Madras High Court
The Director General Of Police vs D.Amutha on 25 March, 2025
Author: S.Srimathy
Bench: J. Nisha Banu, S.Srimathy
W.A.(MD)No.1817 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 25.02.2025
PRONOUNCED ON : 25.03.2025
CORAM:
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.1817 of 2023
and
C.M.P.(MD)No.13804 of 2023
1.The Director General of Police,
Office of the Director General of Police,
Beach Road, Chennai.
2.The Superintendent of Police,
Tirunelveli District,
Tirunelveli. ... Appellants
Vs.
D.Amutha ... Respondent
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent against the order
of this Court in W.P.(MD)No.22549 of 2016, dated 07.09.2023.
For Appellants :Mr.Veera Kathiravan
Additional Advocate General
assisted by M/s.D.Farjana Ghoushia
Special Government Pleader
For Respondent :Mr.I.Pinaygash
***
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W.A.(MD)No.1817 of 2023
JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.)
The present writ appeal is filed by the State against the order, dated
07.09.2023, passed in W.P.(MD)No.22549 of 2016.
2. The writ petition was filed for issuance of a Writ of Certiorarified
Mandamus, to quash the order, dated 08.10.2016 and consequently, to direct the
respondents to provide compassionate allowance as per Rule 40(1) of Tamil Nadu
Pension Rules, 1978.
3. The brief facts of the case are that the writ petitioner's husband
Late.S.Duraisamy served as Constable and was dismissed from service on
08.01.2002. Against the said order, he preferred an appeal, pending appeal, he
died on 09.06.2009. On 25.03.2013, the writ petitioner submitted a representation
to provide compassionate allowance as per Rule 40 of Tamil Nadu Pension Rules,
1978. The 2nd respondent, vide order, dated 22.04.2013, rejected the
representation stating that the writ petitioner's husband was dismissed from
service, hence, pension cannot be provided. Aggrieved over the said order, the
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writ petitioner had preferred W.P.(MD)No.10366 of 2013 and the Writ Court vide
order dated 05.08.2016 had held that the termination of service ipso facto does
not disentitle compassionate allowance and directed the 2nd respondent in the writ
petition to consider the application afresh in the light of the said Rule. In order to
comply with the order, the respondents had passed the order, dated 08.10.2016,
which was impugned in the writ petition.
4. After hearing the rival submissions, the Writ Court has held that the
2nd respondent therein has erroneously rejected the claim of compassionate
allowance without considering all the aspects and further held on plain reading of
Rule 40(1) proviso that the respondents therein ought to consider for deserving
cases, hence rejection is not in accordance to the Rule. The genuine hardship was
expressed by the writ petitioner, therefore, the Writ Court set aside the orders
passed by the respondents and directed the respondents to provide compassionate
allowance. Aggrieved over the same, the present writ appeal is preferred.
5. The primary contention of the appellants is that under Rule 40(1)
clearly states the family of the government servant are not entitled to
compassionate allowance, if the employee was dismissed or removed from
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service. The Hon'ble Supreme Court in the case of Mahinder Dutt Sharma Vs.
Union of India and Others reported in (2014) 11 SCC 684 has been held the act
of moral turpitude will disentitle the family of the delinquent from claiming
compassionate allowance. In order to consider the contention, the Rule 40(1) is
extracted hereunder:
"40. 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 medical certificate.
Provided further that no allowance shall be granted to an
officer under the rule-making control of the Government of India, other
than those who are governed, by the All India Services (Death-cum-
Retirement Benefits) Rules, 1958, without further sanction.
Provided also that no compassionate allowance shall be
granted in cases of Government servants dismissed or removed from
service under the second proviso (c) to clause (2) of Article 311 of the
Constitution of India, for overt, anti-national activities such as
sabotage, espionage and like.".
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The said Rule states that the Government servant if dismissed or removed shall
forfeit his pension and gratuity. At the same time, it has granted power to the
appointing authority in the first proviso to grant the compassionate allowance if
the case is deserving of “special consideration”. Further the said proviso states the
amount shall not exceeds 2/3rd of pension or gratuity or both. The 2nd proviso
states about the employees coming under Central Government service are not
covered under the said Rules and the same is not relevant to the present case. The
3rd proviso states that no compassionate allowance shall be granted to the
Government servants who are dismissed or removed for overt, anti-national
activities such as sabotage, espionage and like under the second proviso (c) to
clause (2) of Article 311 of the Constitution of India.
