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Judgment
The applicant Mr. Narender Singh was enlisted as Constable in Delhi Police on 01.05.1994. A complaint was made against him that while posted to
Police Station Cannaught Place and working in Summon Cell/NDD. The complaint was made by one Mr. Shoman Banerjee, regarding his being
brought, without authority, to Police Station Tilak Marg for ulterior motives by the applicant. The disciplinary proceedings were initiated and in the
inquiry it was found that he brought one Mr. Shoman Banerjee of Sagar Pur from his residence to Police Station Tilak Marg on 15.04.2004 for
execution of a warrant issued by Shri Narender Kumar MM in CC No. 1956/2003 City Bank Vs. Shoman Banerjee, which was obtained by him in
connivance with City Bank Advocate H. S. Chauhan without any authority. This warrant was not marked to the applicant or any other person by any
authority. This warrant was not received through Summon Pool/NDD. The applicant managed to receive this warrant. After bringing Mr. Shoman
Banerjee the applicant opened the office of summon pool at Tilak Marg at odd hours of Night without any authority or intimation to senior officers. He
was involved in bargaining for negotiating the Bank loan Rs.40,000/- and cheque of Rs.12,000/-. As per record, at that point of time, the applicant had
been deputed for service process on 12.04.2004 vide DD No. 6 for U.P., but in connivance with the said advocate he managed the warrant with
ulterior motives. Thus he misused his official capacity and also the office of summon pool without any authority. He was placed under suspension
from 29.04.2004 by the competent authority and dismissed from service on 23.03.2005. He preferred an appeal against the dismissal order to the
appellate authority which was rejected. He then challenged the orders before this Tribunal in O.A No.179/2006 which was dismissed on 16.03.2007.
Subsequently, he challenged this order before the Hon’ble High Court of Delhi by filing WP(C) No. 9891/2015 which was dismissed on
30.11.2015. C.M. No. 3537/2017 for modification of this order was also dismissed on 03.02.2017. Thereafter, he filed representation on 22.11.2016
before the competent authority under Rule 41 of the CCS (Pension) Rules, 1972 for grant of compassionate allowance. The said rule reads as under:-
“(1) Guiding principles for the grant of Compassionate Allowance. - It is practically impossible in view of the wide variations that naturally exist in
the circumstances attending each case, to lay down categorically precise principles that can uniformly be applied to individual cases. Each case has,
therefore, to be considered on its merits and a conclusion has to be reached on the question whether there were any such extenuating features in the
case as would make the punishment awarded, though it may have been necessary in the interests of Government, unduly hard on the individual. In
considering this question it has been the practice to take into account not only the actual misconduct or course of misconduct which occasioned the
dismissal or removal of the officer, but also the kind of service he has rendered. Where the course of misconduct carries with it the legitimate
inference that the officer's service has been dishonest, there can seldom be any good case for a compassionate allowance. Poverty is not an essential
condition precedent to the grant of a compassionate allowance, but special regard is also occasionally paid to the fact that the officer has a wife and
children dependent upon him, though this factor by itself is not, except perhaps in the most exceptional circumstances, sufficient for the grant of a
compassionate allowance.â€
This representation was rejected by the respondents vide order dated 20.11.2017.
The applicant has contended that he has completed 20 years of service whereas under the CCS (Pension) Rules, the compassionate allowance
could be sanctioned to an employee, who has completed 10 years of service prior to his dismissal. He has also stated that he was not given an
opportunity to be heard and that a detailed order has not been passed by the respondents. He has claimed that the respondents have not considered his
financial condition and that his family is on the verge of starvation. He has sought the following relief :-
“A. Set aside the Respondents Office letter No. 5273/Pension Cell/NDD, dated, New Delhi, 20/11/2017 by which the respondents rejected the
claim/representation for grant of compassionate allowances to the applicant under the CCS rules and Regulations and further direct the respondents to
grant the compassionate allowances to the applicant from the date of dismissal from service with interest of 12% per Annum.â€
Respondents have opposed the claims of the applicant. They have reiterated the circumstances leading to dismissal. They have stated that as per
Rule 41 of the CCS (Pension) Rules, his representation was considered but could not be acceded to in view of his previous record. He was also
awarded 3 censures and 2 times 15 days PD for absence as per record. Further, the cause leading to his dismissal entails gross misconduct
unbecoming of a police officer.
They have also cited and filed orders of this Tribunal dated 16.10.2018 in O.A No. 4410/2017 whereby the O.A for grant of compassionate
allowance was dismissed in view of the track record of the applicant.
Heard Mr. S. C. Tomar, learned counsel for applicant and Ms. Harvinder Oberoi, learned counsel for respondents.
The applicant has cited several cases of Delhi High Court. In the case of Ex. CT. Daya Nand Vs. Union of India & Ors., [2000 (1) ATJ 136]
dated 26.11.1999, the relief was granted because the representation was not considered by the authority competent to dismiss or remove the applicant
from service so to in the case of Mahabir Prasad. In the case of Ex. ASI Shadi Ram vs. Govt. of NCT of Delhi & Ors., in WP (C) No. 5544/2007
vide order dated 22.02.2008, the Hon’ble High Court once again held that the decision on the representation was taken by the authority other than
the disciplinary authority to whom the representation had been made, the major ground on which the Hon’ble High Court directed for payment of
compassionate allowance.
In case of Mahinder Dutt Sharma Vs. Union of India & Ors., the Hon’ble Supreme Court of India in Civil Appeal No. 2111/2009 passed orders
dated 11.04.2014 which laid down certain guiding principles for examination of representations related to compassionate allowances. Certain guiding
principles had been given for grant of compassionate allowance vide Government of India Finance Department Office Memorandum No.3 (2)-R-
II/40, dated the 22nd April 1940. The Hon’ble Apex Court held the following :-
“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 benefitting 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.
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…â€. 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.†(emphasis supplied)
I have perused the record and the representation of the applicant dated 22.11.2016. Vide this representation, the applicant has claimed that he has
good service record of 27 years and he has completed pensionable service having put in 20 years 10 months and 22 days till the date of dismissal, and,
therefore, he should be granted compassionate allowance. The representation has been disposed of vide impugned order dated 22.11.2017 by simply
stating that in the light of Rule 41 of CCS (Pension) Rules, 1972, the representation was considered but could not be acceded in view of the
applicant’s previous record.
The said order is not a speaking order and it is not clear whether the principles laid down in O.M. dated 22.02.1940 as well as guiding principles for
examination laid down by the Hon’ble Supreme Court of India in order dated 11.04.2014 in Civil Appeal No. 2111/2009 Mahinder Dutt Sharma
Vs. Union of India and Ors. have been considered or not.
In the light of the above, the impugned order No. 5273/Pension Cell/NDD dated 20.11.2017 is set aside and the matter is remanded for passing a
speaking order in the light of discussion in the forgoing para, within a period of two months from the date of receipt of a certified copy of this order.
O.A is disposed of accordingly. There shall be no orders as to costs.