The Director General Of Central ... vs S. Surendran
2022 Latest Caselaw 5540 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                    &
        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
   THURSDAY, THE 26TH DAY OF MAY 2022 / 5TH JYAISHTA, 1944
                          WA NO. 598 OF 2022
JUDGMENT DATED 11.02.2022 IN WP(C) 1214/2020 OF HIGH COURT OF
                                 KERALA


APPELLANTS/RESPONDENTS:

    1        THE DIRECTOR GENERAL OF CENTRAL INDUSTRIAL SECURITY
             FORCE, CISF HQ, BLOCK NO.13,
             CGO COMPLEX, LODHI ROAD, NEW DELHI, PIN - 110003

    2        THE INSPECTOR GENERAL/NORTH SECTOR
             CISF NORTH SECTOR, HEAD QUARTERS CISF CAMPUS,
             MAHIPALPUR, NEW DELHI, PIN - 110087

             BY ADV G.MAHESWARY



RESPONDENT/S:

             S. SURENDRAN, AGED 70 YEARS
             (EX. CONSTABLE NO.7206502), CISF/NFL,
             NAYA NANGAL (P.O.), NOW RESIDING AT AMPADI,
             KOTHAPURAM, KARALI JN. (P.O.),
             KOLLAM, PIN - 680521


     THIS     WRIT    APPEAL   HAVING     COME   UP    FOR    ADMISSION   ON
26.05.2022,     THE    COURT   ON   THE     SAME      DAY    DELIVERED    THE
FOLLOWING:
 WA No. 598 of 2022

                                           ..2..


ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
          ---------------------------------------------------------------------------
                              WA No. 598 of 2022
         [arising out of the impugned judgment dated 11.02.2022
                           in WP(C) No.1214/2020]
         ----------------------------------------------------------
                     Dated this the 26th day of May, 2022



                                    JUDGMENT

ALEXANDER THOMAS, J.

The judgment dated 11.02.2022 rendered by the learned

Single Judge in the instant Writ Petition (Civil),

WP(C).No.1214/2020, is the subject matter of challenge in this

intra court appeal filed under Sec.5(i) of the Kerala High Court

Act, 1958.

2. The appellants in the writ appeal are the respondents in the

writ petition and the sole respondent in the writ appeal is the

sole petitioner in the writ petition.

3. The prayers in the instant writ petition, WP(C) No.1214/2020,

are as follows;

"i) To quash Exhibit P12 as arbitrary and illegal.

ii) To declare that the petitioner is entitled for grant of compassionate allowance as provided under Rule 41 of the WA No. 598 of 2022

..3..

CCS (Pension) Rules read with Government of India instructions on the subject.

iii) Issue a writ of mandamus directing the respondents to grant compassionate allowance to the petitioner under Rule 41 of the CCS (Pension) Rules read with Government of India Instructions on the subject w.e.f the date of his discharge.

and

(iii) Issue such other appropriate writ, order or direction as deemed fit and proper by this Honourable Court in the facts and circumstances of the case"

4. The order under challenge in the above writ petition is the

impugned Ext.P12 proceedings dated 21.04.2019 issued by the

1st respondent in the writ petition, whereby the claim of the

writ petitioner for grant of compassionate allowance in terms

of Rule 41 of the Central Civil Services (Pension) Rules, 1942

[for short, "CCS (Pension) Rules"], has been rejected.

5. The brief recitals to the facts of this case would be pertinent.

The writ petitioner was initially appointed as Security Guard

in the Central Industrial Security Force on 05.08.1972 and he

had availed earned leave for 11 days from 16.08.1983 to

08.09.1983 followed by half pay leave from 09.09.1983 to

19.09.1983. Thereafter, he had failed to report back for duty

on 20.09.1983 after expiry of his leave period and it resulted

in overstaying after leave. This led to initiation of disciplinary WA No. 598 of 2022

..4..

proceedings against him and by Ext.R2(a) order dated

03.07.1984, he was ordered to be removed from service.

Ext.P1 is the Discharge Certificate issued to him on 12.12.1984.

