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2014 DIGILAW 541 (CAL)

Nani Gopal Deb v. Union of India

2014-06-20

TAPABRATA CHAKRABORTY

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JUDGMENT Tapabrata Chakraborty, J. This writ application had been preferred challenging, inter alia, the memoranda dated 11th December, 1996 and 3rd October, 1997 issued for and on behalf of the respondent no.2. The facts, in a nutshell, are that the petitioner was initially appointed to the post of Superintendent B. R. Gr-I under the General Reserve Engineering Forces (hereinafter referred to as the GREF). While serving in the said post the petitioner met with an accident in the month of December, 1965 and as a consequence thereof he lost one of his eyes forever. The Medical Board declared him unfit for the post and recommended for decategorization and for posting at the Base Office. Accordingly, the petitioner was placed in the post of Assistant Gr-I and he served in the said post till 2nd December, 1978. In the midst thereof the petitioner applied for leave of 90 days with effect from 4th September, 1978 to 2nd December, 1978 and such prayer for leave was granted by the Competent Authority. Subsequent thereto, the petitioner applied for extension of such leave for 90 days with effect from 3rd December, 1978 till 2nd March, 1978 but such leave was not sanctioned by the Competent Authority. Thereafter, the petitioner made a representation to the respondent no.2 on 9th October, 1996 stating inter alia that for deterioration of his eye sight, the petitioner was unable to continue with the office work. By the said representation the petitioner further requested the respondent no.2 to disburse his Government Provident Fund and Gratuity amount and to finalise his pension. As the said respondent maintained a deceptive silence, a further reminder was issued on 25th November, 1996. Upon consideration of the said reminder dated 25th November, 1996, the respondent no.2 vide memorandum dated 11th December, 1996 intimated that the petitioner was asked to report for duty upon expiry of the sanctioned leave period with a rider to the effect that if he fails to join, he would be declared deserter. Upon consideration of the said reminder dated 25th November, 1996, the respondent no.2 vide memorandum dated 11th December, 1996 intimated that the petitioner was asked to report for duty upon expiry of the sanctioned leave period with a rider to the effect that if he fails to join, he would be declared deserter. By the said memorandum it was further intimated that as he failed to join his duty in spite of the repeated reminders, he had been removed from service under Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as the said rules of 1965) with effect from 3rd June, 1983 and that for such removal the petitioner was not entitled to any pensionary benefits as per the existing rules. After the said memorandum dated 11th December, 1996, a further memorandum dated 3rd October, 1997 was issued, reiterating inter alia that the petitioner had been removed from GREF service under Rule 14 of the said rules and that accordingly he is not entitled to any pensionary benefits. Protesting against the said memoranda as referred to hereinabove, the petitioner issued a notice of demand through his learned advocate on 2nd April, 1998 asking the respondents to disburse his retrial dues. As the respondents did not respond to the said demand notice, the petitioner approached the Central Administrative Tribunal by an application being O.A. No.557 of 2010 and the same was disposed of by an order dated 10th November, 2006 observing inter alia that the tribunal has no jurisdiction to entertain matters of GREF. Thereafter, the petitioner preferred the instant writ application and the same was admitted by the Writ Court with a direction towards exchange of affidavits by an order dated 25th August, 2008. Pursuant to the said order, the affidavits were exchanged by the parties and a supplementary affidavit was filed by the respondents bringing on record the charge sheet dated 5th May, 1982, the Inquiry Report dated 8th March, 1983 and the final order of removal from service dated 3rd June, 1983. Mr. Pursuant to the said order, the affidavits were exchanged by the parties and a supplementary affidavit was filed by the respondents bringing on record the charge sheet dated 5th May, 1982, the Inquiry Report dated 8th March, 1983 and the final order of removal from service dated 3rd June, 1983. Mr. Das, learned advocate appearing for the petitioner submits that the petitioner was never initimated about the initiation of proceeding in terms of Rule 14 of said rules of 1965 and that the entire proceeding was conducted ex-parte and that the petitioner did not avail any opportunity whatsoever to contest the said disciplinary proceeding and the entire proceeding was conducted behind his back and a major punishment of removal from service was issued against the petitioner without even grant of any opportunity of hearing. According to Mr. Das, the said proceedings are bound to fail on the ground of blatant violation of the principles of natural justice. Mr. Das further submits that the petitioner was never communicated the order declaring the petitioner to be a deserter with effect from 3rd December, 1978. According to Mr. Das there is no dispute that the petitioner had admittedly rendered 19½ years of continues service under GREF and on the rudiments of such uninterrupted service the petitioner is entitled to the pensionary benefits. In support of such contention the petitioner had relied upon the provisions of Rule 49 of the Central Civil Service (Pension) Rules of 1972 (hereinafter referred to as the said rules of 1972). According to Mr. Das the provisions of Rule 49 (2)(b) are applicable to the petitioner which entitles the petitioner to avail pension proportionate to the amount of pension admissible under Rule 49 (2)(a). Drawing the notice of this Court to the order of punishment annexed at page 13 of the supplementary affidavit, Mr. Das submits that there is no clause in the said order to the effect that the past service of the petitioner shall stand forfeited and that in the absence of any direction towards forfeiture of past service, the respondents could not have denied to disburse the pension proportionate to the service rendered by the petitioner. Mr. Das submits that there is no clause in the said order to the effect that the past service of the petitioner shall stand forfeited and that in the absence of any direction towards forfeiture of past service, the respondents could not have denied to disburse the pension proportionate to the service rendered by the petitioner. Mr. Das also places reliance upon the provisions of Rule 14 of the said rule of 1965 and submits that prior to formation of an opinion to hold an inquiry, the petitioner was not given any opportunity to reply to the charge sheet which would be explicit from the contents of the charge sheet itself wherein the Disciplinary Authority had directly fixed the inquiry. Mr. Das further submits that the charge sheet, the inquiry report and the order of punishment were never served upon the petitioner and the petitioner got the said memoranda only upon filing and service of the supplementary affidavit by the respondents. Mr. Das, placing reliance upon the memorandum dated 14th August, 1985 at annexure ‘P-7’ of the writ application, submits that GREF was declared to be an integral part of Armed Forces of India on and from 14th August, 1985 and that as such prior thereto the Army Authorities had no jurisdiction to proceed against the petitioner on the basis of the Army Act and the rules framed thereto and that accordingly the order dated 15th September, 1980, declaring the petitioner to be a deserter with effect from 3rd December, 1978 was absolutely without jurisdiction and untenable in law. In support of such arguments, Mr. Das places reliance upon the following judgments :- a) Dev Singh –Vs- Punjab Tourism Development Corporation Ltd. and Another, reported in 2003 Supreme Court Cases (L & S) 1198. b) Jai Bhagwan –Vs- Commissioner of Police & Ors., reported in 2013 (3) AISLJ 56. c) Ishwar Chandra Jayaswal –Vs- Union of India and Others, reported in (2014) 2 Supreme Court Cases 748. All the said judgments, as relied upon by the petitioner, pertain to the issue of disproportionate punishment. Mr. Panda, learned advocate appearing for the respondents submits that the petitioner’s date of retirement upon superannuation was on 31st January, 1996 and that the petitioner voluntarily chose not to rejoin his service upon expiry of the period of sanctioned leave on 3rd December, 1978. Mr. Panda, learned advocate appearing for the respondents submits that the petitioner’s date of retirement upon superannuation was on 31st January, 1996 and that the petitioner voluntarily chose not to rejoin his service upon expiry of the period of sanctioned leave on 3rd December, 1978. Since, 3rd December, 1978, the petitioner maintained a deceptive silence and upon attaining the age of superannuation on 31st January, 1996, the petitioner responded for the first time by making a representation, that too almost 9 months after the said date of superannuation, praying for disbursement of pensionary benefits. According to Mr. Panda, the petitioner was conscious of the fact that in the event he had physically appeared for rejoining his services, he would have been subjected to the penalty prescribed under the Army Act and the rules thereunder and thus it was a conscious decision on the part of the petitioner not to rejoin his service upon expiry of the sanctioned period of leave. According to Mr. Panda, desertion is a crime under the Army Act and only to avoid the punishment pertaining to the said crime, the petitioner took a conscious decision not to rejoin the services. Placing reliance upon the averments made in the affidavit-in-opposition, Mr. Panda submitted that the authorities had made a sincere endeavour to notify the proceedings and to supply the charge sheet along with all its annexures vide memorandum dated 5th May, 1982, but the same returned back with a remark “Station left/Not known”. Thereafter, the authorities published an advertisement in the Amrita Bazar Patrika on 20th April, 1983 asking the petitioner to show-cause as to why he should not be removed from service within a period of one month from the date of publication failing which it was categorically specified, that an ex-parte decision will be taken. According to Mr. Panda, in spite of the said advertisement, the petitioner did not respond and that as such the authorities were compelled to proceed ex-parte. Mr. Panda also draws the attention of this Court to a memorandum dated 12th August, 1980 issued by the District Magistrate, 24 Parganas stating inter alia that he “made attempt in several times to secure arrest Nani Gopal Deb, but to no good. His where abouts nobody could say.” Replying to the argument of Mr. Mr. Panda also draws the attention of this Court to a memorandum dated 12th August, 1980 issued by the District Magistrate, 24 Parganas stating inter alia that he “made attempt in several times to secure arrest Nani Gopal Deb, but to no good. His where abouts nobody could say.” Replying to the argument of Mr. Das that the provisions of the Army Act and the rules framed