Central Administrative Tribunal - Ernakulam
T Sajeev Kumar vs M/O Defence on 26 July, 2023
1
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00033/2021
Wednesday, this the 26th day of July, 2023
CORAM:
Hon'ble Mr. Justice K. Haripal, Judicial Member
T. Sajeev Kumar, aged 57 years,
S/o K.N. Thankappan,
Ex Highly Skilled (Electrician),
Naval Dockyard, Mumbai,
Residing at: 'Sreedhalam',
Kurattissery, Mannar P.O.,
Alappuzha District,
PIN-689 622 - Applicant
(By Advocate: Mr. T.C. Govindaswamy & Ms. Kala T. Gopi)
VERSUS
1. Union of India represented by the
Secretary to the Government of India,
Ministry of Defence (Navy),
New Delhi-110 001.
2. The Flag Officer Commanding-in-Chief,
Head Quarters, Western Naval Command,
New Command Post Building,
Tiger Gate, Nr. Ballard Estate,
Mumbai-400 023.
3. The Admiral Superintendent,
Naval Dockyard,
Mumbai-400 023. - Respondents
(By Advocate: Mr.Sreejith N, ACGSC)
This Original Application having been heard on 13th June, 2023, the
Tribunal on 26.07.2023 delivered the following:
OA No.180/00033/2021
2
ORDER
Applicant was a Highly Skilled Electrician Gr-II in Naval Dockyard, Mumbai. He had commenced service as Act Apprentice on 11.09.1979 and was regularly absorbed as Electrician (HSK) on 23.02.1983. While continuing in service, due to sickness and for reasons beyond his control, he could not report for duty from 16.07.2000, consequently proceeding under Rule 14 of the CCS (CCA) Rules was initiated against him which ended in his removal from service. Thereafter he filed appeal against the order but there was no response to Annexure A-2 appeal. Then by Annexure A-4 representation dated 26.12.2018 he made request for compassionate allowance, which was rejected by the 3rd respondent under Annexure A-1. Aggrieved by the same he has approached this Tribunal for quashing Annexure A-1, for a declaration that he is entitled to be considered for compassionate allowance from 16.07.2000 with all consequent benefits and to direct the respondents to grant him compassionate allowance from 16.07.2000. According to the applicant, when he was removed from service, it is the bounden duty of the competent authority to consider to grant compassionate allowance without any representation or request. But that was not granted and that made him to approach the Tribunal with the above stated reliefs. The applicant has also placed reliance on Annexure A-3 judgement of the Hon'ble Supreme Court in Mahinder Dutt Sharma Vs. Union of India & Others {(2014) 11 SCC 684}.
2. The respondents have denied the contentions of the applicant. According to them the applicant is not entitled to get any relief. After he had OA No.180/00033/2021 3 gone unauthorizedly absent from 16.07.2000, proceeding under Rule 14 of the CCS (CCA) Rules was initiated against him. Even though notice was issued to the applicant, that was not responded and thus the Inquiry Officer was appointed to probe into the articles of charge framed against him; he did not participate in the inquiry proceedings also. Thereafter the report of the Inquiry Officer was also sent to him but there was no response and ultimately by Annexure R-1 order dated 15.05.2002 he was removed from service. Long after, he preferred Annexure A-2 appeal on 08.01.2004, which was liable to be dismissed as time barred. Still, the appeal was considered on merits as well. It is incorrect to say that he was not informed of the outcome of the appeal. By Annexure R-2 order dated 12.06.2004, the 2nd respondent had dismissed the appeal, that was communicated to the applicant. However, that order also returned un-claimed and therefore it is incorrect that the applicant was not made known about the result of the appeal.
3. After about 14 years he filed Annexures A-4/A-6 representation, which was considered and rejected by Annexure A-1 order. According to the respondents there is nothing in AnnexureA-1 order to be interfered with. So the Original Application is sought to be dismissed.
