A.K. Thankappan v Union of India and Ors.

# **.jIN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **&** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018/ 15TH BHADRA, 1940** ## **WA.No. 1664 of 2018** **AGAINST THE JUDGMENT IN WPC 21024/2018 of HIGH COURT OF KERALA DATED 26-06-2018** ## **APPELLANT:** **A.K. THANKAPPAN NO.68488069 EX-CONSTABLE, BSF,ALLECKALPADEETTATHIL HOUSE, PATTOOR P.O.,NOORANADU, ALAPPUZHA DISTRICT,KERALA - 690 529.** **BY ADV. SRI.R.RAJASEKHARAN PILLAI** ## **RESPONDENTS:** |**1**|**THE UNION OF INDIA**| |---|---| ||**REPRESENTED BY THE SECRETARY,MINISTRY OF HOME**| ||**AFFAIRS,BLOCK NO.10, 5TH FLOOR CGO,COMPLEX, LODHI**| ||**ROAD,NEW DELHI - 110 003.**| |**2**|**THE DIRECTOR GENERAL**| ||**BORDER SECURITY FORCE,BLOCK NO.10, 5TH FLOOR**| ||**CGO,COMPLEX, LODHI ROAD,NEW DELHI - 110 003.**| |**3**|**THE COMMANDANT**| ||**102 BN, BSF,C/O.56 APO.**| ||**BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL**| ||**SR.G.P.SRI.P.P.THAJUDEEN**| **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.No. 1664 of 2018 2** ## **[CASE REPORTABLE] JUDGMENT** ## _**P.R.Ramachandra Menon, J.**_ Interference declined by the learned Single Judge to examine the merits of the claim for Compassionate Allowance under Rule 41 of the CCS (Pension) Rules, for want of 'territorial jurisdiction' (in terms of Article 226(3) of the Constitution of India) is the subject matter of challenge in this appeal. 2. Heard Sri.R.Rajasekharan Pillai, learned counsel for the appellant as well as the learned Central Government Counsel appearing for the respondents herein. 3. The cause of action relates back to the disciplinary proceedings initiated and finalised against the appellant, way back in the year 1977. The case of the appellant is that, while serving as a Constable in the BSF, he witnessed a 'fist fight' between a Head constable and another Constable, when he intervened to separate them, in which process, all the three got ## **WA.No. 1664 of 2018 3** injured. This led to disciplinary proceedings ; on culmination of which, the disciplinary authority found the appellant and another person by name Kutty/(Head Constable) as guilty of the misconduct. In respect of the appellant, he was inflicted with the punishment of dismissal for the misconduct ; besides imposing the punishment of three months' imprisonment for the 'offence' committed by him. In the case of the other person, by name Kutty, the punishment imposed was only 'reduction in rank' from the post of Head Constable to 'Constable'. This discrimination was sought to be challenged by the petitioner by filing an appeal and since the same did not turn to be fruitful, Original Petition No.3293 of 1979 was filed before this Court. 4. When the above matter came up for consideration before the learned Single Judge on 5[th] July 1982, the learned counsel for the appellant/writ petitioner submitted that, in view of the various challenges involved, the petitioner would like to file a detailed petition, afresh, before the second respondent. In the said circumstance, the said submission was ## **WA.No. 1664 of 2018 4** recorded and no other order was passed expressing the hope that, if any such representation was filed, the same would be considered and disposed of by the competent authority, in accordance with law. 5. The appellant/petitioner contends that a representation was filed by his counsel, as instructed. While so, he suffered some serious ailments involving 'Neurosurgery' conducted on 13.3.2016 in the Christian Mission Hospital, Pandalam, as disclosed from Ext P3 'Discharge Summary'. It is pointed out that serious consequences have been resulted and that the petitioner/appellant is not in a position to eke out his living now; more so since he was never granted any retirement benefits/pension/gratuity, having been dismissed from the service as per Ext P1. This made the writ petitioner to approach the second respondent by filing Ext P4 representation dated 5.2.2018, referring to the sequence of events and seeking for the benefit of 'Compassionate Allowance' in terms of Rule 41 of the CCS (Pension) Rules ; simultaneously, approaching this Court by filing the Writ Petition, seeking for a direction ## **WA.No. 1664 of 2018 5** to the 2[nd] respondent to have it considered and finalised. 6. The prayer was resisted from the part of the respondents by the learned ASG, pointing out that the original cause of action had arisen in Bangalore, where the writ petitioner was working and that, by virtue of the mandate of Article 226(3), there was no jurisdiction for the High Court of Kerala to entertain the grievance. The learned ASG also pointed out that, filing of repeated representations would not confer any cause of action or revive the same, in view of the law declared by the Supreme Court in **C.Jacob v Director of Geology and Mining Indus Est. and ors. (2008(10) SC 115)** and **State of Uttaranchal and Ors. v Shiv Charan Singh Bhandari and Ors.(2013(12) SCC 179)** . It was asserted that the claim was belated in all respects. 