Ex Const. Ram Niwas vs Uoi & Ors.
2012 Latest Caselaw 4785 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Decision : August 16, 2012

+                      WP(C) 1989/1999

      EX CONST. RAM NIWAS                     ....Petitioner
               Represented by: Mr.Ankur Chhibber, Advocate.

                             versus

      UOI & ORS.                              ...Respondents
                Represented by: Mr.P.S.Parmar, Advocate.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH


PRADEEP NANDRAJOG, J. (Oral)

1. Learned counsel for the petitioner concedes that it is not a case where the petitioner can be reinstated in service.

2. It is not in dispute that the petitioner absented himself from duty and despite an apprehension roll being issued, the SHO of the concerned police station in the area where the petitioner permanently resided could not apprehend the petitioner and hand him over to the BSF Authorities. Having absented himself from duty on December 04, 1997, the petitioner remained untraced when he was dismissed from service as per order dated June 22, 1998.

3. As per the petitioner two sadhus met him on December 04, 1997 who made him eat something as a result whereof he lost mental balance and started loitering like a mad man till his brother-in-law Ranbir Singh found him on January 25, 1998 and took him to his village in Rohtak where

ojhas treated the petitioner, a story which is difficult to believe because the petitioner claims that the sadhus fed him something in Punjab and surprisingly claims that his brother- in-law found him loitering in Delhi. Besides, we find that the record of the respondents would reveal that before the petitioner was dismissed from service a show-cause notice dated March 04, 1998 was sent to him at his permanent address. The acknowledgment card received by the department bears the signatures of the petitioner. It is apparent that in early March 1998 the petitioner was in his house.

4. At this stage, learned counsel for the petitioner prays that compassionate allowance as per Rule 41 of the CCA (Pension) Rules may be directed to be sanctioned keeping in view the fact that the petitioner is a humble villager and has a family to support.

5. Learned counsel for the respondents states that the petitioner joined service in April 1988 and pensionable service being 20 years, the petitioner being dismissed from service on June 22, 1998, he would not be entitled to any compassionate allowance.

6. Now, Rule 41 of the CCS (Pension) Rules reads as under:-

"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."

7. It is apparent that the compassionate allowance admissible under the Rule relates itself not to pension but compensation pension. As per the Rule a Compassionate Allowance not exceeding two-third of pension or gratuity admissible if the retirement was on Compensation Pension is admissible. Now, Rule 39 of the CCS (Pension) Rules reads as under:-

"39. Compensation pension (1) If a Government servant is selected for discharge owing to the abolition of his permanent post, he shall, unless he is appointed to another post the conditions of which are deemed by the authority competent to discharge him to be at least equal to those of his own, have the option -

(a) of taking compensation pension to which he may be entitled for the service he had rendered, or

(b) of accepting another appointment on such pay as may be offered and continuing to count his previous service for pension.

(2) (a) Notice of at least three months shall be given to Government servant in permanent employment before his services are dispensed with on the abolition of his permanent post.

(b) Where notice of at least three months is not given and the Government servant has not been provided with other employment on the date on which his services are dispensed with, the authority competent to dispense with his services may sanction the payment of a sum not exceeding the pay and allowances for the period by which the notice actually given to him falls short of three months.

(c) No compensation pension shall be payable for the period in respect of which he receives pay and allowance in lieu of notice.

(3) In case a Government servant is granted pay and allowances for the period by which the notice given to him falls short of three months and he is re-employed before the expiry of the period for which he has received pay and allowances, he shall refund the pay and allowances so received for the period following his re-employment.

(4) If a Government servant who is entitled to compensation pension accepts instead another appointment under the Government and subsequently becomes entitled to receive a pension of any class, the amount of such pension shall not be less than the compensation pension which he could have claimed if he had not accepted the appointment."

8. Suffice would it be to state that compensation pension is not related to any length of service rendered. Compensation pension is to be paid if a government servant is discharged owing to a permanent post being abolished and the quantum is relatable to the years of service rendered.

9. Thus, declaring that the Compassionate Allowance is referable to Compensation Pension, which pension has no concern to a minimum number of years served but is payable with reference to the number of years of service rendered, we dispose of the writ petition directing the Competent Authority to pass an order with respect to Compensation Allowance and for which we may note that the same is not a matter of right but a matter of a considered decision and if it is shown that the case is deserving of special consideration, which obviously would have to be the financial condition of the government servant concerned; and thus requiring the petitioner to submit a proper application addressed to the Director General BSF. We guide the petitioner that in the application he should bring out such circumstances which he considers would make out a deserving case for Compensation Allowance to be paid to him. Upon the application being filed, and for which we grant petitioner 12 weeks time, the same shall be decided within further 12 weeks thereafter.

10. No costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE AUGUST 16, 2012 dk