* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P(C) No. 5544/2007 % Date of Decision : 22nd February, 2008 Ex. ASI Shadi Ram .... Petitioner Through : Mr. Shyam Babu, Advocate VERSUS Government of NCT of Delhi & Ors. .... Respondents Through : Mr. Rohit Madan and Mr.J.K.Chaudhry, Advocates CORAM: HON'BLE MR. JUSTICE MANMOHAN SARIN HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in the Digest ? Yes SUDERSHAN KUMAR MISRA, J: 1. The main question that arises for determination in this petition under Article 226 of the Constitution of India is whether the officer, to whom the power was delegated in this behalf by the Commissioner of Police, has applied himself properly while deciding the petitioner’s application for grant of Compassionate Allowance on 24th of February 2006. It has arisen in the following circumstances. W.P(C)No. 5544/2007 Page No.1 of 38 2. The petitioner, Shadi Ram, was employed with the Delhi Police. On 17/9/1987, one Kundan Singh complained that while investigating a suicide bid by his brother, Davinder Singh, the petitioner, along with Constable Main Pal Singh, tried to extort three thousand rupees from him by threatening to falsely implicate him, and then arrest him, in the matter. It was alleged that in this way, the petitioner ultimately managed to extort a thousand rupees from the complainant. After an inquiry, the petitioner was dismissed from service on 19th of August 1988. Consequently, in terms of Rule 41 of the CCS (Pension) Rules, 1972, his pension and gratuity were also forfeited. At that time, he was working as an Assistant Sub Inspector of Police. 3. Nearly 17 years later, on the 16th of February 2005, the petitioner applied to the second respondent, i.e., the Commissioner of Police, Delhi, for grant of Compassionate Allowance in terms of the proviso to Rule 41 of the CCS (Pension) Rules, 1972. He prayed that this allowance be given to him with effect from the date of his dismissal, along with arrears. Rule 41 is as follows; “(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. W.P(C)No. 5544/2007 Page No.2 of 38 (2) ……………………..” 4. This request was first refused by the Deputy Commissioner of Police on 25th of April, 2005. The petitioner challenged this refusal before the Central Administrative Tribunal (hereinafter referred to as “the Tribunal”) by OA 1353/2005, inter alia, on the ground that the respondent had passed a non-speaking order. Agreeing with the petitioner’s contention, the Tribunal quashed the order of the Deputy Commissioner of Police dated 25th of April 2005, and directed the respondents to pass a speaking order on the petitioner’s aforesaid application. Ultimately, on 24th of February 2006, pursuant to this direction of the Tribunal, the Additional Deputy Commissioner of Police, who is the third respondent before this Court, passed another order. By this order also, the authorities have chosen to reject the petitioner’s application for Compassionate Allowance. 5. Consequent upon this rejection, the petitioner filed a second OA bearing No.1005/2006 before the Tribunal. This time, after hearing the petitioner, the learned Tribunal has dismissed the same. Aggrieved by this dismissal, the petitioner has approached this court under Article 226 of the Constitution of India. He prays that the order dated 24th of May 2007, passed by the learned Tribunal, by which his second petition has been dismissed, be quashed, and that the reliefs sought by him before the Tribunal, be granted by this court. He also prays that such other or further orders, as may be deemed proper on the facts and circumstances W.P(C)No. 5544/2007 Page No.3 of 38 of his case, be also granted. 6. The petitioner’s case in his representation seeking grant of Compassionate Allowance is that till he came to be dismissed from service on 19th August, 1988, he had put in more than 26 years of unblemished service, and that he had been awarded Commendation Certificates in the years 1970 and 1979, as well as Commendation Cards in 1981 and 1982. In addition, he was also given cash awards a number of times, and it was due to his hard work and devotion to his duty that after being enlisted in the Delhi Police as a Constable on 15th December, 1962, he ultimately attained the rank of Assistant Sub-Inspector on 17th July, 1984. He states that he came to be implicated in a false case due to “ill- luck”, which led to his dismissal from service. He claims that his run of bad luck continued, and his OA No.2438/1988, impugning his dismissal, also came to be dismissed by the Tribunal on 18th August, 1993, because his case could not be pleaded properly, since his counsel did not appear before the Tribunal. He says that his representation to the President of India on 26th March 2003, for reinstatement in service, was also of no avail. The petitioner claims that before this incident, not even a warning was ever issued to him. He states that, having been deprived of his pension and gratuity due to his dismissal in 1988 as aforesaid, he has now reached the stage of starvation and that he is struggling hard to meet day-to-day expenses. He further states that from 1993 onwards, he has begun to suffer from neurosis, loss of memory, W.P(C)No. 5544/2007 Page No.4 of 38 anxiety and depression. He says that since he does not have any source of income, he has become totally dependent on the mercy of his children, relatives and friends for the treatment of all these ailments. He prayed that considering his physical and mental condition, he be granted Compassionate Allowance as envisaged under the proviso to Rule 41 of the CCS (Pension) Rules, 1972. In support of his plea, he has also stated that his wife and son are wholly dependent on him, and that since he is now more than 60 years old, and without any source of income or livelihood, he has thrown himself at the mercy of the authorities to grant him some money to fulfill at least his basic daily needs so as to enable him to spend his remaining days peacefully. At this juncture, I need only add one fact which was omitted by the petitioner in his representation, which was, that after the Tribunal rejected his petition challenging his dismissal from service, the petitioner also approached this court under Article 226 of the Constitution of India. This also came to be decided against him. He does not seem to have carried the matter any further, and his case against his dismissal from service on 19th of August 1988, appears to have rested there. 