V. Kesavan Nair v Union of India

W.P(c).No.3810/2018 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** ## **WP(C).No. 3810 of 2018** ## **PETITIONER/S:** **V.KESAVAN NAIR, AGED 66 YEARS, S/O. G.VELAYUDHAN NAIR, (EX-CONSTABLE/CENTRAL INDUSTRIAL SECURITY FORCE) RESIDING AT: "THIRUVATHIRA", KAITHOORKONAM HOUSE, EDACODE, NEMOM POST, TRIVANDRUM - 695 020.** **BY ADVS. SRI.T.C.GOVINDA SWAMY SRI.M.ALFRED LIONEL WINSTON** ## **RESPONDENTS:** **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI - 110 001.** - **2 THE DIRECTOR GENERAL CENTRAL INDUSTRIAL SECURITY FORCE (MINISTRY OF HOME AFFAIRS) BLOCK NO.13, CGO COMPLEX, NEW DELHI - 110 003.** - **3 THE COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE (MINISTRY OF HOME AFFAIRS) BANK NOTES PRESS, DEWAS - 455 003 MADHYA PRADESH.** - **4 THE SENIOR ACCOUNTS OFFICER OFFICE OF THE REGIONAL PAY & ACCOUNTS OFFICER(CISF) (MINISTRY OF HOME AFFAIRS)3RD MSO BUILDING, DF BLOCK"D WING", 2ND FLOOR, SALT LAKE, KOLKATA - 700 064.** **BY ADVS. ASSISTANT SOLICITOR GENERAL SMT.O.M.SHALINA, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(c).No.3810/2018 2 ## _**P.V.ASHA, J.**_ **--------------------------** W.P(C) No.3810 of 2018-A ------------------------------------------- _Dated this the 14[th] day of February, 2019_ ## _**JUDGMENT**_ The question arising in this case is whether compassionate allowance should be paid with effect from the date on which the penalty was imposed/date of normal superannuation, once the authorities decided to pay it, irrespective of the date of application by the ex-employee and irrespective of the date on which the authorities decides to grant it. 2. Petitioner had joined the Central Industrial Security Force (CISF) on 6.1.1971, as a Cook. He was dismissed from service as per Ext.P3 order dated 18.2.1986 while working as Constable. Even though the petitioner had challenged the order of dismissal, the same was repelled confirming the dismissal. When he challenged it before this Court, the respondents were directed to consider his representation. That was also rejected. Thereafter on 14.8.2014, petitioner submitted a representation before the 2[nd] respondent–Director General, CISF, requesting for sanctioning compassionate allowance. The said representation was rejected as per letter dated 15.12.2014. The petitioner thereafter approached this Court in W.P(C).No.7653/2015 challenging the same and this Court by judgment dated 15.12.2014 set aside the order of rejection and directed to consider the representation again in the light of the directions contained in the judgment in _**Mahinder Dutta Sharma v. UOI**_ [(2014) 11 SCC 654]. Ext.P1 order was passed W.P(c).No.3810/2018 3 thereafter. 3. In Ext.P1, it was found that dismissal of the petitioner, from service was for desertion from unit line on 11.8.1985; he failed to report back for duty in spite of several notices issued to him, on expiry of his leave. It was found that the request for compassionate allowance was made for the first time in the year 2014. However **,** in view of the guidelines issued by the Apex Court and in the light of the directions contained in the judgment of this Court dated 28.6.2015 in W.P(C).No.7653 of 2015, it was decided to sanction compassionate allowance @ Rs.9,000/- per month prospectively under Rule 41 of the CCS (Pension) Rules, 1972. Government took note of the fact that the dismissal was on account of desertion and not on account of any moral turpitude. The petitioner claims that he is entitled to be paid the compassionate allowance with effect from the date of his dismissal. The petitioner relied on the guidelines issued by the Government of India in the Government of India's decisions [below Rule 41(1)] G.I., F.D, Office Memo No.3(2)-R-II/40 dated 22.4.1940. 4. The contention of the learned counsel for the petitioner are the following: the compassionate allowance is considered as a class of pension included in Chapter V of CCS (Pension) Rules, 1972. Commutation of compassionate allowance is permitted under the CCS (Commutation of Pension) Rules, 1981, as in the case of commutation of pension on superannuation. As per Rule 3(j) of CCS (Commutation of Pension) Rules, 1981 “pension” means any class of pension including compassionate allowance also. After the death of the W.P(c).No.3810/2018 4 employee the legal heirs are entitled to get the same as in the case of Family Pension; thus it is treated on par with pension. Therefore, a Government servant is liable to be granted compassionate allowance with effect from the date on which orders are i **ss** ued dismissing/removing him from the service. 