In the High Court of Judicature at Madras Dated: 24.07.2008 Coram: The Honourable Mr.Justice P.K.MISRA and The Honourable Mr.Justice K.K.SASIDHARAN Writ Petition No.17437 of 2008 V.Munuswamy ..Petitioner ..vs.. 1. Union of India, rep.by the Secretary to Government of India, Department of Defence Production and Supplies, Ministry of Defence, New Delhi-110 011. 2. The Chairman, Ordnance Factory Board, 10-A, S.K.Bose Road, Calcutta-700 001. 3. The General Manager, Heavy Vehicle Factory, Avadi, Chennai-600 054. 4. The Registrar, Central Administrative Tribunal, Chennai-600 104. ..Respondents Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the order dated 4.3.2008 in O.A.No.482 of 2007 on the file of the 4th respondent and quash the same and consequently direct the 3rd respondent to sanction compassionate allowance to the petitioner. For Petitioner : Mr.G.Justin For Respondents : Mr.A.Kalaiselvan, CGSC for R1 to R3 R4 Tribunal https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was made by P.K.MISRA, J.,) Heard Mr.G.Justin, learned counsel appearing for the petitioner and Mr.A.Kalaiselvan, learned counsel appearing for respondents 1 to 3. 2. The petitioner was employed as Machinist under the 3rd respondent. While he was working as Machinist HS II, a charge memo was served on him on 31.10.1989 on the allegation that he was found with some materials belonging to the department hidden under his clothes. There was a departmental proceeding and on the basis of the findings, the petitioner was dismissed from service, by an order dated 14.07.1990. Even though such order was challenged before the Central Administrative Tribunal by filing O.A.No.897 of 1993, by an order dated 25.04.1994, such order was confirmed and the order of dismissal therefore became final. Subsequently, the petitioner filed an application on 24.04.2000 purporting to invoke Rule 41 of C.C.S (Pension) Rules for grant of compassionate allowance not exceeding 2/3rd of the pension or gratuity. Since such representation remained in cold storage, the petitioner filed O.A.No.560 of 2006 for a direction to consider his representation and the Tribunal directed the authorities to consider the representation of the petitioner for the grant of compassionate allowance. Thereafter, by an order dated 27.03.2007, the appropriate authorities considered the matter and communicated the decision to the effect that it was not possible to extend the benefit of compassionate allowance under Rule 41 of CCS (Pension) Rules. Such order of the departmental authorities was challenged by the petitioner by filing O.A.No.482 of 2007. The Tribunal, after referring to the facts and circumstances of the case and taking note of the contention of the petitioner and that of the Department, held that there was no scope to grant compassionate allowance, by invoking Rule 41 of CCS (Pension) Rules. The observation of the Tribunal reads as follows: "It is a discretionary power vested with the competent authority to grant compassionate allowance in case of deserving employee who has been dismissed or removed from service. Since the applicant has committed a serious offence of theft of Govt.property, he does not deserve to be granted with compassionate allowance. The claim of the applicant has been rightly rejected by the respondents". Such order is being challenged in the present writ petition. 3. Learned counsel for the petitioner submitted with much passion and may be with less conviction that the original allegation against the petitioner to the effect that he had carried about 29 kgs.of https://hcservices.ecourts.gov.in/hcservices/ materials tied around his body and hidden beneath the dress appears to be very improbable and it is a case, where the petitioner had become the victim of the circumstances. The learned counsel for the petitioner, therefore, submitted that the matter requires to be reconsidered by the departmental authorities. 4. The question as to whether it was possible for a person to carry so much of materials hidden beneath the dress, is not a matter which can be gone into in a collateral proceeding. The fact remains that on the basis of the departmental enquiry, apparently relying upon the statement made by the petitioner himself, he was found guilty of having attempted to commit theft of materials and that he was caught red handed. Such matter was challenged before the Tribunal by filing original application which was subsequently dismissed. We do not think, it would be possible to go behind such conclusion in any subsequent collateral proceedings including a proceedings under Rule 41 of CCC (Pension) Rules. 5. The aforesaid Rule 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 or both which would have been admissible to him if he had retired on compensation pension" 6. A bare reading of the above rule makes it amply clear that discretionary power is vested with the authorities while considering the matter of grant of compassionate allowance. As a matter of fact, while it is not be possible nor desirable to indicate various circumstances under which the compassionate allowance is to be given, at least, it can be concluded that when there are serious charges proved against the delinquent, the question of grant of compassionate allowance under Rule 41 of CCA (Pension) Rules obviously would not arise. 7. In the present case, keeping in view the seriousness of the allegations, which had been accepted by the Departmental authorities and the order of dismissal having been confirmed by the Central Administrative Tribunal, we do not think it is permissible under law to travel beyond such finding and to give a different conclusion. Moreover, as rightly concluded by the Tribunal, the question of grant of such allowance is a matter of discretion of the competent authorities. Once such discretion has been exercised and it is not shown that there has been improper exercise of such power, obviously the court of law including Administrative Tribunal and High Court are https://hcservices.ecourts.gov.in/hcservices/ not expected to interfere with such discretionary powers. 8. In the present case, the Tribunal has already decided the matter and found that the authorities had exercised their discretionary jurisdiction properly. Law is well settled that the High Court while deciding a matter under Article 226 of the Constitution of India against the decision of the Tribunal does not sit as an appellate authority. Under such circumstances, we do not see any scope to interfere with the order passed by the Tribunal. The writ petition is, accordingly, dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gl To 1. The Secretary to Government of India, Department of Defence Production and Supplies, Ministry of Defence, New Delhi-110 011. 2. The Chairman, Ordnance Factory Board, 10-A, S.K.Bose Road, Calcutta-700 001. 3. The General Manager, Heavy Vehicle Factory, Avadi, Chennai-600 054. 4. The Registrar, Central Administrative Tribunal, Chennai-600 104. 1 CC To Mr.A.Kalai Selvan, C.G.S.C, SR NO.39645 Writ Petition No.17437 of 2008 bvm(co) pmk/12.8.2008. https://hcservices.ecourts.gov.in/hcservices/