Service matter - compassionate allowance under Rule 41 of the Pension Rules, 1972. - Apex court held that One of his brothers died, and thereafter, his father and brother’s wife also passed away. His own wife was suffering from cancer. All these tribulations led to his own ill-health, decipherable from the fact that he was suffering from hypertension and diabetes. It is these considerations, which ought to have been evaluated by the competent authority, to determine whether the claim of the appellant deserved special consideration, as would entitle him to compassionate allowance under Rule 41 of the Pension Rules, 1972.=
17. None of the authorities on the administrative side, not even the
Tribunal or the High Court, applied the above parameters to determine the
claim of the appellant for compassionate allowance.
We are of the view,
that the consideration of the appellant’s claim, was clearly misdirected.
All the authorities merely examined the legitimacy of the order of
dismissal.
And also, whether the delay by the appellant, in filing the
appeal against the punishment order dated 17.5.1996, was legitimate.
The
basis, as well as, the manner of consideration, for a claim for
compassionate allowance, has nothing to do with the above aspects.
Accordingly, while accepting the instant appeal, we set aside the order
dated 25.4.2005 (passed by the Deputy Commissioner of Police, IInd
Battalion, Delhi Armed Police, Delhi), rejecting the prayer made by the
appellant for grant of compassionate allowance.
The order passed by the
Tribunal dated 28.2.2006, and the order passed by the High Court dated
13.11.2006, are also accordingly hereby set aside.
We shall only endeavour to delineate a few of the considerations
which ought to have been considered, in the present case for determining
whether or not, the appellant was entitled to compassionate allowance under
Rule 41 of the Pension Rules, 1972.
In this behalf it may be noticed, that
the appellant had rendered about 24 years of service, prior to his
dismissal from service, vide order dated 17.5.1996.
During the above
tenure, he was granted 34 good entries, including 2 commendation rolls
awarded by Commissioner of Police, 4 commendation certificates awarded by
the Additional Commissioner of Police and 28 commendation cards awarded by
the Deputy Commissioner of Police.
Even though the charge proved against
the appellant pertains to his unauthorized and willful absence from
service, there is nothing on the record to reveal, that his absence from
service was aimed at seeking better pastures elsewhere.
No such inference
is even otherwise possible, keeping in view the length of service rendered
by the appellant.
There is no denial, that the appellant was involved,
during the period under consideration, in a criminal case, from which he
was subsequently acquitted.
One of his brothers died, and thereafter, his
father and brother’s wife also passed away. His own wife was suffering
from cancer. All these tribulations led to his own ill-health,
decipherable from the fact that he was suffering from hypertension and
diabetes.
It is these considerations, which ought to have been evaluated
by the competent authority, to determine whether the claim of the appellant
deserved special consideration, as would entitle him to compassionate
allowance under Rule 41 of the Pension Rules, 1972.
17. None of the authorities on the administrative side, not even the
Tribunal or the High Court, applied the above parameters to determine the
claim of the appellant for compassionate allowance.
We are of the view,
that the consideration of the appellant’s claim, was clearly misdirected.
All the authorities merely examined the legitimacy of the order of
dismissal.
And also, whether the delay by the appellant, in filing the
appeal against the punishment order dated 17.5.1996, was legitimate.
The
basis, as well as, the manner of consideration, for a claim for
compassionate allowance, has nothing to do with the above aspects.
Accordingly, while accepting the instant appeal, we set aside the order
dated 25.4.2005 (passed by the Deputy Commissioner of Police, IInd
Battalion, Delhi Armed Police, Delhi), rejecting the prayer made by the
appellant for grant of compassionate allowance.
The order passed by the
Tribunal dated 28.2.2006, and the order passed by the High Court dated
13.11.2006, are also accordingly hereby set aside.
Having held as above,
we direct the competent authority to reconsider the claim of the appellant,
for the grant of compassionate allowance under Rule 41 of the Pension
Rules, 1972, based on the parameters laid down hereinabove.
18. Allowed in the aforesaid terms.
2014 (April. Part ) judis.nic.in/supremecourt/filename=41408
JAGDISH SINGH KHEHAR, M.Y. EQBAL
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2111 OF 2009
Mahinder Dutt Sharma …. Appellant
versus
Union of India & others …. Respondents
J U D G M E N T
Jagdish Singh Khehar, J.
1. By an office memorandum dated 26.10.1995, departmental action was
initiated against the appellant who was then holding the post of Constable.
He was then posted in the IInd Battalion, Delhi Armed Police, Delhi. The
aforesaid action was initiated against the appellant on account of his
continuous absence from duty with effect from 18.1.1995. He was served
with absentee notice dated 25.5.1995 on 10.6.1995, wherein he was required
to resume his duty. Failing which, he was informed that departmental
action would be taken against him. The appellant neither resumed his
duties, nor responded to the above absentee notice dated 25.5.1995. He was
thereupon, issued a second absentee notice dated 24.8.1995, which was
served on him on 10.9.1995. It is not a matter of dispute, that after
initiating the above departmental proceedings against the appellant, he
resumed his duties on 5.12.1995. It is therefore alleged, that his
unauthorized and willful absence, extended to a period of 320 days 18 hours
and 30 minutes.
2. Inspector Hari Darshan was appointed as the enquiry officer. After
culmination of the departmental proceedings, the enquiry officer arrived at
the conclusion, that the presenting officer had been successful in
substantiating the charges leveled against the appellant. The above
enquiry report was furnished to the appellant on 22.3.1996. Despite being
required to respond to the same, the appellant did not file any reply. In
the absence of any written reply, the appellant was required to appear in
the “orderly room” on three occasions, for affording him a personal
hearing. He ignored all the above notices, by not reporting for personal
hearing.
3. Finding his willful and unauthorized absence from duty intolerable,
specially in a disciplined force, the punishing authority expressed the
view, that not taking stern action against the appellant, would create a
bad impression, on the new entrants into police service. Finding the
behaviour of the appellant incorrigible, the Deputy Commissioner of Police,
IInd Battalion, Delhi Armed Police, Delhi by an order dated 17.5.1996,
dismissed the appellant from service, with immediate effect. In the
punishment order dated 17.5.1996 the disciplinary authority further
directed, that the period of the appellant’s absence from 18.1.1995 to
4.12.1995 (of 320 days, 18 hours and 30 minutes) would be treated as leave
without pay.
4. In the order of dismissal itself, the appellant was informed, that he
could prefer an appeal (against the punishment order dated 17.5.1996),
within 30 days, before the Senior Additional Commissioner of Police, Delhi.