4. The Applicant filed a rejoinder contending that when the request for grant of compassionate allowance is sought under the proviso to Rule 41 of the CCS (Pension) Rules, that should have been granted. Even otherwise when the order of removal of the applicant from service was ordered, the 3rd Respondent ought to have made recommendation for compassionate allowance as there was no moral turpitude or other vices alleged against him.
OA No.180/00033/2021 4 He is also not guilty of corruption or any other serious acts of misconduct and therefore merely for the reason that he had absented from duty, he was removed from service following which grant of compassionate allowance should have been allowed, and it is illegal to deny him the benefit of the proviso to Rule 41.
5. The respondents filed an additional reply reiterating the contentions in the objection. According to them compassionate allowance cannot be sought as a matter or right, now the applicant has approached the Tribunal long after. Even now the applicant has not stated the reasons for remaining absent for long and for not participating in the inquiry proceedings.
6. I heard learned counsel Smt. Kala T. Gopi for the applicant and Shri N. Sreejith, learned ACGSC for the respondents. Smt. Kala has invited my attention to the orders of this Tribunal dated 29.07.2022 in OA No.911/2019 and 2nd September, 2019 in OA No.844/2017 wherein the Tribunal had upheld right of the respective applicants the benefits under the proviso to Rule 41 of the CCS (Pension) Rules. According to the learned counsel dictum in Annexure A-3 decision in Mahinder Dutt Sharma alone is sufficient to grant him the reliefs. Following the parameters laid down in the said decision such a benefit cannot legitimately be denied to the applicant. On the other hand, the learned Standing Counsel has pointed out that the facts of Mahinder Dutt Sharma cannot be extended to the case. Here the applicant was absenting himself for reasons known to him. The articles of charge were communicated to him for which he did not respond. Thereafter an Inquiry Officer was appointed who also had issued notice to him. But he did not OA No.180/00033/2021 5 participate in the inquiry proceedings. When the report of the inquiry was tried to be served on him, that also was not responded. According to the learned Standing Counsel, from Rule 41 itself it is clear that it is discretionary and there cannot have automatic extension of the benefit. The learned Standing Counsel has highlighted that the applicant has not tendered specific reasons for his unauthorized absence. Even at this stage, he has not stated as to what was the sickness or what was the personal inconvenience in not reporting for duty or thereafter for not co-operating with the inquiry. The long delay in moving the claim for compassionate allowance also is fatal. According to him, the Original Application is filed on experimental basis and therefore it is liable to be dismissed.
7. There is no dispute on the service profile of the applicant. He had entered service as Act Apprentice on 11.09.1979, then was regularized on 23.02.1983. After putting in more than 17 years, from 16.07.2000 onwards he went underground; his whereabouts were not known. As he remained absent without giving any application for leave, disciplinary proceeding under Rule 14 of the CCS(CCA) Rules was initiated and memo of charges and statement of allegations were framed against him, which were sent in his given permanent address. But it returned unclaimed. Thereafter an Inquiry Officer was appointed. The Inquiry Officer also tried to trace him but he did not respond to the notice. Thus an inquiry was conducted ex-parte and the Inquiry Officer filed a report finding him guilty of the allegations made in the memo of charges. When that inquiry report was tried to be served, that also could not be served. He did not receive the notice and ultimately by OA No.180/00033/2021 6 Annexure R-1 order dated 15.05.2002 he was removed from service.
8. It is also not disputed that Annexure A-2 appeal was preferred on 08.01.2004 before the 2nd respondent, the appellate authority. By that time more than two years had lapsed and the Appellate Authority after hearing the applicant dismissed the appeal through Annexure R1-3 order dated 29.03.2004. Even though the applicant feigned ignorant about Annexure R1-3 outcome of the appeal, it is certain from R-3 that the result of the appeal was sent in his permanent address. This document shows that the order was sent in his address given in Annexure A-2 appeal, but it returned unclaimed.
9. For about 14 years he remained passive and then on 26.12.2018 submitted Annexure A-4 representation seeking grant of compassionate allowance. At first it was filed before the 2nd respondent and the 2nd respondent returned the same directing to approach the 3rd respondent, the competent authority. Thus, Annexure A-6 representation was given to the 3rd respondent but that was rejected by Annexure A-1 order and that made him to approach this Tribunal after more than 17 years of his removal from service through Annexure R-1 order dated 15.05.2002.
