Pritam Pal Singh vs Union of India And Ors

Briefly stated, the facts of the current O.A. are that the applicant joined as Chowkidar on casual basis in 1968 in the office of GE(East), Delhi Cantt. and his services were regularized from 01.04.1971. It is submitted by the applicant that he could not attend his duties from 04.10.1988 onwards because of his ill health due to which he was bed ridden. Later, he was operated upon and is now suffering from bone cancer. On 22.04.1991, he was removed from service after an ex-parte inquiry was conducted against him. Since he was bed ridden, he could not appeal, in time, against the penalty of removal from service. However, he represented for compassionate allowance of 2/3rd pension and gratuity on humanitarian grounds in terms of Rule 41 of CCS (Pension) Rules, 1972. The Disciplinary Authority submitted a statement of facts and duly sanctioned the compassionate allowance of 2/3rd pension/gratuity in his favour on 11.05.2010 and submitted it to Chief Engineer (Western Command), which should have actually been sent to PCDA (Pension) Allahabad for release of Compassionate Allowance. The applicant further submits that even salary for two months (August and September, 1988) has not been paid to him inspite of his verbal and written requests.

Aggrieved by the action of the respondents, the applicant has filed the current O.A. seeking the following reliefs:-

"(a) Order and direct the respondent No. 4 i.e. GE (East) to forward the sanction order of Compassionate Allowance of 2/3rd Pension/Gratuity in terms of Rule 41 of CCS (Pension) Rules 1972 in favour of the applicant, to the PCDA (Pension) Allahabad immediately for release of the same.

(b) Order and direct the respondent No. 4 i.e. GE (East) to pay the salary for the months of August and September, 1988 during which he had performed duty alongwith the interest @12% till the actual date of payment.

(c) Award costs to the applicant who is bed ridden and cancer patient for undergoing mental and financial hardship.

(d) Grant any other relief as deemed fit and proper, in the facts and circumstances of the case, to meet the end of the justice."

The applicant has relied on the judgment of Hon'ble Supreme Court in the case of Mahinder Dutt Sharma Vs. UOI & Ors. (Civil Appeal No. 2111/2009) dated 11.04.2014 and also the judgment of this Tribunal in the case of Devi Krishan Sharma Vs. Secretary, Ministry of Urban Development & Ors. (OA-754/2012) dated 11.07.2014.

In reply filed by respondent Nos. 1,2 & 4, it is submitted that the applicant was absent from duty for a long time, without leave and without prior intimation/permission. Hence, vide letter dated 07.02.1991, he was removed from service as per the CCS (CCA) Rules, 1965. They aver that vide his letter dated 26.04.2010, the applicant had informed the respondents that he had joined the Gurudawara Seva and hence kept moving to different Gurudwaras in different cities and had requested for compassionate allowance under Rule 41 of CCS (Pension) Rules, 1972, due to his precarious medical condition.

The applicant filed an OA-2756/2014 before this Bench, wherein, vide order dated 11.02.2016, the Tribunal directed PCDA (Pension) Allahabad to take a final view for compassionate allowances in the matter. PCDA (Pension) Allahabad has held the view that the applicant is not entitled for compassionate allowance as he has been removed from service. The respondent submit that the applicant never intimated the respondents that his absence from duty was due to his ill health, nor did he give any medical certificate to this effect. They further state that the applicant is not entitled for the salary claimed for the two months as claimed by him since he was absent from duty, and office payment for September, 1988 was not claimed by him. Salary for the month of August, 1988 has been deposited through MRO.

In reply filed by respondent No.3, it is submitted that in the order dated 11.02.2016, issued by the Tribunal in OA-2756/2014, the answering respondents were directed to take a final view regarding the order dated 11.02.2011 within 03 months. In compliance of the Tribunal's order dated 11.02.2016, PCDA (Pension) in its letter dated 14.07.2016 stated that the applicant was removed from service as penalty and the Competent Authority i.e HQ CE WC has not given any sanction for Compassionate Allowance to the applicant, hence the applicant is not entitled for the Compassionate Allowance.

I have gone through the facts of the case and considered the rival submissions carefully.