The petitioner has contended that he was not served with a

copy of Ext.R2(a) or any speaking order, disclosing the reason

for his discharge, and that, he and his wife had made

consistent efforts to secure details as evident from Ext.P2 to

P6. Ultimately, he has filed Ext.P7 representation dated

04.04.2019 before the 1st respondent in the writ petition for

sanction of pension and other service benefits. The plea in

Ext.P7 is rejected, as per Ext.P9 order dated 27.04.2019, on

the ground that a Government servant removed from service is

not entitled for pension, gratuity or other terminal benefits.

After that, he has filed Ext.P10 representation on 06.07.2019,

claiming consideration for grant of compassionate allowance

under Rule 41 of the CCS (Pension) Rules read with

instructions issued by the Government of India on the subject.

Since no action was taken thereon, he was constrained to file

WP(C) No.21751/2019 before this Court, which resulted in

Ext.P11 judgment dated 19.08.2019, whereby the 1 st WA No. 598 of 2022

..5..

respondent in the writ petition was directed to consider and

take a decision on Ext.P10 representation dated 06.07.2019 in

accordance with law. Thereafter, the 1st respondent in the writ

petition has issued the rejection order as per Ext.P12

proceedings dated 21.04.2019, rejecting his claim for

compassionate allowance under Rule 41 of the CCS (Pension)

Rules. The brief grounds cited in support of the rejection of

the plea as contained in para 4 of Ext.P12 reads as follows;

"4. On going through the submissions put forth by the petitioner and the records available on file, I find that compassionate allowance can be sanctioned under Rule 41 of CCS (Pension) Rules, 1972 to the personnel who have been awarded the penalty of Dismissal or Removal from Service only in exceptional circumstances where case is found to be deserving of special consideration. For this purpose financial status and social responsibility of the petitioner was assessed and it is found that financial condition of the petitioner appears to be satisfactory and he is not facing any hardship as his wife is a railway employee. Further it is found that his sons are married and serving, in Indian Air Force and Info park, Kochi respectively and thus he has no responsibility to discharge towards his family. Hence, there are no extenuating, circumstances particularly regarding his financial status and social responsibility which make it a fit case deserving of special consideration for grant of Compassionate Allowance."

As mentioned above, the above said Ext.P12 rejection order is

essentially under challenge in the instant writ petition.

6. Rule 41 of the CCS (Pension) Rules deals with compassionate

allowance and the same reads as follows;

WA No. 598 of 2022

..6..

"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 per mensem."

7. The learned Single Judge has mainly placed reliance on the

dictum laid down by the Apex Court in Mahinder Dutt

Sharma v. Union of India & Others [(2014) 11 SCC 684].

Para 14 thereof reads as follows;

"14. In our considered view, the determination of a claim based under Rule 41 of the Pension Rules, 1972, will necessarily have to be sieved through an evaluation based on a series of distinct considerations, some of which are illustratively being expressed hereunder:-

14.1 (i) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act of moral turpitude? An act of moral turpitude, is an act which has an inherent quality of baseness, vileness or depravity with respect to a concerned person's duty towards another, or to the society in general. In criminal law, the phrase is used generally to describe a conduct which is contrary to community standards of justice, honesty and good morals. Any debauched, degenerate or evil behaviour would fall in this classification.

14.2 (ii) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act of dishonesty towards his employer? Such an WA No. 598 of 2022

..7..

action of dishonesty would emerge from a behaviour which is untrustworthy, deceitful and insincere, resulting in prejudice to the interest of the employer. This could emerge from an unscrupulous, untrustworthy and crooked behaviour, which aims at cheating the employer. Such an act may or may not be aimed at personal gains. It may be aimed at benefiting a third party, to the prejudice of the employer.

14.3 (iii) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act designed for personal gains, from the employer? This would involve acts of corruption, fraud or personal profiteering, through impermissible means by misusing the responsibility bestowed in an employee by an employer. And would include, acts of double dealing or racketeering, or the like. Such an act may or may not be aimed at causing loss to the employer. The benefit of the delinquent, could be at the peril and prejudice of a third party.

14.4 (iv) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, aimed at deliberately harming a third party interest? Situations hereunder would emerge out of acts of disservice causing damage, loss, prejudice or even anguish to third parties, on account of misuse of the employee's authority to control, regulate or administer activities of third parties. Actions of dealing with similar issues differently, or in an iniquitous manner, by adopting double standards or by foul play, would fall in this category.

