Central Administrative Tribunal - Delhi
Shri Sukha Singh S/O Shri Gurcharan ... vs Union Of India (Uoi) Through The General ... on 2 August, 2006
ORDER Shanker Raju, Member (J)
1. Heard the learned Counsel for the parties.
2. When public functionaries discharge their statutory duties, an element of discretion is always involved in the process. The aforesaid discretion has to be exercised judiciously. What connotes judicious exercise of discretion is to distinguish between right or wrong, balance the factors for and against the order to be passed and after evaluating it in the context of the rules and law, an order passed would be an appropriate lawful order, which on exercise of discretion is not only reasonable but also in accordance with law.
3. With the aforesaid, a background long history of the case suggests that the penalty of removal inflicted upon the applicant on 4.6.1984 on the ground of embezzlement, which, when challenged, has been laid at rest by the Apex Court by dismissing the SLP. Later on the applicant has sought compassionate allowance, as provided under the Railway Services (Pension) Rules, 1993 (hereinafter referred to as 'Pension Rules, 1993') by filing OA-2447/95 wherein by an order dated 1.9.1999, the claim of the applicant was dismissed on the ground of limitation.
4. The aforesaid led to challenge of the Tribunal's order before the High Court in WP (C) No. 13352/2004. By an order passed on 17.11.2004, the High Court held that the Tribunal has failed to deal petitioner's case for grant of compassionate allowance in terms of Rule 64 of the Pension Rules, 1993 and in that view of the matter, by setting aside the order passed by the Tribunal, respondents have been directed to consider the case of the applicant for grant of compassionate allowance by passing a reasoned order. A representation dated 17.7.2004 preferred later on culminated into an order passed by the respondents dated 27.8.2005 wherein the request for compassionate allowance of the applicant was turned down led to filing of CP-740/2005 before the High Court of Delhi wherein an order passed on 5.10.2005 granted liberty to the applicant to seek remedy against the order in accordance with law.
5. Basically, the impugned order dated 27.8.2005 has rejected the claim of the applicant for compassionate allowance on two scores; one is that the case is barred by limitation and secondly that applicant's removal was as a result of his involvement in a case of embezzlement.
6. Learned Counsel for applicant, at the outset, stated that it is trite that once a right has been accrued for compassionate allowance, the same has to be processed under the rules, which were in vogue at the time when the right has actually accrued. Accordingly, by referring to paragraph 309 of Manual of Railway Pension Rules, 1950, it is stated that the discretion vested in the competent authority to grant compassionate allowance, has been denied to the applicant without any reasonable basis.
7. Learned Counsel would contend that except consideration of the misconduct of the applicant, his mitigating circumstances and other factors, which are mandated to be considered having not been considered at all, the order passed is a result of non-application of mind to the contentions raised.
8. Learned Counsel by placing reliance on a decision of the Delhi High Court in CWP-1730/1999 in case of Ex. Constable Daya Nand v. Union of India and Ors. contended that in the matter of dismissal, which forfeits pensionary benefits while deciding the claim for compassionate allowance, several factors, including hardship caused, gravity of charge, nature should have also been considered.
9. In nutshell what has been propagated before me that as there has been no application of mind even assuming Rule 65 of the Pension Rules, 1993 would hold the field, order is untenable in law and is to be set aside.
10. On the other hand, learned Counsel for respondents fervently opposed the contentions and stated that Rule 40 of the Pension Rules, 1993 ibid forfeits on removal all the pensionary benefits. It is stated that the applicant has not availed immediately on undue hardship caused on removal, a right to claim compassionate allowance and the claim was made only in the year 1995, i.e., ten years after the removal, which is not based on erstwhile rules contained in the Manual of Railway Pension Rules, 1950 but the claim is rested upon the Pension Rules promulgated by the Railways in 1993.
11. Learned Counsel would contend that despite the earlier OA filed by the applicant was dismissed on the ground of limitation and this ground is still open and as the applicant has come up after almost twenty one years from the date of his removal and has managed to survive for such a long period, there is no legal presumption, which can be drawn as to any hardship caused to the applicant.
12. I have carefully considered the rival contentions of the parties and perused the departmental records produced by the respondents.
13. In my considered view, there is no marked difference between the Manual of Railway Pension Rules, 1950 or the Pension Rules, 1993. In both the cases, the claim for compassionate allowance is preceded by dismissal or removal as a special consideration in a deserving case, the same has to be considered. As to the methodology to consider such a claim, the Ministry of Finance, i.e., erstwhile Government of India's Finance Department vide Memorandum No. 3 (2)-R-II/40 dated 22.4.1940 laid down instructions, which provides that it is not safe to unduly harp on the actual misconduct leaving other factors without consideration and the claim for compassionate allowance has to be considered in the backdrop of the dependency of other family members, but is not the only factor to have such a consideration.