The instant information was furnished to the appellant in terms of the
procedure contemplated under the Delhi Police (Punishment and Appeal)
Rules, 1980. The pleadings before this Court reveal, that the appellant
received the punishment order dated 17.5.1996 on 24.5.1996. It is
therefore apparent, that he could legitimately prefer an appeal by
23.6.1996. The appellant factually preferred an appeal, more than five and
half years after passing of the impugned order, on 21.2.2002. The
Additional Commissioner of Police, Delhi Armed Police, Delhi, dismissed the
appeal preferred by the appellant vide an order dated 13.6.2002, on the
ground that the same was badly time barred.
5. Dissatisfied with the order of punishment dated 17.5.1996, as also
the appellate order dated 13.6.2002, the appellant approached the Central
Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred
to as, the Tribunal), by filing Original Application no. 3132 of 2002. In
the Original Application preferred by him, the appellant narrated various
reasons on account of which delay in filing the appeal had occurred
(against the punishment order dated 17.5.1996) ought to have been condoned.
Firstly, it was submitted that his wife was suffering from cancer.
Secondly, the appellant asserted that he was involved in a criminal case,
and therefore, was wholeheartedly attending to the same. Thirdly, it was
stated that his brother had died, and thereafter, his father and brother’s
wife had also passed away. Lastly, it was submitted that he was suffering
from hypertension, as also, diabetes, which added to the reasons already
expressed hereinabove (for not being able to prefer the appeal within the
period of limitation).
6. Since the events referred to by the appellant, as have been narrated
in the foregoing paragraph, had taken place prior to the year 2000, the
Tribunal found no justification in the explanation tendered by the
appellant, for condoning delay in preferring the appeal filed against the
order of punishment dated 17.5.1996, on 21.2.2002. Despite the above
conclusion, the Tribunal examined the veracity of the impugned order dated
17.5.1996, on the basis of the submissions advanced on behalf of the
appellant and arrived at the conclusion, that the same required no
interference.
7. Dissatisfied with the order passed by the Tribunal on 14.8.2003, the
appellant preferred Writ Petition no. 10959 of 2004 before the High Court
of Delhi at Delhi (hereinafter referred to as, the High Court). The
appellant, however, withdrew the aforesaid writ petition on 15.10.2004,
with liberty to seek compassionate allowance. The above order dated
15.10.2004, is being extracted hereunder:-
“Learned counsel for the petitioner, on instructions, prays for
withdrawal of this petition because petitioner wants to take some
appropriate remedy for grant of compassionate allowance.
Dismissed with liberty to petitioner to seek appropriate remedy for
grant of allowance.”
8. On 22.3.2005, the appellant moved a representation to the Joint
Commissioner of Police, Delhi Armed Police, Delhi, seeking compassionate
allowance under Rule 41 of the Central Civil Services (Pension) Rules, 1972
(hereinafter referred to as, the Pension Rules, 1972). Rule 41 of the
Rules aforementioned, is being extracted hereunder:-
“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 Rupees
three hundred and seventy-five per mensem.”
In his above representation dated 22.3.2005 the appellant asserted, that he
had about 24 years of unblemished service during which he was granted 34
good entries, including 2 commendation rolls awarded by Commissioner of
Police, 4 commendation certificates awarded by the Additional Commissioner
of Police and 28 commendation cards awarded by the Deputy Commissioner of
Police. He also placed reliance on his discharge certificate, whereunder
the character of the appellant was described as ‘very good’.
9. By an order dated 25.4.2005, the Deputy Commissioner of Police, IInd
Battalion, Delhi Armed Police, Delhi, rejected the prayer made by the
appellant for the grant of compassionate allowance. The operative part of
the order dated 25.4.2005, rejecting the appellant’s claim for
compassionate allowance is being extracted hereunder:-
“4. As regards your claim for compassionate allowance, you do not
have unblemished record because you have been found absent on
several occasions and your period was treated as ‘Leave Without
Pay’. You were also censured during the tenure of your service
and certain other punishments also exist in your service record.
Hence due to indifferent service record and the facts of the
case no compassionate allowance can be granted.”
10. Dissatisfied with the order dated 25.4.2005, the appellant again
approached the Tribunal by filing Original Application no. 1581 of 2005,
seeking annulment of the order dated 25.4.2005, as also, the directions of
the authorities, not to release compassionate allowance to the appellant.
The appellant’s claim was, however, declined by the Tribunal vide an order
dated 28.2.2006. It is necessary in the facts and circumstances of the
case, as also, for an effective determination of the claim of the appellant
under Rule 41 of the Pension Rules, 1972 to extract hereinbelow, the manner
and the reasoning which had weighed with the Tribunal for rejecting the
claim of the appellant. Accordingly, the operative part of the relevant
consideration at the hands of the Tribunal is being reproduced hereunder:-
“7. Reading of the above rules show that in normal circumstances
when a Government servant is removed or dismissed from service,
he forfeits his past service, including pension and gratuity but
it is only by way of an exception that a proviso is added in
Rule 41 which states, the competent authority may, if the case
is deserving of special consideration, sanction a compassionate
allowance. From this, it would further emerge that
compassionate allowance can be given only in exceptional
circumstances where case is found to be deserving of special
consideration. The person, who has to decide, whether it is a
deserving case or not, is the competent authority. Under the
Government of India’s decisions, 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
the factor by itself is not, except perhaps in the most
exceptional circumstances, sufficient for the grant of a
compassionate allowance. In other words, there has to be some
mitigating factor which makes the competent authority to come to
the conclusion that even though the person has to be dismissed
or removed from service but looking at the special mitigating
circumstances, the person may be given compassionate allowance.
It goes without saying when it is an exception, it cannot be
given as matter of course in every case where Government servant
has been dismissed or removed, otherwise it will defeat the main
rule itself which can never be the intention of the legislature.
Provisos are added to deal with a particular situation only to
avoid undue hardship to a deserving case where mitigating
circumstances are existing.