7. The learned counsel for the petitioner however contended that, jurisdiction was in fact vested with this Court, as the employer-employee relationship was cut off ; that the petitioner was living within the jurisdiction ## **WA.No. 1664 of 2018 6** of this Court and further that the respondent Union of India was having place of business in all the States. It was also pointed out that the claim for 'Compassionate Allowance', being a continuing cause of action, the question of limitation was never attracted. Reliance was sought to be placed on the verdict passed by the Supreme Court in **Union of India and Others v Tarsem Singh (2009(1) KLT 101)** in this regard. The learned Single Judge, however, did not find it necessary to go into the merits of the case and observed that there was no 'territorial jurisdiction' for this Court to entertain the claim, as already held in WP(C)Nos.37793 of 2017, 10878 of 2018, 9652 of 2018 and 3571 of 2018. It was accordingly, that interference was declined and the writ petition was dismissed, letting the writ petitioner free, to approach the appropriate forum. 8. As revealed from the materials on record, the grievance projected by the appellant/petitioner is not in respect of any incident or cause of action which arose in Bangalore, in connection with the service or the punishment awarded. That apart, when the ## **WA.No. 1664 of 2018 7** punishment/course of action with reference to the discrimination was sought to be challenged by the petitioner by filing O.P.No.3293 of 1979 before this Court about 35 years ago, no such objection was ever raised, with reference to the territorial jurisdiction ; which made this Court to dispose of the said O.P as per Ext P2 judgment dated 5.7.1982, granting liberty to the writ petitioner to move the respondents by filing a representation. 9. The grievance now projected in the present writ petition, as observed earlier, is not for interdicting the punishment of dismissal awarded to him or to grant any retirement benefits. It is with reference to the right of the petitioner/appellant to get 'Compassionate Allowance' in terms of Rule 41 of the CCS (Pension) Rules. The said Rule reads as follows. 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 2/3[rd] of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension. **WA.No. 1664 of 2018 8** (2). Compassionate Allowance sanctioned under the proviso to Sub Rule 1 shall not be less than the amount of Rs.375/-(Rs.1913/- from 1.4.2014. See GID below Rule 33) per mensum. 10. As per the above Rule and in particular, the 'proviso' thereunder, it is open for the party to raise a claim before the Competent Authority to have it considered in accordance with the relevant provisions of law, as to the necessity to extend 'compassion'. The circumstances and procedure to be followed for granting 'Compassionate Allowance' have been explained by the Apex Court as per the decision reported in **Mahinder Dutt Sharma v Union of India (2014)11 SCC 684)** . There has to be independent application of mind, with regard to the relevant circumstances and this has to be taken, irrespective of the fact whether the claimant was inflicted with any punishment or not. 'Paragraph 13' of the said judgment reads as follows : 13. 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:- ## **WA.No. 1664 of 2018 9** (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. (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 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. (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 involved 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. (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 ## **WA.No. 1664 of 2018 10** by foul play, would fall in this category. (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. » 11.The circumstance, now pointed out by the petitioner for seeking such 'Compassionate Allowance', is with reference to the serious ailment and the Neurosurgery undergone by him in March 2016. It may be true that the appellant/petitioner had not approached the Competent Authority claiming Compassionate Allowance till the year 2016. But after the Neurosurgery and the continuing ailment, the position has got changed. At this advanced age, according to the writ petitioner/appellant, there is no other alternative but to seek for compassion, which could be granted in appropriate cases. Reliance is sought to be placed on the verdict passed by a Division Bench of this Court in **Thankappan Nair v State of Kerala (2001(3)KLT 855)** , whereby the case of the **WA.No. 1664 of 2018 11** claimant, who was dismissed about 28 years ago for accepting illegal gratification, was directed to be considered as to the eligibility to get Compassionate Allowance in terms of Rule 5(a) of the Kerala Service Rules-Part III, if the requirements were satisfied. In the instant case, it is pointed out that, no such serious misconduct was involved, nor is any instance involving moral turpitude. 12. It is pertinent to note that the circumstance to seek for Compassionate Allowance would arise only when the need arises. The fact that no such claim was raised by the writ petitioner immediately after dismissal from the service may not be relevant. When the appellant approached this Court by filing OP No.3293 of 1979 (which was disposed of in the year 1982), the grievance projected was mainly with regard to the discrimination meted out in awarding the punishment to him and the colleague who also had participated in the fist fight and found guilty. The colleague by name Kutty was imposed with a lesser punishment of 'reduction in rank' ; whereas the appellant/writ petitioner was ## **WA.No. 1664 of 2018 12** 'dismissed' from the service for the proven delinquency; besides the imprisonment ordered in respect to the offence. It was this grievance, which was permitted to be pursued further by approaching the second respondent, by filing a representation, as ordered in Ext P2 judgment passed by this court. In other words, the fact that the appellant/petitioner had not filed any petition for Compassionate Allowance within a reasonable time after passing the said verdict, by itself, will not bar him from claiming such benefit, if the need has arisen later. 