Additional Deputy Commissioner ... vs Ms.Anju
2011 Latest Caselaw 1992 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 WP(C) No.20885/2005

%                          Date of Decision: 06.04.2011

Additional Deputy Commissioner of Police                       .... Petitioner

                        Through Mr.V.K.Tandon, Advocate
                                      Versus
Ms.Anju                                                       .... Respondent

                        Through Mr.Anil Singhal, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.      Whether reporters of Local papers                      YES
        may be allowed to see the judgment?
2.      To be referred to the reporter or not?                 NO
3.      Whether the judgment should be                         NO
        reported in the Digest?

ANIL KUMAR, J.

*

1. The petitioner, Additional Deputy Commissioner of Police has

challenged the order dated 12th April, 2005, passed by the Central

Administrative Tribunal, Principal Bench, New Delhi in OA

2350/2004 titled as Ms. Anju v. UOI & Anr. allowing the original

application of the respondent and granting compassionate allowance

under rule 41 of CCS (Pension) Rules, 1972 to the respondent, widow

of the dismissed deceased Constable Nidhi Kumar.

2. Relevant facts to comprehend the dispute are that the

respondent is a legal heir of the deceased Constable Nidhi Kumar

who was in the service of the Delhi Police. Her husband, Constable

Nidhi Kumar had died on 22nd October, 2003 after a long absence

from service without authorized leave for which he was dismissed

from service. One month after his death, she applied for

compassionate appointment.

3. The respondent was intimated that her husband was

dismissed on 22nd June, 2001 on account of his unauthorized

absence, and therefore, she cannot be granted compassionate

appointment.

4. Thereafter, the respondent sought compassionate allowance on

humanitarian ground as contemplated under Rule 41 of the CCS

(Pension) Rules, 1972. By order dated 12th March, 2004 the request

of the respondent was declined.

5. The respondent in her application/representation for

compassionate allowance gave details of her family comprising of

mother of the deceased Constable and three children, namely,

Nishant, Nishi and Vishakha along with the details of their income

and financial conditions and the educational qualification. The

respondent disclosed that they have no income and no such

qualification which would make them earn their livelihood and

survive. The representation of the respondent was, however, rejected

by order dated 12th March, 2004 without giving any reasons.

6. Aggrieved by the order of rejection of the respondent‟s request

for compassionate allowance, an original application being OA

No.985 of 2004, titled as „Anju v. Union of India, through

Commissioner of Police‟ was filed which was disposed of by order

dated 21st April, 2004 directing the petitioner to dispose of the matter

by a reasoned and speaking order.

7. Thereafter, the petitioner has again passed an order dated 11th

August, 2004. While declining the request of the respondent for

compassionate allowance, the reasons given by the petitioner were as

under:-

"...........Constable Nidhi Kumar was enlisted in Delhi Police on 30.6.1989 and had absented himself unauthorizedly and willfully for over years and did not join his duties in spite of issuing repeated notices. Besides he also failed to cooperate in the D.E. proceedings which clearly shows his intention not to serve the department and on having been proved the charges of willful and unauthorized absent, he was dismissed from the force. Since he was member of the disciplinary force and therefore such in disciplined act effects the moral of force adversely. Taking into consideration all the facts I am of the considered opinion that there is no scope of leniency in this case. Hence the request for compassionate allowance has been considered and rejected."

8. The said order was challenged by the petitioner by filing an

original application being OA No.2350 of 2004, titled as „Anju, wife of

late Constable Nidhi Kumar v. Union of India, through Commissioner

of Police & Anr.‟ which was disposed of by order dated 12th April,

2005. The Tribunal has taken into consideration the guiding

principles for the grant of compassionate allowance as detailed in

Office Memo No.3(2)-R-II/40, dated 22nd April, 1940 and 2000 (1)

ATJ 137, „Ex. Constable Daya Nand v. UOI‟ and thus, allowed the

original application of the respondent and directed the petitioner to

accord the compassionate allowance to the legal representative of the

deceased Constable Nidhi Kumar with all consequential benefits.

9. This Court has heard the learned counsel for the parties. The

main contention of the learned counsel for the petitioner is that Ex.

Constable Nidhi Kumar was dismissed from service on account of

unauthorized absence for over years and not joining the duties and

thus according to the petitioner, his widow and children are not

entitled for compassionate allowance. The petitioner also contended

that compassionate allowance would be applicable only in case

competent authority while removing an officer from service proposes

to recommend the grant of compassionate allowance to the

incumbent.

