IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 WP(C).No. 16918 of 2004(L) -------------------------- PETITIONER(S): --------------- V.G.RAMACHANDRAN NAIR (FORMER JUNIOR ENGINEER, ELECTRICAL SECTION, EDAKKARA, MALAPPURAM DIST.), VILAYIL THAZETHIL, CHENNERKARA P.O., (VIA) KULANADA, PATHANAMTHITTA DISTRICT. BY ADV. SRI.S.VIJAYAKUMAR SRI.M.T.SURESHKUMAR RESPONDENT(S): --------------- 1. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (GENERAL), K.S.E.B., THIRUVANANTHAPURAM. 3. THE SECRETARY, K.S.E.B., THIRUVANANTHAPURAM. ADV. SRI.KODOTH SREEDHARAN, SC, KSEB SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2010, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C. NO. 16918/2004. -------------------------------------------------------------------- EXT.P1 TRUE COPY OF ORDER DT. 20-8-1990. EXT.P2 ORDER DT. 27-3-1992. EXT.P3 CERTIFICATE DT. 11-6-1993. EXT.P4 CERTIFICATE DT. 13-7-1993. EXT.P5 CERTIFICATE DT. 10-6-1993. EXT.P6 REPRESENTATION DT. 17-11-1999. EXT.P7 ODER DT. 18-3-2000. EXT.P8 REPRESENTATION DT. 27-3-2004. EXT.P9 ORDER DT. 24-7-1997. EXT.P10 COMMUNICATION DT. 6-5-2004. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 16918 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 15th day of September, 2010. J U D G M E N T The petitioner entered service of the Kerala State Electricity Board as a lineman on 22-7-1962. On certain allegations of misconduct involving acceptance of bribe of Rs. 100/-, the petitioner was dismissed from service on 20-8-1990 by Ext. P1 order, which has become final. The petitioner thereafter requested for compassionate allowance, apparently on the basis of Rule 5 of Part III of Kerala Service Rules. By Ext. P7 order dated 18-3-2000, the petitioner was granted compassionate allowance, but only with effect from 11.6.2003 as a special case. The date was fixed since that was the date of Ext. P3 certificate issued by the Talhildar, Kozhancherry certifying that the petitioner is not employed in any Government or semi-government service on 20.8.1990 onwards. The petitioner is challenging Ext. P7 order seeking the following reliefs: “i) To declare that the petitioner is entitled to get compassionate allowance from 20.8.1990; ii) to issue a writ in the nature of mandamus commanding the respondents to grant compassionate allowance to the petitioner from 20.8.1990, the date of his dismissal from service; iii) to call for the records leading to Ext. P10 and may quash the same; iv) to direct the respondents to disburse all amounts which is due to the petitioner, on account of death-cum-retirement gratuity as also other allowances for which he is eligible with interest at the rate of 12% per annum.” As is clear from the prayers, the contention of the petitioner is that he is entitled to compassionate allowance from the date of his dismissal, namely, 20.8.1990 and the respondents cannot restrict it to 11.6.1993 on the ground that the petitioner produced non-employment certificate dated 11.6.1993 only. The petitioner would further W.P.C. No. 16918/2004 -: 2 :- contend that as is clear from Ext. P9 order, another dismissed employee was given compassionate allowance with effect from the date of dismissal itself. It is also submitted that the tenor of Rule 5 of Part III of KSR is to the effect that the compassionate allowance has to be granted with effect from the date of dismissal itself. Counsel for the petitioner points out that in Ext. P2 order, in respect of compassionate allowance to another employee, it has been stated that the Board has accepted the same as a policy. The petitioner therefore submits that he is also entitled to compassionate allowance with effect from the date of dismissal and the respondents cannot restrict it from 11.6.1993. 2. A counter affidavit has been filed by the 3rd respondent supporting the impugned order. They would submit that the State Government has, vide Circular No. 30/2002/Fin dt. 16/5/2002, decided that compassionate allowance will be sanctioned in deserving case with prospective effect only. They would contend that compassionate allowance is not a benefit which a dismissed employee can claim as of right and it is the discretion of the sanctioning authority to decide the quantum of compassionate allowance and the date from which it has to be paid. According to them, that discretion has been exercised judiciously and therefore there is no merit in the contentions of the petitioner. Therefore, the respondents would argue for dismissal of the writ petition. 3. I have considered the rival contentions in detail. 4. Rule 5 of Part III of K.S.R reads thus: “5. Misconduct or inefficiency:- (a) No pension may be granted to an employee dismissed or removed for misconduct, insolvency or inefficiency, but to employees so dismissed or removed, compassionate allowance may be granted when they are deserving of special consideration; provided that the allowances W.P.C. No. 16918/2004 -: 3 :- granted to any employee shall not exceed two-thirds of the pension which would have been admissible to him if he had retired on the date of dismissal or removal. (b) The following procedure shall be followed in the matter of sanctioning compassionate allowance:- (i) On receipt of the orders of the competent authority removing/dismissing an employee from service for misconduct, insolvency or inefficiency the Head of the Officer, if he proposes to recommend the grant of a compassionate allowance, should fill in the first page of the application for pension in Form 2 and send it to the Audit Officer concerned for report on the title to the compassionate allowance. The Head of the Office should not wait for an application from the employee. (ii) If the competent authority in issuing orders of removal/dismissal states that a certain proportion of pension is to be granted as compassionate allowance, no further sanction to compassionate allowance is necessary and all that is required is that the Audit Officer should certify to the admissibility of compassionate allowance on a pension application completed and signed by the Head of the office as provided above.” I am of opinion that it is only a mercy shown by the employer to the employee. Therefore, the benefit under Rule 5 is in the absolute discretion of the authority competent to sanction the same, taking into account the facts and circumstances of the case. The petitioner cannot, as of right, claim that the amount of compassionate allowance should be so much or that it should be paid with effect from such and such date. 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. Perhaps, if the two persons had been dismissed for identical misconduct, in the matter of compassionate allowance, the sanctioning authority may not discriminate between them in the matter of payment of compassionate allowance. The petitioner has no case that a person dismissed from service for identical misconduct has been treated differently. Therefore, I am satisfied that the petitioner cannot, as of right, claim W.P.C. No. 16918/2004 -: 4 :- compassionate allowance from the date of dismissal. He can only take what the sanctioning authority sanctions as compassionate allowance with effect from the date from which the sanctioning authority sanctions it. I do not find anything arbitrary in Exts.P7 and P10 (Ext. P10 is the order rejecting the representation of the petitioner). In any event, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner who had been dismissed for the very serious misconduct of accepting bribe. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/