Kerala High Court
V.Kesavan Nair vs Union Of India on 18 May, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 18TH DAY OF MAY 2021 / 28TH VAISAKHA, 1943
WA.No.2210 OF 2019
AGAINST THE ORDER/JUDGMENT IN WP(C) 3810/2018(A) OF HIGH
COURT OF KERALA
APPELLANT/PETITIONER:
V.KESAVAN NAIR,
AGED 70 YEARS
S/O.G.VELAYUDHAN NAIR, (EX-CONSTABLE/CENTRAL
INDUSTRIAL SECURITY FORCE), RESIDING AT
THIRUVATHIRA, KAITHOORKONAM HOUSE, EDACODE,
NEMOM POST, TRIVANDRUM - 695 020.
BY ADVS.
SRI.T.C.GOVINDA SWAMY
SMT.KALA T.GOPI
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT
OF INDIA, MINISTRY OF HOME AFFAIRS,
NEW DELHI - 110 001.
2 THE DIRECTOR GENERAL,
CENTRAL INDUSTRIAL SECURITY FORCE, (MINISTRY OF
HOME AFFAIRS), BLOCK NO.13, CGO COMPLEX, \
NEW DELHI - 110 003.
3 THE COMMANDANT, CENTRAL INDUSTRIAL SECURITY
FORCE,
(MINISTRY OF HOME AFFAIRS), BANK NOTES PRESS,
DEWAS - 455 003, MADHYA PRADESH.
W.A No.2210/2019
2
4 THE SENIOR ACCOUNTS OFFICER,
OFFICE OF THE REGIONAL PAY AND ACCOUNTS OFFICER
(CISF), (MINISTRY OF HOME AFFAIRS), 3RD MSO
BUILDING, DF BLOCK, D WING, 2ND FLOOR, SALT
LAKE, KOLKATA - 700 064.
R1-4 BY SMT.O.M.SHALINA, CGC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
18.05.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A No.2210/2019
3
(C.R.)
ALEXANDER THOMAS & K.BABU, JJ.
------------------------------------
W.A No. 2210 of 2019
(Arising out of the judgment dated 14-02-2019
in W.P(C) No.3810 of 2018)
------------------------------------
Dated this the 18th day of May, 2021
JUDGMENT
K.BABU, J.
The judgment dated 14-02-2019 of the learned Single Judge of
this Court, in W.P(C) No.3810/2018, is under challenge in this intra
court appeal filed under Sec.5 of the Kerala High Court Act.
2. The appellant is the writ petitioner. Respondents in this writ
appeal are the respondents 1 to 4 in the writ petition.
3. Heard Sri.T.C.Govindaswamy, learned counsel appearing for
the appellant and Smt.O.M.Shalina, learned Central Government
Counsel appearing for the respondents.
4. The appellant entered into the service of CISF as a Cook on
06-01-1971. On 18-02-1986, while working as Constable, the
appellant was dismissed from service as per Ext.P3 order. He
challenged the order of the dismissal before this Court, in which the
respondents were directed to consider his representation, which
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ended in rejection.
5. On 14-08-2014, the appellant submitted a representation
before the Director of General, CISF (respondent No.2) and
requested sanctioning of compassionate allowance. The said
representation was also rejected as per order dated 15-12-2014. The
appellant, thereafter, filed W.P(C) No.7653/2015 before this Court,
challenging the order rejecting his request for compassionate
allowance. By judgment dated 28-06-2016 in W.P(C) No.7653/2015,
this Court set aside the order of rejection passed by the official
respondents and directed them to consider the representation
submitted by the appellant in the light of the directions contained in
the judgment of the Apex Court in Mahinder Dutta Sharma v. Union
of India [(2014) 11 SCC 654].
6. The competent authority, thereafter, passed Ext.P1 order by
which, he was granted compassionate allowance under Rule 41 of
CCS (Pension) Rules, 1972 at the rate of Rs.9,000/- per month with
effect from 16-11-2016. The appellant challenges Ext.P1 order to the
extent, it granted compassionate allowance only prospectively and
contended that he should have been granted compassionate
allowance with effect from the date of his dismissal from service.
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7. The respondents resisted the claim of the appellant and
contended that the power to grant compassionate allowance is
discretionary, which the competent authority exercised taking into
account the entire circumstances including the antecedents of the
appellant. The appellant had been a habitual offender; he was
awarded with one major and 7 minor penalties. Respondents further
contended that, the appellant had overstayed from 18-12-1984 to
28-06-1985 and thereafter remained absent unauthorisedly for 192
days from 11-08-1985 to 18-02-1986, which is a serious misconduct,
indiscipline and dereliction of duty. According to the respondents,
Ext.P1 order was issued after evaluating all the circumstances and in
tune with the judgment of the Apex Court in Mahinder Dutta
Sharma's case (supra).