7. As stated above, this representation by the petitioner first came to be rejected on 25th April, 2005. This was set aside by the Tribunal in OA No.1353/2005, with a direction to the respondents to reconsider the matter, and to pass a speaking order on the petitioner’s application for Compassionate Allowance. Pursuant W.P(C)No. 5544/2007 Page No.5 of 38 thereto, another order was passed by the Additional Deputy Commissioner of Police on 24th February, 2006. By this order also, the petitioner's application for Compassionate Allowance was rejected. Since the aforesaid order of 24th February, 2006, passed by the third respondent, rejecting the petitioner’s application for Compassionate Allowance, is impugned before this Court, and the reasons stated therein are relevant, I therefore consider it appropriate to set them down verbatim. They are as follows; “… the ex-ASI Shadi Ram has been found indulging in malpractices, involving moral turpitude which has been proved during the department proceedings, as a result of which he was dismissed from service vide this office order number 10401 -- 86/SD (P) dated 19.8.88. He has committed serious misconduct, which is not only reprehensible, but also tarnish the image of the force in the eye of the public. As such the case for grant of compassionate allowance is not a fit case for sanction and does not fall within the ambit of pension rules. Therefore the benefit of allowance to ex-ASI Shadi Ram cannot be extended at this stage.” 8. This order gave rise to the second round of litigation in the form of OA No. 1005/2006 before the Tribunal. There, one of the main points of the petitioner's case was that despite the matter having been remanded to the respondents for reconsidering the petitioner's application for Compassionate Allowance and to pass a speaking order thereon, the respondents had once again rejected the petitioner's claim without the required application of mind to the facts and circumstances set down by him in his application which, according to him, were relevant and germane to the issue at hand and ought to have been duly considered. He W.P(C)No. 5544/2007 Page No.6 of 38 states that in the order rejecting his application for Compassionate Allowance, respondent No. 3 has based his decision solely on the original misconduct, for which he was already punished by removal from service, and that all other vital considerations that ought to have weighed with the deciding authority, while deciding whether to grant Compassionate Allowance under Rule 41 of the CCS (Pension) Rules, 1972, have been ignored. He stated that while passing the impugned order, respondent No. 3 failed to appreciate the underlying rationale of Rule 41, which was to consider grant of Compassionate Allowance, inter alia, in cases such as that of the petitioner, where the penalty of dismissal and consequent forfeiture of pension and gratuity have already been inflicted on an officer. He pointed out that it is only in serious and grave cases that such a severe penalty is inflicted. He urges that whenever such a severe penalty is found to have been inflicted, that it was imposed for grave and serious misconduct, is axiomatic. For the authorities to thereafter refuse to grant Compassionate Allowance on the ground that his dismissal was for grave and serious misconduct and, therefore, for that reason alone, the same cannot be granted, is to nullify the very purpose and object of Rule 41 of the CCS (Pension) Rules. The petitioner urges that, under the circumstances, the impugned order of 24.2.2006, suffers from non-application of mind to the relevant considerations. He states that for deciding his application, respondent No.3 ought to have applied himself to the W.P(C)No. 5544/2007 Page No.7 of 38 petitioner’s past service record, his other pressing needs and the circumstances in which he finds himself today, as narrated by him in his application. 9. In support of his case before the Tribunal, the petitioner also relied upon the, “Guiding Principles for Grant of Compassionate Allowance”, formulated by the the Govt. of India in OM dated 22nd April 1940 for applying the aforesaid Rule 41 CCS (Pension) Rules, under which all applications for Compassionate Allowance are to be considered. This OM (which is hereinafter referred to as the “Guidelines”) is reproduced below for convenience: - “Guiding principles for the grant of Compassionate Allowance – 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 into 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. Poverty is not an essential condition precedent to grant of a Compassionate Allowance, but special regard is also occasionally paid to the fact that the officer has a wife and children dependent upon him, though this factor by itself is not, except perhaps in the most exceptional circumstances, sufficient for the grant of a Compassionate Allowance. [G. I., F. D., Office Memo. No. 3(2)-R-II/40, W.P(C)No. 5544/2007 Page No.8 of 38 dated the 22nd April, 1940.]” 