IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
THURSDAY, THE 26TH DAY OF MAY 2022 / 5TH JYAISHTA, 1944
WA NO. 598 OF 2022
JUDGMENT DATED 11.02.2022 IN WP(C) 1214/2020 OF HIGH COURT OF
KERALA
APPELLANTS/RESPONDENTS:
1 THE DIRECTOR GENERAL OF CENTRAL INDUSTRIAL SECURITY
FORCE, CISF HQ, BLOCK NO.13,
CGO COMPLEX, LODHI ROAD, NEW DELHI, PIN - 110003
2 THE INSPECTOR GENERAL/NORTH SECTOR
CISF NORTH SECTOR, HEAD QUARTERS CISF CAMPUS,
MAHIPALPUR, NEW DELHI, PIN - 110087
BY ADV G.MAHESWARY
RESPONDENT/S:
S. SURENDRAN, AGED 70 YEARS
(EX. CONSTABLE NO.7206502), CISF/NFL,
NAYA NANGAL (P.O.), NOW RESIDING AT AMPADI,
KOTHAPURAM, KARALI JN. (P.O.),
KOLLAM, PIN - 680521
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA No. 598 of 2022
..2..
ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
---------------------------------------------------------------------------
WA No. 598 of 2022
[arising out of the impugned judgment dated 11.02.2022
in WP(C) No.1214/2020]
----------------------------------------------------------
Dated this the 26th day of May, 2022
JUDGMENT
ALEXANDER THOMAS, J.
The judgment dated 11.02.2022 rendered by the learned Single Judge in the instant Writ Petition (Civil), WP(C).No.1214/2020, is the subject matter of challenge in this intra court appeal filed under Sec.5(i) of the Kerala High Court Act, 1958.
2. The appellants in the writ appeal are the respondents in the writ petition and the sole respondent in the writ appeal is the sole petitioner in the writ petition.
3. The prayers in the instant writ petition, WP(C) No.1214/2020, are as follows;
"i) To quash Exhibit P12 as arbitrary and illegal.
ii) To declare that the petitioner is entitled for grant of compassionate allowance as provided under Rule 41 of the WA No. 598 of 2022 ..3..
CCS (Pension) Rules read with Government of India instructions on the subject.
iii) Issue a writ of mandamus directing the respondents to grant compassionate allowance to the petitioner under Rule 41 of the CCS (Pension) Rules read with Government of India Instructions on the subject w.e.f the date of his discharge. and
(iii) Issue such other appropriate writ, order or direction as deemed fit and proper by this Honourable Court in the facts and circumstances of the case"
4. The order under challenge in the above writ petition is the impugned Ext.P12 proceedings dated 21.04.2019 issued by the 1st respondent in the writ petition, whereby the claim of the writ petitioner for grant of compassionate allowance in terms of Rule 41 of the Central Civil Services (Pension) Rules, 1942 [for short, "CCS (Pension) Rules"], has been rejected.
5. The brief recitals to the facts of this case would be pertinent.
The writ petitioner was initially appointed as Security Guard in the Central Industrial Security Force on 05.08.1972 and he had availed earned leave for 11 days from 16.08.1983 to 08.09.1983 followed by half pay leave from 09.09.1983 to 19.09.1983. Thereafter, he had failed to report back for duty on 20.09.1983 after expiry of his leave period and it resulted in overstaying after leave. This led to initiation of disciplinary WA No. 598 of 2022 ..4..
proceedings against him and by Ext.R2(a) order dated 03.07.1984, he was ordered to be removed from service. Ext.P1 is the Discharge Certificate issued to him on 12.12.1984. The petitioner has contended that he was not served with a copy of Ext.R2(a) or any speaking order, disclosing the reason for his discharge, and that, he and his wife had made consistent efforts to secure details as evident from Ext.P2 to P6. Ultimately, he has filed Ext.P7 representation dated 04.04.2019 before the 1st respondent in the writ petition for sanction of pension and other service benefits. The plea in Ext.P7 is rejected, as per Ext.P9 order dated 27.04.2019, on the ground that a Government servant removed from service is not entitled for pension, gratuity or other terminal benefits. After that, he has filed Ext.P10 representation on 06.07.2019, claiming consideration for grant of compassionate allowance under Rule 41 of the CCS (Pension) Rules read with instructions issued by the Government of India on the subject. Since no action was taken thereon, he was constrained to file WP(C) No.21751/2019 before this Court, which resulted in Ext.P11 judgment dated 19.08.2019, whereby the 1 st WA No. 598 of 2022 ..5..
