P. R. Sudarsanan (Ex-Head Constable, BSF) v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937** ## **WP(C).No. 31264 of 2015 (G)** ## **----------------------------** ## **PETITIONER(S): --------------------------** **P.R.SUDARSANAN EX-HEAD CONSTABLE (BSF) NO.671020875 RESIDING ATBABU NIVAS, GOVINDAMUTTAM, KAYAMKULAM ALAPPUZHA, KERALA - 690 527.** **BY ADVS.SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN** ## **RESPONDENT(S):** **----------------------------** ## **1. THE UNION OF INDIA** - **REPRESENTED BY THE SECRETARY MINISTRY OF HOMEAFFAIRS BLOCK NO.10 5TH FLOOR CGO COMPLEX, LODHI ROAD NEW DELHI - 110003.** ## **2. THE DIRECTOR GENERAL** - **BORDER SECURITY FORCE, BLOCK NO.10 5TH FLOOR CGO COMPLEX, LODHI ROAD, NEW DELHI - 110003.** **3. THE COMMANDANT HEADQUARTERS, 102 BN DISTRICT GOMTI UDAIPUR, TRIPURA - 799 121.** **4. THE DEPUTY COMMANDANT HEAD QUARTERS, 102 BN BSF, BAIKUNTHAPUR JALPAGURI, WEST BENGAL - 734008.** **5. THE SENIOR ACCOUNTS OFFICER (A/CS) PAY AND ACCOUNTS DIVISION (FUND SEC)DIRECTORATE GENERAL BORDER SECURITY FORCE PUSHPA BHAWAN, MADANGIR, NEW DELHI - 110062** **R1-R5 BY ADV. SRI.JAISHANKAR V.NAIR, CGC R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 31264 of 2015 (G) -------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** |**EXT.P-1:**|**TRUE COPY OF THE REPRESENTATION DATED 2.4.2013**| |---|---| ||**SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT**| ||**THROUGH THE 3RD RESPONDENT**| |**EXT.P-2:**|**TRUE COPY OF THE REPLY DATED 26.7.2013 FROM THE 3RD**| ||**RESPONDENT TO THE PETITIONER**| |**EXT.P-3:**|**TRUE COPY OF THE LETTER DATED 3.4.2014 SUBMITTED BY THE**| ||**PETITIONER BEFORE THE 4TH RESPONDENT**| |**EXT.P-4:**|**TRUE COPY OF THE COMMUNICATION DATED 4.3.2014 FROM THE**| ||**4TH RESPONDENT TO THE PETITIONER**| |**EXT.P-5:**|**TRUE COPY OF THE SAID INFORMATION LETTER DATED 29.5.2015**| ||**FROM THE SECTOR HEADQUARTER BSF RADHABARI, DIST.**| ||**JALAPAGURI WEST BENGAL TO THE PETITIONER**| ## **RESPONDENT(S)' EXHIBITS: NIL** **---------------------------------------** ## **// TRUE COPY //** **P.A TO JUDGE** **SB** ## **K. VINOD CHANDRAN, J.** ## **===================== W.P.(C) No.31264 of 2015 - G ====================== Dated this the 21[st] day of January, 2016** ## **J U D G M E N T** The petitioner is aggrieved with Ext.P2 order. The admitted case of the petitioner is that the petitioner joined the Border Security Force (B.S.F) as a Constable (General Duty) on 06.07.1967 and after 12 ½ years of service, was dismissed from service w.e.f 14.01.1979, for unauthorised absence; he having over stayed his sanctioned leave. The petitioner even in the writ petition contends that he had been mentally disturbed and had been looking for salvation and hence he did not join duty after the sanctioned leave. The petitioner admittedly made an application dated 01.07.1996 addressed to the Inspector General (Pers) of the B.S.F against the dismissal order, which was rejected and communicated on 14.09.1996 addressed to his home address. The petitioner contends that he did not receive that, since he was a wanderer seeking salvation. **2** W.P.(C) No.31264 of 2015 - G 2. Long years in the past the petitioner never thought of approaching the respondent authorities either against the dismissal order passed or for compassionate allowance as provided under Rule 41 of Central Civil Services (Pension) Rules, 1972. On 02.04.2013, the petitioner filed Ext.P1 representation for compassionate allowances. Ext.P2 order declining compassionate allowance is also dated 26.07.2013 and the same is sought to be challenged after two years by the above writ petition. Hence, essentially, the challenge made is hit by limitation. The Hon'ble Supreme Court in **Shiv Dass** v. **Union of India and others [2007 (9) SCC 274]** , has found that the denial of pension is a continuing cause of action, which arises every month and that the same has to be considered even if there is a delay, but however, confining the grant to three years prior to the initiation of proceedings. **3** W.P.