Bombay High Court
Arun Kumar Sharma S/O Late J.P. ... vs The Union Of India, Through Its ... on 21 February, 2022
Bench: A.S. Chandurkar, G. A. Sanap
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION (WP) NO. 6031/2019
Arun Kumar Sharma,
S/o. Late J.P. Sharma
Aged about 69 years,
Occ. Retired
R/o. Pataleshwar Road, Nai Abadi,
Ward No. 16, Chhindwara (MP) ..... PETITIONER
// VERSUS //
1. The Union of India
Through its General Manager,
S.E.C. Railway, Bilaspur
2. Divisional Railway Manager
S.E.C. Railway, Nagpur
Deleted as per
Court's order 3. Secretary, Ministry of Railways,
dated Railway Board, New Delhi - 110011
21.02.2022
4. Secretary, Ministry of Personnel,
Public Grievance & Pensions,
Dept. of Pension & Pensioners' Welfare,
Khan Market, New Delhi 110 003
5. The Central Administrative Tribunal
Bombay, Bench at Nagpur. .... RESPONDENT(S)
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Shri S.S. Dewani, Advocate for the petitioner
Shri N.P. Lambat, Advocate for respondent nos. 1 to 4
None for respondent no. 5
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CORAM : A.S. CHANDURKAR AND G.A. SANAP, J.J.
DATED : 21/02/2022
ORAL JUDGMENT : (PER:- A. S. CHANDURKAR, J.)
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For the reasons stated in Civil Application (CAW) No.
790/2020, the civil application is allowed in terms of prayer clause (1).
2. Rule. Rule made returnable forthwith. Heard the learned
counsel for the parties.
3. The judgment dated 26.11.2018 passed by the Central
Administrative Tribunal rejecting the Original Application preferred by
the petitioner seeking grant of compassionate allowance is under
challenge in this writ petition.
Brief facts are:-
The petitioner was engaged with the Railway Department having
been appointed as a Shed Khalasi at Loco Shed/ Motibagh on
27.08.1969. He was thereafter promoted as a Ticket Collector in the year
1973. On account of his unauthorized absence from duty from
10.02.1989, a Departmental Inquiry was conducted against him by
following the procedure prescribed by the Railway Servants (Discipline
and Appeal) Rules, 1968. At the conclusion of inquiry, the petitioner was
dismissed from service on 12.07.1992. Though the order of dismissal
was challenged, the same attained finality as Writ Petition No.
2689/2007 preferred by the petitioner before the Madhya Pradesh High
Court was dismissed on 28.02.2007.
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4. The petitioner thereafter took steps to claim compassionate
allowance from the date of his dismissal. For said purpose he had filed a
representation seeking compassionate allowance in terms of the letter of
the Railway Board dated 04.11.2008. The said representation was
rejected on 10.05.2011. The petitioner thus filed Original Application
No. 2029/2012. The Tribunal by order dated 28.01.2014 allowed that
application and issued directions to review the case of the petitioner in
the light of the letter of the Railway Board dated 04.11.2008 and to pass
a reasoned order. Thereafter on 20.05.2014 a decision was taken in
compliance of the directions issued in the said Original Application by
the Divisional Commercial Manager who observed that the dismissal
order did not indicate that the petitioner's service was dismissed on
account of moral turpitude. It was further observed that the petitioner's
qualifying service for a period of at least ten years could not be
established on that count. The request made by the petitioner for grant
of compassionate allowance was turned down. This order was thereafter
challenged by filing another Original Application No. 2005/2015. By
order dated 26.11.2018, the Tribunal rejected the Original Application
by observing that relief was sought on equitable grounds and such
jurisdiction was not available with the Tribunal. Being aggrieved, the
petitioner filed the present writ petition.
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5. The learned Counsel for the petitioner submitted that
undisputedly the petitioner renderred service from 27.08.1969 to
10.02.1989. Thereafter, the disciplinary proceedings were held against
him for unauthorized absence which resulted in order of dismissal dated
12.07.1992. He pointed out that from the order of the Divisional
Commercial Manager dated 20.05.2014 the authorities had come to the
conclusion that the dismissal from service was not on account of moral
turpitude. When these facts were clear, there is no reason to deny
compassionate allowance to the petitioner by treating him as being in
service from 27.08.1969 to 12.07.1992. The claim as made was justified
under Circular dated 04.11.2008 and hence, the Tribunal erred in
dismissing the Original Application. Moreover, as per guidelines of the
Department, the Provident Fund Ledger was required to be preserved for
a period of thirty five years. It was thus clear that sufficient material was
available with the Department to determine the quantum of
compassionate allowance. The petitioner, therefore, was entitled for
appropriate relief.
6. The learned Counsel for the respondent nos. 1 to 4 by
relying upon the reply filed on behalf of the respondent nos. 1 to 4
opposed the aforesaid submissions. He referred to the Circular dated
04.11.2008 to urge that in the absence of necessary record, it would not
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be possible to determine the net qualifying service for paying
compassionate allowance to the petitioner.
7. On hearing the learned Counsel for the parties and after
perusing the material on record, it is found that certain facts are not in
dispute. Firstly, the service of the petitioner from 27.08.1969 after his
appointment as a Shed Khalasi and subsequent promotion as a Ticket
Collector in 1973 is undisputed. This position is accepted by the
respondent nos. 1 to 4 in paragraph 6 of the affidavit filed on their
behalf. The petitioner's absence from service from 10.02.1989 is clear
from the communication dated 29.06.1992 issued by the Divisional
Commercial Superintendent to the petitioner. The petitioner's dismissal
from service from 12.07.1992 on account of unauthorized absence is
also an admitted position. The Divisional Commercial Manager in his
letter dated 20.05.2014 has also concluded that the petitioner's dismissal
from service was not on account of moral turpitude. Once this position
is clear from the record that there is no difficulty in applying the Circular
dated 04.11.2008 in the matter on the ground of compassionate
allowance. The service records are necessary for determining whether
the dismissal is on account of any moral turpitude coupled with gravity
of alleged offence. The respondent nos. 1 to 4 themselves having
concluded that the dismissal of the petitioner was on account of absence
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from service and not of any ground of moral turpitude. There is no
reason to deny the benefit of compassionate allowance to the petitioner.
Moreover, the Provident Fund record is required to be maintained for a
period of thirty five years and the same is still available with the
respondent nos. 1 to 4. In these aforesaid facts, we do not find any
reason to deny the petitioner the relief of the direction to re-consider
his case for grant of compassionate allowance in terms of the Circular
dated 04.11.2008.
8. Accordingly, the following order is passed:-
i. The order passed by the Central Administrative
Tribunal in Original Application No. 2005/2015 dated
26.11.2018 is hereby set aside.
ii. The respondent no. 2, in the light of the observations
made hereinabove, shall take into consideration the entire
period of service of the petitioner from 27.08.1969 till
12.07.1992 for grant of compassionate allowance as per
Circular dated 04.11.2008.
iii. Necessary decision in this regard be taken within a
period of six weeks from the production of this order and
the same be communicated to the petitioner.
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iv. If the respondent no. 2 requires the presence of the
petitioner, he shall co-operate in the matter.
9. With this directions, the writ petition is allowed and
disposed of.
10. Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Digitally signed
by SANDIP
SANDIP MAHADEV
GATE
MAHADEV Date:
GATE 2022.02.23
16:33:27
+0530
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