10. I have no doubt that Annexure A-3 judgement in Mahinder Dutt Sharma holds the field in the matter of grant of compassionate allowance after proving a case of unauthorized absence. In the decision, the Hon'ble Supreme Court has laid down certain parameters for the grant of compassionate allowance. The Court has said that if the removal or dismissal from service had occurred not on account of act of moral turpitude or acts OA No.180/00033/2021 7 of dishonesty towards the employer or there was no allegation of any illegitimate personal gains, or that he had not indulged in activity to harm a third-party interest, nor the behavior of the public servant was depraved, perverted, wicked or treacherous conduct, that should evoke compassionate consideration. Such allegations are not raised against the applicant. Therefore, normally, but for the long delay in giving Annexures A-4/A-6 representations, this Tribunal would not have hesitated to entertain the plea of the applicant and would have interfered with Annexure A-1.
11. At this stage, it is idle to insist him to give reasons for his unauthorized absence from service. That matter was enquired into and found against him. The finding has become final. He has not questioned the correctness of the finding of the appellate authority also. That means, having sinned than sinning, reasons for unauthorized absence from service is not a matter to be looked into at this stage.
12. All the same the applicant cannot insist that he should have been granted compassionate allowance by the Head of Office, as a matter of course. Mainly for three reasons I am not inclined to uphold the contentions of the applicant.
13. Firstly, as rightly pointed out by the learned Standing Counsel, compassionate allowance under the proviso to Rule 41 of the CCS(Pension) Rules cannot be granted as a matter of right. Of course even without a specific plea for grant of compassionate allowance, in appropriate cases, the competent authority or Head of Office or the disciplinary authority should make recommendation for grant of the allowance. In view of the parameters OA No.180/00033/2021 8 laid down by Mahinder Dutt Sharma case, normally when a person is removed from service on account of authorized absence for long period, he cannot be denied such a benefit. But that cannot be claimed since it cannot be sought as a matter of right. Rule 41 reads thus:-
"(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 superannuation pension."
That means such an order may be passed only in deserving cases, on special consideration.
14. Then the Government of India decision has been relied upon where the procedure for grant of compassionate allowance is laid down. It is stated that on receipt of order of the competent authority removing an officer from service on misconduct, insolvency or inefficiency, the Head of Office if he proposes to recommend the grant of compassionate allowance should fill in the application for pension and send it to the Accounts Officer concerned for report on the title to pension; the Head of Office should not wait for an application from the officer. In other words, even without a specific plea or application from the removed officer, the Head of office can make recommendation for grant of compassionate allowance. But that depends upon the past conduct of the officer and his service profile. At the stage of issuing the order removing from service, his abstaining from office without OA No.180/00033/2021 9 proper explanation, then not participating in the inquiry proceedings etc. have some bearing in the competent authority not exercising his jurisdiction in recommending the case for compassionate allowance.
15. Here, as noticed earlier, even though the applicant remained absent from office for long, he did not cite appropriate reasons for his absence. In the Original Application he has stated that he was sick and had remained absent for reasons beyond explanation. In Annexure A-2 he has stated that he was sick and that he had many domestic problems, that he was mentally upset etc. Even before this Tribunal, at this stage also, he does not state in explicit terms as to what was his inconvenience in approaching the Head of Office stating the actual reasons for remaining absent. Atleast for the present claim this aspect has become very important and the applicant should have tendered genuine reasons for his remaining silent for long years, without seeking the allowance.
