High Court of KeralaSingle Judge2022-09-28Writ petition disposed with a direction to the ...

Dileep Kumar A.G. v. Union of India and others

Case / Petition Number:WP(C) NO.6682 OF 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: ANU SIVARAMAN
Judgment Date: 2022-09-28
Court Decision / Holding: This writ petition is ordered accordingly. The court directs the competent among the respondents to consider the petitioner’s request for compassionate allowance under Rule 41(1) CCS (Pension) Rules, 1972, and to pass orders thereon in accordance with law within two months from receipt of a proper representation, specifically referring to the directives of Mahinder Dutt Sharma’s case. The matter is disposed with a direction rather than reinstatement, and the petitioner is to furnish copies of all materials he wishes to rely upon before the competent authority for a proper decision.
Final Disposition: Writ petition disposed with a direction to the competent respondents to consider the petitioner's request for compassionate allowance under Rule 41(1) CCS (Pension) Rules, 1972, and to pass orders within two months after proper representation; no reinstatement granted at this stage, but a live avenue for relief via compassionate allowance is opened, guided by Mahinder Dutt Sharma's principles.

Parties to the Case

Appellants / Petitioners

Dileep Kumar A.G.

Respondents

Director General, CISF Headquarters, Lodhi Road, New Delhi
Inspector General (South Sector), CISF (South Sector) Headquarters, Chennai
Deputy Inspector General/SZ, Chennai
Group Commandant, CISF Group Head Quarters, Kakkanad, Kochi
Commandant, CISF Unit, KIOCL, Kudremukh
Coy Commander, CISF Unit, KIOCL, Kudremukh
Union of India represented by Secretary, Ministry of Home Affairs

Legal Representation & Advocates

Counsels for Petitioners

• T. Sanjay
• Sri R. Reji Kumar

Counsels for Respondents

• P. Vijayakumar, ASG of India
• Manu S., ASG of India

Case Synopsis & Summary

The petitioner, Dileep Kumar A.G., an ex-Constable of CISF, challenges the disciplinary action culminating in removal from service on grounds of unauthorised absence while on extraordinary leave in 2006. He asserts that the memorandum proposing an inquiry (Exhibit P6), the brief resume (Exhibit P12), the inquiry report (Exhibit P13) and the final removal order (Exhibit P14) were issued with improper notice and without due consideration, thereby vitiating the process. He also seeks quashing the appellate order (Exhibit P17) and the revision rejection (Exhibit P20), and prays for reinstatement with back wages and pension, as well as compassionate allowance under Rule 41(1) of the CCS (Pension) Rules, 1972, arguing that his service crossed ten years and that compassionate allowance is warranted in such circumstances. He relies on the Supreme Court’s Mahinder Dutt Sharma v. Union of India and Others (2014) for a more favorable view of compassionate allowances in cases not involving moral turpitude, and cites Kerala High Court guidance in similar matters (including W.P.(C) No.1214/2022). The respondents’ ASG contends the disciplinary action rests on unauthorised absence and should be governed by Pension Rules. The court, noting the sole charge of unauthorised absence, directs the competent respondents to consider the petitioner's compassionate allowance request in accordance with law, upon proper representation, and to pass orders within two months, effectively disposing of the petition with a direction rather than reinstatement, while referencing Mahinder Dutt Sharma’s guidelines and directing the petitioner to furnish materials for reliance.

Provisions of Law Cited

Rule 41(1) of the CCS (Pension) Rules, 1972CCS (Pension) Rules, 1972

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that the removal was imposed for unauthorised absence while on extraordinary leave, following an extended leave to visit his spouse abroad and an accident. He contends that the show-cause, inquiry, and final orders were issued without proper notice or due consideration, rendering the process vitiated. He seeks reinstatement with back wages, pension and retirement benefits, and compassionate allowance under Rule 41(1) of CCS (Pension) Rules, 1972, arguing that his long service and compassionate grounds warrant relief. He relies on the Apex Court’s Mahinder Dutt Sharma v. Union of India and Others (2014) and Kerala HC guidance directing consideration of compassionate allowances in similar matters (including W.P.(C) No.1214/2022). The petitioner also directs providing copies of materials relied upon to the competent authority.

