Rohtas vs State of Haryana and Others

Augustine George Masih, J.—Petitioner has approached this Court praying for quashing of the impugned orders dated 06.10.2012 (Annexure P-1) and 03.02.2013 (Annexure P-2), vide which the petitioner, who was dismissed from service because of absence from duty while he was working on the post of a Constable, has been denied the benefit of compassionate allowance.

It was the claim of the petitioner that although he has been dismissed from service but as he has put in 13 years of service, he should be held entitled to compassionate allowance under Rule 2.5 of the Punjab Civil Services Rules Volume-II as applicable to the State of Haryana.

Counsel for the petitioner contends that the petitioner since having been only dismissed because of absence from duty and not for any serious mis-conduct, he would be entitled to the grant of the benefit. He has further placed reliance upon a judgment passed by this Court in CWP No. 9975 of 1997 titled as Smt. Prem Lata Ahuja vs. State of Haryana and others, decided on 01.02.2013, wherein an employee, who was removed from service, has been granted the benefit of compassionate allowance. He has also relied upon the judgment of the Supreme Court in Civil Appeal No. 2111 of 2009 titled as Mahinder Dutt Sharma vs. Union of India and others, decided on 11.04.2014, to contend that the petitioner is entitled to the compassionate allowance.

I have considered the submissions made by the counsel for the petitioner and have gone through the records of the case.

Present is a case where the petitioner was dismissed from service for absence from duty for a total period of 52 days 18 hours and 35 minutes after holding a departmental regular enquiry vide order dated 23.11.1995. After exhausting his departmental remedies, petitioner preferred CWP No. 11372 of 1997, which was disposed of by this Court vide order dated 09.12.2011, wherein the operative part reads as follows:-

On due consideration of the matter, I am of the considered opinion that the conduct of the respondents in passing the impugned orders cannot be termed to be erroneous as the petitioner by his own conduct has rendered himself unfit to be a member of police force and an officer who is incorrigible and unfit for holding the assignment. Repeated absence from duty in a disciplined force is to be construed as a gravest act of mis-conduct in terms of Rule 16.24(1) (2) and (9). There is thus no ambiguity or illegality in the orders passed by the respondents. No violation of any rule in the impugned orders of dismissal have been shown by the learned counsel for the petitioner and neither has any violation of principles of natural justice been elaborated.

In this view of the matter, the instant petition is held to be devoid of any merit.

At this stage, learned counsel for the petitioner contends that considering the fact that he has put in 13 years service, the respondents ought to have explored the possibility of granting pension to him as he has rendered more than 10 years service which is the qualifying service. This aspect of the matter merits consideration. Before passing the impugned orders, the respondents did not explore the possibility of granting pension to the petitioner by considering the service that he has rendered with them. Consequently the matter is remitted back to the respondents to pass an order to this limited extent. It is directed that they shall take into consideration the prayer of the petitioner and the service rendered by him and take a decision for grant of pension in case he otherwise fulfills all other conditions.

Disposed of.

In view of the above order passed by this Court, the petitioner preferred a representation for the grant of compassionate allowance under Rule 2.5 of the Punjab Civil Services Rules Volume-II as applicable to the State of Haryana.

On consideration of the same, the punishing authority has passed the following order:-

In view of the order of Hon''ble Punjab and Haryana High Court, referred above, the claim of the petitioner for pension has been considered in the light of judgment as well as relevant rules for pensionary benefits. Regarding first contention for the grant of pension, it is submitted that on consideration of the records of the petitioner, it has transpired that he was enlisted in Police Department as Constable on 25.08.1982 FN and dismissed from service w.e.f. 23.11.1995. Thus, he rendered 13 years, 2 months and 28 days service in Police Department. Out of his above said service period, the alleged absence period from 05.07.1994 to 07.07.1994, 15.07.1994 to 19.07.1994, 06.08.1994 to 15.08.1994, 05.11.1994 to 11.11.1994, 21.01.1995 to 03.02.1995 and 10.04.1995 to 29.04.1995 is of 1 month and 22 days and 18.06.1983 to 25.06.1983 = 8 days LWP and 03.11.1993 to 19.11.1993 = 17 days LWP Total 25 days LWP for which he was paid no salary. So after excluding his alleged absence period, the petitioner rendered only 13 years 11 days service at his credit on the date of dismissal.

