High Court of KeralaSingle JudgeWrit petition allowed; Ext.P7 set aside; Respon...

Philip P.J v Union of India and Others

Case / Petition Number:WP(C) NO. 9065 OF 2021

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Basant Balaji
Judgment Date
2024-07-19
Court Decision / Holding
The writ petition is allowed. Ext.P7 is set aside for failing to provide a reasoned, speaking order and for not adequately applying the Supreme Court’s guidelines. The competent authority is directed to reconsider the petitioner’s claim for compassionate allowance and gratuity strictly in accordance with the directions in the Court’s earlier judgment, incorporating the Mahinder Dutt Sharma guidelines (paragraph 13) and issue fresh orders within three months of receiving a certified copy of this judgment.
Final Disposition
Writ petition allowed; Ext.P7 set aside; Respondents to reconsider compassionate allowance in light of Mahinder Dutt Sharma’s guidelines within three months.

Parties to the Case

Appellants / Petitioners

  • Philip P.J

Respondents

  • The Union of India represented by the Secretary, Ministry of Home Affairs, Block No.10, 5th Floor CGO Complex, Lodi Road, New Delhi-110003
  • The Director General Border Security Force, Block No.10, 5th Floor CGO Complex, Lodi Road, New Delhi-110003
  • The Inspector General HQBSF, Tripura Frontier, Salbagan, Agartala, Tripura (West) 799012
  • The Deputy Inspector General (RR), Room No.10, CGO Complex, New Delhi-110003
  • The Commandant, 181 BN, BSF, Panisagar, Tripura (North) - 977260

Legal Representation & Advocates

Counsels for Petitioners

  • • Adv. R. Rajasekharan Pillai

Counsels for Respondents

  • • Sri B. Ramachandran, CGC
  • • Jagadeesh Lakshman

Case Synopsis & Summary

Philip P.J., a former Head Constable of the Border Security Force, moved the Kerala High Court in WP(C) No. 9065 of 2021 seeking compassionate allowance and gratuity after his dismissal from service in 2008. He had taken 15 days’ leave in April–May 2007 on the death of his father; while on leave, he fell ill on the job and did not report back after leave, allegedly due to medical reasons. Despite medical certificates, he was not granted the requested extension of leave and was ultimately dismissed w.e.f. 08.01.2008. He challenged the decision, including Ext.P8, which rejected his compassionate allowance claim. He had previously challenged the dismissal in a prior writ petition (W.P.(C) No. 36300/2018), wherein this Court directed the respondents to reconsider the compassionate allowance claim with a reasoned order, taking into account Rule 41 of the CCS (Pension) Rules, 1972 and the apex court’s guidance in Mahinder Dutt Sharma v. Union of India (supra). The respondents initially issued Ext.P8 denying the claim without adequately applying the apex court guidelines, prompting the petitioner to challenge Ext.P8. The Court held that Ext.P7’s directions were not properly complied with, requiring a speaking order and strict adherence to the apex court guidelines. Consequently, the petition was allowed, Ext.P7 set aside, and the respondents were directed to reconsider the compassionate allowance in light of Mahinder Dutt Sharma’s guidance, with final orders to be issued within three months.”

Provisions of Law Cited

Rule 41 of CCS (Pension) Rules, 1972Paragraph 13 of the Pension Rules (for compassionate allowances)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that Ext.P8 rejecting compassionate allowances does not contain a reasoned, speaking order and fails to apply the Supreme Court’s guidelines on compassionate allowances. He contends that Ext.P7’s directions requiring reconsideration with a proper due application of Rule 41 and the Mahinder Dutt Sharma guidelines were not properly complied with by the competent authority. The petitioner argues that once the Court directed a speaking order, the Respondents were obligated to consider his case in light of the apex court’s guidelines and to provide reasons for any denial; failure to do so renders the order illegal and arbitrary. He seeks a mandamus to sanction compassionate allowance and gratuity under Rule 41 and to ensure proper consideration in line with Mahinder Dutt Sharma’s judgment.

Contentions of Respondents

The respondents contend that the petitioner abandoned duty and overstayed without proper authorization, leading to dismissal; Ext.P8 denial was a reasoned decision based on the petitioner’s conduct and the pension rules. They argue the court’s earlier directives were not to compel grant but to require a proper, reasoned reconsideration. They insist that Ext.P8 complied with the governing guidelines and that the petition merely re-agitates a concluded administrative decision. They maintain the case falls outside the scope for a special grant under Rule 41, and that any grant must be determined after thorough factual and legal scrutiny in accordance with the CCS (Pension) Rules and the apex court’s guidelines.”},

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Mahinder Dutt Sharma v. Union of India & Others(2014) 11 SCC 684PositiveCited as the controlling apex court authority guiding the reconsideration of compassionate allowances under Rule 41 and for the need to follow guidelines espoused in paragraph 13; the High Court directs adherence to these guidelines in the present matter.

