduct carries with the legitimate inference that the government servants service has been dishonest; there can seldom be any good case for a compassionate allowance. The act and conduct of the petitioner in not submitting the original statement of dying declaration is a case of gross misconduct. The learned District & Sessions Judge has convicted the accused under Section 302 on the basis of carbon copy of the statement of dying declaration. So many opportunities were given to the petitioner to submit the document but he could not file so the case of the petitioner is a case of gross misconduct hence he is not entitled to get any compassionate allowance. The services of the petitioner were terminated on 11.03.1993 and he had filed a writ petition No.7562/2009, which was disposed of on 18.05.2010 with a direction to file a representation before the State Government. After receiving the letter of the Dy. Secretary dated 18.06.2010 the representation was decided on merits vide Annexure-21 dated 03.08.2010 by the District & Sessions Judge, Jhalawar, whereby rejected the representation. The representation of the petitioner was rightly rejected by the District & Sessions Judge, Jhalawar with a reasoned and speaking order and there is no illegality in the order.
Counsel submits that there is no such reference ever made by the appellant in their reply and he has completely unaware from where the aforementioned observation at page 10 has been quoted by the Ld. Single Judge.
As regard the report submitted by committee of three judicial members is concerned, counsel submits that extract of the same was referred to in the reply and the respondent employee has obtained the report under right to information and it was very much in his possession but neither the respondent employee placed it on record nor the Ld. Single Judge ever called for the report to be furnished and submits that what is being expressed by the Ld. Single Judge in taking adverse view of the matter of three members committee report not being furnished in the present facts & circumstances is not sustainable in law and deserves to be set aside.
Counsel for appellant further submits that reference for deserving of special consideration for grant of compassionate allowance, its object appeared to be that the employee was being punished with penalty of dismissal or removal from service which forfeits gratuity and pension under the scheme of rules but that may in very precarious conditions of the family of the employee which may be in harness & needs financial assistance and looking to overall service record there are deserving special consideration and in the given facts & circumstances after examining the case on its own merits and after due satisfaction of the competent authority and so also the salient fact that gross misconduct carry the legitimate inference that the government servant's conduct has been dishonest there cannot be a case for a compassionate allowance and while discretion exercised by the authority is arbitrary or is not supported by tangible evidence on record, that may be a reason for interference but in the facts & circumstances of the instant case the direction of the Ld. Single Judge to grant compassionate allowance to the respondent employee invoking R.172 of RSR is not sustainable in law and deserves to be set aside.
Counsel for respondent while supporting the view expressed by the Ld. Single Judge submits that it was a case of alleged negligence for which he was charge sheeted and inflicted penalty of removal form service and submits that there was no material brought on record which in the ordinary course dis-entitle for grant of compassionate allowance to the respondent employee and the Ld. Single Judge has considered his grievance and entitlement for compassionate allowance in detail under impugned judgment and further submits that in the light of judgment reported in 2014 (11) SCC 684 what is being contended by the appellant remains no more res integra to be examined by this Court and the Ld. Single Judge has rightly set aside the order passed by the authority on the representation dt.3.8.2010 and submits that the order of Ld. Single Judge does not call for any interference and appeal deserves to be dismissed.
Counsel for respondent made a feeble attempt that the present appellant has no locus standi to file intra court appeal against the impugned judgment of Ld. Single Judge as the financial burden is to be borne by the state govt. and not by the present appellant as such the present appellant cannot be said to be aggrieved by the order of the Ld. Single Judge and the present appeal preferred at their instance deserves to be dismissed and in support of his submission counsel has placed reliance on the judgment reported in 2013(1) WLC 9 and submits that in the light of judgment of this Court, the appellant has no locus to question the order of Ld. Single Judge.
We have heard counsel for the parties and with their assistance perused the material available on record.
Before we may examine the controversy raised for our consideration, we consider it appropriate to recapitulate the admitted facts which have come on record.
The respondent employee initially joined service in the cadre of Class-IV on 2.11.1974 and thereafter started working as Lower Division Clerk in the Court of Munsif & Judicial Magistrate, Bhawanimandi, Jhalawar from 28.9.1996 and while working as Lower Division Clerk & attached to the Court of Munsif & Judicial Magistrate, Bhawanimandi in Sessions Case No.18/86 State vs. Pratap Singh & Ors., the dying declaration of Kalu Singh was recorded by the Medical Officer, Gangdhar on 5.10.1985 and this dying declaration was sent by the Medical Officer, Gangdhar to the Court of Munsif & Judicial Magistrate, Bhawani Mandi by the registered post, which was received on 8.10.1985 by Shri Dinesh Kumar Soni, L.D.C. who was working as Inward Clerk in the office of Munsif & Judicial Magistrate, Bhawani Mandi (Register No.67) at Serial Number 688 dt.8.10.1985. This dying declaration was handed over by Mr. Dinesh Kumar Soni to the present respondent on the same day and the relevant entry in the register bearing the signatures of the appellant and this dying declaration which was the heart & sole of the sessions trial was found missing and was not traceable and throughout the defence of the respondent during the course of departmental enquiry was that he received the dying declaration but handed it over to Ram Gopal Gupta after he returned on duty and it was his duty to place it on record along with challan papers when the charge sheet was filed but the defence of the respondent which was on record found to be a false pretext in the course of enquiry and he was held guilty for his gross negligence which he committed in discharge of duties and punished with penalty of removal from service.