10. The petitioner submitted that, had the Competent Authority applied the aforesaid guidelines according to their true scope and intent while deciding his application under Rule 41, his prayer for Compassionate Allowance would not have been summarily rejected by it merely on the basis of a single incident of misconduct for which he had already been punished by being dismissed from service. 11. As stated above, ultimately, the petitioner’s challenge to the order of respondent No.3, passed on 24.2.2006, rejecting his application for Compassionate Allowance, came to be dismissed by the impugned judgment dated 24.5.2007 in OA No.1005/2006. In its decision, the Tribunal has held that the Guidelines debar the grant of Compassionate Allowance to anyone who was dismissed from service as a result of an incident involving dishonesty. This, along with some other, equally significant, conclusions it has reached, has persuaded the Tribunal to decline relief to the petitioner. 12. Since I do not agree with the conclusions of the learned Tribunal on many aspects of this case, and feel that its decision to dismiss the petitioner’s OA needs to be set aside, I am proceeding to examine these conclusions in the following paragraphs. 13. In its judgment, particularly in paragraph 15 thereof, the learned Tribunal has agreed with the respondents’ contention to W.P(C)No. 5544/2007 Page No.9 of 38 the effect that the main ground emphasized by the Guidelines against grant of Compassionate Allowance under Rule 41, is dishonesty, and the main reason for the petitioner’s dismissal was also dishonesty, therefore, the petitioner’s case cannot be said to be one that deserves special consideration. To put it differently, the Tribunal has concluded that the Guidelines peremptorily disentitle officers whose dismissal happens to be occasioned by misconduct involving dishonesty, to Compassionate Allowance. To my mind, this is clearly misconceived. The relevant portion of Rule 41 provides that the Competent Authority may, “if the case is deserving of special consideration, sanction a compassionate allowance…” (emphasis added). Nothing more is specified under the Rule. It is thus evident that the sole criterion is that the, “case”, must be, “deserving of special consideration”. The word, “case” here has clearly been used to denote, the ‘state of affairs’, or “the circumstances involved”, [refer to the Concise Oxford Dictionary of current English, 8th edition], while the words, “deserving of” are defined as, “showing qualities worthy of…help etc”; and, “consideration,” is defined as, “a fact or circumstance to be taken into account” (the Shorter Oxford English Dictionary, 3rd Edition). Therefore, in the context, the phrase, “if the case is deserving of special consideration”, can only mean that if the state of affairs or the circumstances involved bring out qualities that are worthy of help or assistance, the applicant should be granted Compassionate Allowance. For arriving at this conclusion, W.P(C)No. 5544/2007 Page No.10 of 38 the field is left wide open for the Competent Authority. All that is required for the Competent Authority to entertain the matter, and to apply its mind thereto, is that the applicant must have been dismissed from service and his pension and gratuity forfeited. In particular, there is nothing whatsoever in Rule 41 to suggest that the application of any officer who has been dismissed for misconduct involving dishonesty, is to be rejected peremptorily. 14. In addition to Rule 41, on 22.4.1940, the Government of India has issued the aforesaid Guidelines which have been reproduced by me in paragraph 9 above. They are titled, “Guiding Principles for the Grant of Compassionate Allowance”. They have obviously been issued with a view to ensuring uniformity in application and decision-making under Rule 41. At their very outset, the Guidelines make it clear that while each case has to be considered on its own merits, the question which is to be decided by the Competent Authority in every case is, whether the case has any such extenuating features that would make the punishment awarded unduly hard on the dismissed officer. They also seek to facilitate the task of decision-making entrusted to the Competent Authority under the said Rule by laying down certain principles for their application. Every aspect that is referred to in the Guidelines is aimed at determining the same question, i.e., whether the punishment awarded has been unduly hard on the dismissed officer. This approach is in consonance with the W.P(C)No. 5544/2007 Page No.11 of 38 mandate of the Rule 41 that has been analysed by me above, which authorizes the Competent Authority to sanction Compassionate Allowance if the case is deserving of special consideration. It is in this context that the Guidelines have stated the following : “In considering this question, it has been the practice to take into 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.” Immediately after this, and in the same context, that is, to examine and to see whether the punishment awarded has been unduly hard on the dismissed officer, a caution is added by the Guidelines qua those cases where the officer’s dismissal was occasioned by a, “course of misconduct”. This states as follows: “Where the course of misconduct carries with it legitimate inference that the officer’s service has been dishonest, there can seldom be any good case for a compassionate allowance.” Unfortunately, the Tribunal appears to have taken this caution to mean that if the dismissal was the result of an incident that had an element of dishonesty, the Competent Authority is obliged to refuse the application peremptorily. To