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2016 DIGILAW 1284 (GUJ)

Hitendrasinh Jorabha Jadeja v. Union of India

2016-07-11

A.S.SUPEHIA, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for appropriate writ, order and/or direction to quash and set aside the impugned order 1/4/2016 denying the benefits of compassionate allowance/pension to the petitioner and consequently to direct the respondents to grant compassionate allowance/pension to him with arrears at least from July, 2015. 2. The petitioner was serving as a constable since 1986-87. He worked for approximately 10 years in the battalion. According to the petitioner, he received medals also. It appears that in the year 1995, the petitioner unfortunately developed tuberculosis. According to the petitioner, it was so acute and serious that he had to approach the department for grant of leave for the period from 4/2/1997 to 4/4/1997. That his leave was granted. 2.1. That in the year 1995, he was required to be admitted in the hospital. He took treatment as an outdoor patient. According to the petitioner, his ailment was continued even between the years 1995 and 1997 and even thereafter. That he applied for leave for 60 days which was granted. However, thereafter he did not resumed his duty and therefore, departmental inquiry was initiated against him, which resulted into dismissal from service. That thereafter the petitioner made a representation for compassionate allowance/pension by representation dated 20/3/2015. As the same was not decided, the petitioner preferred Special Civil Application No. 3479 of 2016 before this Court and by order dated 2/3/2016 the Division Bench disposed of the said Special Civil Application directing the appropriate authority to decide his representation on or before 13/4/2016. The Division Bench also directed to consider the decision of the Hon'ble Supreme Court in the case of Mahinder Dutt Sharma Versus Union of India and others, reported in AIR 2014 S.C. 2009 while taking decision on the representation of the petitioner. That thereafter, by the impugned communication, the petitioner has been denied compassionate allowance/pension. Hence, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India for the aforesaid relief. 3. Mr. That thereafter, by the impugned communication, the petitioner has been denied compassionate allowance/pension. Hence, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India for the aforesaid relief. 3. Mr. M.D. Rana, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Mahinder Dutt Sharma (supra), more particularly para 13 of the said decision and relying upon the above decision, it is vehemently submitted that as the petitioner was not dismissed on the ground of moral turpitude and/or on the ground with respect to his integrity and/or dishonesty and he was dismissed from service on the ground of absenteeism/desertion and his desertion/absenteeism was beyond his control as he was suffering from tuberculosis, it is submitted that this is a fit case to grant compassionate allowance/pension in exercise of Rule 41 of CCS (Pension) Rules, 1972. 3.1. Mr. M.D. Rana, learned advocate appearing on behalf of the petitioner has further submitted that despite the fact that while disposing of the earlier petition the Division Bench specifically directed to consider decision of the Hon'ble Supreme Court in the case of Mahinder Dutt Sharma (supra) while deciding the representation, the department had ignored the said decision and denied compassionate allowance/pension. Making above submissions and relying upon above decisions of the Hon'ble Supreme Court as well as decision of Delhi High Court in the case of Balbir Singh Versus Union of India and others dated 7/1/2015 rendered in Writ Petition (C) No. 2925 of 2013, it is requested to allow the present petition and direct the respondents to sanction compassionate allowance/pension to the petitioner and pay arrears at least from July, 2015 i.e. from the date on which he made a representation. 4. Mr. Devang Vyas, learned Assistant Solicitor General of India appearing on behalf of the respondents has tried to oppose the present petition, however, has failed to convince the Court on the legality and validity of the impugned order passed by the respondent denying compassionate allowance/pension to the petitioner. 4.1. However, Mr. 4. Mr. Devang Vyas, learned Assistant Solicitor General of India appearing on behalf of the respondents has tried to oppose the present petition, however, has failed to convince the Court on the legality and validity of the impugned order passed by the respondent denying compassionate allowance/pension to the petitioner. 