Union Of India Through General ... vs Smt. Chhotibai Chaudhary Wd/O ...
2017 Latest Caselaw 4376 Bom

 1207WP1972.13-Judgment                                                                       1/10


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                      WRIT PETITION NO.  1972  OF    2013


 PETITIONERS :-                 1. Union   of   India,   through   General   Manager,
                                   Central Railway (Original respondent No.2)

                                2. Divisional   Railway   Manager,   Central
                                   Railway, Nagpur. (Original respondent No.1)

                                         ...VERSUS... 

 RESPONDENT :-                   1. Smt. Chhotibai  Chaudhary   wd/o  Nandlal
 Original Applicant                 Bansilal   Chaudhary,   aged   about   64   years,
                                    occupation   -   not   known,   resident   of
                                    Chaudhary   Mohalla,   New   Babulkheda,
                                    Nagpur. 

 ---------------------------------------------------------------------------------------------------
                    Mr.M.M.Agnihotri, counsel for the petitioners.
                    Mrs. K. Anuradha, counsel for the respondent.
 ---------------------------------------------------------------------------------------------------


                                        CORAM : SMT. VASANTI    A    NAIK & 
                                                    ARUN  D. UPADHYE
                                                                     ,   JJ.

DATED : 12.07.2017

O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)

By this writ petition, the petitioners challenge the order of

the Central Administrative Tribunal, dated 02/08/2012, allowing the

original application filed by the respondent and directing the petitioners

to grant compassionate allowance to the respondent in view of rule 65

of the Railway Services (Pension) Rules, 1993.

1207WP1972.13-Judgment 2/10

2. Few facts giving rise to the writ petition are stated thus :-

The respondent is the widow of Nandlal Chaudhary, who

was working as boiler maker with the petitioners. Nandlal Chaudhary

was removed from service on the charge of absenteeism in the year

1988. After the charge of unauthorized absence was proved against

Nandlal and he was removed from service in 1988, Nandlal did not take

any steps to challenge the said order of removal till he filed an original

application before the Central Administrative Tribunal in the year 2003.

The tribunal held that it was not possible to consider quashing and

setting aside the order of removal in the original application that was

hopelessly barred by time. The tribunal however permitted Nandlal to

make a representation to the petitioners and directed the petitioners to

decide the same. The representation of Nandlal was duly considered

and rejected by the petitioners by the order dated 03/03/2005. In the

meanwhile, Nandlal expired in December, 2004 and since the

respondent was of the view that compassionate allowance could have

been granted under rule 65 of the Railway Services (Pension) Rules,

1993, she filed an original application before the tribunal bearing

Original Application No.2051 of 2008. On a consideration of rule 65 of

the Rules of 1993, the tribunal allowed the application filed by the

respondent and held that Nandlal was entitled to compassionate

allowance till his death and his family was also entitled to the same

1207WP1972.13-Judgment 3/10

after his death under rule 65. The tribunal directed the petitioners to

pay the arrears of compassionate allowance to the respondent with 9%

interest from the date of his removal from service till the date of actual

payment. The order of the tribunal is challenged by the petitioners in

the instant petition.

3. Shri Agnihotri, the learned counsel for the petitioners,

submitted that the tribunal was not justified in directing the petitioners

to release the arrears of compassionate allowance in favour of the

respondent from the date of removal of Nandlal. It is submitted by

referring to rule 65 of the Rules of 1993 that it would not be for the

tribunal to consider whether the case of Nandlal was deserving or

special. It is submitted that discretion is granted to the competent

authority under rule 65 to grant compassionate allowance only in

special and deserving cases. It is submitted that Nandlal was removed

from service in the year 1988 and the original application was filed by

the respondent in the year 2008. It is stated that the claim for

compassionate allowance was time barred. The learned counsel relied

on the judgment reported in (2008) 10 SCC 115 (C.Jacob v. Director

of Geology & Mining) to canvass that the courts should desist from

considering stale claims. It is submitted that rule 65 of the Rules of

1993 and the administrative instructions pertaining to rule 65 of the

1207WP1972.13-Judgment 4/10

Rules of 1993 dated 14/06/2005 were considered by this court in Writ

Petition No.5399 of 2007 and this court has held that in cases where no

compassionate allowance had been granted, should not be reopened on

the basis of the representations received from the family members of the

employee. It is submitted that the tribunal failed to consider these

aspects of the matter and has erroneously allowed the original

application.

4. Mrs.Anuradha, the learned counsel for the respondent,

has supported the order of the tribunal. It is submitted that the tribunal

has rightly considered the provisions of rule 65 of the Rules of 1993 to

direct the petitioners to pay compassionate allowance for Nandlal and

to the respondent, after his death. It is submitted that Nandlal had

rendered nearly 30 years of service and the tribunal rightly held that the

case of Nandlal was deserving and special, as far as grant of

compassionate allowance was concerned. It is submitted that the

original application filed by the respondent could not have been

dismissed on the ground of laches as non-payment of compassionate

allowance under rule 65 of the Rules of 1993 would give rise to a

continuous cause of action. It is submitted that when the matter was

argued by the counsel for the petitioners in Writ Petition No.5399 of

2007, that is decided by the judgment dated 21/03/2014, the counsel

1207WP1972.13-Judgment 5/10

had not pointed out the subsequent Railway Board circular dated

27/01/2009 that partially modified or superseded the circular dated

14/06/2005. It is stated that the subsequent circular dated

27/01/2009 clearly provides that where an application for

compassionate allowance is not rejected, it would be open for the

competent authority to consider and decide an application for

compassionate allowance. It is submitted that since the subsequent

circular was not brought to the notice of this court while deciding Writ

Petition No.5399 of 2007, the said judgment will not apply to the case

in hand. The learned counsel sought for the dismissal of the writ

petition.

