Smt Shiksha vs Union Of India And Ors.
2022 Latest Caselaw 1972 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
     %                                      Reserved on:     May 30, 2022
                                        Pronounced on:        July 04, 2022
+     W.P.(C) 7067/2019
      SMT SHIKSHA                                           ..... Petitioner
                         Through:     Mr. Ajit Kakkar, Advocate

                         Versus

      UNION OF INDIA AND ORS.                   ..... Respondents
                    Through: Mr. Manish Mohan, CGSC &
                              Mr. Devendra Kumar, Advocate
                              with Ms. Dimple, Officer (CISF)

      CORAM:

      HON'BLE MR. JUSTICE SURESH KUMAR KAIT
      HON'BLE MR. JUSTICE SAURABH BANERJEE

                         JUDGMENT

SURESH KUMAR KAIT, J

1. The present petition has been filed by the petitioner seeking quashing

of order dated 27.12.2018 vide which the competent authority rejected

petitioner‟s mercy petition on the ground that her husband was "dismissed

from service" on proven misconduct and thus she was not entitled to any

pensionary benefits/relief; compensatory allowance from the date of

dismissal of her deceased husband i.e. 24.11.1994 or in the alternative,

from the date of her application dated 22.08.2008 or 05.10.2008.

2. According to the petitioner, her husband- late Naik Krishanpal

Singh, was enrolled in the CISF as a Guard and was posted at Rihandnagar,

Super Thermal Power Project in Uttar Pradesh. During the course of

service, certain allegations were leveled against him and he was served

with a charge sheet dated 15.01.1994. After conclusion of enquiry, he was

dismissed from service on 24.11.1994. Thereafter, he filed various appeals

against the charge sheet, suspension order and the dismissal order issued

against him, however, each of these was rejected by the respondents.

Lastly, he approached this Court by filing W.P.(C) 4133/1996, which, after

being heard for some time, was dismissed in default.

3. Learned counsel appearing on behalf of petitioner submitted that

after dismissal from service, late Naik Krishanpal Singh was working as a

labour, however, during pendency of the aforesaid writ petition, he passed

away. Having no source of income and responsibility to shoulder small

children, petitioner herself worked as a labour for few days but since she

was unable to meet daily needs, she filed a representation dated 22.08.2008

to the competent authority for grant of pensionary benefits. The said

representation was dismissed vide order dated 02.09.2008 on technical

grounds that the application was incomplete and lacked material details.

4. Learned counsel for petitioner urged that petitioner was working

with CISF till the date of his dismissal, however, benefits of provident

fund, gratuity, leave encashment and any other monetary benefit was not

granted to him. It was submitted that for last more than 15 years, the

petitioner has been following case of her deceased husband and has been

working as daily wager and earning a meager amount of Rs.36,000/-

annually and is now 60 years old and is unable to do labour work and

maintain herself.

5. Learned counsel next submitted that petitioner had filed a mercy

petition before the respondent on 05.10.2018, however, the same stood

rejected vide order dated 27.12.2018 on the ground that her husband was

dismissed from service and was not liable to receive any pensionary

benefits. Learned counsel empathetically submitted that as per CCS

Pension Rules, the competent authority may sanction compassionate

allowance in special cases. Attention of this Court was drawn to Rule 41 of

the CCS of the Pension Rules, 1972 in this regard and also to letter dated

30.03.2015 (Annexure P-5) written by Directorate General, Central

Industrial Security Force, Ministry of Home Affairs to submit that

compensatory allowance is payable in deserving cases. Reliance is also

placed upon decision of Hon‟ble Supreme Court in Mahinder Dutt

Sharma Vs. Union of India(2014) 11 SCC 684 to submit that when an

employee is dismissed for reasons other than those involving moral

turpitude dishonesty towards employer and loss to a third party, then such a

punished employee's case may be considered for grant of compensatory

allowance under Rule 41 of the CCS Pension Rules by the competent

authority. Hence, it is prayed that respondents be directed to pay

compensatory allowance to petitioner to enable her to meet her livelihood.

6. To the contrary, learned counsel appearing on behalf of respondents

submitted that petitioner‟s husband was enrolled as Security Guard in the

year 1972 and consequent upon being charge sheeted for misconduct and

indiscipline in the year 1994, he was dismissed from service on

24.11.1994. The statutory appeal filed by petitioner‟s husband stood

dismissed on 31st May/ 1st June, 1995. The writ petition preferred by the

husband of petitioner also stood dismissed in default. According to

respondents, petitioner‟s husband has been punished 18 times during his

service tenure and since he was dismissed from service due to gross

misconduct and indiscipline, he is not entitled to get pension. Furthermore,

all his dues towards CGEGIS and RMS stood paid on his dismissal as final

payments.

