W.P. No.7826.09 Writ Petition No. 7826 of 2009 15/09/2011 Shri R.B. Singh, learned counsel for the petitioner. Shri Govind Patel, learned counsel for the respondent. With consent of learned counsel for the parties, heard. This petition is directed against the order dated 18-12-2007 passed by the Central Administrative Tribunal, Jabalpur Bench, Jabalpur; whereby, an application under section 19 of the Administrative Tribunals Act, 1985 filed by the petitioner seeking grant of compassionate allowance has been rejected. The petitioner while in employment of the Railways as Diesel Assistant was removed from service vide order dated 04-02-1985 having found guilty of following charges : “That the said Shri Lalman Mahadeo worked as Diesel Assistant with Shri G. P. Verma, Driver grade 'C' on train engine No.18179 WDM/2 of Empty Box Special ex Satna on 30.10.1983 His following acts on the said date indicate his inefficiency and negligence :- (a) He left the locomotive at Lagargawan and went to the station when Shri O. P. Verma, Driver, had also gone to the W.P. No.7826.09 station. The locomotive thus remained unmanned for a considerable period. (b) It was noticed that no half hourly readings regarding temperature, pressure, etc. were entered by him in the Engine Repair book.” On the similar set of charges Driver of the Locomotive Shri O. P. Verma was also removed. The removal of petitioner attained finality when the Original Applications, viz., O. A. No. 106/1987 and O. A. No. 377/1986 were dismissed by the Tribunal on 15-06-1990. The Review Petition M. A. No. 254/1990 was dismissed on 12-02-1991. The removal from service led to forfeiture of pension and gratuity. However, Rule 65 of the Railway Services (Pension) Rules, 1993 (hereinafter referred to as 'the Rules of 1993') provides for grant of compassionate allowance which would be two-third of pension or gratuity or both of the railway servant had retired on compensation pension. Rule 65 stipulates : “65. Compassionate allowance. (1) A railway 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, W.P. No.7826.09 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 three hundred seventy five rupees per mensem.” The provision makes clear that the disciplinary authority is under an obligation to pass an order regarding the grant of compassionate allowance while taking the decision regarding dismissal or removal, as the case may be. The Authority therefore cannot abdicate the said obligatory duty. To remind the same Railway Board vide its letter No. F(E) III/2003/PNI/5 dated 09-05-2003 (RBE 79/2005) issued various guidelines, which were in pursuance to references received from Zonal Railways, seeking clarification as to whether, compassionate allowance can be sanctioned to the removed/dismissed Railway Servants and family pension to the eligible members of the family on the basis of representations received from them and the family after a lapse of many years from such W.P. No.7826.09 removal/dismissal. The Railway Board vide RBE 79/2005 (supra) opined that : “The power to sanction or otherwise compassionate allowance is a discretionary power vested in the authority competent to remove/dismiss the Railway servant, to be exercised by that authority suo-motu, at the time of passing orders of dismissal or removal from service or immediately thereafter. Hence, past cases where the competent authority, in exercise of its discretionary powers, had not sanctioned compassionate allowance at the time of passing orders of removal/dismissal or immediately thereafter, cannot be reopened for review on the basis of representations received from the removed/dismissed employees and members of their family at a later date. 2. The existing guiding principles and procedures for grant of compassionate allowance or gratuity or both the reiterated hereunder for compliance by the concerned authorities :- (i) The decisions for grant of compassionate allowance or gratuity or both, or otherwise, shall be taken at the time of passing orders of removal/ dismissal keeping in view the guidelines given in para 310 of the Manual of Railway Pension Rules, 1950. W.P. No.7826.09 (ii)If no mention about the compassionate allowance, etc., is made by the competent authority while passing orders of removal/ dismissal, the concerned Head of Office shall re-submit the case file along with relevant information/ guidelines to the concerned competent authority and obtain its decision for or against sanction of compassionate allowance or gratuity or both. (iii)If the decision is for grant of compassionate allowance, etc., necessary action to implement the same shall be taken by the Head of Office based on the decision of the appellate authority on the penalty orders passed by the disciplinary authority. (iv)If no appeal is preferred within the target date, sanction order shall be issued immediately thereafter. (v)If the appeal is preferred within the target date, and a decision has already been taken for or against sanction of compassionate allowance, etc., and the same is not turned down by the appellate authority, such as decisions shall be treated as final and no representation in this respect shall be entertained at a later stage. (vi)The decision to grant compassionate allowance, etc., shall be communicated through a W.P. No.7826.09 separate order. This decision shall not form part of the order under which the penalty of removal or dismissal is imposed. 