4.1. However, Mr. Devang Vyas, learned Assistant Solicitor General of India appearing on behalf of the respondents is not in a position to dispute and/or is not disputing that the petitioner was suffering from tuberculosis at the relevant time and as such he was dismissed from service on the ground of absenteeism and not on any other ground. Therefore, he is not in a position to dispute that the decision of the Hon'ble Supreme Court in the case of Mahinder Dutt Sharma (supra) would be applicable to the facts of the case on hand with full force. However, he has submitted that as the petitioner had approached belatedly it is requested to dismiss the present petition on the ground of delay and laches. 5. Heard the learned advocates appearing on behalf of the respective parties at length. 5.1. At the outset, it is required to be noted and it is not in dispute that the petitioner was suffering from tuberculosis prior to he was dismissed from service on the ground of absenteeism. In the present petition we are not concerned whether the petitioner was rightly dismissed from service or not. He was dismissed on the ground of desertion/absenteeism for approximately more than one and half years. Be that it may, the question which is posed for consideration of this Court in the present petition is whether the petitioner shall be entitled to compassionate allowance/pension under Rule 41 of the Rules or not. 5.2. Identical question came to be considered by the Hon'ble Supreme Court in the case of Mahinder Dutt Sharma (supra) and in para 13 of the said decision, the Hon'ble Supreme Court has observed and as under:- "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. 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." 5.3. Under the circumstances, when the petitioner was dismissed from service on the ground of desertion/absenteeism and not on any other ground and more particularly when he was suffering from tuberculosis even prior to his dismissal, the case of the petitioner is to be treated as deserving special consideration and the petitioner shall be entitled to compassionate allowance/pension under Rule 41 of the Rules, 1972. It is very unfortunate that despite the directions issued by this Court in its order dated 2/3/2016 passed in Special Civil Application No. 3479 of 2016 directing the respondents to take into consideration, the decision of the Hon'ble Supreme Court in the case of Mahinder Dutt Sharma (supra), while taking decision on the aforesaid representation of the petitioner, the respondents have not considered the said decision at all. When it was specifically directed by the Division Bench of this Court, it was incumbent on the part of the concerned respondent to deal with the same and consider the same. Non-compliance of the directions issued by the Division Bench of this Court by the concerned respondent can be viewed very seriously. However, as no malafides are alleged, we close the matter. 5.4. Now, so far as submission of Mr. Devang Vyas, learned Assistant Solicitor General of India appearing on behalf of the respondents not to entertain the present petition on the ground of delay and laches is concerned, at the outset it is required to be noted that by the delay, if any, no prejudice is caused to the respondents. Even otherwise, the petitioner has fairly claimed compassionate allowance/pension from July 2015 only i.e. from the date on which he made first representation. Under the circumstances, the present petition is not required to be dismissed on the aforesaid ground, more particularly when the for the reasons stated above, it is held that the petitioner shall be entitled to compassionate allowance/pension as a special consideration. 6. In view of the above and for the reasons stated above, present petition is allowed. Under the circumstances, the present petition is not required to be dismissed on the aforesaid ground, more particularly when the for the reasons stated above, it is held that the petitioner shall be entitled to compassionate allowance/pension as a special consideration. 6. In view of the above and for the reasons stated above, present petition is allowed. The impugned order/communication dated passed by the respondent No. 21/4/2016 denying the benefits of compassionate allowance/pension to the petitioner, is hereby quashed and set aside. The respondent No. 2/appropriate authority is hereby directed to grant compassionate allowance/pension to the petitioner from July, 2015, considering the case of the petitioner as a deserving consideration. However, the only discretion with the concerned respondent/appropriate authority would be to decide what quantum of compassionate allowance is to be sanctioned. The amount of compassionate allowance/pension shall be disbursed to the petitioner with arrears from July, 2015 within a period of six weeks from the order that may be passed by the respondent No. 2/appropriate authority. Such an order shall be passed within a period of three months from today. Rule is made absolute accordingly to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.