1 [CASE NUMBER] 8.9.2015 Shri [ENTITY], learned counsel for the petitioner. Shri [ENTITY], learned Assistant Solicitor General for respondent Union of India.
With consent of learned counsel for the parties the matter is heard finally.
This petition under Article 227 of the Constitution of India is directed against the order dated 27th February 2014 passed by the Central Administrative Tribunal, Jabalpur Bench Jabalpur; whereby Original Application No. 997/2013, preferred by the petitioner seeking direction to respondents to grant compassionate allowance from the date of removal of service, i.e., 8.10.1998 and to grant family pension from the date of death of her husband w.e.f. 22.10.2004 has been negatived.
Husband of the petitioner was employed as Store Keeper in Gun Carriage Factory, Jabalpur. While in service having attempted to commit theft of government property he was proceeded against in a departmental enquiry with the issuance of charge sheet under [SECTION] of [ACT]. Denial of charges led to holding of a departmental enquiry; wherein the petitioner having been found guilty of the charges was removed from service vide order dated 8.10.1998. The removal order, as is borne out from the pleadings, was allowed to attain finality. That petitioner's husband expired on 22.10.2004. It was in the year 2012 that the petitioner, widow of deceased government servant, raked up an issue that while removing her husband from service the competent authority did not consider his case for grant of compassionate allowance as is contemplated under [SECTION] of [ACT]. Persistent representations led the authorities to take a decision on the claim of the petitioner and after due consideration declined the same which was duly communicated to the petitioner vide communication dated 7.10.2013; which was in the following terms:
"To, Smt. [ENTITY], W/O Late K.K. Vishwakarma H.No. 444, In front of Victoria Hospital, Josnganj, Jabalpur (M.P.) 482 001 Sub: Petition for Grant of Compassionate Allowance Under [SECTION] of [ACT] and family pension to the petitioner.
Ref. Your Letter Dtd. 24/05/2013.
With reference to your letter cited above, received through OFB vide letter No. 082/MOD/JUL/2013/GCF/A/ GRV dated 2.9.2013, it is informed that, your request for grant of compassionate allowance was duly considered in terms of the existing guidelines under [SECTION] of CCS (Pension) Rules, 1972 and the guiding principles for the grant of Compassionate Allowance issued by the Government of India, which is as under:
"It is practically impossible in view of the wide variations that naturally exist in the circumstances attending each case, to lay down categorically precise principles that can uniformly be applied to individual cases. Each case has, therefore, to be considered on its merits and a conclusion has to be reached on the question whether there were any such extenuating features in the case as would make the punishment awarded, though it may have been necessary in the interests of Government, unduly hard on the individual. In considering this question, it has been the practice to take account not only the actual misconduct or course of misconduct which occasioned the dismissal or removal of the officer, but also the kind of service he has rendered. Where the course of misconduct carries with it the legitimate inference that the officer's service has been dishonest, there can seldom be any good case for a Compassionate Allowance."
You have also been informed about the decision on the subject matter vide letter of Even No. Dtd.
06/08/2013. However, it is once again reiterated that, in the absence of any decision regarding grant of compassionate allowance while concluding disciplinary proceeding and after considering your request in terms of the above guideline, your request cannot be acceded to." Undeterred petitioner preferred an Original Application before the Tribunal seeking direction to the respondents to grant compassionate allowance w.e.f. 8.10.1998 and family pension w.e.f. 22.10.2004.
Respondents denied the claim.
The Tribunal after considering the rival contentions and placing reliance on Government of India decision dated 22.4.1940 laying down the guiding principles for grant of compassionate allowance under [SECTION] of 1972 Rules declined to accede to the claim made by the petitioner on a finding that the petitioner having been removed from service of charges of attempting to commit a theft, a dishonest act, dismissed the application by impugned order dated 27.11.2014. The petitioner on the self same grounds as raised before the Tribunal had approached this Court. And while placing reliance on a decision rendered by Division Bench of this Court it is contended that the Tribunal has erred in not considering the mandatory nature of duty cast on the competent authority to consider the claim for grant of compassionate allowance while taking a decision of removal leading to forfeiture of pension and gratuity.
It is urged that inaction on the part of respondent authorities in discharging their obligatory duty under [SECTION], [SECTION] creates a right in the petitioner to seek its adjudication and a direction for considering for grant of compassionate allowance which was denied to her husband while he was alive and a family pension to the petitioner. It is on these grounds the petitioner calls in question the correctness of the order passed by the Tribunal.
Counsel appearing for respondents supports the conclusion arrived at by the Tribunal that the petitioner's husband since was removed from service because of his dishonest act of committing theft to government property and has rightly declined the claim of the petitioner for compassionate allowance. It is also urged that family of a removed government servant is not entitled for a family pension because of forfeiture of pension and gratuity with the removal from service.
Considered the rival submissions.
[SECTION] on which edifice has been built provides for:
"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 [SECTION] shall not be less than the amount of Rupees three hundred and seventy five (Rupees one thousand nine hundred and thirteen from 1.4.2004. See GID below [SECTION] per mensem."
Plain reading of the aforesaid provision leaves no iota of doubt that it leaves to the competent authority in deserving cases attracting special consideration to sanction a compassionate allowance.
Discretion as observed by their Lordships in [PRECEDENT] "standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore, a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the Legislature concedes discretion it also imposes a heavy responsibility."
In the case at hand it was too late for the petitioner to have called upon the competent authority to have exercised the discretion after a period of 14 years from the date when the husband of the petitioner was removed from service on proving the charge of attempting to commit theft of government property and that too when the removed government servant allowed the same to attain finality as he did not question the same nor sought any order from the respondents as regard to compassionate allowance. It appears that it was only after when a decision is rendered in [CASE NUMBER] decided on 15.9.2011 that the petitioner widow of removed government servnt raked up the issue with the respondent.
It has been held in [PRECEDENT]:
"54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgmnt in cases where some diligent person had approached the Court within a reasonable time. (See [PRECEDENT], [PRECEDENT] and [PRECEDENT]."
Though a reliance is placed in the order passed in [PRECEDENT] v. Union of India and others ([CASE NUMBER]), but the facts as borne out from the order are different than the present case. In the case cited the facts were that two of the Railway Servants were proceeded against in a departmental enquiry for the same charges of inefficiency and negligence culminating into removal. Whereas in the case of one of the employees the competent authority exercised the discretion and granted compassionate allowance under [SECTION] of [ACT]. It was in the context of these facts that the authority concerned were directed to consider the claim of the employees who was left out in the light of decision taken qua the co employee.
The facts situation in the case of [PRECEDENT] (supra) being totally different from the case in hand wherein the petitioner's husband had been removed from service on a charge of attempted theft of government property, a dishonest act on the part of government servant; therefore, no parity can be drawn between the cases of the petitioner's husband with [PRECEDENT] (supra).
As regard to the claim for family pension since there was a severance of relationship of respondents with petitioner's husband with the removal from his service and forfeiture of pension and gratuity, counsel for the petitioner is unable to commend at any statutory provision as would entitle her for family pension. This claim also deserves to be and rightly declined by the Tribunal.
Considered thus since we do not perceive any illegality in the approach of the Tribunal in dismissing the claim of the petitioner we declined to cause any indulgence.
Consequently petition fails and is dismissed.
([ENTITY]) ([ENTITY]) JUDGE JUDGE [ENTITY]