5. Respondents 1 to 4 filed a counter affidavit in tune with the order Ext.P1. It is stated that the petitioner was a habitual offender remaining OSL/AWL. He was awarded with one major and 7 minor penalties. He had overstayed from 18.12.1984 to 28.6.1985 and thereafter absented without leave for 192 days from 11.8.1985 to 18.2.1986 and committed serious misconduct, indiscipline and dereliction of duty. It is stated that Rule 83 of CCS Pension Rules would not apply in the case of the petitioner as he was granted compassionate allowance. It is also stated that the penalty of dismissal from service was awarded after conclusion of a departmental enquiry. The order Ext.P1 was issued after evaluating all circumstances and in tune with the judgment of the Apex Court. It is stated that the petitioner who was a member of a disciplinary force was dismissed from service consequent to the indiscipline. 6. The learned counsel for the petitioner relied on the Government of India's decisions (1) No.(I) G.I., FD Office Memo.No.3(2)-R-II/40 dated 22.4.1940 and (2) No.3(ii) relating to procedure for grant of compassionate allowance itself issued in G.I., F.D., No.F.3-X-R, II/34 dated 3.5.1934. According to the decision dated 22.4.1940, each case has to be considered on its merit and decision has to be arrived at after examining whether there is any extenuating W.P(c).No.3810/2018 5 features which would make the punishment awarded unduly hard on the individual and it is not only the actual misconduct or course of misconduct which occasioned dismissal or removal but also the kind of service he has rendered has to be taken note of. When the course of misconduct carries with it the legitimate interference that the officer's service has been dishonest, there can seldom be any good case for a compassionate allowance. Poverty is not an essential condition precedent to the grant of a compassionate allowance, but special regard should be there that the officer has a family to benefit in exceptional circumstances. 7. In the Government of India decision G.I., F.D., No.F.3-X-R, II/34 dated 3.5.1934, it was provided that in order to avoid delay in the payment of compassionate allowance, on receipt of the orders of the competent authority removing an officer from service for misconduct, insolvency or inefficiency, the Head of the office, if he proposes to recommend the grant of a compassionate allowance, should fill in the application for pension and send it to the Accounts Officer concerned for report on the title to pension and should not wait for an application from the officer. If the competent authority issuing orders states that compensation pension is to be granted as compassionate allowance, no further sanction is necessary. 8. However, subsequent to the CCS (Pension) Rules, 1972 Government of India decision No.2 given just below Rule 41 in Swamy's Compilation Law which provided that the question whether the Government servants drawing compassionate allowance under Rule 41 of CCS (Pension) Rules, 1972 are entitled W.P(c).No.3810/2018 6 to commute a part of such compassionate allowance as in the case of other kinds of pension or not was considered and it was clarified that compassionate allowance is one of the various kinds of pensions enumerated in the CCS (Pension) Rules, 1972 and as such CCS (Commutation of Pension) Rules, 1981 would apply to the compassionate allowance in the same manner as in the case of any other class of pension. 9. The learned counsel for the petitioner relied on the judgment dated 22.11.2002 in O.P.No.2492/94 which was filed by the Southern Railway, Madras against the order passed by the C.A.T, Ernakulam. In the judgment in O.P.No.2492/94, the CAT had allowed the claim of a Railway employee, who was removed from service on account of unauthorised absence after rendering 21 years of service, directing grant of compassionate allowance with effect from 1.1.1994, though he claimed it only later. Considering the number of years of service rendered by the petitioner, the view taken by the CAT was found to be a plausible one and interference was declined under Article 227 of the Constitution. 10. Having heard Sri. Govindaswami, learned Counsel for petitioner and Smt. O.M. Saleena, the learned CGC it is necessary to examine the relevant provisions relating to compasionate allowance. 11. Rule 41 of CCS (Pension) Rules, 1972 reads as follows: _“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_ W.P(c).No.3810/2018 7 _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 subrule (1) shall not be less than the amount of (Rupees three thousand five hundred) per mensem.”