14.5 (v) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, otherwise unacceptable, for the conferment of the benefits flowing out of Rule 41 of the Pension Rules, 1972? Illustratively, any action which is considered as depraved, perverted, wicked, treacherous or the like, as would disentitle an employee for such compassionate consideration.

8. Mahinder Dutt Sharma's case [(2014) 11 SCC 684] (supra)

also deals with the claim under Rule 41 of the CCS (Pension)

Rules. The learned Single Judge has rightly held that the above

said statutory provision, as per Rule 41 of the CCS (Pension) WA No. 598 of 2022

..8..

Rules, enables the competent authority to consider the plea

for grant of compassionate allowance in the case of employees,

who have been dismissed or removed from service, where it

deserves special consideration. The Apex Court in the

aforesaid decision in Mahinder Dutt Sharma's case

[(2014) 11 SCC 684] (supra), has clearly held that there has to

be some mitigating factor, which makes the competent

authority to hold that, even though the person was dismissed

or removed from service, he or she ought to be given

compassionate allowance. The vital parameters of

consideration are contained in Causes 1 to 5 of para 14 of the

judgment in Mahinder Dutt Sharma's case [(2014) 11 SCC

684] (supra). In that case also, the claimant was a

Government servant, who was dismissed from service for

alleged unauthorized absence. In para 17 of the said judgment,

the Apex Court has observed that even though the charges of

unauthorized and willful absence have been proved against the

appellant therein, there is nothing on record to reveal that his

absence from service was aimed at seeking better pastures

elsewhere and no such inference is even otherwise possible, WA No. 598 of 2022

..9..

wherein the employee was initially involved in criminal case,

in which he was acquitted. One of his brothers died, and

thereafter, his father and brother's wife also passed away and

his wife also was suffering from cancer. These difficulties led

to his ill-health as he was suffering from hypertension and

diabetes and these vital factual parameters have not been

evaluated by the competent authority even though he could

not be said to be attributed with any of the negative

parameters in Clauses 1 to 5 of para 14 of the said judgment.

9. In the instant case, the learned Single Judge, after considering

the factual position in the case and the dictum laid down by

the Apex Court in the aforesaid decision, held that the writ

petitioner was dismissed for unauthorized absence and his

case also does not fall within any of the negative attributes

deal with in Clauses 1 to 5 of para 14 of the aforesaid decision

in Mahinder Dutt Sharma's case [(2014) 11 SCC 684]

(supra). The learned Single Judge has referred to the contents

of Ext.R2(b) Assessment Report, which indicates that he

himself had informed that both his sons are married and are

living independently away from his residence, and that he had WA No. 598 of 2022

..10..

undergone five surgeries relating to prostate, hernia etc., and

his health is in a poor state, and that he is fully depending on

his employed wife, and that he does not have any independent

income and has to live at the mercy of his wife for financial

assistance to meet his own day-to-day needs, which is causing

him undue hardship and difficulties.

10. Ext.R2(b) Assessment is a report relied on by none other than

the respondents in the writ petition. The said report discloses

that the writ petitioner is in failing health, and he is in

seventies, and that he has already undergone five surgeries.

True that, he himself had candidly stated before the

authorities that his sons are married and living independently

away from his residence. His only source of livelihood is by

depending upon the income of his wife. The respondents in

the writ petition do not have any dispute that both his children

are married and living independently away from his residence.

Ext.R2(b) dated 20.09.2019 would clearly indicate that his

wife was then aged 59 years and was a Class III Railway

employee. It appears that she has retired from Railway service

in May, 2020, and therefore, must be getting only her monthly WA No. 598 of 2022

..11..

pension, which is obviously much less than her regular

monthly salary. Further, the report also indicates that his then

93-year-old father-in-law is also staying with him. The writ

petitioner was then aged around 70 years. Though his sons are

having independent income, there is no material on record to

show that they are financially supporting the writ petitioner.