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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 MR.JUSTICE BASANT BALAJI** **FRIDAY, THE 19[TH] DAY OF JULY 2024 / 28TH ASHADHA, 1946** ## **WP(C) NO. 9065 OF 2021** ## **PETITIONER** **PHILIP P.J AGED 46 YEARS EX-95154488 HEAD CONSTABLE, PADINJARE PARAMBIL HOUSE, KOLKKAD P.O., KELAKAM, KANNUR-670673.** ## **BY ADV 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-110003.** - **2 THE DIRECTOR GENERAL BOARDER SECURITY FORCE, BLOCK NO.10, 5TH FLOOR CGO COMPLEX, LODHI ROAD, NEW DELHI-110003.** - **3 THE INSPECTOR GENERAL HQBSF, TRIPURA FRONTIER SALBAGAN, AGARTALA, TRIPURA (WEST)799012.** - **4 THE DEPUTY INSPECTOR GENERAL (RR) ROOM NO.10, GROUND FLOOR, CGO COMPLEX, NEW DELHI110003.** - **5 THE COMMANDANT, 181 BN.BSF, PANISAGAR, TRIPURA (NORTH)-977260.** **BY ADVS. SRI.B.RAMACHANDRAN, CGC JAGADEESH LAKSHMAN** ## **OTHER PRESENT:** **SRI.K R RAJKUMAR, CGC** **THIS WRIT PETITION (CIVIL) HAVING FINALLY BEEN HEARD ON 19.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P (C) No.9065 of 2021 2 ## **JUDGMENT** The petitioner was originally selected as Naik in the BSF w.e.f 11.08.1995. In 2007, when his father died, he took 15 days leave from 16.04.2007. While he was on leave, the petitioner went up the ladder to clean the water tank of the house and the ladder slipped and he fell down causing serious injuries on vertebra, which invalidated ambulation and therefore, he sought for an extension of leave along with the medical certificates. Even after the treatment in the Medical College Hospital, his movement was restricted and thereto, he had undergone treatment as inpatient in the Government Ayurveda Hospital, Peravoor. While so, he was issued with Ext.P2 letter which directed him to report back to duty with all medical documents, failing which the disciplinary action will be taken against him. Though the petitioner had submitted an application with medical certificates, he was not granted any leave. But, he was issued with Ext.P4, an order dismissed him from service w.e.f 08.01.2008. The petitioner is in deep W.P (C) No.9065 of 2021 3 financial crisis after dismissal and he has no other source of income. Therefore, he approached the respondents with Ext.P5 representation for sanctioning of compassionate allowances. A reply was sent by the respondents, as per Ext.P6 on 13.08.2018, rejecting his request for compassionate allowance. Immediately, he challenged the same before this Court by filing W.P.(c) No.36300/2018 and this Court, after going through the averments in the writ petition as well as in the counter affidavit, disposed of the writ petition as follows:- “ _5.Having heard the learned counsel appearing on either side, I am of the opinion that the claim raised for compassionate allowance is to be considered by the respondents and a speaking order is liable to be issued. The question as to whether the case of the petitioner is one which falls under the requirement of Rule 41 and the question whether the petitioner's request is one deserving a special consideration is to be specifically considered and answered by the respondents. In view of the fact that the petitioner's claim had been rejected by a cryptic order stating that his claim is devoid of merits, I am of the opinion that Exhibit P6 does not reveal a proper application of mind and requires_ W.P (C) No.9065 of 2021 4 _reconsideration._ _6. Ext.P6 order is, therefore, set aside. There will be a direction to the respondents to reconsider the request made by the petitioner for compassionate allowance, taking note of the circumstances pleaded by the petitioner and considering whether the request of the petitioner is one deserving a special consideration as provided in Rule 41 of the CCS (Pension) Rules, 1972. The considerations, as directed by the Apex Court in_ _**Mahindra's** case (supra) shall also be taken note of by the respondents. Appropriate orders shall be passed within a period of three months from the date of receipt of a copy of this judgment.”_ 2. In obedience to the directions issued by this Court, Ext.P8 order passed on 07.08.2020 rejecting the request of the petitioner. The petitioner challenges Ext.P8 in this writ petition on the ground that the directions in Ext.P7 had not been fully complied with and the guidelines of the apex court in **Mahinder Dutt Sharma vs. Union of India & Others [(2014) 11 SCC 684]** is not taken into consideration and further a writ of mandamus commanding the respondents to sanction compassionate allowance and gratuity under the proviso of Rule 41 of CCS (Pension) W.P (C) No.9065 of 2021 5 Rules w.e.f January, 2008. 