The dying declaration was one of the primary evidence in sessions case no.18/1986 and on account of loss of dying declaration from the record, the accused were acquitted in that case by the High Court and whether it was negligence or intentional but the fact is that loss of dying declaration resulted in acquittal of the accused and that was certainly a gross misconduct which cannot be lightly dealt with expressed by the appellant authority on appeal being preferred by the respondent employee and punishment attained finality on dismissal of his SLP by the Apex Court vide order dt.6.2.1997 and thereafter for the first time he made representation on 1.6.2005 to consider his grievance for grant of compassionate allowance, however, his representation after being forwarded by the Registrar General of the High Court to the District Judge, Jhalawar who is the appointing authority came to be rejected vide order dt.20.4.2006 which was the subject matter of challenge in SBCWP-7562/2009 and that came to be disposed of vide order dt.18.5.2010 by the Ld. Single Judge of this Court with liberty to the respondent to file a fresh representation and that may be examined by the competent authority in accordance with law.
Even after the matter was referred pursuant to the order of Ld. Single Judge of this Court dt.18.5.2010, the District & Sessions Judge, Jhalawar constituted committee of three judicial members who afforded opportunity to the respondent employee and the detail report indicating the effect of dying declaration which was missing from the record although the District Judge on the duplicate copy of the dying declaration convicted the accused persons in Sessions Case-18/1986 on 31.7.1987 but in appeal they were acquitted by the High Court on 8.8.1989 for the offence u/S.302 IPC and apart from gross misconduct which he committed in discharge of his duties for which the accused got undue benefit of absence of dying declaration not made available on record in addition to it, the service record was examined by the committee in its report and apart from act of misconduct it was observed that his total service record reveals that in the year 1984 & 1987, for his negligence he was warned to be careful in future and even in the APAR of 1984 his integrity found to be doubtful and also the fact that his behaviour was unsatisfactory and always negligent in discharge of duties and he was not fit to be appointed as Lower Division Clerk and in the APARs of 1986, 1987, 1987, 1989, 1991-1992 his work was found to be only satisfactory and in totality the service record was found to be unsatisfactory.
As regards, dependency of the family members, it was observed by the committee that the respondent employee has two sons and two daughter along with wife and both the daughters were married and his two sons were aged 24 years and 20 years and both have attained majority and are not dependent on him and as regard the employee himself is concerned while opportunity was afforded to him, he admitted that he is presently working with a Contractor and his wife also worked as Labourer and he was 54 years of age and the retirement age is 58-60 years. As such, there was no dependency of the family member except his wife and for the first time application was submitted for grant of compassionate allowance in 2005 after being removed from service on 11.3.1993 almost 12 years after penalty of removal being inflicted on him and in totality of the matter, the committee expressed its view that there appears no deserving special consideration which makes him entitled for grant of compassionate allowance as prayed for by him and that was taken note by the District & Sessions Judge and accordingly his application came to be rejected vide order dt.3.8.2010.
Before 1996, compassionate allowance could be claimed u/R.172 of the RSR but after the Rules 1996 came into force compassionate allowance could be claimed u/R.43 of the Rules 1976 but it was admitted case of the parties that since respondent employee was removed from service vide order dt.11.3.1993, his claim could have been considered for grant of compassionate allowance u/R.172 of RSR.
Before proceeding to examine the submission and legality of the matter, let us first take note of relevant R.172 of the RSR which is the basis for seeking compassionate allowance claimed by the respondent employee which reads ad infra-
172- Compassionate allowance- No gratuity or pension may be granted u/S. II of Chapter XXII and Chapter XXIII to a Government servant dismissed or removed for misconduct, insolvency or inefficiency, but to Government servants, so dismissed or removed compassionate allowances, may be granted when they are deserving of special consideration; provided that the allowances granted to any Government servant shall not exceed two-thirds of the pension which would have been admissible to him if he had retired on medical certificate.
Rules 172 of the Scheme of Rules clearly envisages that the government servant who has been dismissed or removed for misconduct, insolvency or inefficiency that disentitles him for grant of pension and gratuity but the Government servants, so dismissed or removed, compassionate allowances may be granted when they are deserving of special consideration provided that the allowances granted to any Government servant shall not exceed two-thirds of the pension which would have been admissible to him if he had retired on medical certificate.