my mind, the word, “service”, has been used in both the portions of the Guidelines extracted above, to denote, “a state or period of employment to work for an individual or organization”, (refer the Concise Oxford Dictionary of current English, 8th edition). At the same time, the phrase, “kind of service”, denotes W.P(C)No. 5544/2007 Page No.12 of 38 that it is the nature of the service rendered by the officer during his entire tenure that needs to be assessed, and is not confined to the incident that led to his dismissal. It follows therefore that the Guidelines enjoin the authority to look at the officer's entire service record and then decide whether the punishment awarded has been unduly hard on the officer, and this requirement for the officer’s service to be looked at from the point of view whether the punishment awarded has been unduly hard on him, cannot be peremptorily dispensed with on the ground that his dismissal was based on an incident of misconduct which had an element of dishonesty. Unfortunately, both the Competent Authority, as well as the learned Tribunal, appear to have overlooked this aspect. 15. In this connection. it becomes necessary to note two more expressions that have been employed in the aforesaid portions of the Guidelines extracted in paragraph 14 above. They are the, “misconduct”, and the “course of misconduct”, either of which may have resulted in dismissal of the officer. Although the kind of service rendered by the officer is required to be taken into account in both cases, however, in the latter case, i.e., where dismissal was occasioned by a, “course of misconduct”, the Guidelines have inserted the aforesaid caution to the effect that, if, on examination, the said, “course of misconduct”, that led to his dismissal, “carries with it the legitimate inference”, that his service has been dishonest, there can seldom be any good case for granting Compassionate Allowance. Nothing like this is W.P(C)No. 5544/2007 Page No.13 of 38 mentioned in cases where the solitary incident that led to his dismissal also had in it elements of dishonesty. This shows that although the circumstances of the officer’s dismissal must always be taken into account by the Competent Authority; and in every case, the kind of service rendered by the officer has also to be kept in mind; however, where the dismissal is, “for a course of misconduct,” of such a nature, which justifiably leads one to infer that his service has been dishonest; the chances of there being a good case for grant of Compassionate Allowance in spite of this, are rare. It bears repetition that even in that case, the Competent Authority has to examine the type of service rendered, albeit only for ascertaining that the case at hand is not one of those of a rare kind. It follows, therefore, that rejection of a dismissed officer’s application for Compassionate Allowance under Rule 41, which is based solely on the fact of the said officer’s dismissal for a solitary incident involving dishonesty, without anything more, as is the case before this Court, is bad in law, and must therefore be struck down. 16. A perusal of the impugned judgment shows that the learned Tribunal was impressed by the argument that in case the authorities return an adverse finding in the disciplinary proceedings instituted against a delinquent officer and dismiss him, and thereafter a challenge to his dismissal is rejected by the Tribunal, as well as the High Court in writ proceedings, it means W.P(C)No. 5544/2007 Page No.14 of 38 that the dishonesty which formed the basis of the penalty imposed on the petitioner, stands, “affirmed”. And that this alone is sufficient to decline a request for Compassionate Allowance. It appears that this conclusion that the petitioner’s dishonesty stands, “affirmed” by the courts, has formed the basis of yet another conclusion, which is, that since the Guidelines envisage grant of Compassionate Allowance on the ground of, “financial difficulties or dependant wife and child advanced by the applicant”, only in the most exceptional circumstances, therefore, in view of the affirmation of the applicant’s dishonesty, by the courts, no case for granting Compassionate Allowance on the ground of poverty and the existence of dependants as an exception, can be said to have been made out. On an examination of the Guidelines, I feel that the learned Tribunal has unfortunately failed to draw the correct logical inferences from the said Guidelines, and has proceeded to reach a number of incorrect conclusions in this regard. 17. The learned Tribunal was impressed by the fact that all the courts have rejected the petitioner’s challenge to his dismissal. It appears to have felt that in this way, the order of dismissal of the petitioner has been confirmed, and that this somehow disqualifies the petitioner for the grant of Compassionate Allowance. This is apparent from its acceptance of the respondent's submissions noted in paragraph 10 of its judgment to the effect that, “the dismissal of the applicant has attained finality”, as well as its W.P(C)No. 5544/2007 Page No.15 of 38 observations in para 13 of its judgment where it has sought to distinguish the decision of the High Court of Delhi in the case of Ex. CT. Daya Nand v Union of India & Ors. [2000 (1) ATJ 136] on the ground that in that case, there was no court order confirming the petitioner's dismissal. Similarly, a reading of paragraph 15 shows that the learned Tribunal has unwittingly evolved a new ground for dismissing an application for grant of Compassionate Allowance, which is affirmation of the applicant's incident of misconduct by the Tribunal as well as by the High Court. Besides the fact that it was not within the