6. The comprehensive reading of the Rule 40(1) along with provisos
would clearly indicate that the charge against the Government servant ought to be
grave in nature. In the present case, the charges against the delinquent are as
under:
“i) Reprehensible conduct in having misbehaved in a drunken mood at
Ambasamudram Bazar near Vandimarichamman koil on 03.12.2000 at
about 15.00 hrs, while on beat duty, quarrelled with one Manickam of
Kadayanallur, Muthukrishnapuram and his mother Chinnathai and his
sister Subbulakshmi and also slapped the said Manickam.
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ii) Reprehensible conduct in having entered on Medical Leave from 7
AM on 14.12.2000 to 9 AM on 24.12.2000 on his own accord without
following the due procedures."
The charges indicates that the delinquent had indulged in quarrel with some
individuals and had entered medical leave without following due procedures. On
the face of it, it is evident that the charges are not grave. When the proviso clearly
states if the delinquent has indulged in anti-national activity such as sabotage,
espionage and like then the charges are grave. By apply the principles of
"Ejusdem Generis”, the charges of slapping some individuals under drunken
mood, making entry of medical leave without due procedure are not grave in
nature. In such circumstances, based on the provisos to Rule 40(1) the petitioner
is entitled to compassionate allowance.
7. The next contention is that the rule prescribes that the case of the
delinquent family needs “special consideration” and the phrase special
consideration was considered in Mahinder Dutt Sharma Vs. Union of India and
Others reported in (2014) 11 SCC 684, wherein it states if the punishment is
awarded on moral turpitude, then the family is not entitled to compassionate
allowance. By relying on the aforesaid judgment, the Learned Additional
Advocate General submitted the charges against the delinquent in the present case
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would fall under the realm of moral turpitude narrated in the judgment, hence the
petitioner is not entitled to. It is seen the Hon’ble Supreme Court had narrated
certain illustrations and held that the allegations ought to constitute an act of
dishonesty towards the employer, an act designed for illegitimate personal gains
from the employer, behaviour of pervert, deprave, wicked, treacherous etc. In the
said case the allegations against the employee were unauthorised absence, hence
the Hon’ble Court held that the same would not come under moral turpitude and
an act of dishonesty towards the employer. In the present case, the allegations
against the delinquent Late.S.Duraisamy are that the delinquent had slapped one
Manickam and quarrelled with Manickam’s mother Chinnathai and sister
Subbulakshmi under drunken mood and another allegation was that the delinquent
had made entries of medical leave without due procedure. The said allegations
cannot be considered as “dishonesty towards the employer, an act designed for
illegitimate personal gains from the employer, behaviour of pervert, deprave,
wicked, treacherous etc.”. Therefore, this Court is of the considered opinion that
the family of the delinquent needs special consideration.
8. The writ petitioner has averred in her affidavit that the delinquent
died due to stroke and he underwent treatment for more than 3 years. Further, the
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writ petitioner has stated that her son namely, Mr.Raj Thilak has suffered polio
attack and is undergoing treatment, her daughter is studying B.Sc., Maths and the
writ petitioner is doing daily wage coolie work. The writ petitioner is not having
any support from the parents also. Under these circumstances, the petitioner is
seeking compassionate allowance. After considering the said family situation, this
Court is of the considered opinion that the petitioner’s case needs to be
considered.
9. The Writ Court has rightly held that the writ petitioner's case is
deserving and this Court is also confirming the same. Therefore, the appellants are
directed to grant the compassionate allowance to the respondent herein / writ
petitioner within a period of six weeks from the date of receipt of a copy of this
judgment.
10. With the above said directions, the writ appeal is dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
[J.N.B., J.] [S.S.Y., J.]
25.03.2025
Index : Yes / No
Tmg
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To:
1.The Director General of Police,
Office of the Director General of Police,
Beach Road, Chennai.
2.The Superintendent of Police,
Tirunelveli District,
Tirunelveli.
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J.NISHA BANU, J.
and
S.SRIMATHY, J.
Tmg
25.03.2025
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