SREEKANTAN KUTTY v UNION OF INDIA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN FRIDAY, THE 25[TH] DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943** ## **WP(C) NO. 11097 OF 2019** ## **PETITIONER/S:** SREEKANTAN KUTTY AGED 61 YEARS S/O.NEELAKANTAN PILLAI,RESIDING AT P.ANDANADU NORTH.P.O,CHENGANNOOR, ALAPUZHA DT. BY ADVS. JOHNSON GOMEZ M.R.SUDHEENDRAN A.V.INDIRA SANJAY JOHNSON ## **RESPONDENT/S:** 1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER,SOUTHERN RAILWAY, MADRAS.3. 2 RAILWAY BOARD, REPRESENTED BY ITS CHAIRMAN,RAIL BHAVAN, RAISANA ROAD,NEW DELHI-110001. 3 THE DIVISIONAL SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE,SOUTHERN RAILWAY,PALAKKAD DIVISION,OLAVAKKODE.P.O, PIN-678002. 4 THE DIRECTOR GENERAL, RAILWAY PROTECTION FORCE,RAIL BHAVAN, RAISINA BUILDING,NEW DELHI-110001. 5 CHIEF SECURITY COMMISSIONER, SOUTHERN RAILWAY,MADRAS, PIN-600003. BY ADV SRI.P.K.RAMKUMAR, SC, RAILWAYS ## **OTHER PRESENT:** ASGI S.MANU **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION** **ON 25.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.11097 of 2019 -2- ## **JUDGMENT** Dated this the 25[th] day of February, 2022 The petitioner had joined the Railway Protection Force as Constable on 02.03.1982. He was terminated from service on 11.10.1991 pursuant to a departmental enquiry conducted into the allegation that he had misbehaved with the daughter of a colleague. The petitioner challenged his termination up to the Supreme Court, but without success. Much later, the alleged victim and the witnesses to the incident that had resulted in the petitioner's termination, gave affidavits stating that the incident had not occurred. Thereupon, the petitioner filed a mercy petition before the President of India and the same was forwarded to the Ministry of Railways for consideration. Based on the direction in the judgment in W.P.(C) No.34286 of 2009 filed by the petitioner, his W.P.(C) No.11097 of 2019 -3- mercy petition was considered and Ext.P7 order passed, recommending that the punishment of removal from service imposed on the petitioner be modified as penalty of reduction of pay to five stages lower in the grade and to reinstate the petitioner in service. Despite the recommendation, the petitioner was not reinstated for the reason that the punishment was imposed in a case of moral turpitude and even if reinstated, the Force would have an old constable who was away from training and fitness regimen and would therefore be of little use. Faced with such a situation, the petitioner filed Ext.P10 application seeking compassionate allowance. The request having been rejected by Exts.P11 and P12, the writ petition is filed. 2. Learned Counsel for the petitioner submitted that even though the order removing the petitioner from service and the consequential W.P.(C) No.11097 of 2019 -4- orders are assailed in the writ petition, the challenge is being confined to the rejection of petitioner's request for compassionate allowance. It is contended that as per Rule 309 of the Manual of Railway Pension Rules, 1950, compassionate allowance can be granted to a Railway servant removed or dismissed from service, if he is found to be deserving of special consideration. It is submitted that the petitioner's request for compassionate allowance has been rejected considering the gravity of offence. According to the learned Counsel, granting of offence cannot be the parameter for deciding whether the delinquent requires special consideration. 3. Learned Standing Counsel for the Railways submitted that considering the nature of the offence and the efflux of time, there is no justification in interfering with the order W.P.(C) No.11097 of 2019 -5- declining compassionate allowance. It is argued that under Rule 309, discretion is vested with the authority to decide whether a particular case requires special consideration. Such discretion having been exercised, this Court cannot set in judgment over that. 4. Rule 309 of the Manual of the Railway Pension Rules, on which reliance is placed, reads as under; _“309. Removal or dismissal from service:-_ _No pensionary benefit may be granted to a Railway Servant on whom the penalty of removal or dismissal from service is imposed; but to a Railway Servant so removed or dismissed, the authority who removed or dismissed him from service may award compassionate grant(s) - corresponding to ordinary gratuity and/or deathcum-retirement gratuity and/or allowancescorresponding to ordinary pension, when he is deserving of special consideration; provided that the compassionate grant(s) and/or allowance awarded to such a Railway Servant shall not exceed two-thirds of the pensionary benefits which would have been admissible to him if he_ W.P.