8. With this background, if the facts of this case are examined, as
stated by the applicant in his representation, I find only three
grounds have been taken by the applicant namely, he had put in
24 years of unblemished service, there were three deaths in the
family after he was dismissed and he has become a diabetic
patient and is in a pathetic condition. His ground for
condoning the delay was not considered by the appellate
authority in the right spirit. Let me examine all these three
points. When applicant had challenged his dismissal and
appellate order before the Tribunal in OA 3132/2002, the
question of delay was specifically dealt with by the Tribunal in
Para 8 (Page 19 to 22). It was specifically stated as undedr:-
“On this count, we need not prove further in detail. Even
if we accept the contention of the applicant to be gospel
truth, still he has to explain each day’s delay after the
period of limitation expired. As per his own showing, all
these unfortunate incidents took place before the year
2000. He was also acquitted by the Court of competent
jurisdiction in the same year. Still he did not deem it
necessary to file an appeal within the period of limitation
from that date.”
His contention was thus rejected.
9. In view of above, the contention that there was a valid ground
for not filing the appeal within time cannot even be allowed to
be agitated again as the judgment of Tribunal has not been upset
by Hon’ble High Court. Similarly, applicant had also challenged
before Tribunal the use of word “incorrigible” for him by the
authorities but even that contention was rejected by the
Tribunal. The order dated 14.8.2003 passed by the Tribunal in
O.A. 3132/2002 was further carried by the applicant to Hon’ble
High Court of Delhi by filing Writ Petition no. 10959/2004 but
the said order of Tribunal was not interfered with. On the
contrary, the order passed by Hon’ble High Court reads as under:-
“Learned counsel for the petitioner, on instructions, prays
for withdrawal of this petition because petitioner wants to
take some appropriate remedy for grant of compassionate
allowance.
Dismissed with liberty to petitioner to seek appropriate
remedy for grant of this allowance.’”
which clearly shows that the judgment of Tribunal has attained
finality. Counsel for the applicant submitted that the writ
petition was withdrawn on directions from the Hon’ble High
Court, but I cannot with this contention because words cannot be
added in the order passed by Hon’ble High Court. Order has to
be read, as it is, which shows that applicant had withdrawn the
case because he wanted to take some appropriate remedy for grant
of compassionate allowance. In other words, the order passed by
the Tribunal was not interfered with and was upheld. Therefore,
in these circumstances, applicant cannot be allowed to state to
the contrary, therefore, the contention that there was valid
reason for not filing the appeal in time or that he had
unblemished record is rejected. Since the findings that he was
found to be incorrigible in this case when he was dismissed,
whereas the foremost requirement for grant of compassionate
allowance under Rule 41 of the CCS (Pension) Rules is that of
extenuating circumstances.
10. Apart from it, applicant remained unauthorizedly absent on six
occasions, as reflected in counter affidavit:
“1. 3 days leave without pay w.e.f. 30.9.79 to 2.10.79
vide O.B. no. 656/80.
2. 66 days leave without pay w.e.f. 15.10.79 to 19.12.79
vide O.B. no. 656/80.
3. 19 days leave without pay w.e.f. 6.2.81 to 24.2.81
vide order no. 15417-21/ASIP/North dated 8.9.1981.
4. 20 days leave without pay w.e.f. 29.8.84 to 17.9.84
vide O.B. no. 682/85.
5. 83 days leave without pay w.e.f. 20.9.84 to 11.12.84
vide O.B. no. 682/85.
6. 110 days leave without pay w.e.f. 3.1.96 to 22.4.96
vide order no. 2934-37/ASIP-II, DAP, dated 22.5.96.”
Applicant has not even bothered to controvert it, which means
these averments stand admitted in law. These facts clearly show
that applicant cannot be said to be having unblemished record as
stated by him, therefore, this contention also has to be
rejected. Applicant was dismissed in 1996. If after 9 years
applicant states he is in a pathetic condition, he cannot be
allowed to claim compassionate allowance in 2005 w.e.f. 1996
i.e. date of his dismissal, that too with interest. This
request is definitely an after thought, nothing more need be
said on this point. If such a contention is allowed, employees
will not bother to maintain discipline or follow rules because
they would think ultimately even if they are dismissed, they can
always claim compassionate allowance. Compassionate allowance
cannot be sought as a matter of right unless there are some
exceptional circumstances.
11. According to me, no case has been made out by applicant for
grant of compassionate allowance.”
(emphasis is ours)
11. Aggrieved with the order of the Tribunal dated 28.2.2006, the
appellant filed Writ Petition no. 14924 of 2006 before the High Court. The
High Court examined the submissions advanced on behalf of the appellant.
It dismissed the claim of the appellant for compassionate allowance, on the
following consideration:-
“Considering the aforesaid plea, we had directed the petitioner to
file an additional affidavit to give particulars and details of the
reasons which constrained him to avail leave without pay and to set
out other special circumstances in support of his plea for
compassionate allowance. The additional affidavit was not filed
within two weeks as directed. However, further time was granted by us
to the petitioner for filing the additional affidavit vide order dated
11.10.2006. The additional affidavit that has been preferred by the
petitioner, unfortunately, apart from mentioning in para 6 that the
petitioner’s condition was pathetic and his wife has suffered from
cancer and that he was apprehending amputation of his left leg below
the knee, does not contain any averments with regard to the various
bereavements suffered or the illness of his wife or the treatment
thereof and the respective deaths which came into the way of the
petitioner from taking legal remedies. He has not brought forward any
extenuating and special circumstances which had continued since then
which had prevented him from taking timely remedies or would entitle
him to compassionate allowance. The medical certificate of the
petitioner no doubt shows that he is diabetic and under treatment,
therefor. However, it also shows that the petitioner has been a
chronic alcoholic and drug addict. Considering the aforesaid factors,
while one may sympathize with the petitioner’s present condition, we
are not satisfied that the petitioner has succeeded in making out a
case for grant of compassionate allowance and the discretion exercised
by the authorities cannot be said to have been vitiated by any
extraneous or irrelevant factors.”
(emphasis is ours)
12. We are of the considered view, that the adjudication by the Courts
below with reference to Rule 41 of the Pension Rules, 1972, is clearly
misdirected. The Rule itself contemplates, payment of compassionate
allowance to an employee who has been dismissed or removed from service.
Under the punishment rules, the above punishments are of the severest
magnitude. These punishments can be inflicted, only for an act of extreme
wrongdoing. It is on account of such wrongdoing, that the employee
concerned, has already been subjected to the severest form of punishment.
