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2015 DIGILAW 1648 (RAJ)

Mahendra Singh v. State of Rajasthan

2015-09-10

M.N.BHANDARI

body2015
JUDGMENT 1. - The petitioner is in second round of litigation. The first writ petition was disposed of with liberty to make a representation to the respondents for grant of compassionate allowance. The representation made by the petitioner has been rejected vide the impugned order. 2. Learned counsel for the petitioner submits that on account of absence from the duty for a period of 212 days, an order of dismissal was passed by the respondents. The writ petition thereupon remained successful for alteration of the punishment, however, the matter finally travelled to the Hon'ble Apex Court. The order of dismissal was upheld therein. In view of the aforesaid, the petitioner become entitled for compassionate allowance as per the provisions of Rajasthan Civil Services Pensions Rules, 1996 (for short "Rules of 1996"). It has been denied by the respondents in reference to the delinquency of the petitioner. In the case of Mahinder Dutt Sharma v. Union of India & Ors. reported in JT 2014 (5) SC 21 , the Hon'ble Apex Court has issued direction as to when the compassionate allowance can be denied. Six criteria were laid down by the Hon'ble Apex Court in the case supra for denying benefit and the case of the petitioner does not fall in any of the criteria. The appellant before the Hon'ble Apex Court remained successful for a direction of compassionate allowance, though dismissal from service was due to absence from duties for 320 days. It is also a fact that said petitioner was found unauthorisedly absent on six occasions. In the instant case, the petitioner's service record is unblemished other than the case of dismissal on account of absence for 212 days. The petitioner may thus be granted benefit of compassionate allowance. 3. Learned counsel for the respondents opposed this petition. It submitted that in the case supra, grant of benefit was on account of gallantry award give to the petitioner therein. In the case in hand, the petitioner has not been given gallantry award so as to keep him at par with the case supra. The respondents thus rightly rejected the representation made by the petitioner. 4. I have considered the submissions made and perused the record. 5. The facts not in dispute are that on account of absence from duties for 212 days, the petitioner was dismissed from service after enquiry. The respondents thus rightly rejected the representation made by the petitioner. 4. I have considered the submissions made and perused the record. 5. The facts not in dispute are that on account of absence from duties for 212 days, the petitioner was dismissed from service after enquiry. The order of dismissal was finally upheld by the Hon'ble Apex Court. In view of the above, petitioner's claim is under Rule 43 of Rules of 1996. Rule 43 of the Rules of 1996 is quoted hereunder for ready reference : "43. 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 1 "Rupees one thousand two hundred seventy five per mensem." 6. The rule aforesaid makes an employee entitled for compassionate allowance in case of dismissal or removal, however, it is at the discretion of the respondents to award benefit on special consideration. A controversy of similar nature came up for consideration before the Hon'ble Apex Court in the case of supra wherein an employee was dismissed on account of absence of 320 days and he was found to have remained absent unathorizedly on six occasions, though awarded gallantry award also. There in the provisions was peri materia. Relevant para of the judgment in the case of Mahinder Dutta Sharma (supra) is quoted hereunder for ready reference : "13. In our considered view, the determination of a claim based under Rule 41 of the Pension Rules, 1972, will necessarily have to be sieved through an evaluation based on a series of distinct considerations, some of which are illustratively being expressed hereunder: (i) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act of moral turpitude? An act of moral turpitude, is an act which has an inherent quality of baseness, vileness or depravity with respect to a concerned person's duty towards another, or to the society in general. An act of moral turpitude, is an act which has an inherent quality of baseness, vileness or depravity with respect to a concerned person's duty towards another, or to the society in general. In criminal law, the phrase is used generally to describe a conduct which is contrary to community standards of justice, honesty and good morals. Any debauched, degenerate or evil behaviour would fall in this classification. (ii) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act of dishonesty towards his employer? Such an action of dishonesty would emerge from a behaviour which is untrustworthy, deceitful and insincere, resulting in prejudice to the interest of the employer. This could emerge from an unscrupulous, untrustworthy and crooked behaviour, which aims at cheating the employer. Such an act may or may not be aimed at personal gains. It may be aimed at benefiting a third party, to the prejudice of the employer. (iii) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act designed for personal gains, from the employer? This would involve acts of corruption, fraud or personal profiteering, through impermissible means by misusing the responsibility bestowed in an employee by an employer. And would include, acts of double dealing or racketeering, or the like. Such an act may or may not be aimed at causing loss to the employer. The benefit of the delinquent, could be at the peril and prejudice of a third party. (iv) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, aimed at deliberately harming a third party interest? Situations hereunder would emerge out of acts of disservice causing damage, loss, prejudice or even anguish to third parties, on account of misuse of the employee's authority to control, regulate or administer activities of third parties. Actions of dealing with similar issues differently, or in an iniquitous manner, by adopting double standards or by foul play, would fall in this category. (v) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, otherwise unacceptable, for the conferment of the benefits flowing out of Rule 41 of the Pension Rules, 1972? (v) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, otherwise unacceptable, for the conferment of the benefits flowing out of Rule 41 of the Pension Rules, 1972? Illustratively, any action which is considered as depraved, perverted, wicked, treacherous or the like, as would disentitle an employee for such compassionate consideration." 7. The perusal of the para quoted above reveals as to when compassionate allowance can be denied. The case of the petitioner does not fall in any of the criteria laid down therein. His case rather stands on better footings than the case of Mahinder Dutt Sharma (supra), who remain absent for 320 days whereas the petitioner remained absent for 212 days. Accordingly, the respondents are directed to consider the case of the petitioner again in the light of the judgment of Hon'ble Apex Court in the case of Mahinder Dutt Sharma (surpa). 8. The consideration to allow compassionate allowance to the petitioner would be made within two months from the date of receipt of copy of this judgment. 9. This writ petition is allowed accordingly. This disposes of the all the applications as well.Writ petition allowed. *******