The issue involved in the current O.A. is whether the applicant employed as Chowkidar in Military Engineering Service, HQ Chief Engineer, Delhi Zone, Delhi Cantt., who was removed from service on 05.10.1988 should be granted compassionate allowance in terms of Rule-41 of CCS (Pension) Rules, 1972. The applicant has also requested for payment of salary for the months of August and September, 1988 along with interest for the period during which he was on duty with the respondent department, prior to his removal from service on 05.10.1988.

It is seen that the applicant had approached the Tribunal in OA-2756/2014 seeking grant of compassionate allowance of 2/3 pension/gratuity in terms of Rule-41 of CCS(Pension) Rules, 1972. Vide order dated 11.02.2016, the respondents were directed to take a final view regarding communication dated 11.02.2011, which was still under consideration of the respondents. Now, the respondents have held that the applicant is not entitled for compassionate allowance for the reasons stated in the impugned order dated 14.07.2016.

Before I adjudicate the case finally, it is important to go through the provisions of Rule-41(1) of CCS (Pension) Rules, 1972. The same is reproduced below:-

"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."

It is also stipulated therein that 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.

The applicant does not dispute the fact that he remained absent from service for a long period of time. The reasons for doing so, by him, are two-fold; firstly that he had joined the Gurudwara Seva and was required to move through different cities, entailing going from one Gurudwara to another, and the second reason being his illness. In his application dated 26.04.2010 the applicant has mentioned that he is a patient of cancer since the past four years and undergoing treatment at AIIMS. He has therefore requested for sanction of compassionate allowance under provisions of Rule-41(1) of CCS (Pension) Rules, 1972. The respondents have rejected the request of the applicant by concluding that since the applicant had been removed from service as penalty for unauthorized absence and no sanction of compassionate allowance was granted by the competent authority i.e. HQs Western Command, hence he is not entitled for compassionate allowance.

The Hon'ble Supreme Court in the case of Mahinder Dutt Sharma Vs. Union of India & Ors., (Civil Appeal No. 2111/2009) decided on 11.04.2014 has succinctly discussed the issue of determination of compassionate allowance under Rule-41 of the CCS (Pension) Rules, 1972. They have laid down a series of distinct considerations, which would necessarily have to be gone through before the claim can be accepted or rejected. It is mandated therein that the rejection of the claim has to be linked (amongst others)to moral turpitude, and whether the act of the delinquent employee was for personal gains from the employer. Their Lordships have held that:-

"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.

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."

On going through the facts of the case, I find that the punishment order dated 22.04.1991 alleges that disciplinary proceedings were initiated under Rule-14 of CCS (CCA) Rules, 1965 against the said Sh. Pritam Singh due to unauthorized absence and it was concluded that he was guilty of the charge of willful absence from duty, hence an ex-parte order removing him from service was imposed upon him for unauthorized absence. The accusation levelled against the appellant is thus limited only to his unauthorized and willful absence, from 1988 to 1991. Though, the circumstances would justify the order of removal from service of the appellant, but to determine the question of grant compassionate allowance, it is necessary to examine whether the wrong doing of the appellant is of a nature expressed in paragraph-13 of the judgment dated 11.04.2014 in Mahinder Dutt Sharma's case (supra).

After going through the facts, I feel that the request of the applicant for grant of salary for the months of August and September, 1988 also needs positive consideration. In their order dated 22.04.1991, the respondents after an enquiry have held categorically that "the period of absence from 05th October, 1988 till date will be treated as unauthorized absence" implying that period two months prior to October, i.e. August and September are excluded from the purview of the said order. Thus, the salary for these two months, before his removal from service, must be paid to the applicant, (if not already paid) within three months from the date of receipt of this order.

In my view, the conduct of the applicant does not fall in any of the categories laid down in the aforementioned judgment. I feel that the competent authority has erred by not evaluating the facts of the case judiciously to determine whether the claim of the applicant deserves special consideration, which would entitle him compassionate allowance under Rule-41 of the CCS (Pension) Rules, 1972. The basis as well as the manner of the consideration of the impugned order dated 14.07.2016 is also rather mechanical. In view of the aforesaid discussions, the same is set aside. I direct the competent authority to reconsider the claim of the appellant for grant of compassionate allowance under Rule-41 of the CCS (Pension) Rules, 1972 based on the parameters laid down in the judgment of Hon'ble Supreme Court in the case of Mahinder Dutt Sharma (supra). This exercise may be completed within three months from the date of receipt of a certified copy of this order. The O.A. is accordingly allowed. No costs.