Sometimes even for being incorrigible. Despite that, the rule contemplates
sanction of a compassionate allowance of, upto two-thirds of the pension or
gratuity (or both), which would have been drawn by the punished employee,
if he had retired on compassionate pension. The entire consideration upto
the present juncture, by the Courts below, is directly or indirectly aimed
at determining, whether the delinquency committed by the appellant, was
sufficient and appropriate, for the infliction of the punishment of
dismissal from service. This determination is relevant for examining the
veracity of the punishment order itself. That, however, is not the scope
of the exercise contemplated in the present consideration. Insofar as the
determination of the admissibility of the benefits contemplated under Rule
41 of the Pension Rules, 1972 is concerned, the same has to be by
accepting, that the delinquency committed by the punished employee was of a
magnitude which is sufficient for the imposition of the most severe
punishments. As in the present case, unauthorized and willful absence of
the appellant for a period of 320 days, has resulted in the passing of the
order of dismissal from service. The punishment inflicted on the
appellant, has been found to be legitimate and genuine, as also,
commensurate to the delinquency of the appellant. The issue now is the
evaluation of claim of the punished employee under Rule 41 of the Pension
Rules, 1972.
13. In our considered view, the determination of a claim based under Rule
41 of the Pension Rules, 1972, will necessarily have to be sieved 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.
14. While evaluating the claim of a dismissed (or removed from service)
employee, for the grant of compassionate allowance, the rule postulates a
window for hope, “…if the case is deserving of special consideration…”.
Where the delinquency leading to punishment, falls in one of the five
classifications delineated in the foregoing paragraph, it would ordinarily
disentitle an employee from such compassionate consideration. An employee
who falls in any of the above five categories, would therefore ordinarily
not be a deserving employee, for the grant of compassionate allowance. In
a situation like this, the deserving special consideration, will have to be
momentous. It is not possible to effectively define the term “deserving
special consideration” used in Rule 41 of the Pension Rules, 1972. We
shall therefore not endeavour any attempt in the said direction.
Circumstances deserving special consideration, would ordinarily be
unlimited, keeping in mind unlimited variability of human environment. But
surely where the delinquency leveled and proved against the punished
employee, does not fall in the realm of misdemeanour illustratively
categorized in the foregoing paragraph, it would be easier than otherwise,
to extend such benefit to the punished employee, of course, subject to
availability of factors of compassionate consideration.
15. We shall now venture to apply the aforesaid criterion, to the facts
and circumstances of the case in hand, and decipher therefrom, whether the
appellant before this Court ought to have been granted compassionate
allowance under Rule 41 of the Pension Rules, 1972. The appellant was
punished by an order dated 17.5.1996 with dismissal from service. The
accusations levelled against the appellant were limited to his unauthorized
and willful absence from service from 18.1.1995 to 4.12.1995 (i.e., for a
period of 320 days, 18 hours and 30 minutes). The above order of
punishment also notices, that not taking stern action against the
appellant, would create a bad impression, on the new entrants in the police
service. The punishing authority while making a choice of the punishment
imposed on the appellant, also recorded, that the appellant’s behaviour was
incorrigible. Thus viewed, there can be no doubt, that the order of
dismissal from service imposed on the appellant was fully justified. For
determining the question of compassionate allowance, so as to bring it
within the realm of the parameters laid down in Rule 41 of the Pension
Rules, 1972, it is first necessary to evaluate, whether the wrongdoing
alleged against the appellant, was of a nature expressed in paragraph 13 of
the instant judgment. Having given our thoughtful consideration on the
above aspect of the matter, we do not find the delinquency for which the
appellant was punished, as being one which can be described as an act of
moral turpitude, nor can it be concluded that the allegations made against
the appellant constituted acts of dishonesty towards his employer. The
appellant’s behaviour, was not one which can be expressed as an act
designed for illegitimate personal gains, from his employer. The
appellant, cannot also be stated to have indulged in an activity to harm a
third party interest, based on the authority vested in him, nor was the
behaviour of the appellant depraved, perverted, wicked or treacherous.
Accordingly, even though the delinquency alleged and proved against the
appellant was sufficient for imposition of punishment of dismissal from
service, it does not fall in any of the classifications/categories depicted
in paragraph 13 of the instant judgment. Therefore, the availability of
compassionate consideration, even of a lesser degree should ordinarily
satisfy the competent authority, about the appellant’s deservedness for an
affirmative consideration.
16. We shall only endeavour to delineate a few of the considerations
which ought to have been considered, in the present case for determining
whether or not, the appellant was entitled to compassionate allowance under
Rule 41 of the Pension Rules, 1972. In this behalf it may be noticed, that
the appellant had rendered about 24 years of service, prior to his
dismissal from service, vide order dated 17.5.1996. During the above
tenure, he was granted 34 good entries, including 2 commendation rolls
awarded by Commissioner of Police, 4 commendation certificates awarded by
the Additional Commissioner of Police and 28 commendation cards awarded by
the Deputy Commissioner of Police. Even though the charge proved against
the appellant pertains to his unauthorized and willful absence from
service, there is nothing on the record to reveal, that his absence from
service was aimed at seeking better pastures elsewhere. No such inference
is even otherwise possible, keeping in view the length of service rendered
by the appellant. There is no denial, that the appellant was involved,
during the period under consideration, in a criminal case, from which he
was subsequently acquitted. One of his brothers died, and thereafter, his
father and brother’s wife also passed away. His own wife was suffering
from cancer. All these tribulations led to his own ill-health,
decipherable from the fact that he was suffering from hypertension and
diabetes. It is these considerations, which ought to have been evaluated
by the competent authority, to determine whether the claim of the appellant
deserved special consideration, as would entitle him to compassionate
allowance under Rule 41 of the Pension Rules, 1972.
17. None of the authorities on the administrative side, not even the
Tribunal or the High Court, applied the above parameters to determine the
claim of the appellant for compassionate allowance. We are of the view,
that the consideration of the appellant’s claim, was clearly misdirected.
All the authorities merely examined the legitimacy of the order of
dismissal. And also, whether the delay by the appellant, in filing the
appeal against the punishment order dated 17.5.1996, was legitimate. The
basis, as well as, the manner of consideration, for a claim for
compassionate allowance, has nothing to do with the above aspects.
Accordingly, while accepting the instant appeal, we set aside the order
dated 25.4.2005 (passed by the Deputy Commissioner of Police, IInd
Battalion, Delhi Armed Police, Delhi), rejecting the prayer made by the
appellant for grant of compassionate allowance. The order passed by the
Tribunal dated 28.2.2006, and the order passed by the High Court dated
13.11.2006, are also accordingly hereby set aside. Having held as above,
we direct the competent authority to reconsider the claim of the appellant,
for the grant of compassionate allowance under Rule 41 of the Pension
Rules, 1972, based on the parameters laid down hereinabove.