respondent in the writ petition was directed to consider and take a decision on Ext.P10 representation dated 06.07.2019 in accordance with law. Thereafter, the 1st respondent in the writ petition has issued the rejection order as per Ext.P12 proceedings dated 21.04.2019, rejecting his claim for compassionate allowance under Rule 41 of the CCS (Pension) Rules. The brief grounds cited in support of the rejection of the plea as contained in para 4 of Ext.P12 reads as follows;
"4. On going through the submissions put forth by the petitioner and the records available on file, I find that compassionate allowance can be sanctioned under Rule 41 of CCS (Pension) Rules, 1972 to the personnel who have been awarded the penalty of Dismissal or Removal from Service only in exceptional circumstances where case is found to be deserving of special consideration. For this purpose financial status and social responsibility of the petitioner was assessed and it is found that financial condition of the petitioner appears to be satisfactory and he is not facing any hardship as his wife is a railway employee. Further it is found that his sons are married and serving, in Indian Air Force and Info park, Kochi respectively and thus he has no responsibility to discharge towards his family. Hence, there are no extenuating, circumstances particularly regarding his financial status and social responsibility which make it a fit case deserving of special consideration for grant of Compassionate Allowance."
As mentioned above, the above said Ext.P12 rejection order is essentially under challenge in the instant writ petition.
6. Rule 41 of the CCS (Pension) Rules deals with compassionate allowance and the same reads as follows;
WA No. 598 of 2022 ..6..
"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."
7. The learned Single Judge has mainly placed reliance on the dictum laid down by the Apex Court in Mahinder Dutt Sharma v. Union of India & Others [(2014) 11 SCC 684]. Para 14 thereof reads as follows;
"14. 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 WA No. 598 of 2022 ..7..
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.
8. Mahinder Dutt Sharma's case [(2014) 11 SCC 684] (supra) also deals with the claim under Rule 41 of the CCS (Pension) Rules. The learned Single Judge has rightly held that the above said statutory provision, as per Rule 41 of the CCS (Pension) WA No. 598 of 2022 ..8..
Rules, enables the competent authority to consider the plea for grant of compassionate allowance in the case of employees, who have been dismissed or removed from service, where it deserves special consideration. The Apex Court in the aforesaid decision in Mahinder Dutt Sharma's case [(2014) 11 SCC 684] (supra), has clearly held that there has to be some mitigating factor, which makes the competent authority to hold that, even though the person was dismissed or removed from service, he or she ought to be given compassionate allowance. The vital parameters of consideration are contained in Causes 1 to 5 of para 14 of the judgment in Mahinder Dutt Sharma's case [(2014) 11 SCC 684] (supra). In that case also, the claimant was a Government servant, who was dismissed from service for alleged unauthorized absence. In para 17 of the said judgment, the Apex Court has observed that even though the charges of unauthorized and willful absence have been proved against the appellant therein, there is nothing on record to reveal that his absence from service was aimed at seeking better pastures elsewhere and no such inference is even otherwise possible, WA No. 598 of 2022 ..9..
wherein the employee was initially involved in criminal case, in which he was acquitted. One of his brothers died, and thereafter, his father and brother's wife also passed away and his wife also was suffering from cancer. These difficulties led to his ill-health as he was suffering from hypertension and diabetes and these vital factual parameters have not been evaluated by the competent authority even though he could not be said to be attributed with any of the negative parameters in Clauses 1 to 5 of para 14 of the said judgment.
9. In the instant case, the learned Single Judge, after considering the factual position in the case and the dictum laid down by the Apex Court in the aforesaid decision, held that the writ petitioner was dismissed for unauthorized absence and his case also does not fall within any of the negative attributes deal with in Clauses 1 to 5 of para 14 of the aforesaid decision in Mahinder Dutt Sharma's case [(2014) 11 SCC 684] (supra). The learned Single Judge has referred to the contents of Ext.R2(b) Assessment Report, which indicates that he himself had informed that both his sons are married and are living independently away from his residence, and that he had WA No. 598 of 2022 ..10..
undergone five surgeries relating to prostate, hernia etc., and his health is in a poor state, and that he is fully depending on his employed wife, and that he does not have any independent income and has to live at the mercy of his wife for financial assistance to meet his own day-to-day needs, which is causing him undue hardship and difficulties.