Contentions of Respondents

The respondents’ counsel submits that the disciplinary action is based on unauthorised absence and should be adjudicated under the CCS (Pension) Rules; they acknowledge that compassionate allowance can be considered under law with applicable guidelines and urged resolution in accordance with pension rules, indicating a willingness to consider the relief consistent with statutory provisions.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Mahinder Dutt Sharma v. Union of India and others	2014 KHC 4248	Positive	Cited to align compassionate allowance considerations with Supreme Court guidelines; Kerala HC follows the reasoning and applies the guidelines.
W.P.(C) No.1214/2022	W.P.(C) No.1214/2022	Positive	Court notes that it had followed the judgment in this matter in a similar situation, guiding its approach.
WP(C) 24319/18 (High Court of Kerala)	WP(C) 24319/18	Mentioned Only	Exhibited judgment referenced to illustrate prior Kerala HC decision cited in the material.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 28[TH] DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944** ## **WP(C) NO.6682 OF 2019** ## **- PETITIONER :** DILEEP KUMAR.A.G., EX CONSTABLE, CISF UNIT, KIOCL, KUDREMUKH, MANGALORE, KARNATAKA - 577 142. NOW RESIDING AT KURIYATTEL, KAIPUZHA P.O., KOTTAYAM - 686 602. BY ADVS. T.SANJAY SRI.R.REJI KUMAR ## **- RESPONDENTS :** 1 THE DIRECTOR GENERAL, CISF HEADQUARTERS, 13, CGOS COMPLEX, LODHI ROAD, NEW DELHI - 110 003. 2 THE INSPECTOR GENERAL (SOUTH SECTOR), CISF (SOUTH SECTOR) HEADQUARTERS, CHENNAI - 600 009. 3 THE DEPUTY INSPECTOR GENERAL/SZ, 2ND FLOOR, D BLOCK, RAJAJI BHAVAN, BESANT NAGAR, CHENNAI - 600 090. 4 THE GROUP COMMANDANT, CISF GROUP HEAD QUARTERS, KAKKANAD, KOCHI - 682 030. 5 THE COMMANDANT, CISF UNIT, KIOCL, KUDREMUKH, MANGALORE, KARNATAKA - 577 142. 6 THE COY COMMANDER, CISF UNIT, KIOCL, KUDREMUKH, MANGALORE, KARNATAKA - 577 142. 7 UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI - 110 001. WP(C) NO.6682 OF 2019 -: 2 :- BY ADVS. SRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.MANU S., ASG OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.6682 OF 2019 -: 3 :- ## **JUDGMENT** ## **Dated this the 28th day of September, 2022** ## This writ petition is filed seeking the following reliefs :- - “(i) Issue a writ of certiorari or any other appropriate writ, direction or order, quashing Exhibits P6 memorandum, P12 brief resume and P13 inquiry report of the disciplinary proceedings, Exhibit P14 final order removal the petitioner from the service of the respondents. - (ii) Issue a writ of certiorari or any other appropriate writ, direction or order, quashing Exhibit P17 order rejecting the Appeal petition and Ext.P20 rejecting the revision petition. - (iii) Issue a writ of mandamus directing the 1[st] and 4[th] respondents to reinstate the petitioner with back wages. - (iv) Issue a writ of mandamus directing the 1[st] and 4[th] respondents to grant all pension and retirement benefits for the entire period of service from the date of joining the CISF till the date of illegal removal of the petitioner from the service. - (v) To declare that the entire disciplinary proceedings are vitiated and thus the petitioner is entitled for reinstatement in the service with all consequential benefits including backwages. - (vi) Issue a writ of mandamus directing the respondents to pay compassionate allowance in terms of Rule 41(1) of CCS (Pension) Rules, 1972.” 2. Heard the learned counsel for the petitioner and the learned Assistant Solicitor General of India appearing for the respondents. WP(C) NO.6682 OF 2019 -: 4 :- 3. It is submitted by the learned counsel for the petitioner that the petitioner joined service of the CISF as Constable on 11.4.1992. He had completed 16 years of service. While so, he applied 180 days of extra ordinary leave from 15.3.2006 to 10.9.2006 to visit his spouse abroad in the Kingdom of Saudi Arabia where she was working as Nurse. He suffered a grievous accident while abroad on 13.7.2006 and could not rejoin service. It is submitted that the petitioner had preferred an application for extension of leave, but without passing any orders on the said application, Ext.P6 memorandum was issued to the petitioner proposing to hold an enquiry against him. Notices were issued to the _ex_ petitioner's address in India and Ext.P4 order was passed _parte_ removing him from service on the ground of unauthorised absence. It is submitted by the learned counsel for the petitioner that the punishment was inflicted on the petitioner without due service of notice and that the orders WP(C) NO.6682 OF 2019 -: 5 :- are vitiated by want of application of mind. It is further submitted by the learned counsel for the petitioner that since the petitioner had admittedly completed more than 10 years of service and since the question of grant of compassionate allowance is liable to be considered even in the case of an employee who is removed from service, the petitioner's claim for compassionate allowance is liable to be considered in accordance with law. The learned counsel for the petitioner submits that a circular has been issued by the Director General of the CISF stating that in cases where 10 years of qualifying service is completed by the employee in question, the question of grant of compassionate allowance can be considered. 