18. Allowed in the aforesaid terms.
…..…………………………….J.
(Jagdish Singh Khehar)
…..…………………………….J.
(M.Y. Eqbal)
New Delhi;
April 11, 2014.
-----------------------
18
17. None of the authorities on the administrative side, not even the
Tribunal or the High Court, applied the above parameters to determine the
claim of the appellant for compassionate allowance.
We are of the view,
that the consideration of the appellant’s claim, was clearly misdirected.
All the authorities merely examined the legitimacy of the order of
dismissal.
And also, whether the delay by the appellant, in filing the
appeal against the punishment order dated 17.5.1996, was legitimate.
The
basis, as well as, the manner of consideration, for a claim for
compassionate allowance, has nothing to do with the above aspects.
Accordingly, while accepting the instant appeal, we set aside the order
dated 25.4.2005 (passed by the Deputy Commissioner of Police, IInd
Battalion, Delhi Armed Police, Delhi), rejecting the prayer made by the
appellant for grant of compassionate allowance.
The order passed by the
Tribunal dated 28.2.2006, and the order passed by the High Court dated
13.11.2006, are also accordingly hereby set aside.
We shall only endeavour to delineate a few of the considerations
which ought to have been considered, in the present case for determining
whether or not, the appellant was entitled to compassionate allowance under
Rule 41 of the Pension Rules, 1972.
In this behalf it may be noticed, that
the appellant had rendered about 24 years of service, prior to his
dismissal from service, vide order dated 17.5.1996.
During the above
tenure, he was granted 34 good entries, including 2 commendation rolls
awarded by Commissioner of Police, 4 commendation certificates awarded by
the Additional Commissioner of Police and 28 commendation cards awarded by
the Deputy Commissioner of Police.
Even though the charge proved against
the appellant pertains to his unauthorized and willful absence from
service, there is nothing on the record to reveal, that his absence from
service was aimed at seeking better pastures elsewhere.
No such inference
is even otherwise possible, keeping in view the length of service rendered
by the appellant.
There is no denial, that the appellant was involved,
during the period under consideration, in a criminal case, from which he
was subsequently acquitted.
One of his brothers died, and thereafter, his
father and brother’s wife also passed away. His own wife was suffering
from cancer. All these tribulations led to his own ill-health,
decipherable from the fact that he was suffering from hypertension and
diabetes.
It is these considerations, which ought to have been evaluated
by the competent authority, to determine whether the claim of the appellant
deserved special consideration, as would entitle him to compassionate
allowance under Rule 41 of the Pension Rules, 1972.
17. None of the authorities on the administrative side, not even the
Tribunal or the High Court, applied the above parameters to determine the
claim of the appellant for compassionate allowance.
We are of the view,
that the consideration of the appellant’s claim, was clearly misdirected.
All the authorities merely examined the legitimacy of the order of
dismissal.
And also, whether the delay by the appellant, in filing the
appeal against the punishment order dated 17.5.1996, was legitimate.
The
basis, as well as, the manner of consideration, for a claim for
compassionate allowance, has nothing to do with the above aspects.
Accordingly, while accepting the instant appeal, we set aside the order
dated 25.4.2005 (passed by the Deputy Commissioner of Police, IInd
Battalion, Delhi Armed Police, Delhi), rejecting the prayer made by the
appellant for grant of compassionate allowance.
The order passed by the
Tribunal dated 28.2.2006, and the order passed by the High Court dated
13.11.2006, are also accordingly hereby set aside.
Having held as above,
we direct the competent authority to reconsider the claim of the appellant,
for the grant of compassionate allowance under Rule 41 of the Pension
Rules, 1972, based on the parameters laid down hereinabove.
18. Allowed in the aforesaid terms.
2014 (April. Part ) judis.nic.in/supremecourt/filename=41408
JAGDISH SINGH KHEHAR, M.Y. EQBAL
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2111 OF 2009
Mahinder Dutt Sharma …. Appellant
versus
Union of India & others …. Respondents
J U D G M E N T
Jagdish Singh Khehar, J.
1. By an office memorandum dated 26.10.1995, departmental action was
initiated against the appellant who was then holding the post of Constable.
He was then posted in the IInd Battalion, Delhi Armed Police, Delhi. The
aforesaid action was initiated against the appellant on account of his
continuous absence from duty with effect from 18.1.1995. He was served
with absentee notice dated 25.5.1995 on 10.6.1995, wherein he was required
to resume his duty. Failing which, he was informed that departmental
action would be taken against him. The appellant neither resumed his
duties, nor responded to the above absentee notice dated 25.5.1995. He was
thereupon, issued a second absentee notice dated 24.8.1995, which was
served on him on 10.9.1995. It is not a matter of dispute, that after
initiating the above departmental proceedings against the appellant, he
resumed his duties on 5.12.1995. It is therefore alleged, that his
unauthorized and willful absence, extended to a period of 320 days 18 hours
and 30 minutes.
2. Inspector Hari Darshan was appointed as the enquiry officer. After
culmination of the departmental proceedings, the enquiry officer arrived at
the conclusion, that the presenting officer had been successful in
substantiating the charges leveled against the appellant. The above
enquiry report was furnished to the appellant on 22.3.1996. Despite being
required to respond to the same, the appellant did not file any reply. In
the absence of any written reply, the appellant was required to appear in
the “orderly room” on three occasions, for affording him a personal
hearing. He ignored all the above notices, by not reporting for personal
hearing.
3. Finding his willful and unauthorized absence from duty intolerable,
specially in a disciplined force, the punishing authority expressed the
view, that not taking stern action against the appellant, would create a
bad impression, on the new entrants into police service. Finding the
behaviour of the appellant incorrigible, the Deputy Commissioner of Police,
IInd Battalion, Delhi Armed Police, Delhi by an order dated 17.5.1996,
dismissed the appellant from service, with immediate effect. In the
punishment order dated 17.5.1996 the disciplinary authority further
directed, that the period of the appellant’s absence from 18.1.1995 to
4.12.1995 (of 320 days, 18 hours and 30 minutes) would be treated as leave
without pay.
4. In the order of dismissal itself, the appellant was informed, that he
could prefer an appeal (against the punishment order dated 17.5.1996),
within 30 days, before the Senior Additional Commissioner of Police, Delhi.
