Din Dayal Yadav vs Union Of India & Anr.
2014 Latest Caselaw 4906 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Date of Decision: 29.09.2014

+                           WP (C) No.5301 of 2013

DIN DAYAL YADAV                                                 ...... Petitioner
             Through:              Mr. Nilansh Gaur, Adv.

                                      versus

UNION OF INDIA & ANR.                           ..... Respondents

Through: Mr. Abhay Prakash Sahay, CGSC.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J.(ORAL)

1. This writ petition under Article 226 of the Constitution of India,

seeks a mandamus to the respondents for the grant of Compassionate

Allowance with arrears w.e.f. 28.5.1991 to the petitioner. It also

seeks quashing and setting aside of the order dated 11.05.2013, by

which his representation for the grant of Compassionate Allowance

was rejected. The facts as averred are that by an order dated

28.5.1991, the respondents had removed the petitioner from service

for delinquency, carelessness, indiscipline and misconduct.

Admittedly, the said order was upheld by the Appellate Authority.

Even the revision petition filed against the same was dismissed. The

petitioner's writ petition, (WP (C) No.511/2000), against his removal

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from service, was not pressed and was disposed off on 26.11.2012

with a direction to the Competent Authority of CISF "to consider

petitioner's application seeking compassionate allowance which is

payable even to a Government servant who is dismissed or removed

from service but if the petitioner is able to make out a case deserving

special consideration; which obviously would be the pecuniary

distressed situation of the petitioner."

2. The petitioner submitted his representation for the grant of

Compassionate Allowance on 5.1.2013, which was rejected by the

impugned order of 11.5.2013. He filed a contempt petition - being

Contempt Petition (Civil) No.562/2013 before this Court, which was

dismissed on 23.7.2013.

3. The present petition has been filed on the ground that the petitioner

earns merely Rs.5,000/- per year from the 3.5 bighas of agricultural

land, which is insufficient to meet the expenses for his family, which

includes two daughters who have to be married and also cater to his

son who is still studying. He claims to have no house of his own and

shares an ancestral house with his family at Ballabhgarh.

4. On the other hand, the respondents have stated that the petitioner's

financial condition was ascertained and it was found that the same

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does not merit special consideration. It is also submitted by the

respondents that the guiding principle for the grant of Compassionate

Allowance is to look into multiple factors like the kind of service

rendered, reason for removal from service etc. and poverty itself

cannot be the sole factor for the grant of Compassionate Allowance.

Particular stress was laid on the carelessness, gross indiscipline and

disregard towards official duties and regimental decorum by the

petitioner, which resulted in his removal from service.

5. The petitioner relies upon proviso to Rule 41(1) of the CCS (Pension)

Rules, 1972, which provides for the grant of Compassionate

Allowance to a person dismissed from service, not exceeding 2/3rd of

the pension or gratuity or both which would have been admissible to

him if he had retired on compensation pension. In support of his

contentions, the petitioner has relied upon the dicta of this Court in

Shadi Ram v. Government of NCT of Delhi, 2008 (5) AD (Delhi) 3

as well as in Mahabir Prasad (Ex. L/Nk) v. UOI & Ors., 2010 VIII

AD (Delhi) 260, which interpreted the said Rule to mean that

reference to past record (i) should not involve an incident or element

of misconduct having dishonesty and (ii) that poverty would mean

that the person seeking Compassionate Allowance is extremely poor.

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He submits that the respondents have shown no compassion to his

dire financial needs and that his case ought to have been considered

compassionately. He further relies upon the dicta of the Supreme

Court in Civil Appeal No.2111/2009 titled Mahinder Dutt Sharma v.

Union of India & Ors. decided on 11.4.2014, which held as under:

"15. ....For determining the question of compassionate allowance, so as to bring it within the realm of the parameters laid down in Rule 41 of the Pension Rules, 1972, it is first necessary to evaluate, whether the wrongdoing alleged against the appellant, was of a nature expressed in paragraph 13 of the instant judgment. Having given our thoughtful consideration on the above aspect of the matter, we do not find the delinquency for which the appellant was punished, as being one which can be described as an act of moral turpitude, nor can it be concluded that the allegations made against the appellant constituted acts of dishonesty towards his employer. The appellant's behaviour, was not one which can be expressed as an act designed for illegitimate personal gains, from his employer. The appellant, cannot also be stated to have indulged in an activity to harm a third party interest, based on the authority vested in him, nor was the behaviour of the appellant depraved, perverted, wicked or treacherous. Accordingly, even though the delinquency alleged and proved against the appellant was sufficient for imposition of punishment of dismissal from service, it does not fall in any of the classifications/categories depicted in paragraph 13 of the instant judgment. Therefore, the availability of compassionate consideration, even of a lesser degree should ordinarily satisfy the competent authority, about the appellant's deservedness for an affirmative consideration.

