Rajasthan High Court - Jodhpur

Om Prakash vs Union Of India on 5 December, 2022

Bench: Sandeep Mehta, Kuldeep Mathur

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

D.B. Civil Writ Petition No. 11214/2019

Om Prakash S/o Shri Natha Ram, Aged About 58 Years, Resident Of Ward No. 10, Near Loco Masjid, Hanumangarh Jn. Tehsil And Distt. Hanumangarh.

----Petitioner Versus

1. Union Of India, Through General Manager, North-Western Railway, Hqrs. Jaipur Zone, Near Jawahar Circle, Jaipur Pin 302017.

2. Senior Devisional Personnel Officer, Nwr, Bikaner Division, Bikaner- 334001.

3. Sr. Divisional Mechanical Engineer, Nwr, Bikaner Division, Bikaner- 334001.

----Respondents

For Petitioner(s) : Mr. Jai Kumar Kaushik For Respondent(s) : Mr. Mukesh Rajpurohit, Dy.S.G. with Mr. Uttam Singh

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

05/12/2022

By way of filing the present writ petition, the petitioner has

assailed the order dated 22.10.2018, passed by the Central

Administrative Tribunal, Jodhpur Bench, Jodhpur whereby the

original application filed by the petitioner seeking a direction upon

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respondent to allow him compassionate allowance in terms of Rule

65 of the Railway Services (Pension), Rules, 1993 was dismissed.

Briefly stated facts of the case are that the petitioner was

initially engaged as casual labourer on 05.06.1978 and was

granted temporarily status by the respondent-Railways on

01.04.1981. The petitioner was absorbed in regular establishment

against Group 'D' post of Khalasi w.e.f. 30.07.1991, while posted

as Box Boy at Rewari in Loco Shed, NWR owing to the illness of his

wife, he remained absent from duty w.e.f. 11.04.2001. A charge-

sheet SF-5 vide memo dated 28.01.2001 was served upon

petitioner for remaining absent unauthorizedly from duty. On

account of illness of wife and other compelling circumstances, the

petitioner could not participate in the enquiry proceedings, which

were held ex parte and finally a penalty of removal from service

was imposed upon the petitioner, vide order dated 10-11.02.2003

was imposed upon him. The appeal filed against the findings of

departmental enquiry came to be rejected by the Appellate

Authority vide order dated 16.06.2003. The petitioner was

dismissed from service without any benefits of pension or gratuity,

therefore, he submitted a representation dated 14.04.2015, to the

authorities of the respondents-department for grant of

compassionate allowance as per the proviso to Rule 65(1) of

Railway Services (Pension) Rules, 1993. The Senior Divisional

Personal Officer, NWR, Bikaner Division, Bikaner through a non-

speaking order dated 17.06.2015, rejected the representation

dated 14.04.2015.

Learned counsel for the petitioner submitted that the

petitioner has served the respondents for about 23 years and only

on account of illness of his wife, he remained absent from duty

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w.e.f. 11.04.2001, without permission of the authorities of the

department. Learned counsel submitted that while rejecting the

representation vide order dated 17.06.2015, for grant of

compassionate allowance the respondents have failed to take into

consideration the financial condition, details of family members,

income, liabilities etc. to ensure compliance of Rule 65 of the

Railway Services (Pension) Rules, 1993 in its letter and spirit. To

strengthen the aforesaid arguments, reliance was placed on the

decision rendered by Hon'ble the Apex Court in Mahinder Dutt

Sharma Vs. Union of India reported in (2014) 11 SCC 684.

Per contra, learned counsel for the respondents submitted

that absence of petitioner from duties was wilful. Learned counsel

submitted that the petitioner failed to join duties even after the

charge-sheet was served upon him and during the pendency of

the disciplinary proceedings. Learned counsel submitted that the

petitioner neither submitted any documents to show the illness of

his wife during disciplinary proceedings nor did he submit any

document along with his representation dated 14.04.2015,

seeking compassionate allowance.

Heard learned counsel for the parties and perused the

material available on record.