The instant information was furnished to the appellant in terms of the
procedure contemplated under the Delhi Police (Punishment and Appeal)
Rules, 1980. The pleadings before this Court reveal, that the appellant
received the punishment order dated 17.5.1996 on 24.5.1996. It is
therefore apparent, that he could legitimately prefer an appeal by
23.6.1996. The appellant factually preferred an appeal, more than five and
half years after passing of the impugned order, on 21.2.2002. The
Additional Commissioner of Police, Delhi Armed Police, Delhi, dismissed the
appeal preferred by the appellant vide an order dated 13.6.2002, on the
ground that the same was badly time barred.
5. Dissatisfied with the order of punishment dated 17.5.1996, as also
the appellate order dated 13.6.2002, the appellant approached the Central
Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred
to as, the Tribunal), by filing Original Application no. 3132 of 2002. In
the Original Application preferred by him, the appellant narrated various
reasons on account of which delay in filing the appeal had occurred
(against the punishment order dated 17.5.1996) ought to have been condoned.
Firstly, it was submitted that his wife was suffering from cancer.
Secondly, the appellant asserted that he was involved in a criminal case,
and therefore, was wholeheartedly attending to the same. Thirdly, it was
stated that his brother had died, and thereafter, his father and brother’s
wife had also passed away. Lastly, it was submitted that he was suffering
from hypertension, as also, diabetes, which added to the reasons already
expressed hereinabove (for not being able to prefer the appeal within the
period of limitation).
6. Since the events referred to by the appellant, as have been narrated
in the foregoing paragraph, had taken place prior to the year 2000, the
Tribunal found no justification in the explanation tendered by the
appellant, for condoning delay in preferring the appeal filed against the
order of punishment dated 17.5.1996, on 21.2.2002. Despite the above
conclusion, the Tribunal examined the veracity of the impugned order dated
17.5.1996, on the basis of the submissions advanced on behalf of the
appellant and arrived at the conclusion, that the same required no
interference.
7. Dissatisfied with the order passed by the Tribunal on 14.8.2003, the
appellant preferred Writ Petition no. 10959 of 2004 before the High Court
of Delhi at Delhi (hereinafter referred to as, the High Court). The
appellant, however, withdrew the aforesaid writ petition on 15.10.2004,
with liberty to seek compassionate allowance. The above order dated
15.10.2004, is being extracted hereunder:-
“Learned counsel for the petitioner, on instructions, prays for
withdrawal of this petition because petitioner wants to take some
appropriate remedy for grant of compassionate allowance.
Dismissed with liberty to petitioner to seek appropriate remedy for
grant of allowance.”
8. On 22.3.2005, the appellant moved a representation to the Joint
Commissioner of Police, Delhi Armed Police, Delhi, seeking compassionate
allowance under Rule 41 of the Central Civil Services (Pension) Rules, 1972
(hereinafter referred to as, the Pension Rules, 1972). Rule 41 of the
Rules aforementioned, is being extracted hereunder:-
“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 Rupees
three hundred and seventy-five per mensem.”
In his above representation dated 22.3.2005 the appellant asserted, that he
had about 24 years of unblemished service during which he was granted 34
good entries, including 2 commendation rolls awarded by Commissioner of
Police, 4 commendation certificates awarded by the Additional Commissioner
of Police and 28 commendation cards awarded by the Deputy Commissioner of
Police. He also placed reliance on his discharge certificate, whereunder
the character of the appellant was described as ‘very good’.
9. By an order dated 25.4.2005, the Deputy Commissioner of Police, IInd
Battalion, Delhi Armed Police, Delhi, rejected the prayer made by the
appellant for the grant of compassionate allowance. The operative part of
the order dated 25.4.2005, rejecting the appellant’s claim for
compassionate allowance is being extracted hereunder:-
“4. As regards your claim for compassionate allowance, you do not
have unblemished record because you have been found absent on
several occasions and your period was treated as ‘Leave Without
Pay’. You were also censured during the tenure of your service
and certain other punishments also exist in your service record.
Hence due to indifferent service record and the facts of the
case no compassionate allowance can be granted.”
10. Dissatisfied with the order dated 25.4.2005, the appellant again
approached the Tribunal by filing Original Application no. 1581 of 2005,
seeking annulment of the order dated 25.4.2005, as also, the directions of
the authorities, not to release compassionate allowance to the appellant.
The appellant’s claim was, however, declined by the Tribunal vide an order
dated 28.2.2006. It is necessary in the facts and circumstances of the
case, as also, for an effective determination of the claim of the appellant
under Rule 41 of the Pension Rules, 1972 to extract hereinbelow, the manner
and the reasoning which had weighed with the Tribunal for rejecting the
claim of the appellant. Accordingly, the operative part of the relevant
consideration at the hands of the Tribunal is being reproduced hereunder:-
“7. Reading of the above rules show that in normal circumstances
when a Government servant is removed or dismissed from service,
he forfeits his past service, including pension and gratuity but
it is only by way of an exception that a proviso is added in
Rule 41 which states, the competent authority may, if the case
is deserving of special consideration, sanction a compassionate
allowance. From this, it would further emerge that
compassionate allowance can be given only in exceptional
circumstances where case is found to be deserving of special
consideration. The person, who has to decide, whether it is a
deserving case or not, is the competent authority. Under the
Government of India’s decisions, 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
the factor by itself is not, except perhaps in the most
exceptional circumstances, sufficient for the grant of a
compassionate allowance. In other words, there has to be some
mitigating factor which makes the competent authority to come to
the conclusion that even though the person has to be dismissed
or removed from service but looking at the special mitigating
circumstances, the person may be given compassionate allowance.
It goes without saying when it is an exception, it cannot be
given as matter of course in every case where Government servant
has been dismissed or removed, otherwise it will defeat the main
rule itself which can never be the intention of the legislature.
Provisos are added to deal with a particular situation only to
avoid undue hardship to a deserving case where mitigating
circumstances are existing.
8. With this background, if the facts of this case are examined, as
stated by the applicant in his representation, I find only three
grounds have been taken by the applicant namely, he had put in
24 years of unblemished service, there were three deaths in the
family after he was dismissed and he has become a diabetic
patient and is in a pathetic condition. His ground for
condoning the delay was not considered by the appellate
authority in the right spirit. Let me examine all these three
points. When applicant had challenged his dismissal and
appellate order before the Tribunal in OA 3132/2002, the
question of delay was specifically dealt with by the Tribunal in
Para 8 (Page 19 to 22). It was specifically stated as undedr:-
“On this count, we need not prove further in detail. Even
if we accept the contention of the applicant to be gospel
truth, still he has to explain each day’s delay after the
period of limitation expired. As per his own showing, all
these unfortunate incidents took place before the year
2000. He was also acquitted by the Court of competent
jurisdiction in the same year. Still he did not deem it
necessary to file an appeal within the period of limitation
from that date.”
