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Judgment
O R D E R
The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-
“a)to set aside or quash the impugned order dated 01.06.2018 passed by DRM (P), North Central Railway Jhansi, during the pendency of the present Original Application before this Tribunal, so that justice may be done.
(b)to direct the respondent authorities specially DRM. Jhansi to given the compensate allowance (Pension) to the applicant since 27.08.1980 not from 30.08.2008 and further be pleased to direct the DRM, Jhansi to pay the interest also of the said period of the compensate allowance, so that justice may be done, and/or pass such other and further order, which this Hon'ble Court may deem fit and proper in circumstances of the case.
(c)issue any other order or direction which this Tribunal may deem fit and proper in the facts and circumstances of the case.
(d)award costs of this Original Application to the applicant”.
The brief facts of the case are as follows: The father of the applicant, namely Mohd. Rafiq, was working as a Cook under the Chief Medical Superintendent, North Central Railway, Jhansi. He was removed from service on 27.08.1980 and was subsequently granted compassionate allowance from 30.08.2008. He died on 11.04.2015. After his death, the applicant submitted representations dated 13.02.2018 and 09.04.2018, relying upon the Railway Board's Circular dated 04.11.2008, claiming ompassionate allowance from the date of his father's removal from service. However, vide order dated 01.06.2018, the respondents informed him that the allowance paid to his father from 30.08.2008 was correct. The applicant thereafter submitted a further representation dated 11.07.2018, which did not yield any relief. The applicant's case is that, in view of the Railway Board's Circular dated 04.11.2008, the ompassionate allowance was payable from the date of removal, i.e. 27.08.1980. He has, therefore, filed the present O.A. seeking quashing of the impugned order dated 01.06.2018 and consequential relief.
A counter affidavit has been filed by the respondents denying the averments made in the O.A. It is stated that the father of the applicant, late Rafiq Khan, was working as an Assistant Cook in the Divisional Hospital, Jhansi, and was removed from service on 27.08.1980 as a result of disciplinary proceedings. His final settlement was provisionally closed for want of settlement papers. It is further stated that, on his application dated 23.07.2008, compassionate allowance was sanctioned by the Disciplinary Authority on 30.08.2008 under Rule 65 of the Railway Services (Pension) Rules, 1993, considering his family circumstances and the same was paid to him accordingly till his death on 11.04.2015. After his death, the applicant claimed compassionate allowance from the date of his father's removal from service relying upon the Railway Board's letter dated 04.11.2008. The respondents rejected the claim, stating that the compassionate allowance had already been sanctioned in accordance with the rules and the matter could not be reopened. It is also stated that the applicant was not a dependent of the deceased employee at the relevant time. Therefore, according to the respondents, no further payment is admissible and no further action is required.
No rejoinder affidavit has been filed.
I have heard Shri Ashish Srivastava learned counsel for the applicant, and Sri K.K Ojha, learned counsel for the respondents, and have perused the record.
The submission of learned counsel for the applicant is that the applicant's father was removed from railway service on 27.08.1980 and was subsequently granted compassionate allowance from 30.08.2008. The grievance of the applicant is that the allowance was not granted from the date of removal. Learned counsel for the applicant further submitted that the Railway Board, vide Circular dated 04.11.2008, specifically provided that where compassionate allowance is sanctioned to a dismissed or removed Railway servant, it shall be effective from the date of dismissal or removal. It was further provided that, in case of the death of such employee, compassionate allowance may be sanctioned notionally from the date of dismissal/removal for making the family eligible for family pension. It is contended that the respondents, while passing the impugned order dated 01.06.2018, have not properly considered the aforesaid Railway Board Circular. The applicant had specifically brought the Circular to the notice of the respondents through his representations dated 09.04.2018 and 11.07.2018, but no reasoned decision was taken on the claim of the applicant. Learned counsel for the applicant next submitted that compassionate allowance was sanctioned to the applicant's father from 30.08.2008 does not answer the applicant's claim regarding the date from which such allowance was legally payable. According to the applicant, the competent authority was required to consider the claim in the light of the Railway Board's Circular dated 04.11.2008. Thus it is submitted that the impugned order dated 01.06.2018, having been passed without proper consideration of the relevant Railway Board instructions, is not sustainable in law. The applicant accordingly seeks quashing of the impugned order and a direction to the respondents to reconsider his claim for grant of consequential benefits in accordance with the applicable rules and the Railway Board Circular dated 04.11.2008.
