1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. JUDGMENT Smt. Sheela Devi Vs. Union of India & others. DB CIVIL WRIT PETITION NO.2201/2005. Under Articles 226 & 227 of the Constitution of India. DATE OF ORDER: 5th October, 2010. PRESENT HON'BLE MR. JUSTICE ARUN MISHRA HON'BLE MR. JUSTICE SATYA PRAKASH PATHAK Mr. Ashok Gaur for the petitioner. Mr. Gaurav Jain for the respondents. AS PER HON'BLE S.P. PATHAK, J.: By this writ petition, the petitioner has assailed the legality of the order dated 13.1.2005 passed by the learned Central Administrative Tribunal, Jaipur (here-in-after to be referred in short as, 'the Tribunal') in OA No.78/2004 (Smt. Sheela Devi Vs. Union of India & others) whereby the application moved by the petitioner has been rejected. Briefly stated the facts, for the disposal of this writ petition, are that the petitioner is the wife of late Shri Ramlal Jain. Late Shri Ramlal Jain while working on the post of Sub-Post Master, New Colony, Bundi during the period from 26.12.1981 to 8.1.1985 embezzled from the post office a sum of Rs.38,205/-, therefore, he was put under suspension under Rule 10(1)(b) of the Central Civil Services (Classification, Control & Appeal) Rules, 2 1965 (here-in-after to be referred as, 'the CCA Rules') vide memo no. F6-5/84-85 dated 2.4.1985, consequently the disciplinary action was initiated against him. After completion of inquiry he was punished with major penalty and was removed from service by the order of the disciplinary authority dated 2.8.1988 and the order of removal came into force w.e.f. 4.8.1988. Late Shri Ramlal filed a revision petition before the revisional court instead of preferring appeal but without any success as the revision petition was dismissed on 26.12.1989. The matter in relation to embezzlement made by Late Shri Ramlal was also reported to the police and an FIR was lodged in the police station City Kotwali, Bundi. After completion of investigation, the charge-sheet was filed in the court of Additional Chief Judicial Magistrate No.2, Bundi. After trial, the accused was acquitted by giving benefit of doubt vide judgment and order dated 30.9.2000. Late Shri Ramlal filed OA No.225/2001 before the tribunal. A reply to the OA was filed. In the meantime, Ramlal the husband of the petitioner died on 21.1.2003 and the present petitioner being legal heir withdrew the case from the tribunal on 3.12.2003 with liberty to file duly constituted Original Application. The petitioner, thereafter, filed OA No.78/2004 before the tribunal with the following prayers: “(i) That entire record relating to the case be called for and after perusing the same letter dated 1.1.2001 (Annexure A/1) with the revising Authority order dated 26.12.1989 and punishment order dated 2.8.1988 (Annexure A/2 and Annexure A/3) be quashed and set aside with all consequential benefits. 3 (ii) That the charge memo dated 31.5.1986 (Annexure A/4) with the suspension order dated 2.45.1985 (Annexure A/5) be quashed with the enquiry proceedings, as the same is not justified with all consequential benefits. (iii) That the respondents be further directed to extend the benefits of pay and allowances and pensionary benefits to the applicant with arrears along with interest at market rate or respondents may be directed to consider the matter as per rule 41 of CCS Pension Rules 1972 for grant of compassionate allowances taking into consideration of 29 years of service of late husband. (iv) Any other order/direction of relief may be granted in favour of the applicant which may be deemed just and proper under the facts and circumstances of this case. (v) That the cost of this application may be awarded.' The learned tribunal found that bar of limitation has not been satisfactorily crossed by the applicant. As per statutory provisions, the original application can be filed within one year from the date of starting of cause of action. Since punishment was awarded vide order dated 2.8.1988, the applicant did not file any appeal but preferred a revision petition directly, that too was dismissed on 26.12.1989. The tribunal further considered the matter on merit and found that no case was made out to apply discretion in the matter of granting compassionate allowance in the facts and circumstances of the case and rejected the original application vide its judgment and order dated 13.1.2005. Hence, the present writ petition has been filed. 