_ Going by Rule 41, the authority competent to dismiss or remove the employee is conferred with a discretionary power to sanction compassionate allowance in case there exists special circumstances. Rule does not say that it would be from the date of dismissal or removal. It is true that the compassionate allowance under Rule 41 comes under Chapter V and Chapter V deals with the Classes of Pensions and Conditions governing their grant, as pointed out by the learned counsel for the petitioner. Chapter V deals with superannuation pension in Rule 35, retiring pension in Rule 36, Pension on absorption in or under Corporation, company or body under Rule 37, conditions for payment of pension on absorption consequent upon conversion of a Government Department into a Public Sector Undertakings under Rule 37-A, conditions for payment of pension on absorption consequent upon conversion of a Government Department into a Central Autonomous body under Rule 37B, invalid pension under Rule 38, compensation pension under Rule 39, Compulsory Retirement Pension under Rule 40 and compassionate allowance under Rule 41. However, what is provided in the proviso to Rule 41 is 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. W.P(c).No.3810/2018 8 12. A reading of Rule 41, would show that compassionate allowance can be sanctioned only if the competent authority is satisfied of the existence of circumstances which deserves special consideration. In the case under Rule 35 of the Rules, the superannuation pension “shall be granted”. Rule 36, starts saying “A retiring pension shall be granted ….”. Under Rule 37 also the grant of pension is mandatory. However, coming to Rule 38 in the case of invalid pension, the Rules start saying “invalid pension may be granted”. In Rule 39, compensation pension is also admissible to a Government servant selected for discharge as his permanent post is getting abolished and he shall have the option of taking compensation pension or to accept another appointment. In the case of compulsory retirement pension, Rule 40 provides “a Government servant compulsorily retired from service as a penalty “may be granted”. The authority to sanction compassionate allowance is the authority who is competent to dismiss or remove him from service. The Rule does not say which are the cases which deserve special consideration or that it should be paid with effect from the date of dismissal or removal. However, on direction from this Court the 2[nd] respondent issued Ext.P1 order. It is stated that his case was considered sympathetically in the light of the judgment of the Apex Court. 13. The learned CGC relied on the judgments in W.P(C).No.16918/2004 and W.A.No.1067/2018, where this Court upheld the orders passed by the Government rejecting the claim for compassionate allowance with effect from the date of dismissal. After analysing the provisions contained in Rule 5 Part III of the W.P(c).No.3810/2018 9 KSR, this Court held that it was only a mercy shown by the employer to the employee and it is in the absolute discretion of the authority to sanction the same taking into account the facts and circumstances of the case and therefore the petitioner cannot as of right, claim the amount of compassionate allowance or the date from which it should be paid as it is for the sanctioning authority to decide as to the quantum subject to the maximum prescribed in Rule 5 as well as the date of effect of payment of such compassionate allowance. In the judgment dated 3.7.2018 in W.A.No.1067/2018 also, a Division Bench of this Court while considering the claim raised by the appellant therein for compassionate allowance with effect from the date of his dismissal in the year 1981, which he claimed by filing a representation in the year 2015, was rejected in terms of Rule 5 Part III KSR. In that case also, it was stated that it would be prospective. There also after analysing the provision contained in Rule 5 of Part III KSR, this Court found that the rule does not provide for the date from which compensatory allowance has to be sanctioned apparently because the particular circumstances/special circumstances as such may not be available on the date of removal from service and such circumstances may arise after some years. This Court also found that in case such payment was made, the appellant would have to be paid right from 1984 despite the fact that he was serving elsewhere and drawing salary and the discretion is absolutely with the Government and cannot be directed to be paid as a matter of fact. This Court also found that the appellant therein had filed the application only on 1.8.2015 which the authority considered and passed orders in W.P(c).No.3810/2018 10 the year 2016 and that payment was made in tune with the circular, according to which the payment has to be only prospective. 14. The learned counsel for the petitioner points out that the judgments on Rule 5 of Part III KSR cannot be relied on for interpreting Rule 41 of CCS (Pension) Rules. The provisions contained in Rule 41 and Rule 5 of Part III KSR are more or less similar, though the compassionate allowance under Part III KSR is not coming under the classes of pension as in CCS (Pension) Rules. It is pertinent to note that Rule 5 is more elaborate incorporating the procedure to be followed by the head of office or competent authority as part of the rule itself unlike Rule 41 of 1972 Rules which has not incorporated the procedure in the OMS of 1937 and 1940. 