14. In Rule 65 of the Pension Rules 1993, it is provided that the compassionate allowance not less than Rs. 1275/- from 1.1.1996 has to be accorded to the concerned, who prefers a claim, if the case is found deserving on special consideration.
15. High Court of Delhi in Ex. Constable Daya Nand's case (supra) ruled that while according such a special consideration and in arriving at a finding where there has been hardship or not, the factors, which are to be of paramount importance, are not only the misconduct committed but also the size of the family, hardship, nature and gravity of the offence.
16. I find logic in the methodology adopted for processing the claim of compassionate allowance. The nomenclature of this concession itself indicates that there is no legal right invested. The only right is of consideration and that too on compassionate grounds. Had it not been so and in the light of the provisions under Rule 40 of the Pension Rules, 1993 whereby on removal and dismissal entire past service is forfeited and one is not entitled for pension or other ancillary pensionary benefits, yet this provision, which as a non-obstinate clause, provides grant of compassionate allowance on equitable principle and on compassion alone.
17. While compassion is the only factor to consider the claim for compassionate allowance and if the respondents consider only the misconduct, which culminated into removal, the very object of compassionate allowance would go frustrate and there would be no consideration as to the hardship if the type of misconduct, though one of the considerations becomes the sole basis of the rejection of the claim.
18. Accordingly, apart from the misconduct committed by a railway servant, which has an effect of forfeiture of service for the purposes of pension, the paramount importance should also be accorded to the size of the family, earning, the family conditions, the amount paid as PF, etc. and thereafter it is to be decided whether the person to be accorded the claim of compassionate allowance or not.
19. In such view of the matter, in the present case, admittedly, applicant on embezzlement was removed from service and has preferred a claim in 1994 whereas his right for compassionate allowance arisen right in the year 1984. But it is trite that in the matter of pensionary benefits, no limitation would be attracted, as the pay and allowances in the form of compassionate allowance is a post-removal concession, which is recurring and continuing till one dies.
20. Moreover, the objection of limitation has been repelled by the High Court by allowing the writ petition and setting aside the order of the Tribunal, which has dismissed the claim of the applicant for compassionate allowance on limitation alone. The direction of the High Court to consider the claim afresh in the light of rules and thereupon a liberty to assail the order clearly signifies that the merit consideration should have to be accorded to the claim of the applicant. As a juxtaposition, what I find that one of the grounds raised by the competent authority to turn down the claim of the applicant is of limitation, which cannot be countenanced in law.
21. Insofar as the second ground taken to deny the benefit to the applicant is concerned, it is gravity of the misconduct and its type. I do not subscribe to such a consideration as valid consideration and a judicious exercise of the discretion. If one is influenced by the misconduct committed, the other factors would go redundant. Hardship is not qua the person, who has been dismissed but it pertains to the hardship caused to the family members in penury without a job and to whom one is unable to sustain. It is also pertinent to mention here that after having rendered a service of twenty two years, the applicant has earned under the rules a right to be accorded pension, which has been curtailed after due process of law but this has not curtailed his right to get compassionate allowance. If right of consideration is available with the applicant, there is a corresponding duty by the railway authorities to consider the claim in its right perspective taking into consideration all the relevant factors. Leaving any factor without consideration would not be a valid exercise of discretion and it cannot be treated as an order passed after due application of mind.
22. An administrative authority in a welfare state when the right relating to compassion and equity is created for consideration should be benevolent to a government servant and then process the case with a little compassion, though implication of rule would also be in its entirety applicable in the circumstances.
23. At this stage, learned Counsel for respondents has vehemently contended that there is nothing in the High Court's order, which would be indicative to the effect that limitation, which has been left open being a valid defence of the respondents, has been toned down or repelled in any manner. As such, limitation, which is now available as a defence by the respondents when taken clearly shows that belated claim of the applicant is liable to set aside on this ground alone.
24. Pension, though is not a bounty, but compassionate allowance is a piece of concession. If the hyper-technical pleas and technical objection of limitation would allow to be raised would not only defeat the very purpose of law but also the very purpose of legislation of compassionate allowance. The Apex Court in one of the cases of family pension where the government servant died in 1969 on the ground that ignorance was pleaded as a defence while making the claim in 1991, not only condoned the delay but also accorded benefit of family pension, which is compassionate view of the matter in S.K. Mastan Bee v. General Manager, South-Central Railways and Ors. 2003 (1) SC SLJ 136. Accordingly, the objection raised by the respondents as to the limitation is overruled.
25. In the result, what I find that consideration by the respondents to the claim of compassionate allowance made by the applicant was not in accordance with rules. Accordingly, OA is partly allowed. Impugned orders are set aside. Respondents are directed to reconsider the claim of the applicant on merit for grant of compassionate allowance, keeping in light the decision of the High Court in Ex. Constable Daya Nand's case (supra) and the observations made therein. The aforesaid consideration would culminate into within two months from the date of receipt of a copy of this order a reasoned and speaking order. In the event, the applicant is accorded the compassionate allowance, the consequences would follow. No costs.