Sreelall B v Union of India and Others

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV TUESDAY,THE14[TH]DAYOFNOVEMBER2023/23RDKARTHIKA,1945 ``` ## **`WP(C) NO. 7956 OF 2023`** ## **`PETITIONER/S:`** ``` SREELALL.B NO.892331488,EX-CONSTABLE,CENTRALINDUSTRIAL SECURITYFORCE,FORMERLYOFCISFUNITNLCNEYVELI, JAWAHARLALNEHRUROAD,TOWNSHIPROAD,BLOCK-16, NEYVELITOWNSHIP,CUDDALOREDISTRICT,TAMILNADU, PIN:607801,PRESENTLYRESIDINGAT"SREEVISAKH", VALIAVILA,EDAKKOD.P.O,NEMOM,THIRUVANANTHAPURAM, - KERALA,PIN695020 ``` ``` BYADVS. T.SANJAY SANILKUMARG. RAVEENDRANK. MIDHUNR. ``` ## **`RESPONDENTS:`** ``` 1UNIONOFINDIAREPRESENTEDBYITSSECRETARY MINISTRYOFHOMEAFFAIRS,NORTHBLOCK,NEWDELHI, - PIN110001 2THEDIRECTORGENERAL,CISF CISFHEADQUARTERS,CGOCOMPLEX,LODHIROAD, - NEWDELHI,PIN110003 3THEINSPECTORGENERAL,CISF SOUTHSECTORHEADQUARTERS,CHPTCAMPUS,CHENNAI, - PIN600013 4THEDEPUTYINSPECTORGENERAL,CISF CISFUNITNLCNEYVELI,JAWAHARLALNEHRUROAD,TOWNSHIP ROAD,BLOCK-16,NEYVELITOWNSHIP,CUDDALOREDISTRICT, - TAMILNADU,PIN607801 ``` W.P(C)7956 of 2023 2 ``` 5THECOMMANDANT CISFUNITNLCNEYVELI,JAWAHARLALNEHRUROAD,TOWNSHIP ROAD,BLOCK-16,NEYVELITOWNSHIP,CUDDALOREDISTRICT, - TAMILNADU,PIN607801 BYADVS. K.S.PRENJITHKUMAR ``` ``` SRI.SMANU,CGC ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON14.11.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P(C)7956 of 2023 3 ## **JUDGMENT** The petitioner asserts that he was enlisted in the Central Industrial Security Force (CISF) in the year 1989 as a constable. While serving with the CISF unit, disciplinary proceedings were initiated against him for being absent without leave. The petitioner did not participate in the inquiry proceedings and the same was proceeded ex parte. He was awarded with a major penalty of ‘Removal from Service”. It appears that though the petitioner preferred an appeal as well as a review petition, the same was dismissed as time-barred. 2. The grievance of the petitioner in this writ petition concerns the non-grant of compassionate allowance to the petitioner in terms of Rule 41 of the CCS Pension Rules. 3. The petitioner contends that he preferred Ext P2 representation on 29.11.2021 before the 2[nd] respondent requesting compassionate allowance in accordance with Rule 41 of the CCS Pension Rules and highlighted the law laid down in **Mahinder Dutt Sharma v. Union of India and Others[1]** . He states that pursuant to the directions issued by this Court, his request was considered, and the same was rejected by Ext.P3 order dated 7.1.2023. The > 1 (2014) 11 SCC 684 W.P(C)7956 of 2023 4 petitioner states that while issuing Ext.P3, the concerned respondent did not take note of the fact that the petitioner had completed ten years and two months of service in the CISF. The respondents proceeded on the basis that the petitioner ought to have completed 20 years of service in terms of Rule 48A of the Pension Rules to avail the pensionary benefits. The petitioner refers to Ext.P6 letter dated 6.5.2016, which states that as per the provisions of CCS Pension Rules, 1972, pension is admissible if a Government servant completes qualifying service of not less than ten years. It also says that the eligibility criteria is applicable for the grant of compassionate allowance as well. The petitioner asserts that in identical circumstances, this Court had passed Ext.P7 judgment wherein the facts and situations are almost identical. It is on these assertions that this writ petition is filed seeking the following reliefs: - i. to declare that the petitioner is eligible for "Compassionate Allowance" from the date of removal from service in the light of Rule 41 of CCS Pension rules, as per the dictum reported in (2014) 11 SCC 684 and Ext P-6 criteria for qualifying service; - ii. to issue a writ of mandamus or any other writ, order or direction directing the respondents to release all consequential benefits flown therein from granting compassionate allowance from the date of removal from service; - iii. to issue a writ of mandamus or any other writ, order or direction quashing Ext P-3 order issued by the 5th respondent in a most W.P(C)7956 of 2023 5 mechanical manner against the dictum laid down by the Hon'ble Supreme Court of India reported in Mahinder Dutt Sharma vs U.O.1 & Ors reported in (2014) 11 SCC 684. iv. to issue a writ of mandamus or any other writ, order or direction directing the 2nd respondent to re-consider Ext. P-2 representation compassionately in the light of Rule 41 of CCS Pension rules, judgment of the Hon'ble Supreme Court of India in Mahinder Dutt Sharma vs U.O.I & Ors reported in (2014) 11 SCC 684 and Ext P-6 criteria for qualifying service; 4. A statement has been filed by the 1[st] respondent controverting the contentions advanced by the petitioner herein. The petitioner was absent from duty from 6.06.1999 to 13.06.1999 without prior notice to the competent authority and subsequently deserted the force on 31.07.1999. It is also stated that the petitioner does not deserve any special consideration for granting compassionate allowance. 