(C) No.11097 of 2019 -6- _had retired on medical certificate.”_ As rightly contended by the learned Counsel for the petitioner, 'compassionate allowance is granted to a Railway servant who is not entitled for any pensionary benefit for reason of being imposed with the penalty of removal or dismissal from service. As the persons entitled for compassionate grant are those on whom the maximum punishment is imposed, the allegation against them would naturally be grave in nature. Therefore, gravity of the alleged offence, by itself, cannot be a reason for refusing the benefit. In this regard, it may be pertinent to take note of the decision of the Honourable Supreme Court in _**Mahinder Dutt Sharma v. Union of India and Others [(2014) 11 SCC 684]**_ rendered on an interpretation of Rule 41 of the CCS (Pension) Rules, which is similarly worded. Therein, the W.P.(C) No.11097 of 2019 -7- Supreme Court opined that for deciding upon the special circumstance, there has to be some mitigating factor which makes the competent authority to hold that, even though the person was dismissed or removed from service, he ought to be given compassionate allowance. The court indicated the manner in which the process of evaluation should be undertaken and the distinct considerations that would disentitle a Government servant from being granted compassionate allowance. Being apposite, the relevant portion of the judgment in _**Mahinder Dutt Sharma**_ (supra) is extracted hereunder; _“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:_ _(i) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act_ W.P.(C) No.11097 of 2019 -8- _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_ W.P.(C) No.11097 of 2019 -9- _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 doubledealing 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 by foul play, would fall in this category._ _(v) Was the act of the delinquent, which resulted in the infliction of the punishment_ -10- ## W.P.(C) No.11097 of 2019 _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.”_ No doubt, in the above decision, moral turpitude is held to be one of the factors that would disentitle a Government servant from being granted compassionate allowance. In the petitioner's case, though belatedly, the victim and the witnesses had retracted from their original version and stated that the alleged incident had not occurred. This had prompted the Minister for Railways to recommend reinstatement of the petitioner with a lesser penalty. Whether that amounted to a circumstance warranting special consideration is something which the authority ought to have considered. No such exercise having been undertaken, the respondents ## W.P.(C) No.11097 of 2019 **==> picture [23 x 8] intentionally omitted <==** are bound to reconsider the request for compassionate allowance, with reference to the parameters set out in _**Mahinder Dutt Sharma**_ as also the recommendation in Ext.P7. In the result, the writ petition is disposed of, by setting aside Ext.P11 and P12 orders and directing reconsideration of the petitioner's request for compassionate allowance, as expeditiously as possible. Sd/- **V.G.ARUN JUDGE** Scl/ -12- ## W.P.(C) No.11097 of 2019 |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |EXHIBIT P1|TRUE COPY OF THE ORDER REMOVING THE| ||PETITIONER FROM SERVICE| |EXHIBIT P2|TRUE COPY OF THE JUDGMENT DATED| ||19/6/2002 IN OP NO.16773/1992.| |EXHIBIT P3|TRUE COPY OF THE JUDGMENT IN WA| ||NO.1924/2002| |EXHIBIT P4|TRUE COPY OF THE MERCY PETITION| ||SUBMITTED ON 3/2008.| |EXHIBIT P5|TRUE COPY OF THE JUDGMENT IN| ||WP(C)34286/2008 DATED 6/2/2009| |EXHIBIT P6|TRUE COPY OF THE ORDER DTAED 17/3/09| ||IN I.A.NO.3658/2009| |EXHIBIT P7|TRUE COPY OF THE FILE RECEIVED UNDER| ||THE RIGHT TO INFORMATION ACT.| |EXHIBIT P8|TRUE COPY OF THE LETTER DATED| ||15/12/2011 OF THE UPSC.| |EXHIBIT P9|TRUE COPY OF THE ORDER DATED 3/2012`| |EXHIBIT P10|TRUE COPY OF THE REPRESENTATION DATED| ||20/4/2016 ADDRESSED TO THE CHIEF| ||SECURITY COMMISSIONER OF THE RPF.| |EXHIBIT P11|TRUE COPY OF THE ORDER DATED 13/6/2016| ||OF THE 3RD RESPONDENT| |EXHIBIT P12|TRUE COPY OF THE LETTER DATED 4/1/2017| ||ALONG WITH THE REPORT.| |EXHIBIT P13|TRUE COPY OF THE NOTICE DATED| ||25/8/2017.| |EXHIBIT P14|TRUE COPY OF THE PAPER PUBLICATION| ||DATED 22/9/2017.| |EXHIBIT P15|TRUE COPY OF THE JUDGMENT OF THE| ||HONOURABLE HIGH COURT OF ANDHRA| ||PRADESH REPORTED IN 2007 (4) ALT 90| ||AND DOWNLOADED FROM INDIA.| |EXHIBIT P16|TRUE COPY OF THE RELEVANT PAGES OF THE| ||RAILWAY SERVICES (PENSION) RULES 1993.| |EXHIBIT P17|TRUE COPY OF THE RAILWAY NOARD| ||CIRCULAR NO.F(E)111/2003/PN1/5/ DATED| ||04/11/2008.|