15. It is pertinent to note that in the present case also, the petitioner has approached the respondents with an application for compassionate allowance only on 14.8.2014 after he was dismissed from service on 11.8.1986. His appeals and revision petitions were rejected in the year 1986 and the Writ Petition was disposed of in the year 1987. He did not have any claim for compasionate allowance at that time. A person who was vigilant in prosecuting his claim from 1984 to 1987 did not raise any claim for compasionate allowance for 27 years till 2014. It is quite probable that he was working somewhere. In the event of directing compasionate allowance in such a case, it can have the effect of a premium or incentive for the offence he committed, enabling him to draw compassionate allowance while he was earning salary from another employer. W.P(c).No.3810/2018 11 16. In this case the petitioner has not stated whether he was working or not or even what he was doing all these years. At any rate, the petitioner has not even produced the representation he submitted before the respondents in 2014. It would appear from Ext.P1 that his request was to the effect that he was 64 years old and was almost invalid and living in poverty and therefore he requested to consider his case sympathetically. The respondents have granted him compassionate allowance from 2016 onwards. Therefore, he does not have any right to claim that it should be from the date of his dismissal. It is specifically stated in Ext.P1 that the compassionate allowance is sanctioned only prosectively. Rules do not provide that the compassionate allowance would be given from a particular date. It is entirely within the discretion of the authority sanctioning the allowance to decide, having regard to the special circumstances, the date from which the compasionate allowance is to be paid. A consideration in 2016, referring to ailing and aged condition of the petitioner would not have been the same at the time of his dismissal in the year 1986, as held by this Court in the judgment in W.A.No.1067 of 2018. Though it was a case under Rule 5 of Part III KSR, the findings and observations therein would equally apply to the circumstances in the present case governed by Rule 41 of CCS(Pension) Rules as long as those rules also do not provide for the date from which it should be given and both rules provide for sanctioning the same only on being satisfied of the special circumstances as to whether the person deserves any special consideration. W.P(c).No.3810/2018 12 In the above circumstances, the petitioner does not deserve any relief. The Writ Petition is hence dismissed. _Sd/-_ _**(P.V.ASHA, JUDGE)**_ _rtr/_ W.P(c).No.3810/2018 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ORDER BEARING NO.V14013/54/2015/MISC/3509 DATED 16 NOV 2016, ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT DIRECTOR GENERAL. EXHIBIT P2 TRUE COPY OF ORDER ISSUED BY THE 4TH RESPONDENT UNDER NO.DDO:ASSTT.COMDT/DDO CISF UNIT BNP DEWAS/12665-67 DATED 22 NOV 2017. EXHIBIT P3 TRUE COPY OF ORDER OF DISMISSAL BEARING NO.V/15014/CISF (VKN) 1 & 11/85/445 DATED 18.02.1986 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT. EXHIBIT P4 TRUE EXTRACT OF RULE 41 AND THE GOVERNMENT OF INDIA DECISIONS RELATING TO THE SAME PUBLISHED IN PAGES 108-110 IN THE SWAMY'S COMPILATION INCORPORATING THE CENTRAL CIVIL SERVICES PENSION RULES CORRECTED UPTO SEP 2016. EXHIBIT P5 THE EXTRACT OF CENTRAL CIVIL SERVICES, (COMMUTATION OF PENSION) RULES, 1981, AS DOWNLOADED FROM THE WEBSITE OF THE DEPARTMENT OF PENSION & PENSIONERS' WELFARE GOVERNMENT OF INDIA. EXHIBIT P6 TRUE COPY OF REPRESENTATION DATED 14 AUG 14 ADDRESSED TO THE 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 28 JUNE 2016 IN WPC NO.7653/2015 RENDERED BY THIS HON'BLE COURT. EXHIBIT P8 TRUE COPY OF LETTER FROM THE OFFICE OF THE 2ND RESPONDENT BEARING NO.E32021/CISF/BNP/ACCTS/2017-70 DATED 17 FEB 17. EXHIBIT P9 TRUE COPY OF LETTER BEARING NO.RPAO/MHA/CISF/NPS/2017-18/8539-42 DATED 31.10.17 FROM THE SR.ACCOUNTS OFFICER IN THE OFFICE OF THE 4TH RESPONDENT TO THE CONTROLLER OF ACCOUNTS, MINISTRY OF HOME AFFAIRS.** W.P(c).No.3810/2018 14 **EXHIBIT P10 TRUE COPY OF LAWYER NOTICE DATED 25 OCT 2017 TO BE SERVED UPON THE DEPUTY CONTROLLER OF ACCOUNTS IN THE OFFICE OF THE 4TH RESPONDENT AND ALSO TO THE DEPUTY COMMANDANT IN THE OFFICE OF THE 3RD RESPONDENT WITH A/D AND POSTAL RECEIPT. EXHIBIT P11 TRUE EXTRACT OF CHAPTER XI OF THE CCS (PENSION) RULES 1972 CONTAINING RULE 83.** EXHIBIT P12 TRUE COPY OF THE GOVERNMENT ORDER BEARING G.O(p).NO.457/2014/FIN. DATED 20.10.2014. EXHIBIT P13 TRUE COPY OF THE CHAPTER V OF CCS (PENSION) RULES, TITLED “CLASSES OF PENSION AND CONDITIONS GOVERNING THEIR GRANT” AS PUBLISHED IN SWAMY'S PENSION COMPILATION.