5. The learned counsel for the petitioner contended that Exhibit P3 order is liable to be quashed as the same is rendered without adverting to the law laid down in **Mahinder Dutt Sharma** (supra) and the distinct considerations laid down for determining a claim under Rule 41. It is submitted that the sole reason stated in the order is that unless the Government servant has had 20 years of qualifying service, he cannot claim compassionate allowance. It is urged that Rule 41 is intended to mitigate the W.P(C)7956 of 2023 6 misery of a deserving Government servant, irrespective of whether such person was dismissed or removed from service. The learned counsel would also refer to Exhibit P6, Government letter, which says that the eligibility criteria for the grant of compassionate allowance is qualifying service of not less than 10 years. 6. The learned CGC has opposed the prayers. It is submitted that all relevant factors were adverted to while passing the impugned order. 7. I have considered the submissions advanced and have gone through the records. Rule 41 of the CCS Pension Rules 1972, based on which the petitioner is claiming compassionate allowance, reads as under: 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 two thirds of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension. (2) A compassionate allowance sanctioned under the proviso to sub-rule (1) shall not be less than the amount of Rupees three hundred and seventy-five per mensem. 8. Ext.P6 is the letter dated 6.5.2016 issued by the Inspector General with regard to the grant of compassionate allowance which reads as W.P(C)7956 of 2023 7 under: Directorate General Central Industrial Security Force (Ministry of Home Affairs) Block No. 13, CGO Complex, Lodhi Road, New Delhi-03. No. V-11014/1(6)/2015/L&R 526 Dated: 06/05/2016 To The Addl. Director General/APS & ALL Sector IsG, CISF, - Subject: Grant of Compassionate Allowance Addendum. Reference FHQ letter No. (347) dated 30.03.2015 on the subject cited above. 2. The following is hereby added in para 6 of FHQ letter under reference:- As per CCS (Pension) Rules, 1972, pension is admissible only if a Government Servant completes qualifying service of not less than 10 years. The same eligibility criteria is applicable for grant of Compassionate Allowance. (emphasis supplied) (Anant Kumar Singh) Inspector General (HQrs) 9. In the case on hand, it is apparent that the respondents have proceeded on the basis that the petitioner had to work for not less than 20 years for a grant of compassionate allowance. However, Rule 41 states that even though a Government servant has been dismissed or removed from the service is not entitled to pension and gratuity, the competent authority can, in W.P(C)7956 of 2023 8 cases that deserve special consideration, sanction compassionate allowance. The only consideration for granting the benefits is that the Government servant should be one deserving the special consideration. 10. In **Mahinder Dutt Sharma** (supra), the Apex Court had occasion to hold that the determination of a claim made under Rule 41 of the Pension Rules, 1972 will necessarily have to be sieved through an evaluation based on a series of distinct considerations, which were illustrated in para 14 of the judgment, and it reads as follows:- **14.1.** (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. **14.2.** (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 W.P(C)7956 of 2023 9 aimed at benefiting a third party to the prejudice of the employer. **14.3.** (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 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. **14.4.** (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. **14.5.** (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. W.P(C)7956 of 2023 10 11. It is pertinent to note that in **Mahinder Dutt Sharma** (supra), the Government servant was dismissed from service for unauthorized absence. Furthermore, the implications of Ext.P6 have not been considered. In that view of the matter, this petition will stand allowed. Ext.P3 issued by the 5th respondent will stand quashed. There will be a direction to the competent among respondents to reconsider the matter in the light of the law laid down in **Mahinder Dutt Sharma** (supra) as well as Rule 41 of the CCS Pension Rules and the criteria laid down in Ext.P6 for qualifying service. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP W.P(C)7956 of 2023 11 ## **`APPENDIX OF WP(C) 7956/2023`** ``` PETITIONER’SEXHIBITS: ``` ``` ExhibitP1TRUECOPYOFTHEFINALORDERNO.(3326) DATED22.04.2000ISSUEDBYTHE5TH RESPONDENT ExhibitP2TRUECOPYOFTHEREPRESENTATIONDATED 29.11.2021PREFERREDBYTHEPETITIONER ADDRESSEDTOTHE2NDRESPONDENT ExhibitP3TRUECOPYOFTHEORDERNO.(266)DATED 07.01.2023ISSUEDBYTHE5THRESPONDENT ExhibitP4TRUECOPYOFTHEJUDGMENTOFTHISHON'BLE HIGHCOURTINWPNO.400/2023DATED 17.01.2023 ExhibitP5TRUECOPYOFTHERELEVANTPAGEOFFAQS CENTRALCIVILSERVICESAVAILABLEINTHE GOVTOFINDIAWEBSITE ExhibitP6TRUECOPYOFCISFHEADQUARTERSNEWDELHI LETTERNO.(526)DATED06.05.2016 ExhibitP7TRUECOPYOFJUDGMENTDATED11.02.2022IN WPNO.1214/2020 ExhibitP8TRUECOPYOFANORDERNO.(2470)DATED 14.11.2022ISSUEDBYTHE2NDRESPONDENT GRANTINGCOMPASSIONATEALLOWANCETOMRS. SURENDRANANEXCONSTABLEOFCISF ```