Wazir Singh Mour vs Uoi
2013 Latest Caselaw 859 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: February 20, 2013


+                         W.P.(C) 65/2011

       WAZIR SINGH MOUR                           ..... Petitioner
                Represented by: Mr.Daleep Kumar Dhyani, Adv.

                          versus

       UOI                                                 ..... Respondent
                   Represented by: Mr.Atul Batra, Adv.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI


PRADEEP NANDRAJOG, J. (Oral)

1. Learned counsel for the legal heirs of the deceased writ petitioner would submit that keeping in view the fact that the deceased petitioner had served the Nation from November 17, 2008 till penalty of removal from service was inflicted upon him on December 30, 2009, the legal heirs of the deceased petitioner would be satisfied if the penalty is converted to one of compulsory retirement with compulsory retirement pension sanctioned as per Rule 40 of the CCS Pension Rules, 1972.

2. But when confronted with Annexure R-1 which would reveal that the writ petitioner had virtually not worked after March 08, 2007, being perpetually absent and as a matter of fact never reported for duty at all with effect from April 11, 2008 till when the penalty was inflicted, counsel states

W.P.(C) 65/2011 page 1 of 4 that for purposes of compulsory retirement pension it may be observed that the period post March 09, 2007 be treated as dies-non and be excluded while taking into account pensionable service rendered.

3. Deceased Wazir Singh Mour appears to have turned alcoholic evidenced by the fact that in the calendar year 2007 he remained unauthorisedly absent for 142 days. The next year i.e. the year 2008, uptil April 11, 2008 he was absent for 64 days.

4. Having no leave to his account and faced with the problem of his son being injured while in the United Kingdom and having no money with him, deceased Wazir Singh Mour had to rush to the United Kingdom so that money could be made available to his son and the son could be looked after.

5. Due to unauthorized absence with effect from April 11, 2008, Wazir Singh Mour was charge sheeted. He admitted the charge. Penalty of removal from service was inflicted.

6. It has to be kept in mind that the misdemeanour was not of any dereliction in performing duties. The charge was not of causing any financial loss to the Government or misappropriating any property of the Government. It was not the charge that he had abused his authority or had discharged his duties with negligence. The charge was of unauthorized absence.

7. Being governed by the CCA (CCS) Conduct Rules, 1965, various penalties could be levied upon him, one of which was the penalty of compulsory retirement.

8. Now, a discretion is vested in the competent authority to levy one of the various kinds of penalties, keeping into view the gravamen of the charge. More serious is the charge which is proved, more serious would be the penalty attracted.

W.P.(C) 65/2011 page 2 of 4

9. But, such factors which mitigate the quantum of penalty or are relevant to determine the quantum of the penalty also needs to be factored.

10. Service rendered by the delinquent employee has to be taken into account for the reason pension is not a bounty. It is earned by the dint of labour. Not only would the Government servant be entitled to the pension but upon his death the family would receive family pension. The right and interest of the family has to be kept in mind.

11. If the wrong lacks a moral turpitude, the same would be a mitigating factor.

12. After all, it has to be kept in mind that law permits penalty of compulsory retirement to the inflicted.

13. Such penalty should ordinarily be inflicted for wrongs which do not have a moral turpitude but the wrong is of a kind where not retaining Government servant in service would further a public interest and at the same time the Government servant receives the pension and gratuity for the work done. For offences which lack moral turpitude a compulsory retirement would be the best suitable penalty to be levied if service record is other wise good and long service is rendered.

14. Noting the mitigating circumstances and the fact that Wazir Singh Mour has since expired on November 08, 2011, we dispose of the writ petition substituting the penalty of removal from service inflicted upon deceased Wazir Singh Mour with the penalty of compulsory retirement with entitlement to receive compulsory retirement pension under Rule 40 of the CCS Pension Rules which we fix at the minimum i.e. 2/3 rd. We also hold him entitled to 2/3rd of the gratuity which he would have received.

15. Period post March 08, 2007 till substituted penalty is inflicted by us i.e. December 30, 2009 shall be treated as dies non for all purposes W.P.(C) 65/2011 page 3 of 4 including computation of pensionable service rendered.

16. As a result of our decision, compulsory retirement pension as also gratuity at 2/3rd of the admissible rate, treating the deceased being compulsorily retired, be disbursed to the legal heirs till the deceased died and thereafter family pension be disbursed to his wife as per rules. Needful be done within 12 weeks from today.

17. No costs.

18. Dasti.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE FEBRUARY 20, 2013 kks

W.P.(C) 65/2011 page 4 of 4