10. Ext.R2(b) Assessment is a report relied on by none other than the respondents in the writ petition. The said report discloses that the writ petitioner is in failing health, and he is in seventies, and that he has already undergone five surgeries. True that, he himself had candidly stated before the authorities that his sons are married and living independently away from his residence. His only source of livelihood is by depending upon the income of his wife. The respondents in the writ petition do not have any dispute that both his children are married and living independently away from his residence. Ext.R2(b) dated 20.09.2019 would clearly indicate that his wife was then aged 59 years and was a Class III Railway employee. It appears that she has retired from Railway service in May, 2020, and therefore, must be getting only her monthly WA No. 598 of 2022 ..11..
pension, which is obviously much less than her regular monthly salary. Further, the report also indicates that his then 93-year-old father-in-law is also staying with him. The writ petitioner was then aged around 70 years. Though his sons are having independent income, there is no material on record to show that they are financially supporting the writ petitioner. On the other hand, Ext.R2(b) would clearly indicate that the petitioner is depending solely on his wife. It is, on the basis of these incontrovertible factual materials produced by none other than the respondents in the writ petition, the learned Single Judge has concluded that the assessment and consideration done in the instant case cannot be said to be improper on effective consideration of all relevant aspects as ordered by the Apex Court in Mahinder Dutt Sharma's case [(2014) 11 SCC 684] (supra). We have already quoted the relevant grounds of rejection made out in Ext.P12. The main ground of rejection, as per Ext.P12, is that the financial condition of the petitioner is satisfactory and he is not facing any hardship as his wife is a Railway employee and his sons are married and employed.
WA No. 598 of 2022 ..12..
11. In the light of the above said analysis made in the impugned judgment, the above said factual analysis based on the incontrovertible factual materials as well as the conclusions drawn thereon in the impugned judgment cannot be said to be illegal or unreasonable. On the other hand, we are of the view that the said view rendered in the impugned judgment is quite reasonable and fair. In other words, it is only in the light of these aspects that the learned Single Judge has concluded that all the relevant aspects have not been duly taken into account and considered by the 1st respondent in the writ petition in passing the impugned rejection order as per Ext.P12. Accordingly, the learned Single Judge has set aside Ext.P12 rejection order and has remitted the matter to the 1 st respondent in the writ petition for consideration and decision of the matter afresh after taking into account the relevant aspects of the matter and in accordance with the dictum laid down by the Apex Court in Mahinder Dutt Sharma's case [(2014) 11 SCC 684] (supra). The said directions in the impugned judgment cannot be seriously faulted by us, inviting any appellate interference.
WA No. 598 of 2022 ..13..
12. Smt.G.Maheswary, learned Central Government Counsel appearing for the appellants, submits that there is undue delay on the part of the writ petitioner inasmuch as he is removed from service as early as on 16.07.1984 as per Ext.P1 Discharge Certificate dated 12.12.1984. The first claim for terminal benefits was made by the writ petitioner as per Ext.P7 only on 04.04.2019 and after the rejection of the same, he has come up with the present Ext.P10 representation on 06.07.2019 and that, there has been delay and laches on his part and further that, he raised claims for grant of compassionate allowance on a retrospective basis etc.
13. After taking into account these submissions, we are of the view that the delay as above would have been relevant if the petitioner had challenged his removal and the discharge order issued in the year 1984. In the instant case, initially, he has made claim for grant of terminal/retirement benefits as per Ext.P7 on 04.04.2019, which has been rightly rejected as per Ext.P9 on the ground that a dismissed or removed employee is not entitled for any such terminal/retirement benefits. However, the provision as per Rule 41 of the CCS (Pension) WA No. 598 of 2022 ..14..
Rules clearly enables the competent authority to consider the claim for compassionate allowance in case of employees, who are dismissed or removed from service. The issue as to whether a claimant should necessarily be granted compassionate allowance with retrospective effect, is not a matter that arises in the present writ petition proceedings. The main issue is regarding the legality and correctness of the impugned Ext.P12 proceedings, rejecting his claim for compassionate allowance. Since the impugned judgment has not dealt with the above said issue of any such retrospective or prospective claim, there is no necessity for us to enter into the above said issue at all. The impugned judgment does not, in any manner, fetter the right of the competent authorities, to decide to such issues, as per law. The main issue is as to whether all relevant aspects of the matter have been taken into consideration while considering the claim of the writ petitioner for grant of compassionate allowance under Rule 41 of the CCS (Pension) Rules.
14. We do not find any ground to interfere with the impugned judgment of the learned Single Judge inasmuch as the same WA No. 598 of 2022 ..15..
appears to be after due consideration of the parameters of the dictum laid down by the Apex Court in Mahinder Dutt Sharma's case [(2014) 11 SCC 684] (supra) and also on the basis of the incontrovertible factual materials made available by none other than the respondents in the writ petition. The other issues need not be decided by us, as it does not arise. In other words, we do not find any ground to interfere with the verdict of the learned Single Judge in the writ petition. The time limit of two months stipulated in the impugned judgment will start running from the date of receipt of a copy of this judgment.
With these observations and directions, the above writ appeal sill stand dismissed.
Sd/-
ALEXANDER THOMAS JUDGE Sd/-
SHOBA ANNAMMA EAPEN JUDGE bka/-