3. Recently, a case has come to the notice of the Board, wherein the competent authority, while imposing the penalty of removal from service on a Railway servant, sanctioned compassionate allowance without verifying the qualifying service rendered by the latter. Compassionate allowance being one of the classes of pensions and a minimum qualifying service of ten years is a pre-requisite for sanction of any class of pension, before sanctioning compassionate allowance, it is absolutely necessary for the competent authority intending to sanction compassionate allowance to a person on whom the punishment of Removal/dismissal is imposed, to satisfy itself that such a person had rendered not less than 10 years of qualifying service. Board, therefore, desires that the Head of Office should place before the competent authority the information about the qualifying service and other relevant facts concerning the Railway servant either at the time of imposing the penalty of removal/dismissal or immediately thereafter to facilitate that authority to take a decision as regards sanction of compassionate allowance in terms of Rule 65 of the Railway Services (Pension) Rules, 1993 and guidelines given in par 310 of the Manual of Railway Pension Rules, 1950. W.P. No.7826.09 4. Zonal Railway administrations are requested to take note of the position for guidance and compliance.” The case at hand reveals that no decision was taken by the disciplinary/competent authority regarding grant/non-grant of the compassionate pension in respect of the petitioner. The respondents though in paragraph 4 of the Return have submitted that “the disciplinary authority already took a decision way back on 4-2-1985 imposing punishment of removal from service and had not exercised its discretion as per rule 65 of the Pension Rules in relation to grant of compassionate allowance and which was further affirmed by the Revisional Authority vide order dated 6-3-1986 and took a decision not to grant compassionate allowance to the petitioner.” However, when called upon to show the specific order passed by the disciplinary authority/Competent Authority whereby in exercise of suo-motu powers the claim of the petitioner has been rejected, the learned counsel for the respondent-Railways is unable to point out any such order. It appears that an W.P. No.7826.09 order of removal and its confirmation in appeal has been construed as the rejection of claim for compassionate allowance. In our considered opinion a non-exercise of suo-motu powers cannot be construed as a denial of claim. Removal order on record as Annexure-P/2 would substantiate the fact of non-exercise of discretion as per Rule 65 of the Rules of 1993. On the contrary it is not in dispute that said Shri O. P. Verma, who was punished with the petitioner is the beneficiary of the compassionate allowance. In view whereof the petitioner, who stands at par with said Shri O. P. Verma, is justified in raising the grievance and alleging the discriminatory treatment. Having abdicated the statutory duty casted under Rule 65, the respondent cannot stand up and take the plea that it is too late for the petitioner to claim the benefit of the provision of Rule 65, nor can the Tribunal be said to be justified in rejecting the claim on the ground of delay. A wrongful omission on the part of official W.P. No.7826.09 respondents, who abdicated their official duties, leads to continuous wrong which the petitioner is subjected to. In Union of India and others v. Tarsem Singh : (2008) 8 SCC 648, it is observed in respect of continuous wrong: “7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High W.P. No.7826.09 Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” (emphasis ours) In State of Madhya Pradesh and others v. Yogendra Shrivastava : (2010) 12 SCC 538, their Lordships further observed : “18. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. [See: M.R. Gupta vs. Union of India - 1995 (5) SCC 628, and Union of India vs. Tarsem Singh 2008 (8) SCC W.P. No.7826.09 648]” In view of above the respondents were not justified in non-considering the claim of he petitioner for grant of compassionate allowance, more so, when a co-accused was already granted such allowance. The decision by the respondent, nor by the Tribunal can be given the stamp of approval, accordingly they are hearby quashed. The respondent, within a period of three months from the date of communication of this order, shall take a decision regarding grant of compassionate allowance to the petitioner from the date when the same is granted to the co- accused Shri O. P. Verma. The arrears would earn interest @ 6% per annum. Petition is allowed to the extent above, however, no costs. (SANJAY YADAV) (T.K.KAUSHAL) JUDGE JUDGE sc