Rule 65 of the Railway Services (Pension) Rules, 1993 reads

as under:

"65. Compassionate Allowance:

1. A railway servant who is dismissed or removed from service shall forfeit 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

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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 Rupees three hundred seventy-five rupees per mensum."

In the case of Mahinder Dutt Sharma Vs. Union of India

reported in (2014) 11 SCC 684, Hon'ble the Supreme Court held

as under:-

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 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

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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.

15. While evaluating the claim of a dismissed (or removed from service) employee, for the grant of compassionate allowance, the rule postulates a window for hope, "...if the case is deserving of special

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consideration...". Where the delinquency leading to punishment, falls in one of the five classifications delineated in the foregoing paragraph, it would ordinarily disentitle an employee from such compassionate consideration. An employee who falls in any of the above five categories, would therefore ordinarily not be a deserving employee, for the grant of compassionate allowance. In a situation like this, the deserving special consideration, will have to be momentous. It is not possible to effectively define the term "deserving special consideration" used in Rule 41 of the Pension Rules, 1972. We shall therefore not endeavour any attempt in the said direction. Circumstances deserving special consideration, would ordinarily be unlimited, keeping in mind unlimited variability of human environment. But surely where the delinquency leveled and proved against the punished employee, does not fall in the realm of misdemeanour illustratively categorized in the foregoing paragraph, it would be easier than otherwise, to extend such benefit to the punished employee, of course, subject to availability of factors of compassionate consideration.

16. We shall now venture to apply the aforesaid criterion, to the facts and circumstances of the case in hand, and decipher therefrom, whether the appellant before this Court ought to have been granted compassionate allowance under Rule 41 of the Pension Rules, 1972. The appellant was punished by an order dated 17.5.1996 with dismissal from service. The accusations levelled against the appellant were limited to his unauthorized and willful absence from service from 18.1.1995 to 4.12.1995 (i.e., for a period of 320 days, 18 hours and 30 minutes). The above order of punishment also notices, that not taking stern action against the appellant, would create a bad impression, on the new entrants in the police service. The punishing authority while making a choice of the punishment imposed on the appellant, also recorded, that the

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appellant's behaviour was incorrigible. Thus viewed, there can be no doubt, that the order of dismissal from service imposed on the appellant was fully justified. 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.

xxx xxx xxx xxx xxx

18. None of the authorities on the administrative side, not even the Tribunal or the High Court, applied the above parameters to determine the claim of the appellant for compassionate allowance. We are of the view, that the consideration of the appellant's claim, was clearly misdirected. All the authorities merely

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examined the legitimacy of the order of dismissal. And also, whether the delay by the appellant, in filing the appeal against the punishment order dated 17.5.1996, was legitimate. The basis, as well as, the manner of consideration, for a claim for compassionate allowance, has nothing to do with the above aspects. Accordingly, while accepting the instant appeal, we set aside the order dated 25.4.2005 (passed by the Deputy Commissioner of Police, IInd Battalion, Delhi Armed Police, Delhi), rejecting the prayer made by the appellant for grant of compassionate allowance. The order passed by the Tribunal dated 28.2.2006, and the order passed by the High Court dated 13.11.2006, are also accordingly hereby set aside. Having held as above, we direct the competent authority to reconsider the claim of the appellant, for the grant of compassionate allowance under Rule 41 of the Pension Rules, 1972, based on the parameters laid down hereinabove."

Indisputably, the petitioner was not removed from service on

account of any act of moral turpitude or dishonesty towards his

employer. The absence was also not on account of any personal

gain or to intentionally cause harm to any third person.

In the considered opinion of this Court, the Central

Administrative Tribunal, Jodhpur Bench, Jodhpur and respondents

have not taken into consideration, the various paramerters led

down by Hon'ble the Supreme Court in the case of Mahinder

Dutt Sharma (supra) while determining the claim of the

petitioner based on Rule 65 of the Railway Services (Pension)

Rules, 1993.

In that view of the matter, the order dated 03.10.2018,