8. The learned Single Judge dismissed the writ petition
challenging Ext.P1 order of the respondents, holding that the relevant
Rule does not provide that compassionate allowance be given with
effect from the date of his dismissal or from a particular date as it was
entirely within the discretion of the competent authority sanctioning
the allowance.
9. Sri.T.C.Govindaswamy, learned counsel for the appellant
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submitted that, in terms of Rule 83 of CCS (Pension) Rules, 1972,
pension which includes compassionate allowance, becomes payable
from the date on which a Government servant ceases to be borne on
the establishment. According to the learned counsel, by virtue of the
said Rule the appellant is entitled to be granted the benefit of
compassionate allowance with effect from 18-02-1986, the date on
which he was dismissed from service. The learned counsel for the
appellant submitted that 'compassionate allowance' is to be treated as
a class of pension having all attributes of pension. It is also
submitted that compassionate allowance is a payment in lieu of
pension. The learned counsel for the appellant also relied on
Government decision Nos.G.I, FD Office Memo No.3(2)-R-II/40
dated 22-04-1940, G.I, F.D, No.F.3-X-R,II/34 dated 03-05-1934 and
the decision of this Court in O.P No.2493/1999 to substantiate his
contention.
10. The learned Central Government Counsel Smt.O.M.Shalina
submitted that, Rule 41 of Pension Rules 1972 would show that it is
only an allowance sanctioned by the competent authority in exercise
of its discretionary power. The learned counsel further submitted
that it is only an allowance paid to the government servant at the
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discretion of the competent authority, when he/she is disentitled to
pension under the Rules. The learned Central Government Counsel
contended that the relevant rule does not mandate the competent
authority to sanction compassionate allowance and that the same is
granted after exercising the discretionary power of the competent
authority based on subjective satisfaction. She further submitted
that, the Rule does not say that the competent authority should
sanction the allowance from the date of dismissal/removal from
service.
11. The learned Central Government Counsel further submitted
that compassionate allowance at any rate, cannot be treated as
having all attributes of pension. The learned Central Government
Counsel relied on the judgment dated 03-07-2018 in W.A
No.1067/2018 and judgment dated 15-09-2010 in W.P(C)
No.16918/2004 of this Court to buttress her arguments.
12. The questions that arise for consideration are;
(a) Whether the competent authority has absolute discretion in
granting or refusing compassionate allowance.
(b) Whether, once the competent authority decides to pay
compassionate allowance, under Rule 41 of Pension Rules
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1972, the same is to be paid with effect from the date on which
the penalty of dismissal/removal is imposed.
13. Compassionate Allowance is dealt with in the proviso to
Rule 41 of the Pensions Rules 1972. Rule 41, reads thus:
"Rule 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."
14. As per Rule 41 of the Pension Rules 1972 a government
servant who is dismissed or removed from service shall forfeit his
pension and gratuity. Proviso to Section 41 says that, the authority
competent to dismiss or remove the government servant 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. Rule 41 further says that a
compassionate allowance sanctioned as above shall not be less than
the amount of Rupees three thousand five hundred per mensem.
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15. A reading of Rule 41 shows that, the competent authority
has the absolute discretion in granting compassionate allowance.
16. The scheme relating payment of pension is contained in
Chapter V of CCS (Pension) Rules, 1972. For effective adjudication of
the rival contentions, we find it appropriate to extract the relevant
portions of the rules dealt with in Chapter V.
"35. Superannuation pension
A superannuation pension shall be granted to a Government servant
who is retired on his attaining the age of compulsory retirement.
36. Retiring pension
A retiring pension shall be granted -
(a) to a Government servant who retires, or is retired, in advance of
the age of compulsory retirement in accordance with the provisions
of Rule 48 or 48-A of these rules, or Rule 56 of the Fundamental
Rules or Article 459 of the Civil Service Regulations ; and
(b) xxx xxx xxx
37. Pension on absorption in or under a corporation,
company or body
(1) A Government servant who has been permitted to be absorbed in a
service or post in or under a Corporation or Company wholly or
substantially owned or controlled by the Central Government or a State
Government or in or under a Body controlled or financed by the Central
Government or a State Government, shall be deemed to have retired
from service from the date of such absorption and subject to sub-rule
(3) he shall be eligible to receive retirement benefits if any, from such
date as may be determined, in accordance with the orders of the Central
Government applicable to him ].