4 We have heard learned counsel for the parties and have carefully perused the material available on record. Learned counsel for the petitioner has submitted that the order of removal of Ramlal, the husband of the petitioner, from service is bad in law for the reason that in criminal case Ramlal was acquitted. It is also contended that under Rule 41 of the Central Civil Services (Pension) Rules, 1972 (here-in-after to be referred as, 'the Pension Rules') the respondents are required to grant compassionate allowance which aspect of the matter has not been considered by the respondents. It is also contended that the respondents are bound to give benefit of compassionate allowance under Rule 41 of the Pension Rules in each and every case. On the other hand, it has been contended that looking to the facts and circumstances of the case and gravity of the charge which was proved in the departmental inquiry, the learned tribunal has rightly appreciated the matter and dismissed the original application. We have considered the submissions made before us. It is to be seen that in the present case, the husband of the petitioner embezzled a sum of Rs.38,205/- under the head of 'saving banks R.D.' and 'national saving certificate transactions'. A preliminary inquiry was conducted and thereafter charge-sheet was issued under the CCA Rules. The delinquent official admitted the guilt, therefore, the inquiry officer submitted report. The 5 disciplinary authority after considering the entire matter removed the husband of the petitioner from service on 2.8.1988. The order passed in this regard came into effect from 4.8.1988. The delinquent official did not file any appeal and a revision petition was filed, which too was dismissed. It also appears that late Shri Ramlal was prosecuted and was acquitted on 30.9.2000 by giving benefit of doubt in the criminal cases registered against him as relevant documents required to prove the case were not produced during the course of trial. If that be so, the contention of the learned counsel that since the petitioner's husband was acquitted of the criminal charge, therefore, the order of removal passed by the disciplinary authority is bad in law, in our considered opinion, is not the correct preposition of law in as much as even if a person is acquitted from the charge levelled against him in a criminal case then also he is liable to face departmental inquiry and when charges are proved, can be punished also. In a criminal case resulting in acquittal, a delinquent can not be exonerated as a matter of right in a proceeding initiated against him under the CCA Rules. The argument of the learned counsel in this regard is not liable to be accepted and it is hereby rejected. Another aspect of the matter which is to be seen is as to whether any case is made out for consideration of giving benefit under Rule 41 of the Pension Rules to the petitioner. Rule 41 of the Pension Rules is relevant for the purpose which is reproduced as under: 6 “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 sub-rule (1) shall not be less than the amount of Rupees three hundred and seventy five (Rupees three thousand five hundred from 1.1.2006. See GID below Rule 49) per mensem.' A perusal of the above rule indicates that in a deserving case, compassionate allowance not exceeding two-third of pension or gratuity or both would have been admissible to a dismissed government servant, if he had retired on compassionate pension. It appears that such an order is required primarily to be passed at the time of dismissal or removal of the government servant in case it is found that the case deserves special consideration, sanction a compassionate allowance not exceeding two-third of pension or gratuity or both which would have been admissible to him if he had retired on compassionate pension. We do not find any special circumstance in which compassionate allowance under Rule 41 of the Pension Rules could be granted to the petitioner as has been discussed here-in-above. In the present case, the husband of the petitioner embezzled a huge amount which was public money and the guilt was also admitted. After a detailed inquiry under the CCA Rules, the disciplinary authority 7 came to the conclusion that the removal from service of the husband of the petitioner was must in the case, therefore, removed the delinquent official. In the present case, on account of charge which was faced by the husband of the petitioner in the departmental inquiry, it appears that it was severe charge and the husband of the petitioner was a dishonest government official, therefore, in such cases, in our opinion, there does not appear any adequate justification to grant this benefit. In the above stated facts and circumstances of the case, as we have noticed above, there is hardly any justification to allow compassionate allowance under Rule 41 of the Pension Rules as the delinquent official has repeatedly made embezzlement of the public money. In view of fore-going discussion, we do not find any merit in this petition and the same is liable to be dismissed. In the result, this writ petition stands dismissed. (SATYA PRAKASH PATHAK),J (ARUN MISHRA),J. BBLM