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Judgment
V. Narasingh, J
Heard learned counsel for the Petitioner and learned counsel for the State.
The Petitioner who was working as a RT Constable assails the impugned order at Annexure-16 by which his prayer for compassionate allowance in terms of the Rule 46 of OCS (Pension) Rules, 1992 was rejected.
The brief facts which are germane for just adjudication are indicated thus:-
The Petitioner joined as a RT Constable on 05.08.1983 and by order dated 07.09.1993, he was promoted to the rank of ASI and it is submitted that because of supervening circumstances the Petitioner could not attend the medical Board and he was reverted to his previous rank of Constable. Thereafter, the Petitioner remained on leave and since he did not appear before the medical Board, a charge memo was issued and thereafter ultimately by order dated 31.01.2000, the Petitioner was discharged from service on the ground of unauthorized absence. Assailing the same, the Petitioner preferred an appeal before the IG, but the same was rejected by order dated 22.05.2012 and challenging the same, the Petitioner moved the Orissa Administrative Tribunal, Cuttack Bench, Cuttack and on the abolition of the Tribunal the docket was transferred to this Court and numbered as W.P.(C) (OAC) No.4373 of 2012 and by order dated 18.10.2022, while not entertaining with the order of discharge passed by the Appellate Authority this Court directed to consider the case of the Petitioner for payment of “compassionate allowance”. The operative portion of the said order is extracted hereunder:-
“Since the Petitioner after completing more than 16 years of service was dismissed from his service vide the order of discharge, this Court is of the view that lenient view shall be taken by the Opp. Parties while considering the claim of the Petitioner for such grant of compassionate allowance. The Opp. Party No. 2 shall also take into consideration the decision of the Hon’ble Apex Court reported in the case of Mahendra Dutta Sharma Vs. Union of India & ors. (2014) 11 SCC page 684”.
Thereafter, in terms of the same, the Petitioner filed an application before the Superintendent of Police Signal, Odisha for grant of such compassionate allowance vide Annexure-14, since the same was not disposed of within the time stipulated, a contempt petition was moved which was disposed of by order dated 31.03.2023 (Annexure-15). Admittedly, by the impugned order at Annexure-16, the prayer of the Petitioner for grant of compassionate allowance having been rejected, the present writ petition was filed.
It is submitted by the learned counsel for the Petitioner, Mr. Rath that the order of rejection suffers from gross non application of mind and is against the underlying principle for enactment of Rule 46 of OCS (Pension) Rules, 1992 and is against the dictum of Apex Court in the case of Mahinder Dutt Sharma (Supra), as referred to in the earlier order of this Court. Hence, the order is liable to be set aside.
Learned counsel for the State, Mr. Das, ASC on the other hand referring to the counter affidavit filed, submits that there is no illegality in the impugned order and since the case of the Petitioner does not come under the category which qualifies for “special consideration” and as such, his prayer has been rejected and in doing so the authorities have indicated the reasons as to why the Petitioner is not similarly circumstanced with the Petitioner in the reported case of Mahinder Dutt Sharma. Hence, he seeks dismissal of the writ petition.
Before adverting to the rival contention, this Court feels it appropriate to quote Rule 46 of OCS (Pension) Rules, 1992 dealing with compassionate allowance. The same reads as under:-
“46. 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-third 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 (I) shall not be less than the amount of minimum pension admissible.
(3) On receipt of the order of the competent authority removing an officer from service for misconduct, insolvency, or inefficiency the Head of Office, if he proposes to grant compassionate allowance shall fill in the application form for pension and send the same to the Accountant-General for necessary action after due concurrence of Finance Department. The Head of Office shall not wait for receiving the application from the Officer.”
On a bare perusal of the said Rules, it can be seen that while formulating the same, the legislature was conscious of the fact that they apply to a Government Servant who is dismissed or removed from his service and forfeited his pension and gratuity. In Sub-Rule (3) of Rule 46 of OCS (Pension) Rules, 1992, it has been stated that the Head of Office shall not wait for receiving the application from the Officer in deserving cases. There cannot be a more patent expressive wisdom of the legislature in drafting a benevolent provision.
So far as the guidelines for grant of compassionate allowance is concerned, this Court respectfully refers to the judgment of the Apex Court in the case of Mahinder Dutt Sharma (Supra), wherein while cautioning that the determination of a claim based under Rule 41 of the Pension Rules, 1972 therein, is only illustrative, the Apex Court has delineated 5 situations under which such allowance can be denied. For convenience of reference the same is extracted hereunder:-
“XXX XXX XXX
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:-
14.1 (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.
14.2 (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.
14.3 (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.
14.4 (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.
14.5 (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.
XXX XXX XXX”
Hence, the case at hand has to be examined on the touchstone of the principles as laid down in the case Mahinder Dutt Sharma (Supra).
The ground of discharge of the Petitioner was only on account of unauthorized absence. And, if seen factually, it is worth noting that in Mahinder Dutt Sharma (Supra), the service record of the Petitioner therein has been dealt with in paragraph-10 of the said judgment of the Apex Court. The same is quoted hereunder:-
“10. 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.”
In the memorandum of appeal the Petitioner has also mentioned about his service career which reads as under:-
“Besides this throughout my service career I have got 5 rewards (subject to verification of the Service Book), and one good service mark, (with cash award of Rs. 50/- from DIG of Police Technical), one commendation from GRP establishment Cuttack on 13.9.1985”
This above has not been controverted.
On perusal of the impugned order of rejection at Annexure-16, it is seen that the special allowance was denied to the Petitioner inter alia on the ground that he had rendered only 16 years of service of which qualifying service was only 12 years 8 months and 29 days, unlike in the case of Mahinder Dutt Sharma (Supra), who had rendered 25 years of service which is “pensionable”. And, reversion of the Petitioner has also weighed with the authorities and it is also said that the Petitioner has not suffered any tragedy like Mahinder Dutt Sharma, Petitioner in the reported case.
Per contra, learned counsel for the Petitioner submits that the personal misery of the Petitioner has been outlined in the memorandum of appeal. Hence, it cannot be said that the Petitioner did not face the challenges unlike the Petitioner in the reported case before the Apex Court.
In rejecting the prayer for compassionate allowance by the impugned order, the authority failed to notice as the very heading of the rule indicates that the same is compassionate allowance and so far as the earlier conduct of the Petitioner during service is inconsequential and more so when on analysis of the materials on record, does not fall within the parameter as fixed by the Apex Court to disentitle the Petitioner to claim compassionate allowance. It does not augur well for a model employer to compare the degree of deprivation suffered by an incumbent while considering the claim for compassionate allowance.
In fact, this Court is of the considered view that if the service record of the present Petitioner is compared with that of the Petitioner before the Apex Court, it cannot be said that the Petitioner has worse record.
In such view of the matter, considering the submissions as made and the materials on record and evaluating the same on the touchstone of the judgment of the Apex Court in the case of Mahinder Dutt Sharma (Supra), while being conscious of the fact that the same is not illustrative as rightly cautioned by the Apex Court, this Court is persuaded to hold that the impugned order at Annexure-16 rejecting the prayer of the Petitioner for compassionate allowance, is not sustainable. Accordingly, Anneuxre-16 is set aside.
The authorities are directed to grant such compassionate allowance in terms of Rule 46 of OCS (Pension) Rules within a period of four months from the date of receipt/production of copy of this judgment.
Before parting with the case, this Court places on record its appreciation for the valuable and dispassionate assistance rendered by the learned Additional Standing Counsel, Mr. S.P. Das in analysing the provisions of compassionate allowance.
The writ petition thus stands disposed of. No costs.
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