His contention was thus rejected.
9. In view of above, the contention that there was a valid ground
for not filing the appeal within time cannot even be allowed to
be agitated again as the judgment of Tribunal has not been upset
by Hon’ble High Court. Similarly, applicant had also challenged
before Tribunal the use of word “incorrigible” for him by the
authorities but even that contention was rejected by the
Tribunal. The order dated 14.8.2003 passed by the Tribunal in
O.A. 3132/2002 was further carried by the applicant to Hon’ble
High Court of Delhi by filing Writ Petition no. 10959/2004 but
the said order of Tribunal was not interfered with. On the
contrary, the order passed by Hon’ble High Court reads as under:-
“Learned counsel for the petitioner, on instructions, prays
for withdrawal of this petition because petitioner wants to
take some appropriate remedy for grant of compassionate
allowance.
Dismissed with liberty to petitioner to seek appropriate
remedy for grant of this allowance.’”
which clearly shows that the judgment of Tribunal has attained
finality. Counsel for the applicant submitted that the writ
petition was withdrawn on directions from the Hon’ble High
Court, but I cannot with this contention because words cannot be
added in the order passed by Hon’ble High Court. Order has to
be read, as it is, which shows that applicant had withdrawn the
case because he wanted to take some appropriate remedy for grant
of compassionate allowance. In other words, the order passed by
the Tribunal was not interfered with and was upheld. Therefore,
in these circumstances, applicant cannot be allowed to state to
the contrary, therefore, the contention that there was valid
reason for not filing the appeal in time or that he had
unblemished record is rejected. Since the findings that he was
found to be incorrigible in this case when he was dismissed,
whereas the foremost requirement for grant of compassionate
allowance under Rule 41 of the CCS (Pension) Rules is that of
extenuating circumstances.
10. Apart from it, applicant remained unauthorizedly absent on six
occasions, as reflected in counter affidavit:
“1. 3 days leave without pay w.e.f. 30.9.79 to 2.10.79
vide O.B. no. 656/80.
2. 66 days leave without pay w.e.f. 15.10.79 to 19.12.79
vide O.B. no. 656/80.
3. 19 days leave without pay w.e.f. 6.2.81 to 24.2.81
vide order no. 15417-21/ASIP/North dated 8.9.1981.
4. 20 days leave without pay w.e.f. 29.8.84 to 17.9.84
vide O.B. no. 682/85.
5. 83 days leave without pay w.e.f. 20.9.84 to 11.12.84
vide O.B. no. 682/85.
6. 110 days leave without pay w.e.f. 3.1.96 to 22.4.96
vide order no. 2934-37/ASIP-II, DAP, dated 22.5.96.”
Applicant has not even bothered to controvert it, which means
these averments stand admitted in law. These facts clearly show
that applicant cannot be said to be having unblemished record as
stated by him, therefore, this contention also has to be
rejected. Applicant was dismissed in 1996. If after 9 years
applicant states he is in a pathetic condition, he cannot be
allowed to claim compassionate allowance in 2005 w.e.f. 1996
i.e. date of his dismissal, that too with interest. This
request is definitely an after thought, nothing more need be
said on this point. If such a contention is allowed, employees
will not bother to maintain discipline or follow rules because
they would think ultimately even if they are dismissed, they can
always claim compassionate allowance. Compassionate allowance
cannot be sought as a matter of right unless there are some
exceptional circumstances.
11. According to me, no case has been made out by applicant for
grant of compassionate allowance.”
(emphasis is ours)
11. Aggrieved with the order of the Tribunal dated 28.2.2006, the
appellant filed Writ Petition no. 14924 of 2006 before the High Court. The
High Court examined the submissions advanced on behalf of the appellant.
It dismissed the claim of the appellant for compassionate allowance, on the
following consideration:-
“Considering the aforesaid plea, we had directed the petitioner to
file an additional affidavit to give particulars and details of the
reasons which constrained him to avail leave without pay and to set
out other special circumstances in support of his plea for
compassionate allowance. The additional affidavit was not filed
within two weeks as directed. However, further time was granted by us
to the petitioner for filing the additional affidavit vide order dated
11.10.2006. The additional affidavit that has been preferred by the
petitioner, unfortunately, apart from mentioning in para 6 that the
petitioner’s condition was pathetic and his wife has suffered from
cancer and that he was apprehending amputation of his left leg below
the knee, does not contain any averments with regard to the various
bereavements suffered or the illness of his wife or the treatment
thereof and the respective deaths which came into the way of the
petitioner from taking legal remedies. He has not brought forward any
extenuating and special circumstances which had continued since then
which had prevented him from taking timely remedies or would entitle
him to compassionate allowance. The medical certificate of the
petitioner no doubt shows that he is diabetic and under treatment,
therefor. However, it also shows that the petitioner has been a
chronic alcoholic and drug addict. Considering the aforesaid factors,
while one may sympathize with the petitioner’s present condition, we
are not satisfied that the petitioner has succeeded in making out a
case for grant of compassionate allowance and the discretion exercised
by the authorities cannot be said to have been vitiated by any
extraneous or irrelevant factors.”
(emphasis is ours)
12. We are of the considered view, that the adjudication by the Courts
below with reference to Rule 41 of the Pension Rules, 1972, is clearly
misdirected. The Rule itself contemplates, payment of compassionate
allowance to an employee who has been dismissed or removed from service.
Under the punishment rules, the above punishments are of the severest
magnitude. These punishments can be inflicted, only for an act of extreme
wrongdoing. It is on account of such wrongdoing, that the employee
concerned, has already been subjected to the severest form of punishment.
Sometimes even for being incorrigible. Despite that, the rule contemplates
sanction of a compassionate allowance of, upto two-thirds of the pension or
gratuity (or both), which would have been drawn by the punished employee,
if he had retired on compassionate pension. The entire consideration upto
the present juncture, by the Courts below, is directly or indirectly aimed
at determining, whether the delinquency committed by the appellant, was
sufficient and appropriate, for the infliction of the punishment of
dismissal from service. This determination is relevant for examining the
veracity of the punishment order itself. That, however, is not the scope
of the exercise contemplated in the present consideration. Insofar as the
determination of the admissibility of the benefits contemplated under Rule
41 of the Pension Rules, 1972 is concerned, the same has to be by
accepting, that the delinquency committed by the punished employee was of a
magnitude which is sufficient for the imposition of the most severe
punishments. As in the present case, unauthorized and willful absence of
the appellant for a period of 320 days, has resulted in the passing of the
order of dismissal from service. The punishment inflicted on the
appellant, has been found to be legitimate and genuine, as also,
commensurate to the delinquency of the appellant. The issue now is the
evaluation of claim of the punished employee under Rule 41 of the Pension
Rules, 1972.