5. On hearing the learned counsel for the parties and on a

perusal of the impugned order as also rule 65 of the Rules of 1993 and

the circulars of the years 2005 and 2009, it appears that the tribunal

has committed an error in exercising the discretion which is vested in

the competent authority for granting compassionate allowance for

Nandlal and also the respondent. Rule 65 of the Rules of 1993 reads

thus :-

"65. Compassionate allowance (1) A railway servant who is dismissed or removed from service shall forfeit his pension and gratuity :

1207WP1972.13-Judgment 6/10

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 Rupees three hundred seventy five rupees per mensem (now Rs. One thousand two hundred and seventy five from 1.1.1996 mensem)."

It is apparent from a reading of the rule that a railway

servant, who is dismissed or removed from service, shall forfeit his

pension and gratuity. However, as per the proviso to rule 65(1), a

competent authority in its discretion can direct the payment of

compassionate allowance in a deserving or special case. It is clear that

under rule 65, the competent authority is empowered to exercise the

discretion to grant compassionate allowance in special and deserving

cases. It would not be for the tribunal or for this court to consider

whether the case of Nandlal was a special or deserving case or not. It

would for the competent authority to do so and exercise its discretion in

view of the proviso to rule 65(1). If the discretion is wrongly or

arbitrarily exercised, the employee is entitled to approach the court.

However, without the competent authority exercising its discretion

under rule 65(1), it would not be for the tribunal to hold that the case

1207WP1972.13-Judgment 7/10

of a particular employee is a deserving and special and that

compassionate allowance should be granted to the employee. It is not

the case of the petitioners that at any point of time the claim made by

Nandlal or the respondent for grant of compassionate allowance was

rejected by the competent authority under rule 65. If that is so, it was

necessary for the tribunal to have partly allowed the original application

and remitted the matter to the competent authority for deciding the

question whether Nandalal was entitled to compassionate allowance or

not.

6. While holding so, we are not inclined to uphold the

objection raised on behalf of the petitioners that the claim of Nandlal or

for that matter the respondent, for compassionate allowance would be

barred by delay and laches. The judgment in (2008) 10 SCC 115 will

not apply to the facts of this case. In that case, the employee had

belatedly approached the court after 18 years for seeking his

reinstatement in service with back wages. In the case before the Hon'ble

Supreme Court the cause of action was not a continuous one. In the

instant case the respondent has sought for compassionate allowance.

The cause of action in a claim for compassionate allowance or pension

would be continuous. It is well settled that where a cause of action is

continuous, the court would not dismiss the claim of the employee on

1207WP1972.13-Judgment 8/10

the ground of delay and laches and if the claim is found to be

sustainable, the monetary relief could be restricted to the employee for

the period of three years preceding the date of approaching the court. It

would be necessary to refer to the judgments of the Hon'ble Supreme

Court, reported in (1997) 11 SCC 13 (Jai Dev Gupta v. State of H.P.),

(2007) 9 SCC 274 (Shiv Das v. Union of India), (1995) 5 SCC 628

(M.R.Gupta v. Union of India) and (2008) 8 SCC 648 (Union of

India v. Tarsem Singh) in this regard. Since the cause of action in

respect of the claim for compassionate allowance is a continuous one,

the original application filed by the respondent could not have been

dismissed solely on the ground of delay. In case, the competent

authority under rule 65 finds that the case of Nandlal is special and

deserving, the competent authority may restrict the monetary benefits,

for three years preceding the date of filing of the original application in

the year 2008.

7. We had initially thought that the issue involved in this

case stands answered against the petitioners in view of the judgment

dated 21/03/2014 in Writ Petition No.5399 of 2007 where we had held

that as per the administrative instructions dated 14/06/2005, past cases

where no compassionate allowance had been granted should not be

reopened on the basis of the representations received from the members

1207WP1972.13-Judgment 9/10

of the family of the employee. Though we had decided the writ petition

on 21/03/2014 and by then the Railway Board had issued instructions

dated 27/01/2009 that were clarificatory in nature, the instructions of

the year 2009 were not brought to the notice of this court by the

learned counsel for the petitioners in the said writ petition. On a

reading of the Railway Board Instructions dated 27/01/2009, it appears

that the competent authority is required to consider the representation

or claim for compassionate allowance, made either by the employee

himself or by his legal representatives, if the claim for compassionate

allowance in the case of that employee is not rejected earlier. In the

instant case, we find that Nandlal had never made a claim for

compassionate allowance and had made a claim for regular pension and

other retiral benefits. Since the claim of Nandlal for compassionate

allowance was not decided by the competent authority under rule 65, it

would be necessary to modify the order of the tribunal and remit the

matter to the petitioners so that the competent authority under rule 65

could take a decision on the application of the respondent for

compassionate allowance. The original application filed by the

respondent should be treated as a representation made by the

respondent as the facts that Nandlal had rendered almost thirty years of

service and that the unauthorised absence was only for a few days in a

span of two years and two months and the other aspects mentioned in

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the original application may be looked into. Additionally, if the

respondent so desires, the respondent may make a representation in

detail, seeking compassionate allowance.

8. Hence, for the reasons aforesaid, the writ petition is partly

allowed. The impugned order of the tribunal stands modified. The part

of the order of the tribunal that directs the petitioners to pay

compassionate allowance for Nandlal from the date of his removal till

the date of actual payment with interest at the rate of 9% per annum is

hereby quashed and set aside. The petitioners are directed to consider

the case of Nandlal/respondent for grant of compassionate allowance

within three months, in accordance with law. Rule is made absolute in

the aforesaid terms with no order as to costs.

                        JUDGE                                            JUDGE 



 KHUNTE