7. To counter petitioner‟s reliance upon Hon‟ble Supreme Court‟s

decision in Mahinder Dutt Sharma (Supra), attention of this Court was

drawn to Paras - 14 & 15 of the judgment to submit that petitioner‟s

husband is not entitled to any pensionary benefit having been dismissed

from service on account of moral turpitude for inflicting injury on the head

of other personnel with rifle on 27/28.11.1993 while on duty.

8. In rebuttal, learned counsel appearing on behalf of petitioner had

submitted that by this petition, petitioner is seeking compassionate

allowance under Rule 41 of CCS Pension Rules, 1972 in lieu of 24 years of

service rendered by her husband with respondent. It was submitted that

consequent upon dismissal from service, rights of petitioner‟s husband with

regard to pension and other benefits have been unlawfully forfeited by the

respondents. Reliance was placed upon decision in D.S. Nakara and

Ors.Vs. Union of India 1983 (1) SCC 305 in support of above

submissions.

9. It was submitted that due to deteriorating economic condition, the

petitioner is unable to sustain her livelihood and she is compelled to work

as daily wager and respondents have unreasonably and unjustifiably

rejected her representation dated 05.10.2018 by the letter dated 27.12.2018.

Learned counsel strenuously placed reliance upon decision in Mahender

Dutt Sharma (Supra) to submit that the Hon‟ble Supreme Court has not

cited any specific definition of "deserving special consideration" and the

same depends upon the merits of the case. In addition, reliance was also

placed upon decision in State of Jharkand&Ors. Vs. Jitendra Kumar

Srivastava &Anr. (2013) 12 SCC 210 to submit that under Article 300A of

the Constitution of India, by serving the nation, petitioner has to be

considered as property of nation and thus, denial of pensionary and other

benefits is unlawful and unjust.

10. Reliance was also placed upon decision of this Court in Major GS

Sodhi Vs. Union of India JT 1992 (4) 337 wherein an army Officer, who

was cashiered, was held entitled to entire pension and gratuity. Learned

counsel also cited another decision of this Court in Ex ASI Shadi Ram Vs.

Government of NCT of Delhi and Ors. 2008 SCC OnLine Del 1396 to

submit that power to grant or refuse compassionate allowance cannot be

exercised on the mere whim of the officer who is designated as competent

authority.

11. Learned counsel further relied upon decision of Hon‟ble Supreme

Court in The State Bank of India and Ors. Vs. P. Soupramaniane (2019)

18 SCC 135 to submit that respondents have deliberately invoked the acts

of petitioner‟s husband within the acts of moral turpitude and the

respondents have failed to find out if the acts of petitioner were intentional

or due to certain situations having been aggravated by the acts of another

person.

12. Lastly, learned counsel submitted that petitioner is living in distress

economic conditions and grant of compassionate allowance under Rule 41

of the CCS Pension Rules, 1972 will help to make her livelihood and

therefore, the present petition deserves to be allowed.

13. The submissions advanced by learned counsel appearing from both

the sides were heard and the material placed on record as well as decisions

cited have been considered by us. We find that the late Naik Krishanpal

Singh had joined the services of respondents and he was charged for having

assaulted a Head Constable using the rifle butt during plant checking in the

year 1994 and consequently, he was dismissed from service vide order

dated 24.11.1994. The appeal preferred by late Naik Krishanpal Singh

against his dismissal order was dismissed by the competent authority,

against which he had filed a writ petition [W.P.(C) 4133/1996] before this

Court, which though was dismissed in default on 05.04.2021 for non-

appearance on his behalf, but only after expressing certain observations on

merits therein. Pertinently, the said petition was filed by late Naik

Krishanpal Singh against his dismissal order on merits; whereas the present

petition has been filed by his wife upon rejection of her mercy petition

seeking compassionate allowance on the ground that her husband had

served respondent from the year 1972 till 1994, thereby rendered 24 years

of service and that she is living under poor economic condition and

therefore, her case falls under the category of "deserving special

consideration" and, so, she is entitled to the get the benefit of provisions of

Rule 41 of CCS (Pension)Rules,1972.