13. In our considered view, the determination of a claim based under Rule
41 of the Pension Rules, 1972, will necessarily have to be sieved 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.
14. While evaluating the claim of a dismissed (or removed from service)
employee, for the grant of compassionate allowance, the rule postulates a
window for hope, “…if the case is deserving of special consideration…”.
Where the delinquency leading to punishment, falls in one of the five
classifications delineated in the foregoing paragraph, it would ordinarily
disentitle an employee from such compassionate consideration. An employee
who falls in any of the above five categories, would therefore ordinarily
not be a deserving employee, for the grant of compassionate allowance. In
a situation like this, the deserving special consideration, will have to be
momentous. It is not possible to effectively define the term “deserving
special consideration” used in Rule 41 of the Pension Rules, 1972. We
shall therefore not endeavour any attempt in the said direction.
Circumstances deserving special consideration, would ordinarily be
unlimited, keeping in mind unlimited variability of human environment. But
surely where the delinquency leveled and proved against the punished
employee, does not fall in the realm of misdemeanour illustratively
categorized in the foregoing paragraph, it would be easier than otherwise,
to extend such benefit to the punished employee, of course, subject to
availability of factors of compassionate consideration.
15. We shall now venture to apply the aforesaid criterion, to the facts
and circumstances of the case in hand, and decipher therefrom, whether the
appellant before this Court ought to have been granted compassionate
allowance under Rule 41 of the Pension Rules, 1972. The appellant was
punished by an order dated 17.5.1996 with dismissal from service. The
accusations levelled against the appellant were limited to his unauthorized
and willful absence from service from 18.1.1995 to 4.12.1995 (i.e., for a
period of 320 days, 18 hours and 30 minutes). The above order of
punishment also notices, that not taking stern action against the
appellant, would create a bad impression, on the new entrants in the police
service. The punishing authority while making a choice of the punishment
imposed on the appellant, also recorded, that the appellant’s behaviour was
incorrigible. Thus viewed, there can be no doubt, that the order of
dismissal from service imposed on the appellant was fully justified. For
determining the question of compassionate allowance, so as to bring it
within the realm of the parameters laid down in Rule 41 of the Pension
Rules, 1972, it is first necessary to evaluate, whether the wrongdoing
alleged against the appellant, was of a nature expressed in paragraph 13 of
the instant judgment. Having given our thoughtful consideration on the
above aspect of the matter, we do not find the delinquency for which the
appellant was punished, as being one which can be described as an act of
moral turpitude, nor can it be concluded that the allegations made against
the appellant constituted acts of dishonesty towards his employer. The
appellant’s behaviour, was not one which can be expressed as an act
designed for illegitimate personal gains, from his employer. The
appellant, cannot also be stated to have indulged in an activity to harm a
third party interest, based on the authority vested in him, nor was the
behaviour of the appellant depraved, perverted, wicked or treacherous.
Accordingly, even though the delinquency alleged and proved against the
appellant was sufficient for imposition of punishment of dismissal from
service, it does not fall in any of the classifications/categories depicted
in paragraph 13 of the instant judgment. Therefore, the availability of
compassionate consideration, even of a lesser degree should ordinarily
satisfy the competent authority, about the appellant’s deservedness for an
affirmative consideration.
16. We shall only endeavour to delineate a few of the considerations
which ought to have been considered, in the present case for determining
whether or not, the appellant was entitled to compassionate allowance under
Rule 41 of the Pension Rules, 1972. In this behalf it may be noticed, that
the appellant had rendered about 24 years of service, prior to his
dismissal from service, vide order dated 17.5.1996. During the above
tenure, he was granted 34 good entries, including 2 commendation rolls
awarded by Commissioner of Police, 4 commendation certificates awarded by
the Additional Commissioner of Police and 28 commendation cards awarded by
the Deputy Commissioner of Police. Even though the charge proved against
the appellant pertains to his unauthorized and willful absence from
service, there is nothing on the record to reveal, that his absence from
service was aimed at seeking better pastures elsewhere. No such inference
is even otherwise possible, keeping in view the length of service rendered
by the appellant. There is no denial, that the appellant was involved,
during the period under consideration, in a criminal case, from which he
was subsequently acquitted. One of his brothers died, and thereafter, his
father and brother’s wife also passed away. His own wife was suffering
from cancer. All these tribulations led to his own ill-health,
decipherable from the fact that he was suffering from hypertension and
diabetes. It is these considerations, which ought to have been evaluated
by the competent authority, to determine whether the claim of the appellant
deserved special consideration, as would entitle him to compassionate
allowance under Rule 41 of the Pension Rules, 1972.
17. None of the authorities on the administrative side, not even the
Tribunal or the High Court, applied the above parameters to determine the
claim of the appellant for compassionate allowance. We are of the view,
that the consideration of the appellant’s claim, was clearly misdirected.
All the authorities merely examined the legitimacy of the order of
dismissal. And also, whether the delay by the appellant, in filing the
appeal against the punishment order dated 17.5.1996, was legitimate. The
basis, as well as, the manner of consideration, for a claim for
compassionate allowance, has nothing to do with the above aspects.
Accordingly, while accepting the instant appeal, we set aside the order
dated 25.4.2005 (passed by the Deputy Commissioner of Police, IInd
Battalion, Delhi Armed Police, Delhi), rejecting the prayer made by the
appellant for grant of compassionate allowance. The order passed by the
Tribunal dated 28.2.2006, and the order passed by the High Court dated
13.11.2006, are also accordingly hereby set aside. Having held as above,
we direct the competent authority to reconsider the claim of the appellant,
for the grant of compassionate allowance under Rule 41 of the Pension
Rules, 1972, based on the parameters laid down hereinabove.
18. Allowed in the aforesaid terms.
…..…………………………….J.
(Jagdish Singh Khehar)
…..…………………………….J.
(M.Y. Eqbal)
New Delhi;
April 11, 2014.
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