thereunder were not applicable to the petitioner prior to 14th August, 1985, Mr. Panda submits that prior thereto the Hon’ble Supreme Court by a judgment delivered in the case of R. Viswan and Others –Vs- Union of India and Others, reported in AIR 1983 SC 658 had held that GREF is an integral part in the Armed Forces for the purposes of Article 33 of the Constitution of India. Accordingly, the Army Authorities had the jurisdiction to proceed against the petitioner. Mr. Panda also places reliance upon the provisions of ROI and argues that the proceedings were conducted against the petitioner in strict consonance with the guidelines and the statutory provisions. I have heard the submissions made by the learned advocates appearing for the respective parties and I have considered the materials on record. The conspectus of the facts, reveals that there is no dispute that the petitioner met with an accident on duty and that as a consequence thereof the petitioner lost one of his eyes forever and that the petitioner was recommended for decategorization. The contention of the petitioner to the effect that for deterioration of his eye sight, he was unable to continue with office work cannot be totally disregarded. Furthermore, a perusal of the charge sheet, the Inquiry Report and the final order of punishment reveals that for unauthorised absence the petitioner was removed from service. However, there was no categoric finding to the effect that the petitioner’s absence was wilful. In this context reliance may be placed upon a recent judgment of the Hon’ble Supreme Court delivered in the case of Krushnakant B. Parmar –Vs- Union of India & Anr., reported in 2012 (3) SCC 178 wherein the Hon’ble Supreme Court had specifically observed as follows :- “17. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.” Furthermore, there is no dispute that the petitioner had in fact rendered 19½ years of uninterrupted service under GREF and that the order of penalty also does not reveal that the respondents did take any decision towards forfeiture of such past service. Attention of this Court had been drawn to the provisions of Rule 41 of the said Rules, 1972 which runs as follows :- “Compassionate allowance.- 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 provision to sub-rule (1) shall not be less than the amount of Rupees (three hundred and sixtyfive 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. As the petitioner had lost one of his eyes in an accident on duty and that as subsequent thereto the deterioration of his eye sight continued, the consequential inability of the petitioner to continue with his service on and from 3rd December, 1978 cannot be strictly construed to be an instance of wilful absence of service. As the petitioner had lost one of his eyes in an accident on duty and that as subsequent thereto the deterioration of his eye sight continued, the consequential inability of the petitioner to continue with his service on and from 3rd December, 1978 cannot be strictly construed to be an instance of wilful absence of service. A comprehensive reading of the entire pension scheme under the said Rules, 1972 clearly establishes that it is a beneficial legislation. In the instant case there is no charge of embezzlement against the petitioner. There is also no charge against the petitioner which carries with it any legitimate inference to the effect that the petitioner’s service had been dishonest and thus it would be extremely harsh in the event the petitioner is deprived of the benefits of compassionate allowance. Such compassionate allowance is a benefit partaking to the character of a regular payment to a person, in consideration of the past service rendered by him and that it is claimable as a matter of right and that such right is in the nature of a property in the hand of the employee. The said allowance is not a charity or a bounty nor is it, a conditional payment solely dependent on the sweet will of the employer. It is earned for rendering a long and satisfactory service. It is in the nature of deferred payment for past service. It is a social security plan consistent with the socio-economic requirement of the Constitution. In the backdrop of the said facts and circumstances, I am of the opinion that the petitioner deserves special consideration and is entitled to avail the benefits of compassionate allowance in terms of the provisions of Rule 41 of the said Rules of 1972. Once a Court holds that under the said Rules of 1972, the petitioner deserves special consideration, the Court can itself grant the relief and need not direct the respondents for reconsideration. Reference in this connection may be made to the decision of the Hon’ble Supreme Court in the case of Government of India & Ors. –Vs- B. Anil Kumar & Ors., reported in 2010 (4) Supreme 77 (Paragraph 18). Reference in this connection may be made to the decision of the Hon’ble Supreme Court in the case of Government of India & Ors. –Vs- B. Anil Kumar & Ors., reported in 2010 (4) Supreme 77 (Paragraph 18). Accordingly, while declining the relief as prayed for, I dispose of the writ application directing the respondents to sanction the benefits of compassionate allowance to the petitioner, in terms of the provisions of Rule 41 of the said rules of 1972. The above direction should be complied with by calculating the past dues payable as compassionate allowance to the petitioner and by disbursing the said dues within a period of eight weeks from the date of communication of this order. Thereafter, monthly compassionate allowance will be paid. The writ application is accordingly disposed of. In the facts of the present case, there will be no order as to costs.