14. Upon perusal of material placed on record, we find that the copy of

„dismissal from service‟ order dated 31st May/ 1st June, 1995 has not been

placed on record by either side. This Court is not going into the merits of

the dismissal order, however, we find that the representation dated

22.08.2008 filed by petitioner to the respondents for grant of pensionary

benefits, stood dismissed on mere technical grounds. Further, her mercy

petition dated 05.10.2018 stood rejected by the respondents vide

communication dated 27.12.2018 citing Rule 24 of CCS (Pension) Rules,

1972.

15. We have gone through the decisions relied upon by petitioner‟s

counsel in support of her case. Reliance is placed upon Hon‟ble Supreme

Court‟s decision in Mahinder Dutt Sharma (Supra)wherein the petitioner

having rendered 24 years of service was dismissed on the ground of

incorrigible behaviour and unauthorized absence from duty and had even

failed to participate in the enquiry proceedings and consequentially, his all-

financial benefits were forfeited. The Supreme Court held that it is not

possible to define the term „deserving special consideration‟ and the

circumstances deserving special consideration would ordinarily be

unlimited, keeping in mind the unlimited variability of human

environment. The Supreme Court while allowing the claim of petitioner

held that the claim of petitioner was misdirected as all the authorities on the

administrative side, Tribunal or even the High Court merely examined the

legitimacy of the dismissal order, whereas the basis for determination of

the compassionate allowance should have been whether the petitioner

deserved „special consideration‟ under the provisions of Rule 41 of the

CCS (Pension) Rule, 1972. In the light of aforesaid observations of the

Supreme Court, the objection of respondent that late Naik Krishanpal

Singh did not deserve any pensionary benefits does not survive for

consideration.

16. In D.S. Nakara (Supra), the Supreme Court dealt with the aspect of

quantum and formula of pension payable at the time of superannuation. In

Jitendra Kumar Srivastava (Supra), the Supreme Court dismissed the

appeal filed by Union of India against the order of the High Court granting

full pensionary benefits to the respondent/official, 10% of which was

withheld pending outcome of the departmental proceedings/ criminal case.

In Major G S Sodhi (Supra), the Supreme Court had dealt with the case of

a Major, who was removed from service after court martial proceedings,

and had alleged mala fide, bias and violation of rules of procedure. In The

State Bank of India and Ors. (Supra), the official who was working as

Messenger, was dismissed from service on account of moral turpitude, was

found to be not involved in the offence involving moral turpitude by the

Supreme Court and was directed to be reinstated in service.

17. The decisions in D.S. Nakara; Jitendra Kumar Srivastava; Major G

S Sodhi and The State Bank of India (Supra) are distinguishable on facts

and, therefore, are not applicable to the case in hand.

18. Learned counsel for petitioner has also relied upon decision of a

Division Bench of this Court in Ex ASI Shadi Ram (Supra), wherein an

official of Delhi Police was dismissed from service on account of demand

of illegal gratification and the Division Bench had elaboratively discussed

applicability of Rule 41 of the Rules while observing as under:-

"9. In support of his case before the Tribunal, the petitioner also relied upon the, "Guiding Principles for Grant of Compassionate Allowance", formulated by the Govt. of India in OM dated 22nd April 1940 for applying the aforesaid Rule 41 CCS (Pension) Rules, under which all applications for Compassionate Allowance are to be considered. This OM (which is hereinafter referred to as the "Guidelines") is reproduced below for convenience:

Guiding principles for the grant of Compassionate Allowance It is practically impossible in view of the wide variations that naturally exist in the circumstances attending each case, to lay down categorically precise principles that can uniformly be applied to individual cases. Each case has, therefore, to be considered on its merits and a conclusion has to be reached on the question whether there were any such extenuating features in the case as would make the punishment awarded, though it may have been necessary in the interests of Government, unduly hard on the individual. In considering this question, it has been the practice to take into account not only the actual misconduct or course of misconduct which occasioned the dismissal or removal of

the officer, but also the kind of service he has rendered. Where the course of misconduct carries with it the legitimate inference that the officer's service has been dishonest, there can seldom be any good case for a Compassionate Allowance. Poverty is not an essential condition precedent to grant of a Compassionate Allowance, but special regard is also occasionally paid to the fact that the officer has a wife and children dependent upon him, though this factor by itself is not, except perhaps in the most exceptional circumstances, sufficient for the grant of a Compassionate Allowance.

G.I.F.D., Office Memo. No. 3 (2)-R- II/40, dated the 22nd April, 1940.