10. This cannot be disputed that compassionate allowance not

exceeding 2/3 of the pension or gratuity or both can be granted to a

Government servant who has been dismissed or removed from the

service. This is also not disputed that compassionate allowance shall

be admissible to a Government servant who is dismissed or removed

from the service in case of deserving person on account of special

circumstances. By Office Memo No.3(2)-R-II/40, dated 22nd April,

1940 guiding principle for the grant of compassionate allowance have

been laid down stipulating that each case has to be considered on its

own merit and conclusion has to be reached on the question whether

there are any such extenuating features in the case while taking into

consideration the actual misconduct which occasioned the dismissal

or removal of the officer along with kind of service he had rendered.

It has also been elaborated that whether the misconduct carries with

it the legitimate inferences that officer‟s service has been dishonest

or not also has to be taken into consideration and in case of

misconduct on account of dishonesty of the employee, it would not

be a good case for compassionate allowance. The said Office Memo

also laid down that special regard is also to be paid to the fact that

officer has a wife and children dependent upon him though this

factor by itself may not be sufficient for grant of compassionate

allowance.

11. Taking into consideration the facts disclosed by the respondent

as widow of the dismissed Constable Nidhi Kumar, it is apparent

that he was dismissed on account of unauthorized absence. This is

also not disputed that he was ailing and ultimately died. In the

circumstances, it is inevitable to infer that the service of the husband

of the respondent was not terminated on account of his dishonest

behaviour. This is also not disputed that the respondent widow of the

dismissed Constable has three children and widowed mother of the

deceased Constable. They have no source of income, nor has such

education, as disclosed by her which can save them from the utter

penury which the respondent and her family are facing.

12. In order to consider whether the compassionate allowance is to

be granted or not, the petitioner ought to have considered some of

these factors as enumerated hereinabove which are in terms of Office

Memo dated 22nd April, 1940 and in accordance with Rule 41

regarding grant of compassionate allowance. The plea of the

respondent for grant of compassionate allowance was first declined

by a non-speaking order dated 24th February, 2004 and 12th March,

2004 which entailed filing an original application being OA No.2350

of 2004 which was disposed of by order dated 12th April, 2005

directing the petitioner to pass a speaking and reasoned order.

Pursuant to that the impugned order dated 11th August, 2004 was

passed however, the relevant facts for grant of compassionate

allowance have not been considered rather the circumstances in

which the husband of the respondent was dismissed were reiterated.

The facts leading to the dismissal from the service rather support the

plea of the respondent that her husband had not mis-conducted

based on dishonesty. The facts that before dismissal from the service

on account of unauthorized absence on account of his illness, he had

rendered 12 years of service was also not taken into consideration.

The petitioner also did not take into consideration the relevant facts

regarding the financial conditions of the family members of the

deceased constable and utter penury in which they are living and

that the deceased constable had rendered 12 years service. The order

dated 11th August, 2004 declining the compassionate allowance was

passed mechanically without application of mind. In the

circumstances, the order of the Tribunal taking into consideration

these facts and directing the petitioner to grant compassionate

allowance to the respondent, widow of deceased Constable Nidhi

Kumar cannot be termed to be illegal or not unsustainable.

13. The learned counsel for the petitioner, Mr.Tandon has

contended that while dismissing the husband of the respondent, the

authorities had not passed any order entitling him for compassionate

allowance. However, this cannot be disputed that it was not held that

the family of the deceased constable was held to be not entitled for

compassionate allowance as contemplated under relevant rules. If at

the time of dismissal it was not specifically held that the dismissed

employee and his dependents would be entitled for compassionate

allowance, later on plea of the compassionate allowance by the

dependent of the deceased employee cannot be denied on this ground

especially in the present facts and circumstances.

14. No other ground has been canvassed before this Court except

that Constable Nidhi Kumar was dismissed from service on account

of unauthorized leave and consequently his widow is not entitled for

compassionate allowance.

15. For the foregoing reasons, compassionate allowance could not

be denied to the widow of dismissed Constable Nidhi Kumar in the

peculiar facts and circumstances of this case and consequently,

there is no perversity or such illegality in the order of the Tribunal

which would require any interference by this Court. The writ petition,

in the facts and circumstances, is without any merit and it is

dismissed and the order of the Tribunal allowing the original

application of the respondent and granting compassionate allowance

under rule 41 of CCS (Pension) Rules, 1972 to the respondent, widow

of the dismissed deceased Constable Nidhi Kumar is upheld in the

peculiar facts and circumstances of the case. Perusal of the orders

passed by this Court in the present writ petition also reveals that

order dated 12th April, 2005 of the Tribunal was not stayed by this

Court during the pendency of the present writ petition. In the

circumstances the petitioner is liable to implement the order of the

Tribunal granting compassionate allowance to the widow of the

deceased constable forthwith. Considering the facts and

circumstances, the parties are however left to bear their own costs.

ANIL KUMAR, J.

VEENA BIRBAL, J.

APRIL 06, 2011.

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