15 Feb 2022 7:00 AM GMT
The Kerala High Court recently ruled that a government servant who was dismissed from service may not be denied special consideration for compassionate allowance merely for the reason that his wife and children are employed. While allowing a writ petition, Justice V.G. Arun found that although a government servant removed from service is not entitled to pension/ gratuity, the competent...
The Kerala High Court recently ruled that a government servant who was dismissed from service may not be denied special consideration for compassionate allowance merely for the reason that his wife and children are employed.
While allowing a writ petition, Justice V.G. Arun found that although a government servant removed from service is not entitled to pension/ gratuity, the competent authority can sanction compassionate allowance in cases deserving special consideration.
"... petitioner's wife and children being employed cannot, by itself, lead to the conclusion that the petitioner's case does not deserve special consideration."
The petitioner was appointed as Security Guard in the Central Industrial Security Force in 1972. He availed an earned leave for 11 days from 16.8.1983 to 8.9.1983, followed by half-pay leave w.e.f 9.9.1983 to 19.9.1983.
However, the petitioner failed to report back for duty on 20.9.1983, even after expiry of his leave period and kept on overstaying his leave.
Consequently, disciplinary proceedings were initiated against him and he was removed from service by an order. Thereafter, the petitioner was issued a discharge certificate.
According to the petitioner, he was not served with either a copy of the order removing him from service or any speaking order, disclosing the reason for his discharge.
After several requests made by the petitioner and his wife for a copy of the discharge proceedings fell on deaf ears, he preferred a representation requesting to sanction pension and other service benefits.
However, this request was rejected on the ground that a Government servant removed from service is not entitled to pension, gratuity or other terminal benefits. Thereupon, the petitioner submitted another representation requesting to grant him compassionate allowance under Rule 41 of the CCS Pension Rules, r/wh Government of India instructions on the subject.
Since there was no response, the petitioner moved the Court.
The Court directed the Director General of Central Industrial Security Force to dispose of his representation in accordance with law. The petitioner was also given liberty to place any material, including binding judgments, before the Director General while the issue was being considered.
However, the Director General issued an order rejecting the prayer for a compassionate allowance. Aggrieved by the same, the petitioner moved another petition before the Court.
Advocates Girija K. Gopal and K.N. Vigy appearing for the petitioner contended that the impugned order was liable to be set aside for the sole reason that the order was passed without considering the decision of the Apex Court in Mahinder Dutt Sharma v. Union of India and Others [(2014) 11 SCC 684].
Relying on this decision, they argued that Rule 41 is intended to mitigate the misery of a deserving Government servant, irrespective of whether such person was dismissed or removed from service.
Reference was also made to the assessment of the petitioner's financial status to submit that the respondents have admitted the fact that he does not have any personal income. It is contended that the petitioner's wife and sons being employed is no reason for the respondents to assume that the petitioner is not facing financial stringency.
On the other hand, Centra Government Counsel G. Maheswary submitted that compassionate allowance cannot be claimed as a matter of right and that the discretion to decide cases deserving special consideration is vested with the authority.
It was argued that since the authority had exercised such discretion, the Court was not expected to interfere by invoking the extraordinary jurisdiction. Moreover, on enquiry, it was revealed that the petitioner's wife and two sons are gainfully employed and the overall financial condition of the family is stable.
The Court after perusing Rule 41 of the CCS Pension Rules observed that even though a Government servant dismissed or removed from service is not entitled to pension and gratuity, the competent authority can, in cases deserving special consideration, sanction compassionate allowance.
For granting the benefit, 'the case' of the Government servant should be one deserving special consideration. The thrust is on the words 'case deserving special consideration'.
Further, Justice Arun noted that in Mahinder Dutt Sharma (supra) also the Government servant was dismissed from service for unauthorised absence.
The Judge also noted that no reference was made to this decision in the impugned order refusing compassionate allowance, in spite of the judgment having been placed before the authority.
The Court found that the petitioner's entitlement for compassionate allowance was indisputable in the light of Mahinder Dutt Sharma (supra).
As such, the writ petition was allowed and the impugned order was set aside. The Director General was thereby directed to reconsider the petitioner's request for compassionate allowance and pass orders thereon within two months.
Case Title: S. Surendran v. Director General of Central Industrial Security Force & Anr.
Citation: 2022 LiveLaw (Ker) 81
Click Here To Read/Download The Order