XXXXXX XXXXXX XXXXXX

13. ........ The relevant portion of Rule 41 provides that the Competent Authority may, "if the case is deserving of special consideration, sanction a compassionate allowance..." . Nothing more is specified under the Rule. It is thus evident that the sole criterion is that the, "case", must be, "deserving of special consideration". The word, "case" here has clearly been used to denote, the 'state of affairs', or "the circumstances involved", [refer to the Concise Oxford Dictionary of current English, 8th edition], while the words, "deserving of" are defined as, "showing qualities worthy of...help etc"; and, "consideration," is defined as, "a fact or circumstance to be taken into

account" (the Shorter Oxford English Dictionary, 3rd Edition). Therefore, in the context, the phrase, "if the case is deserving of special consideration", can only mean that if the state of affairs or the circumstances involved bring out qualities that are worthy of help or assistance, the applicant should be granted Compassionate Allowance. For arriving at this conclusion, the field is left wide open for the Competent Authority. All that is required for the Competent Authority to entertain the matter, and to apply its mind thereto, is that the applicant must have been dismissed from service and his pension and gratuity forfeited. In particular, there is nothing whatsoever in Rule 41 to suggest that the application of any officer who has been dismissed for misconduct involving dishonesty, is to be rejected peremptorily."

19. Pertinently, the decision relied upon by petitioner‟s counsel in Ex

ASI Shadi Ram (Supra), has also been relied upon by another Division

Bench of this Court in Ex.L/NK Mahabir Prasad Vs. Union of India and

Ors.(2010) SCC OnLine Del 2909, wherein the official, who was

dismissed from service on account of unauthorized absence from duty after

23 years of service, had sought compassionate allowance on the ground

that he belonged to a poor and backward family, had no land and source of

income for his livelihood and the Division Bench had allowed the appeal

under the provisions of Rule 41 of CCS (Pension) Rules, 1972.

20. In the present case, while deliberating upon the mercy petition filed

by the petitioner, the respondents seem to have ignored Rule 41 of the CCS

(Pension) Rule, 1972 governing the grant of compassionate allowance

including deemed entitlement of compensation pension to a government

servant who has been dismissed from service. The provisions of Rule 41

read 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 thousand five hundred per mensem."

21. We now proceed to analyse the applicability of provisions of Rule 41

to the case in hand to find out as to whether this case falls under the

category of „special consideration‟ or not.

22. It is not disputed that there has been as many as 18 instances of

misdemeanour by late Naik Krishanpal Singh, however, it is also not

disputed that he was dismissed from service on 31st May/ 1st June, 1995,

and by then, he had already rendered 24 years of service with the

respondents. He had also challenged order of his dismissal by filing

representation and appeal before the competent authority. He had also filed

a Writ Petition before this Court, during pendency whereof he expired on

10.10.2000 and the said petition was dismissed in default (for non-

appearance) on 05.04.2011. In the meanwhile, on 22.08.2008, petitioner,

wife of deceased late Naik Krishanpal Singh, filed a representation before

the competent authority seeking pensionary benefits, which was dismissed

by the respondent vide order dated 02.09.2008 on technical grounds that

the application was incomplete and lacked material details. Thereafter, she

also filed a mercy petition on 05.10.2018, which also stood rejected vide

order dated 27.12.2018 on the ground that her husband was dismissed from

service and was not liable to receive any pensionary benefits. Time and

again petitioner, the widow of late Naik Krishanpal Singh, has been

running pillar to post to get relief for her survival and that of her family.

The present petition was filed in the year 2019. As on the filing of the

present petition, petitioner, widow of late Naik Krishanpal Singh is aged 60

years old and is said to be living in distress economic condition. The case

of petitioner is purely covered by the judgment rendered by this Court in

case of Ex/ASI Shadi Ram, (Supra) and Ex.L/NK Mahabir Prasad

(Supra). Thus, we find that case of petitioner deserved „special

consideration‟ under the provisions of Rule 41 of CCS (Pension) Rules,

1972.

23. Consequently, the respondents are directed to grant compassionate

allowance to the petitioner from the date of filing of the present petition

with consequential benefits thereof, as well as clear the arrears thereto,

within four weeks.

24. With directions as aforesaid, the present petition is accordingly

disposed of.

(SURESH KUMAR KAIT) JUDGE

(SAURABH BANERJEE) JUDGE

JULY 04, 2022 r