EXPLANATION. - Date of absorption shall be
(i) xxx xxx xxx
(ii) xxx xxx xxx
(2) xxx xxx xxx
(3) xxx xxx xxx
37-A. Conditions for payment of pension on absorption
consequent upon conversion of a Government Department
into a Public Sector Undertaking
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(1) Where a Government servant referred to in Rule 37 elects the
alternative of receiving the retirement gratuity and a lump sum
amount in lieu of pension, he shall, in addition to the retirement
gratuity, be granted:-
(a) xxx xxx xxx
(b) xxx xxx xxx
37-B. Conditions for payment of pension on absorption
consequent upon conversion of a Government Department
into a Central Autonomous Body-
(1) xxx xxx xxx
38.Invalid pension
(1) Invalid pension may be granted if a Government servant retires
from the service on account of any bodily or mental infirmity which
permanently incapacitates him for the service.
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) xxx xxx xxx
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 of 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) xxx xxx xxx
(b)xxx xxx xxx
(c) xxx xxx xxx.
(3) xxx xxx xxx
(4) xxx xxx xxx
40.Compulsory retirement pension
(1) A Government servant compulsorily retired from service as a
penalty may be granted, by the authority competent to impose such
penalty, pension or gratuity or both at a rate not less than two-thirds
and not more than full compensation pension or gratuity or both
admissible to him on the date of his compulsory retirement.
(2) xxx xxx xxx
(3) xxx xxx xxx."
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17. Rule 35, which deals with superannuation pension,
mandates that the same shall be granted to a government servant on
his attaining the age of compulsory retirement. Rule 36, which deals
with retiring pension, says that the same also shall be granted to a
government servant in advance of the age of compulsory retirement.
In the case of pension on absorption in or under a corporation or
company or body, provided in Rule 37, as the expression used is
'shall' the government servant is mandatorily entitled to pension.
Rule 37-A says that, where a government servant referred to in Rule
37 elects the alternative of receiving the retirement gratuity and
he/she shall be eligible to a lump sum amount in lieu of pension. In
the case of compensation pension, provided in Rule 39, where a
government servant is selected for discharge owing to the abolition of
his permanent post, he shall have the option of taking compensation
pension to which he may be entitled for the service he had rendered.
18. When we come to invalid pension the expression used is
'may be granted'. This point to an element of discretion with the
competent authority to take into account the relevant materials that
could determine the eligibility of the government employee for
pension. In the case of compulsory retirement pension, provided in
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Rule 40, also the expression used is 'may be granted', but it is
provided that the government servant may be granted pension or
gratuity admissible to him on the date of his compulsory retirement.
19. Rules 35, 36, 37, 37-A and 38 provide that the payment is
mandatory. In the case of invalid pension and compulsory
retirement pension, provided in Rules 38 and 40, an element of
discretion is available.
20. It is also relevant to note that all the Rules in Chapter V
except Rules 37-A and 41 deal with payment of pension. Rule 37-A
deals with payment of lump sum amount in lieu of pension, whereas
Rule 41 deals with forfeiture of pension and gratuity consequent to
dismissal or removal of a government servant from service. The
proviso to Rule 41 authorises the authority competent to dismiss or
remove a government servant from service to grant "compassionate
allowance" as a matter of concession. Hence we find force in the
submission of the Central Government Counsel that compassionate
allowance does not have all the characteristics and attributes of the
pensions covered by Rules 35 to 40 of the Pension Rules, 1972.
Therefore Rule 83 of Pension Rules 1972, relied on by the learned
counsel for the appellant, which mandates that pension other than
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family pension shall become payable from the date on which a
government servant ceases to be borne on the establishment, cannot
be pressed into service for fixing the date from which compassionate
allowance is to be granted.
21. In the case of compassionate allowance, under Rule 41, the
statute provides that, the competent authority has to see that the case
of the government employee is deserving on special consideration
which definitely gives absolute discretion to the authority in the
sanction of compassionate allowance. In all other Rules the payment
of pension or payment in lieu of pension is either mandatory or
subject to satisfaction of certain conditions.
22. The learned Central Government Counsel relied on
judgments of this Court in W.P(C) No.16918/2004 and Writ appeal
No.1067/2018 in support of her contention that, the government
employee who has been granted the compassionate allowance cannot
claim that he or she be given the benefit with effect from the date of
dismissal or removal.