On the other hand, Ext.R2(b) would clearly indicate that the

petitioner is depending solely on his wife. It is, on the basis of

these incontrovertible factual materials produced by none

other than the respondents in the writ petition, the learned

Single Judge has concluded that the assessment and

consideration done in the instant case cannot be said to be

improper on effective consideration of all relevant aspects as

ordered by the Apex Court in Mahinder Dutt Sharma's

case [(2014) 11 SCC 684] (supra). We have already quoted the

relevant grounds of rejection made out in Ext.P12. The main

ground of rejection, as per Ext.P12, is that the financial

condition of the petitioner is satisfactory and he is not facing

any hardship as his wife is a Railway employee and his sons

are married and employed.

WA No. 598 of 2022

..12..

11. In the light of the above said analysis made in the impugned

judgment, the above said factual analysis based on the

incontrovertible factual materials as well as the conclusions

drawn thereon in the impugned judgment cannot be said to be

illegal or unreasonable. On the other hand, we are of the view

that the said view rendered in the impugned judgment is quite

reasonable and fair. In other words, it is only in the light of

these aspects that the learned Single Judge has concluded that

all the relevant aspects have not been duly taken into account

and considered by the 1st respondent in the writ petition in

passing the impugned rejection order as per Ext.P12.

Accordingly, the learned Single Judge has set aside Ext.P12

rejection order and has remitted the matter to the 1 st

respondent in the writ petition for consideration and decision

of the matter afresh after taking into account the relevant

aspects of the matter and in accordance with the dictum laid

down by the Apex Court in Mahinder Dutt Sharma's case

[(2014) 11 SCC 684] (supra). The said directions in the

impugned judgment cannot be seriously faulted by us, inviting

any appellate interference.

WA No. 598 of 2022

..13..

12. Smt.G.Maheswary, learned Central Government Counsel

appearing for the appellants, submits that there is undue delay

on the part of the writ petitioner inasmuch as he is removed

from service as early as on 16.07.1984 as per Ext.P1 Discharge

Certificate dated 12.12.1984. The first claim for terminal

benefits was made by the writ petitioner as per Ext.P7 only on

04.04.2019 and after the rejection of the same, he has come up

with the present Ext.P10 representation on 06.07.2019 and

that, there has been delay and laches on his part and further

that, he raised claims for grant of compassionate allowance on

a retrospective basis etc.

13. After taking into account these submissions, we are of the view

that the delay as above would have been relevant if the

petitioner had challenged his removal and the discharge order

issued in the year 1984. In the instant case, initially, he has

made claim for grant of terminal/retirement benefits as per

Ext.P7 on 04.04.2019, which has been rightly rejected as per

Ext.P9 on the ground that a dismissed or removed employee is

not entitled for any such terminal/retirement benefits.

However, the provision as per Rule 41 of the CCS (Pension) WA No. 598 of 2022

..14..

Rules clearly enables the competent authority to consider the

claim for compassionate allowance in case of employees, who

are dismissed or removed from service. The issue as to

whether a claimant should necessarily be granted

compassionate allowance with retrospective effect, is not a

matter that arises in the present writ petition proceedings. The

main issue is regarding the legality and correctness of the

impugned Ext.P12 proceedings, rejecting his claim for

compassionate allowance. Since the impugned judgment has

not dealt with the above said issue of any such retrospective or

prospective claim, there is no necessity for us to enter into the

above said issue at all. The impugned judgment does not, in

any manner, fetter the right of the competent authorities, to

decide to such issues, as per law. The main issue is as to

whether all relevant aspects of the matter have been taken into

consideration while considering the claim of the writ

petitioner for grant of compassionate allowance under Rule 41

of the CCS (Pension) Rules.

14. We do not find any ground to interfere with the impugned

judgment of the learned Single Judge inasmuch as the same WA No. 598 of 2022

..15..

appears to be after due consideration of the parameters of the

dictum laid down by the Apex Court in Mahinder Dutt

Sharma's case [(2014) 11 SCC 684] (supra) and also on the

basis of the incontrovertible factual materials made available

by none other than the respondents in the writ petition. The

other issues need not be decided by us, as it does not arise. In

other words, we do not find any ground to interfere with the

verdict of the learned Single Judge in the writ petition. The

time limit of two months stipulated in the impugned judgment

will start running from the date of receipt of a copy of this

judgment.

With these observations and directions, the above writ appeal

sill stand dismissed.

Sd/-

ALEXANDER THOMAS JUDGE

Sd/-

SHOBA ANNAMMA EAPEN JUDGE bka/-