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2005 DIGILAW 412 (ORI)

State of Orissa v. Michu Bhoi

2005-07-04

I.M.QUDDUSI, PRADIP MOHANTY

body2005
JUDGMENT I. M. QUDDUSI, J. : This writ application has been filed against the judgment dated 8.2.1999 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A.No. 2047 of 1996 by which the present petitioners have been directed to grant compassionate allowance under Rule 46 of the Orissa Civil Serv¬ices (Pension) Rules, 1992 (hereinafter referred to as ‘the Rules, 1992’) taking a sympathetic view. 2. We have heard learned Additional Government Advocate for the petitioners and Shri B.P.Satpathy, learned counsel for the opposite parties. 3. The O.A.was filed by the deceased opposite party Michu Bhoi whose legal heirs have been substituted in his place today, in the year 1996 against the order dated 21.9.1973 dismissing him form service. For the same offences which were the subject-matter of his dismissal form service, he was also criminally prosecuted but was acquitted. Earlier, a writ application, i.e. OJC No. 854 of 1974 was filed before this Court which was permitted to be withdrawn vide order dated 27.9.1994 holding that the writ petition was not maintainable since the remedy of filing an appeal was not exhausted. The deceased opposite party filed appeals before the authorities concerned against the order of dismissal and for his re-instatement in service which were rejected. After about twenty-two years of passing of the said rejection order, the deceased opposite party approached the Orissa Administrative Tribunal, Bhubaneswar in the aforesaid O.A. However, while observing that it could not be in public interest if the applicant-opposite party is re-instated in service, the Tribunal ordered that compassionate allowance be sanctioned to him under Rule 46 of the Rules, 1992. The said provision was also existing in the earlier Pension Rules, i.e., Orissa Pension Rules, 1977 vide Rule 13 thereof. 4. Before proceeding further, it is necessary to peruse the provision of Rule 46 of the Rules, 1992 which is quoted hereunder : “46. Compassionate allowance - (1) A Government servant who is dismissed or removed form service shall forfeit his pen¬sion and gratuity : Provided that the authority competent to dismiss or remove him form service may, if the case is receiving of 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 compensation pension. (2) A compassionate allowance sanctioned under the proviso to Sub-rule (1) shall not be less than the amount of minimum pension admissible. (3) On receipt of the order of the competent authority removing an officer form service for misconduct, insolvency, or inefficiency, the Head of Office, if he proposes to grant compas¬sionate allowance shall fill in the application form for pension and send the same to the Accountant General for necessary action after due concurrence of Finance Department. The Head of Office shall not wait for receiving the application form the Officer.” 5. A bare perusal of Sub-rule (1) of Rule 46 of the Rules, 1992 quoted above shows that it is a mandatory provision that in case of dismissal/removal of a Government servant, his pension and gratuity shall be forfeited, but it is the discretion of the competent authority, if the case is receiving of special consideration, to sanction compassionate allowance not exceeding two-third of pension or gratuity or both. Therefore, before exercise of discretion by the competent authority, it has to be seen whether the case is receiving of special consideration or not. If the authority concerned comes to the conclusion that special consideration is required in the facts and circumstances existing in the case of the dismissed or removed Government servant, the authority may sanction compassionate allowance. Therefore, no direction can be given to the competent authority to grant compassionate allowance to a Government servant who has been dismissed or removed form Government service. Learned counsel for the opposite parties submitted that some of the Government servants had been granted compassionate allowance. Of course when a provision has been made in the Rules, 1992, compas¬sionate allowance may be granted by the competent authority, but only on the basis of some special consideration. 6. In view of the above mentioned facts and circumstances, the impugned order of the Tribunal dated 8.2.1999 is modified to the extent that the competent authority may consider the question of grant of compassionate allowance to the legal heirs of the deceased opposite party Michu Bhoi in the light of the observation made above considering the matter under Rule 46 of the Rules 1992 or Rule 13 of the Orissa Pension Rules, 1977 as the case may be. The Writ application is disposed of accordingly. This order be complied with within ninety days form the date of receiving of the copy of this order. The Writ application is disposed of accordingly. This order be complied with within ninety days form the date of receiving of the copy of this order. PRADIP MOHANTY, J. I agree. Application disposed of.