3. A counter affidavit is filed by the respondents, in which the statements in the writ petition are denied. The petitioner took leave for 15 days along with five days joining time w.e.f 16.04.2007 to 08.05.2007 on the ground of death of his father. He was required to report to Unit on 09.05.2007 after expiry of the leave, but the petitioner did not report to Unit and overstayed from leave without giving any information to his Unit. He was directed to resume duty at the Unit, but no reply was received from the petitioner. The petitioner has sent few medical certificates dated 01.05.2007, 31.05.2007 and 30.06.2007 issued by one Dr.Arun Kunmar V.P without any application for extension of leave. In such situation, the petitioner was issued with Ext.R1(a) to report back on duty. Since the petitioner did not rejoin duty in Unit, a show cause notice was issued as Ext.R1(c). To the said letter also, the petitioner did not give any reply and he did not rejoin duty also. Hence, following the procedure as per Rule, he was dismissed from service W.P (C) No.9065 of 2021 **==> picture [8 x 10] intentionally omitted <==** w.e.f 08.01.2008. In obedience to the directions issued by this Court in Ext.P7, the competent authority considered the request of the petitioner for compassionate allowances and passed Ext.P8 strictly going through the dictum laid down by the apex court in **Mahinder Dutt Sharma's** case (supra). Therefore, there is no illegality in the order passed rejecting the claim of the petitioner and therefore, prays for dismissing this writ petition 4. Heard the learned counsel for the petitioner and Adv.K.R.Rajkumar, the learned CGC appearing for the respondents. 5. It is not in dispute that the petitioner has taken leave from 16.04.2007 with joining time of five days for attending the death of his father and he was directed to report duty on 09.05.2007, but the petitioner did not report on duty initially and sent a few medical certificates stating that he cannot rejoin duty. No application for leave was submitted along with the medical certificates before the respondents and the respondents sent a letter directing the W.P (C) No.9065 of 2021 7 petitioner to submit a proper leave application for extension of leave. But, the petitioner did not comply the said direction also. Even though show cause notices were issued as to why it should not be removed him from service, the petitioner chose not to reply to any of the letters. Ultimately, the respondents did not have any other choice other than dismissing the petitioner from his service. But, thereafter he filed an application for compassionate allowance, which was rejected without assigning reasons. The said order is challenged before this Court in W.P.(c) No.36300/2018 and this Court has specifically noted that no reasons were stated in dismissing the application and directed reconsideration strictly, in accordance with law, after giving a reason for it and also taking into consideration the judgment of the apex court in **Mahinder Dutt Sharma's** case (supra). 6. A perusal of Ext.P8 would show that, after perusing the Pension Rules for grant of compassionate allowances in paragraph 13, it is stated that he has gone W.P (C) No.9065 of 2021 8 through the judgment of the apex court in **Mahinder Dutt Sharma's** case (supra) and that there are no grounds to consider the petitioner's case as a special one for grant of compassionate allowance, taking the dictum laid down by the Honourable apex court. In paragraph 13[th] , it is stated that he has considered the **Mahinder Dutt Sharma's** case (supra), but there is no discussion as to how he is not entitled for grant of compassionate allowances. The apex court has specifically stated the guidelines especially in paragraph 13 of the judgment, the respondent, the competent authority ought to have considered the same juxtaposing the guidelines with the case of the petitioner. That is not done by the competent authority. Therefore, Ext.P7 on that ground has to be set aside and I do so. In the result, the writ petition is allowed and the 2[nd] respondent or any competent authority has to reconsider the request of the petitioner for grant of compassionate allowance strictly in accordance with the directions issued by this Court specifically noting the dictum laid down by the W.P (C) No.9065 of 2021 **==> picture [8 x 10] intentionally omitted <==** apex court in **Mahinder Dutt Sharma's** case (supra) specifically paragraph 13 of the judgment. The order should specifically state the reason why the petitioner is not entitled for a compassionate allowance. Orders shall be passed within a period of three months from the date of receipt of a certified copy of this judgment. Sd/- **BASANT BALAJI JUDGE** bng W.P (C) No.9065 of 2021 10 ## **APPENDIX OF WP(C) 9065/2021** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE MALARIA CARD ISSUED TO THE PETITIONER BY THE MEDICAL OFFICER OF THE COMMAND.** **EXHIBIT P2** **TRUE COPY OF THE LETTER DATED 13.08.2007 FROM THE 4TH RESPONDENT.** **EXHIBIT P3** **TRUE COPY OF THE MEDICAL CERTIFICATE DATED 29.10.2007 ISSUED BY THE PETITIONER.** **EXHIBIT P4** **TRUE COPY OF THE COMMUNICATION DATED 08.01.2008 FROM THE 4TH RESPONDENT.** **EXHIBIT P5** **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS.** **EXHIBIT P6 TRUE COPY OF THE REPLY DATED 13.08.2018 FROM THE COMMANDANT 181 BN BSF.** **EXHIBIT P7** **TRUE COPY OF THE JUDGMENT DATED 18.06.2019 IN W.P(C)NO.36300/2018 OF THIS HON'BLE COURT.** **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 07.08 OCTOBER 2020 OF THE 4TH RESPONDENT.** **EXHIBIT P9 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED TO THE PETITIONER.**