16. We shall only endeavour to delineate a few of the considerations which ought to have been considered, in the present case for determining whether or not, the appellant was entitled to compassionate allowance under Rule 41 of the

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Pension Rules, 1972. In this behalf it may be noticed, that the appellant had rendered about 24 years of service, prior to his dismissal from service, vide order dated 17.5.1996. During the above tenure, he was granted 34 good entries, including 2 commendation rolls awarded by Commissioner of Police, 4 commendation certificates awarded by the Additional Commissioner of Police and 28 commendation cards awarded by the Deputy Commissioner of Police. Even though the charge proved against the appellant pertains to his unauthorized and willful absence from service, there is nothing on the record to reveal, that his absence from service was aimed at seeking better pastures elsewhere. No such inference is even otherwise possible, keeping in view the length of service rendered by the appellant. There is no denial that the appellant was involved, during the period under consideration, in a criminal case, from which he was subsequently acquitted. One of his brothers died, and thereafter, his father and brother's wife also passed away. His own wife was suffering from cancer. All these tribulations led to his own ill-health, decipherable from the fact that he was suffering from hypertension and diabetes. It is these considerations, which ought to have been evaluated by the competent authority, to determine whether the claim of the appellant deserved special consideration, as would entitle him to compassionate allowance under Rule 41 of the Pension Rules, 1972."

6. In Shadi Ram (supra), the only issue before the Court was whether

the punishment imposed on the officer was unduly hard. This Court

in WP (C) No.2139/2012 titled Ex. Sub Paras Ram v. The Union of

India & Ors. decided on 10.7.2014 held as under:

"10. Therefore, what needs to be seen by the competent authority in an application under Rule 41 of CCS (Pension) Rules is whether the case is deserving of a special consideration. The "case" means all the facts of the case as exist on the date when the application is made. The facts

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cannot be circumscribed to the charges leading to the punishment that may have been meted out. While the petitioner has already been visited with the maximum punishment contemplated under the Rules for the offence for which he was charged, the same cannot be a ground for denial of compassionate allowance. By definition the consideration has to be an allowance on compassionate grounds, which would entail appreciating the entire tenure, nature and merit of the service the petitioner had rendered. The consideration cannot be constrained by, what could be termed as a perfunctory reappraisal/review of the final punishment meted out in the disciplinary proceedings. Compassionate consideration would encompass all circumstances prior to and after the punishment. It is an act of beneficence imbued in grace and unshackled by the cause for or the nature of the punishment. It is, as if that human entity's existential circumstances were being appraised, warts and all....."

7. In the present case, on an analogy of Mahinder Dutt Sharma (supra)

as well as Shadi Ram (supra) and Ex. Sub Paras Ram (supra), what

is to be seen is that the petitioner had absented himself from duty for

prolonged durations between 1985 and 1990, i.e. he was a habitual

offender in absenting himself from duty from 6.2.1985 to 28.2.1985,

24.1.1989 to 27.4.1989, 6.5.1989 to 9.8.1989 and 24.4.1990 to

15.5.1990. He was found guilty of all the three charges levelled

against him. Unlike the case of Mahinder Dutt Sharma (supra),

there is no averment of the petitioner having earned any

commendation or good entries to support his case, so as to make his

case worthy for consideration. His case is one of gross and

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consistent indiscipline in absenting himself for long periods as

aforesaid. Therefore, on being absent from the Unit lines without the

permission of the competent authority as well as repeated defaults

and being a habitual absentee, he was found to be not in the interest

of the disciplined force. There are no evident mitigating

circumstances or recommendatory incidents apropos his service

record to show special circumstances warranting consideration of the

petitioner's case for the grant of Compassionate Allowance to him.

This writ petition is without any merit and is accordingly dismissed.

NAJMI WAZIRI, J.

SEPTEMBER 29, 2014                                    KAILASH GAMBHIR, J.
b'nesh

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