The petitioner had not completed 20 years of qualifying service at his credit on the date of dismissal, which can entitle him to pensionary benefits. The case of the petitioner is also neither covered under rule 9.18(ii) of Punjab Police Rules, 1934 applicable to Haryana State nor under Provisions contained in rule 5.32-A(C) of Punjab Civil Services Rules Vol-II and rule 3.26(d) of Punjab Civil Services Rule Volume-I, Part-I as applicable to the State of Haryana. As per provision contained in rule 4.19(a) of Punjab Civil Services Rules Volume-II, an employee who has been dismissed from service is not qualifying service is required only in case of superannuation, retiring, invalid retirement as per provision contained in rule 6.16(2) of Punjab Civil Service Rules Volume-II. In view of incorrigibility and complete unfitness for retaining in service, no ground is made out for special consideration for granting compassionate allowance (as per rule 2.5 CSR Vol-II) and the petitioner is not entitled for pensionary benefits.

It is worth quoting that in a case titled Indian Association vs. Brij Nandan Singh 2006 ACJ-218, the Hon''ble Apex Court of India held that once the profits of previous service has been forfeited, pension cannot be granted on the basis of said service. A specific service is required for pension. There is no provision in rule which entitle to an employee for pension who has been dismissed from service prior to earning 20 years qualifying service.

After going through the entire service record, rule and instructions on the subject, I am of the opinion that petitioner is not entitled for pensionary benefits. Hence, the case of the petitioner for granting him pensionary benefits has been considered in length and rejected being devoid of any merits. Order be booked accordingly and a copy of this order may be supplied to Ex. Const. Rohtash Singh No. 142/Jind, Virender Singh No. 1295/HSR free of cost.

A perusal of the above order clearly shows the application of mind by the competent authority to the claim, which has been made by the petitioner and undisputedly as per the findings given by the Court in its order dated 09.12.2011 passed in CWP No. 11372 of 1997, has concluded that the repeated absence from duty in a disciplined force is to be construed as a gravest act of mis-conduct and, therefore, the dismissal of the petitioner was in accordance with law.

Petitioner has only worked for 13 years with the respondents, which, in the considered view of this Court, is not sufficient enough for the grant of compassionate allowance, as has been claimed by the petitioner especially keeping in view the earlier conduct of the petitioner, which has been referred to by the competent authority while passing the order dated 06.10.2012 (Annexure P-1) and has been reproduced above. He has, all through, been mis-conducting himself while in service and on various occasions, has been found to be absent from duty. A person, who does not have a good and clean record, cannot be given the discretionary claim, which is conferred upon the competent authority to be decided. Compassionate allowance is an allowance, which is given to a person who might have, in the given facts and circumstances in a stray incident, committed some act or would have been forced to be removed from service because of some misconduct, which may not be relatable directly to the service. Here is a case where the petitioner, all through his service, has not been maintaining a good record, which thus, itself disentitle the petitioner to the claim, as has been made in the present writ petition.

Reliance upon the judgment in Prem Lata Ahuja''s case is misplaced on the part of the petitioner. Firstly, she was removed from service and was not dismissed and secondly, the facts and circumstances mentioned therein clearly indicate that it did not relate to the mis-conduct on the part of the petitioner while performing her duties.

In the judgment passed by the Supreme Court in Mahinder Dutt Sharma, the employee had been serving the department for a period of more than 24 years prior to dismissal from service. During this period, he was granted 34 good entries including 2 commendation rolls awarded by the Commissioner of Police and 4 commendation certificates awarded by the Additional Commissioner of Police apart from 28 commendation cards awarded by the Deputy Commissioner of Police. This weighed with the Court while granting him the benefit of compassionate allowance.

Present is not such a case where a discretion would be exercised by this Court in favour of the petitioner.

Finding no merit in the present writ petition, the same stands dismissed.