(C) No.31264 of 2015 - G 3. A reading of Ext.P2, does not in fact commend this Court to interfere with the same since the discretion has been exercised by referring to the prior conduct of the petitioner while in service to reject the application for compassionate allowance. The learned Counsel for the petitioner however places reliance on a judgment of the Hon'ble Supreme Court in **Mahinder Dutt Sharma** v. **Union of India [(2014) 11 SCC 684]** in which, it has been stated so, with respect to the Rule under consideration herein; paragraph 13 of which is extracted hereunder:- 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:- (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 persons 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 **4** W.P.(C) No.31264 of 2015 - G ## 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 dishonesty towards his employer? Such an action of dishonesty would emerge from a behavior which is untrustworthy, deceitful and insincere, resulting in prejudice to the interest of the employer. This could emerge from an unscrupulous, untrustworthy and crooked behavior, 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 involve acts or 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 an third party. (iv) Was the act of the delinquent, which resulted in the infliction of the punishment or dismissal or removal from service, aimed at deliberately harming a third party interest? Situation hereunder would emerge out of acts of disservice causing damage, loss, prejudice or even anguish to third parties, on account of misuse of the employees 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 **5** W.P.(C) No.31264 of 2015 - G 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. 4. Going by the binding precedent of the Hon'ble Supreme Court, Ext.P2 has to be set aside but however, the consideration has to be made in accordance with the directions issued by the Hon'ble Supreme Court in the said judgment. It is also to be specifically noticed that the Hon'ble Supreme Court has not laid down the above principles as exhaustive and has observed that what has been laid down are some of the distinct considerations which are to be made. If at all the authority decides to grant compassionate allowance, then that can be only related back to three years from the date of filing of the writ petition, which is on 13.10.2015, going by **Shiv Dass (supra).** The consideration shall be made at any rate within a period of **6** W.P.(C) No.31264 of 2015 - G three months from the date of receipt of a certified copy of this judgment. 5. The learned Counsel for the petitioner then invited my attention to the judgment in **Thakappan Nair** v. **State of Kerala [2001(3) KLT 855]** , wherein, after a dismissal in 1970, an application in the year 1999 was sought to be prosecuted, for compassionate allowance, which was directed to be reconsidered. The Division Bench of this Court had while considering the aspect of delay, specifically stated that the pension is payable “In the case at hand, the Government stood to gain by the belated application”(sic). This can only mean that the Court understood it as the grant if at all; being confined from the date of application and not permissible during the delayed period when the petitioner had not agitated his cause. Such an understanding is in consonance with the judgment of Hon'ble Supreme Court referred on the aspect of delay in payment of pension. **7** W.P.(C) No.31264 of 2015 - G The writ petition is disposed of with the above direction, but making it clear that this Court, herein, has not spoken on the merits of the petitioner's entitlement, which is left to the discretion of the authority, to be exercised in consonance with the principles in **Mahinder Dutt Sharma** (supra). No Costs. **Sd/K. VINOD CHANDRAN, JUDGE** // true copy // P.A to Judge. SB/21/01/2016