16. Secondly, the long delay in moving this application also is highly critical and fatal. As noticed earlier, the Annexure A-2 appeal was dismissed by Annexure R-1 on 29.03.2004 itself. But he moved a representation for compassionate allowance for the first time only on 26.12.2018, that is after 14 years. This delay is very conspicuous and highly fatal. As rightly stated by the learned Standing Counsel, even now the applicant has put everyone in guess as to what was the reason for not giving the actual cause for his absence and the long delay in moving for compassionate allowance. If he was sick, that would have been made out through the treatment records if any, obtained by him. He does not even state as to what was his ailment or OA No.180/00033/2021 10 the nature of sickness. Then he says that reasons were beyond his control. Moreover, in Annexure A-2 it is stated that he had domestic problems, that he was mentally upset etc. Such nebulous and un-substantiated reasons are stated for the long delay in making this claim. That alone is sufficient to discount his claim for compassionate allowance.
17. Annexure A-4 representation was given only on 26.11.2018. That will not salvage the position. As held by the Hon'ble Supreme Court in Jacob C. vs. Director of Geology & Mining { AIR 2009 SC(2) 64}, it is open to the Department to reject a stale case on the ground of delay alone, without examining merits. It is the settled principle of law that law assists only those who are vigilant and not those who sleep over their rights. The principle is enshrined in the maxim, vigilantibus non dormientibus subveniunt. In Bhoop Singh v. Union of India and others {AIR 1992 SC 1414} the Supreme Court has ruled thus:-
" 8...... Inordinate and un-explained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief............................"
Therefore, the case of the applicant that he should have been granted compassionate allowance should fail on the ground of long delay alone.
18. As rightly stated by the learned Standing Counsel, atleast before the Tribunal he should have furnished the reasons for the long delay in moving the Annexure A-4 representation. If his financial condition had been worse OA No.180/00033/2021 11 he would not have remained dormant without approaching the respondents for compassionate allowance earlier. Here, as pointed out by the learned Standing Counsel, the possibility that he might have during the interregnum, gone after better pastures elsewhere, cannot be ruled out. The burden is on the applicant to state that, for valid reasons, he could not approach the respondents seeking compensatory allowance. This delay is highly conspicuous and stands as a legal impediment to the claim of the applicant.
19. Having regard to the circumstances it has to be said that the applicant has not come with clean hands. The applicant was removed from service owing to the long absence from service alone. The order of removal of service was granted following the procedural formalities. The order was tried to be served on him, but could not be served in the last known permanent address of the applicant, the address furnished by him before the authorities. He did not approach the authorities within a reasonable time for grant of compassionate allowance.
20. On a collation of the circumstances and materials I am not persuaded to hold that the applicant is entitled to get an order. There are difficulties in applying Mahinder Dutt Sharma case(supra) on account of the long delay in making the representation. On his own conduct the respondents were justified in not recommending his case for compassionate allowance. Had he approached the respondents at the appropriate time, there would have been justification in upholding the claim of the applicant.
OA No.180/00033/2021 12
21. In the result, the OA is dismissed. No costs.
(Dated this the 26th day of July, 2023) Justice K. Haripal Judicial Member va OA No.180/00033/2021 13 List of Annexures Annexure A1- True copy of the order bearing No.DYP/SRD/5801/Gen, dated 13.12.2019, issued by the 3rd respondent Annexure A2- True copy of the appeal dated 08.01.2004 addressed to the 2nd respondent Annexure A3- True copy of the judgement of the Hon'ble Apex court Mahindra Dutt Sharma Vs. Union of India & Others, reported in (2014) 11 SCC 684 Annexure A4- True copy of the representation dated 26.12.2018, submitted to the 2nd respondent Annexure A5- True copy of the letter bearing No.CS/V/MISC/04/2019 dated 07.02.2019 from 2nd respondent Annexure A6- True copy of the representation dated 03.09.2019, submitted to the 3rd respondent Annexure A7- True copy of Rule 41 of the CCS (Pension) Rules, 1972 and the Government of India Orders based on that **** Annexure R1- Copy of the order No.DYP/SD/C.48/55734/I dated 15.05.2002 (Removal from service) Annexure R2- Copy of the letter dated 29.03.2004 (Appellate Order) Annexure R3- Copy of the letter No.DYP/SD/APPL/55734 dated 19.04.2004 and 12.06.2004 with acknowledgement ***** OA No.180/00033/2021