4. The learned counsel places reliance on a decision of the Apex Court in **Mahinder Dutt Sharma** v. **Union of India and others** [2014 KHC 4248] and contends that where the removal is not on account of any conduct or misdemeanour WP(C) NO.6682 OF 2019 -: 6 :- which amounts to moral turpitude, the claim for compassionate allowance is liable to be considered more favourably. It is submitted that this Court had also followed the judgment dated 11.2.2022 in W.P.(C) No.1214/2022 and had directed the consideration of the claim for compassionate allowance in accordance with the guidelines framed by the Apex Court in **Mahinder Dutt Sharma's case.** 5. Having heard the learned ASGI also, I am of the opinion that in the facts and circumstances of the instant case, where the the was only charge against petitioner unauthorised absence while on extra ordinary leave, the claim of the petitioner for compassionate allowance in terms of Rule 41(1) of the CCS (Pension) Rules, 1972 is liable to be considered in accordance with law. There will, accordingly, be a direction to the competent among the respondents to take up the request made by the petitioner for grant of compassionate allowance WP(C) NO.6682 OF 2019 -: 7 :- and consider and pass orders on the same, in accordance with law. The petitioner shall approach the competent among the respondents with a proper representation seeking release of the compassionate allowance. The competent among the respondents shall take up the representation and consider and pass orders on the same, specifically referring to the directives given by the Apex Court in **Mahinder Dutt Sharma's case.** The petitioner shall make available a copy of all materials that he wishes to rely on before the competent authority for a proper decision in the matter. Appropriate orders shall be passed within a period of two months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. **Sd/ANU SIVARAMAN JUDGE** Jvt/29.9.2022 WP(C) NO.6682 OF 2019 ## -: 8 :- ## **APPENDIX OF WP(C) 6682/2019** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF PETITIONER'S REPRESENTATION DATED 04-01-2016. - EXHIBIT P2 TRUE COPY OF UNFITNESS CUM MEDICAL CERTIFICATE DATED 13-07-2006 ISSUED BY THE MEDICAL CERTIFICATE DATED 13-07-2006 ISSUED BY THE MEDICAL OFFICER, KIND KHALID HOSPITAL, MINISTRY OF HEALTH, KINGDOM OF SAUDI ARABIA, - EXHIBIT P3 TRUE COPY OF PETITIONER'S REPRESENTATION DATED 13-09-2006. - EXHIBIT P4 TRUE COPY OF ORDER NO.3183 DATED 17-10-2007 ISSUED BY GROUP COMMANDANT, CISF, KOCHI. - EXHIBIT P5 TRUE COPY OF THE CALL UP NOTICE NO.952 DATED 08-03-2007 ISSUED BY ASSISTANT COMMANDANT, CISF UNIT KUDREMUKH. - EXHIBIT P6 TRUE COPY OF MEMORANDUM NO.1821 DATED 30-0542007 ISSUED BY DEPUTY COMMANDANT KIOCL KUDREMUKH. - EXHIBIT P7 TRUE COPY OF ORDER NO.2860 DATED 06-08-2007 ISSUED BY DEPUTY COMMANDANT KIOCL KUDREMUKH. - EXHIBIT P8 TRUE COPY OF RECORDED STATEMENT OF PRELIMINARY HEARING DATED 30-08-2007. - EXHIBIT P9 TRUE COPY OF RECORDED STATEMENT DATED 27-092007 OF PW1. - EXHIBIT P10 TRUE COPY OF RECORDED STATEMENT DATED 06-112007 OF PW2. EXHIBIT P11 TRUE COPY OF RECORDED STATEMENT DATED 27-092007 OF PW3. EXHIBIT P12 TRUE COPY OF BRIEF RESUME DATED 12-11-2007 OF PRESENTING OFFICER. WP(C) NO.6682 OF 2019 -: 9 :- EXHIBIT P13 TRUE COPY OF INQUIRY REPORT DATED 03-12-2007 OF INQUIRY OFFICER. EXHIBIT P14 TRUE COPY OF FINAL ORDER NO.45 DATED 07-012008 OF GROUP COMMANDANT, CISF, KOCHI. EXHIBIT P15 TRUE COPY OF THE ORDER NO.505 DATED 17-03-2008 ISSUED BY GROUP COMMANDANT, CISF, KOCHI. EXHIBIT P16 TRUE COPY OF ORDER NO.251 DATED 09-03-2018 OF DEPUTY COMMANDANT, CISF UNIT KIOCL KUDREMUKH. EXHIBIT P17 TRUE COPY OF ORDER NO.4672 DATED 22-05-2018 ISSUED BY DIG, CISF, CHENNAI. - EXHIBIT P18 THE TRUE COPY OF REVISION PETITION DATED 0207-2018. EXHIBIT P19 TRUE COPY OF JUDGMENT DATED 20-07-2018 IN WP(C) 24319/18 OF HIGH COURT OF KERALA. EXHIBIT P20 TRUE COPY OF ORDER NO. 9207 DATED 30-10-2018 ISSUED BY THE 2ND RESPONDENT. RESPONDENT EXHIBITS EXHIBIT R4(a): TRUE COPY OF THE RAX MESSAGE DATED 07/08/2006 SENT TOO THE DEPUTY INSPECTOR GENERAL EXHIBIT R4(b): TRUE COPY OF THE LETTER NO.E-24018/12/DOC/ LEAVE/2003/30 DATED 03/01/2007 ISSUED BY THE DEPUTY COMMANDANT. EXHIBIT R4(c): TRUE COPY OF THE PETITIONER'S APPLICATION DATED 07/09/2007 SENT TO THE DEPUTY INSPECTOR GENERAL.