Grant of compassionate allowance is a matter entirely for the government's discretion obviously discretion has to be judiciously exercised and while exercising its discretion each case has to be examined independently on its own merits and a conclusion has to reach on the basis whether there were any extenuating features in the case which would make the punishment awarded, though justified in the interests of Government, unduly hard on the individual concerned and while considering the question not only the actual misconduct or cause of misconduct which occasioned dismissal or removal but the kind of service rendered will be one of the paramount consideration which shall be kept in view.
But, at the same time, where the course of misconduct carries with it the legitimate inference that the Government servant's conduct has been dishonest there can be seldom a case for a compassionate allowance and poverty will not be an essential condition precedent to the grant of a compassionate allowance but special regard may occasionally be paid to the fact that the Government servant has a number of dependent, the kind of service rendered other than the misconduct for which punished are the other relevant factors and in exceptional circumstances the person deserving of special consideration be sufficient to invoke R.172 for compassionate allowance.
Hon'ble Apex Court in its recent judgment reported in 2014(11) SCC 684 had an occasion to examine pari-meteria proviso R.41 of the Pension Rules, 1972 and the determination of a claim based under Rule 41 of Rules, 1972, will necessarily have to be seen through an evaluation based on a series of distinct considerations, some of which are illustratively being expressed hereunder:
(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? An act of moral turpitude, is an act which has an inherent quality of baseness, vileness or depravity with respect to a 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
It may be noted that R. 172 is pari-materia to R.41 of Pension Rules 1972 and the Government servant who falls in any of the above five categories referred to are therefore not entitled and deserve special consideration for grant of compassionate allowance, but, what has been expressed by the Apex Court is illustrative and not exhaustive, at the same time, what are the deserving special consideration which may be kept in mind by the competent authority while examining the case of individual government servant for grant of compassionate allowance u/R 41 of Rules has been left open by the Apex Court to be examined in the facts of each case.
The case of the respondent employee was considered for grant of compassionate allowance u/R. 172 of RSR and to examine the deserving special consideration the District Judge constituted three members committee of judicial officers and afforded opportunity of hearing to the respondent employee and his total record of service, dependency of family members, nature of gross misconduct committed and also other relevant factors are considered, the committee was of the view that he has not been able to make out a case of deserving special consideration which makes him entitled for grant of compassionate allowance and looking to committee's detail report his claim for compassionate allowance was rejected by the District Judge vide order dt.3.8.2010.
The Ld. Single Judge in its order impugned has observed that copy of the report was not placed for perusal but that has been contradicted by the counsel for appellant that in written submission filed by the appellant before the Ld. Single Judge it was referred that three members committee of judicial officers was constituted by the District Judge who has submitted summarized gist of facts in the form of its report and it was stated that report if required will be kept ready for perusal of the Court. The respondent employee also concealed this fact that he had participated before the three members committee and the fact that report which the Ld. District Judge relied upon and rejected the claim for compassionate allowance of respondent employee has applied for obtaining the report under right to information on 30.10.2010 and that was supplied to him and was very much in possession of the respondent employee but that he concealed when the writ petition was filed in the year 2011 and failed to place it on record for perusal when the matter was considered by the Ld. Single Judge.
It can be further noticed that the Ld. Single Judge has referred to the act of misconduct for which he was punished but has failed to consider the deserving special consideration prevailed upon to invoke R.172 of RSR for grant of compassionate allowance and apart from it if the authority arrive to the conclusion that deserving special consideration exist to grant compassionate allowance, the ceiling is that it shall not exceed two-third of the pension and while sanctioning compassionate allowance authority has to consider to the extent compassionate allowance the employee deserves to be granted and upto what period the compassionate allowance has to be paid and it may be noticed that the compassionate allowance cannot be equated with pension which the employee is entitled to claim under the Pension Rules, 1996.
The submission of counsel for respondent that the appellants have no locus standi to question the order of the Ld. Single Judge in our considered view is of no substance for the reason that merely because financial aspect is to be looked into by the government may not be a reason for holding that the present appellant has no locus standi to question the order of the ld. Single Judge more so when the basis of rejection of claim by the District Judge has been considered and set aside by the Ld. Single Judge and assailed in the intra court appeal, we fail to understand how it can be said that the present appellants have no locus to question and objection raised is wholly without foundation and deserve outright rejection.
In our considered view, the present appeal deserves acceptance and accordingly, the appeal stands allowed and the order of the Ld. Single Judge dt.29.1.2014 is hereby quashed and set aside. No cost.
[JK Ranka], J. [Ajay Rastogi], J. dsr-
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