13.There is no dispute that the appellant/petitioner had undergone 'Neurosurgery' in March 2016 and he is suffering from continued ailment, as disclosed from Ext P3 Medical Records. The Discharge Summary is as follows : « Admitted with complaints of difficulty in walking, swaying to right side and weakness of right side of body. CT brain showed left fronto temporo parietal acute on chronic SDH. Burrhole surgery done. Treated with inj. Fosphenetoin, Inj. Mannitol, antibiotics and other supportive measures. Patient improved with treatment and discharged with advice. « ## **WA.No. 1664 of 2018 13** From this, it is evident that the stage at which the appellant/petitioner really felt the need to seek for Compassionate Allowance, has arisen only now, which is claimed for as per Ext P4 representation. This is a fresh cause of action, which is not covered by Ext P2 verdict or the judgments sought to be relied on by the respondents (cited supra) to contend that the claim is belated. 14. We are aware of a judgment rendered by a Full Bench of this Court reported in **Dental Council of India v Dr.Viswanath & Ors. (2018 (3) KLJ 634)** on the territorial jurisdiction of the High Court under Article 226 of the Constitution of India. The said decision makes a reference to two earlier Full Bench decisions of this Court in **Nakul Deo Singh v Deputy Commandant (1999(3) KLT 629)** and **Indian Maritime University v Viswanathan (2014(4) KLT** **798) ;** besides referring to the various other verdicts passed by the Apex Court including in **Nawal Kishore Sharma v Union of India (2014)9 SCC 329** . 15. In fact, **Nakul Deo Singh v Deputy** **WA.No. 1664 of 2018 14** **Commandant (1999(3) KLT 629)** was a case involving disciplinary proceedings. The misconduct was committed outside the State, punishment was imposed while working outside the State and the appeals were also considered and dismissed by the authorities outside the State. But when the orders were served, the writ petitioners were living within the State of Kerala. The Full Bench held, in categorical terms that no cause of action had arisen either in whole or in part, in the State of Kerala and hence this Court had no territorial jurisdiction. 16. Coming to the subsequent Full Bench decision of this Court in **Indian Maritime University v Viswanathan (2014(4) KLT 798)** , the writ petitioner, living in Palakkad, responded to a notification issued in Chennai for appointment as Professor in the Indian Maritime University. He attended the interview at Chennai, he was offered appointment from Chennai and he reported for duty at Chennai. Later, as per a communication issued from Chennai, the appointment order was cancelled ; which was served to him at ## **WA.No. 1664 of 2018 15** Palakkad. This led to the writ petition filed in the High Court of Kerala. After a detailed discussion, this Court held that, no part of the cause of action had arisen in Kerala and hence there was no territorial jurisdiction. 17. In the Full Bench decision reported in **Dental Council of India v Dr.Viswanath & Ors.(2018 (3)** **KLJ 634)** , the issue involved was with regard to election to the Dental Council of India held at New Delhi. The person elected as a President of the Dental Council of India was in fact nominated from the State of Jharkhand, under Section 3(d) of the Dentists Act, 1948. The said case came up before the Full Bench, pursuant to the reference made by a Division Bench, to answer the following questions: (i) whether the exercise of function by DCI throughout the territories of India would confer jurisdiction of every Court in India to challenge election of the 4[th] respondent as its President when the election is held at New Delhi, the place of office of DCI, and the nomination of the fourth respondent is by a University in the State of Jharkand? (ii) Whether the judgment in Dr.Joseph Issac(supra) lays down the correct proposition of law in regard to ## **WA.No. 1664 of 2018 16** territorial jurisdiction especially in the light of the judgments of the Apex Court in **Lt.Col.Khajoor Singh v Union of India (AIR 1961 SC 532 :: 1960 ICO 1322)** and **Nawal Kishore Sharma v Union of India, [(2014)9 SCC 329 :: 2014 ICO 973]** . 18. With regard to the 'first question', there was no difference of opinion and it was unanimously held that the writ petition was not maintainable for want of territorial jurisdiction. However, in respect of 'second question', the majority view was that the decision rendered by the Division Bench in **Dr.Joseph Issac v Union of India (2010 (2) KLJ 791)** was not correct and hence it was overruled. It was also observed that the conclusion reached by the majority as to lack of territorial jurisdiction with reference to “election” would not have been different, even if it were a case of “nomination” and that the nomination was made outside the State [be it by the Central Government or any other State Government], as no part of the cause of action would arise in the State of Kerala. [This part, overruling the verdict in **Dr.Joseph Issac v Union of India (2010** ## **WA.No. 1664 of 2018 17** **(2) KLJ 791)** was differed in the minority view, holding that Union of India, which has the statutory authority to make nominations under Section 3(f) of the Act, owes a legal and constitutional obligation to every person, who is subject to the laws of this country, to act rationally and in accordance with the requirements of Article 14 and hence any such notification contrary to the statutory mandate could be subjected to challenge before any High Court and hence the law declared by the Division Bench in _**Dr.Joseph Issac** 's_ case (supra) lays down the correct proposition of law relating to territorial jurisdiction, which does not require to be tinkered with]. The aforesaid decision rendered by the Full Bench however, is not attracted to the case in hand, to support the ruling rendered by the learned Single Judge declining territorial jurisdiction in view of the difference in the nature of cause of action involved herein claiming a right to get compassionate allowance in terms of Rule 41 of the CCS (Pension) Rules. This is more discernible from the views expressed by the Apex Court in _**Nawal Kishore Sharma**_ 's case(supra) ; **paragraphs 20 to 22** of which have been extracted in **'paragraph 25'** of the Full Bench decision in **Dental Council of India v Dr.Viswanath & Ors. (2018 (3) KLJ 634)** . ## **WA.No. 1664 of 2018 18** Obviously, the case dealt with by the Apex Court (as discussed therein) was with regard to a claim for 'disability pension', when the employee (after discharging the service as medically unfit) was residing in his home State of Bihar. It was declared that the High Court of Bihar, at Patna, was actually having the jurisdiction to entertain the matter and in giving appropriate directions to the shipping department of the Government of India. The ruling of the Apex Court mentioned therein virtually stands in support of the appellant (in view of the nature of the cause of action), to determine the question of territorial jurisdiction. 19. A Division Bench of this Court has held in **Pillai K.D v Chairman cum Managing Director, Oil and Natural Gas Corporation Ltd.(2008(3) KHC 810),** that 'pension' is receivable at the place where the employee resides after the retirement and that the pensioner cannot be asked to reside in the place from where he retired from the service. In the above background, it cannot but be held that the appellant/writ petitioner who is staying within the State ## **WA.No. 1664 of 2018 19** of Kerala, after his termination from service is entitled to approach this Court for redressal of his grievance with regard to the claim for 'Compassionate Allowance' in terms of Rule 41 of the CCS (Pension) Rules, though he was serving the Central Government/BSF elsewhere. 20. The appellant/petitioner points out that the reliance sought to be placed by the learned Single Judge on the verdict passed in WP(C) No.21024 of 2018 to decline jurisdiction (territorial) is also not correct. The particulars of the case have been given in the writ petition, which clearly reveals that the said case was connected with 'disciplinary proceedings' and never with reference to the claim for any 'pension'. In the case of a pensioner, even if the person was working elsewhere, the rights and liberties can be pursued by approaching the appropriate Court/Tribunal having jurisdiction where the party resides ; as pension is payable at his door. The claim for 'Compassionate Allowance' also requires to be considered on a similar footing, as the 'employeremployee relationship' stands cut off. That apart, the appellant/petitioner points out that, though he was ## **WA.No. 1664 of 2018 20** attached to the BSF Unit and was working in Yelahanka in Bangalore, the Unit subsequently got transferred to the area of operation under the '56 APO'. As it stands so, it is not correct or proper to have driven out the writ petitioner, to move some other Court. We are of the view that the interference declined by the learned Single Judge with regard to territorial jurisdiction is not correct. It stands set aside. 21. According to the learned counsel for the appellant, at no point of time had the appellant filed any petition claiming the benefit under Rule 41 of the CCS (Pension) Rules. We hold that, even if the eligibility of the appellant/writ petitioner for getting 'Compassionate Allowance' in terms of Rule 41 of the CCS (Pension) Rules was considered and rejected earlier, it will not be a bar for its being considered in the changed circumstance ; ie after the 'Neurosurgery' undergone by him in March 2016 and the adverse consequences resulted now. 22. In the above facts and circumstances, we find it appropriate to direct the second respondent to **WA.No. 1664 of 2018 21** consider Ext P4 in terms of Rule 41 CCS (Pension) Rules, with proper application of mind and taking note of the principles laid down by the Apex Court in **Mahinder Dutt Sharma v Union of India [(2014)11 SCC 684)** .This exercise shall be completed at the earliest, at any rate within 'three months' from the date of receipt of a copy of this judgment. The petitioner shall forward a copy of the judgment along with a full text of the Writ Appeal (with the Writ Petition and Exhibits) to the second respondent for further steps. **Sd/-** **P.R.RAMACHANDRA MENON, JUDGE** **Sd/-** **DEVAN RAMACHANDRAN, JUDGE** cms **WA.No. 1664 of 2018 22**