23. In Devadas v. State of Kerala and another (W.A
No.1067/2018) this Court had considered the question whether
compassionate allowance sanctioned to an employee who suffered a
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dismissal or removal from service is eligible to have the same claim
with effect from the date of imposition of punishment itself, as a
matter of right. In Devadas's case (supra), a Clerk in Judicial
department was dismissed from service in the year 1981. He claimed
compassionate allowance, in terms of Rule 5 of Part III KSR, in 2015;
he was granted compassionate allowance with effect from 2016.
After analysing the provisions contained in Rule 5 of Part III KSR,
the Division Bench of this Court held that, granting of compassionate
allowance was only a mercy shown by the employer to the employee
and it is in the absolute discretion of the competent authority to
sanction the same, taking into account the facts and circumstances of
the case and that the government employee cannot as of right claim
the amount of compassionate allowance, so also with effect from the
date on which he was removed from service. The Division Bench also
took note of the delay in making the claim while upholding the
contentions of the official respondents therein that the discretion to
grant the relief is absolutely with the Government.
24. In V.G.Ramachandran Nair v. Chairman, Kerala
State Electricity Board (W.P(C) No.16918/2004) this Court
considered a similar question. The petitioner therein was an
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employee of the KSEB, who was dismissed from service on
allegations of misconduct on 20-08-1990 and he was granted
compassionate allowance with effect from 11-06-2003 as a special
case by invoking Rule 5 of Part III KSR. This Court, after analysing
the facts in that case, held that granting of compassionate
allowance is only a mercy shown by the employer to the employee
and that the benefit under Rule 5 is in the absolute discretion of
competent authority and further that the government employee
cannot, as of right, claim that the compassionate allowance should be
so much or that it should be paid with effect from the date of
dismissal.
25. The learned counsel for the appellant contended that, the
ratio in Devadas's and V.G.Ramachandran Nair's cases
(supra) cannot be made applicable to the present fact situation as
those cases were decided in the context of the Rule 5 of Part III KSR.
26. The learned Standing Counsel per contra contended that
Rule 5 of Part III KSR is in pari materia with Rule 41 of CCS
(Pension) Rules, 1972.
27. We find it profitable to extract Rule 5 of Part III KSR to
address the rival contentions. Rule 5 of Part III KSR reads thus:
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"Rule 5. Misconduct or inefficiency: - (a) No pension may be
granted to an employee dismissed or removed for misconduct,
insolvency or inefficiency, but to employees so dismissed or removed,
compassionate allowances may be granted when they are deserving
of special consideration; provided that the allowances granted to any
employee shall not exceed two-thirds of the pension which would have
been admissible to him if he had retired on the date of dismissal or
removal.
(b) The following procedure shall be followed in the matter of
sanctioning compassionate allowance: -
(i) On receipt of the orders of the competent authority removing/
dismissing an employee from service for misconduct, insolvency or
inefficiency the Head of the office, if he proposes to recommend the
grant of a compassionate allowance, should fill in the first page of the
application for pension in Form 2 and send it to the Audit Officer
concerned for report on the title to the compassionate allowance. The
Head of the Office should not wait for an application from the
employee.
(ii) If the competent authority in issuing orders of removal / dismissal
states that a certain proportion of pension is to be granted as
compassionate allowance, no further sanction to compassionate
allowance is necessary and all that is required is that the Audit Officer
should certify to the admissibility of compassionate allowance on a
pension application completed and signed by the Head of the office as
provided above.
28. On a comparative analysis of Rule 41 of CCS (Pension)
Rules and Rule 5 of Part III KSR it can be seen that, Rule 5 of Part III
KSR contains all what is included in Rule 41 of CCS (Pension) Rules.
It can be seen that Rule 5 of Part III KSR is more elaborate than Rule
41 of Pension Rules, 1972. So it can safely be concluded that the
principles declared by this Court in the context of Rule 5 of Part III
KSR are squarely applicable to the present facts situation.
29. The learned counsel for the appellant also relied on
judgment dated 22-11-2002 in O.P No.2493/1999 of this Court, filed
by the Southern Railway, Madras challenging order in O.A
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No.721/1997 passed by the CAT, Ernakulam. In that case, CAT had
allowed the claim of a railway employee, who was removed from
service on account of unauthorised absence after rendering 21 years
of service, directing grant of compassionate allowance with effect
from 01-01-1994, though he claimed it only later. Considering the
number of years rendered by the petitioner, the view taken by the
CAT was found to be a possible one and interference was declined
under Article 227 of the Constitution by this Court.
30. The facts considered in O.P No.2493/1999 are different
from the one considered in this case. In O.P No.2493/1999 this
Court was dealing with the provisions of Railway Services
(Commutation of Pension) Rules, 1993. The decision of this Court in
O.P No.2493/1999 has no precedential value in the context of the
present case.
31. The learned counsel for the appellant also relied on
Government decision (1) No.(i) G.I, FD Office Memo No.3(2)-R-
II/40 dated 22-04-1940 and (2) Government decisions No.3(ii) G.I.,
F.D, No.F.3-X-R, II/34 dated 03-05-1934 in support of his
contention.
32. The Government of India Decision G.I, F.D Office Memo
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No.3(2)-R-II/40 dated 22-04-1940, deals with guiding principles for
the grant of compassionate allowance. It says that, it is practically
impossible in view of the wide variations that naturally exist in the
circumstances attending in each case, to lay down categorically
precise principles that can be uniformly be applied to individual
cases. The decision says that 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 interest of Government, unduly hard on the
individual. In considering this question it has been a 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 had rendered, the decision says. The decision
further says that, 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. The Government decision
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No.F.3-X-R, II/34 dated 03-05-1934 deals with the procedure for the
grant of Compassionate Allowance. It mainly deals with the
procedures to be followed to avoid delay in the payment of
compassionate allowance. The Government decisions relied on by
the learned counsel for the appellant especially the decision dated
22-04-1940, supports the contention that the grant of compassionate
allowance is the discretion of the competent authority.
33. The analysis of the statutory provisions, precedents and the
Government decisions relied on by the appellant, does not lead us to
enter into a conclusion that compassionate allowance is to be granted
to a government employee from the date of imposition of the
punishment itself as a matter of right.
34. From the discussion made above we come to the following
conclusions:
(i) Compassionate allowance provided under Rule 41 of CCS
(Pension) Rules, 1972 does not have all the characteristics and
attributes of the pensions covered by Rules 35 to 40 of the
Pension Rules.
(ii) Compassionate allowance under Rule 41 cannot be treated as a
payment in lieu of the aforesaid pensions supra.
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(iii) The authority competent to dismiss or remove a government
servant from service has the discretion in the grant of
compassionate allowance, in the sense that, the authority may
grant the allowance if the case is deserving of special
consideration.
(iv) While granting compassionate allowance the authority has
absolute discretion to decide as to the time period from which
the allowance is to be paid and a government employee who
suffered dismissal or removal from service and was granted
compassionate allowance cannot claim that he is eligible to have
same with effect from the date of dismissal or removal as a
matter of right.
35. Coming to the facts of this case, the appellant was
dismissed from service on 18-02-1986. He approached the
respondents seeking compassionate allowance on 14-08-2014. The
appellant had challenged the orders passed by the respondents by
filing writ petitions before this Court and the last one of which was
dismissed in the year 1987. Thereafter he has not persuaded the
matter. After a long lapse of 27 years on 14-08-2014 he approached
the authorities seeking compassionate allowance. The respondents
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have a case that it is quite probable that the appellant was working
somewhere during this interval.
36. The appellant has not made any specific pleading as to
whether he was working or not during the period after his dismissal
till the submission of application seeking compassionate allowance.
37. The representation, stated to have been submitted by the
appellant, has not been produced for perusal. It appears from Ext.P1
that he had requested to the effect that, as he was aged 65 years and
was almost invalid and living in poverty his case deserves
sympathetic consideration. The competent authority while passing
Ext.P1 had taken into account all the circumstances and granted
compassionate allowance to the appellant prospectively with effect
from 16-11-2016.
38. The learned Single Judge recorded a finding that a
government employee who suffered dismissal or removal from
service and was granted compassionate allowance cannot claim that
he is eligible to have same with effect from the date of dismissal or
removal as a matter of right. We are of the view that the learned
Single Judge rightly recorded a finding to that effect.
39. We are in full agreement with the conclusions arrived at in
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the impugned judgment dated 14-02-2019 of the learned Single
Judge in these writ proceedings.
40. We are of the firm view that the learned Single Judge
rightly declined reliefs prayed for in the W.P(C). We find no reasons
to interfere with the findings of the learned Single Judge.
The Writ Appeal will stand dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
K.BABU, JUDGE
KAS
W.A No.2210/2019
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A TRUE COPY OF DOCUMENTS/CORRESPONDENCE
REGARDING GRANT OF COMPASSIONATE
ALLOWANCE TO THE APPELLANT.
ANNEXURE B TRUE COPY OF MEDICAL CERTIFICATE DATED
02/08/2019 ISSUED BY COMPETENT MEDICAL
AUTHORITY OF THE GOVERNMENT AYURVEDA
COLLEGE HOSPITAL, TRIVANDRUM, IN FAVOUR
OF THE APPELLANT.