In rebuttal learned counsel for the respondents argued that the father of the applicant was removed from railway service on 27.08.1980 as a result of disciplinary proceedings. Since he had been removed from service, he was not entitled to regular pension. However, on his application dated 23.07.2008, the competent authority, after considering his family circumstances and in exercise of the power under Rule 65 of the Railway Services (Pension) Rules, 1993, sanctioned compassionate allowance in his favour from 30.08.2008. It is further submitted that the said compassionate allowance was regularly paid to the father of the applicant till his death on 11.04.2015. Thus, there was no illegality in the sanction or payment of the compassionate allowance. Learned counsel for the respondents further submitted that the applicant, after the death of his father, cannot seek reopening of the decision already taken by the competent authority in the year 2008. The Railway Board's Circular dated 04.11.2008 does not create an automatic right to compassionate allowance from the date of removal. The grant of compassionate allowance depends upon the decision of the competent authority. In the present case, such decision had already been taken in favour of the applicant's father on 30.08.2008. It is also submitted that the applicant was not a dependent family member of the deceased employee at the relevant time. Therefore, he cannot claim payment of compassionate allowance for the period from 27.08.1980 to 30.08.2008 in his own right. Learned counsel for the respondents next submitted that the impugned order dated 01.06.2018 was passed after considering the relevant facts and informing the applicant that the compassionate allowance sanctioned and paid to his father was in accordance with the rules. There is, therefore, no error or illegality in the impugned order warranting interference by this Tribunal. Thus it is submitted that the applicant has no legal right to claim compassionate allowance retrospectively from 27.08.1980 or interest thereon. The Original Application is, therefore, liable to be dismissed.
I have considered the rival submissions made by learned counsel for the parties and have gone through the entire record.
It is not in dispute that the father of the applicant was removed from railway service on 27.08.1980. It is also not in dispute that compassionate allowance was sanctioned in his favour on 30.08.2008 under Rule 65 of the Railway Services (Pension) Rules, 1993 and was thereafter paid to him till his death on 11.04.2015.
The main question for consideration is whether, in view of the Railway Board's instructions contained in RBE No. 164/2008 dated 04.11.2008, the compassionate allowance could be given from the date of removal of the applicant's father. RBE No. 164/2008 is reproduced below:-
“RBE No. 164/2008
GOVERNMENT OF INDIA (BHARAT SARKAR)
MINISTRY OF RAILWAYS (RAIL MANTRALAYA)
(RAILWAY BOARD)
File No. F(E)III/2003/PN1/5 New Delhl, dated: 04.11.2008
The GMs/FA&CAOs,
All Indian Railways/Production Units,
(As per standard mailing List)
Sub: Grant of Compassionate Allowance.
In terms of proviso to Rule 65(1) of Railway Services (Pension) Rules,1993, the authority competent to dismiss or remove a Railway servant 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 ompassionate pension. This is the discretionary power vested in the authority competent to dismiss or remove a Railway servant, to be exercised by that authority suo-motu, at the time of passing orders of dismissal or removal from service or immediately thereafter.
2.Para 1 of Board's letter of even number dated 9.5.2005 stipulates that past cases where the competent authority, in exercise of its discretionary powers, had not sanctioned compassionate allowance at the time of passing orders of removal/dismissal or immediately thereafter, cannot be reopened for review on the basis of representations received from the removed/dismissed employees and members of their family at a later date. In this connection, a number of representations have been received from different quarters for reviewing deserving genuine cases where the competent authority had not passed specific orders for or against grant of compassionate allowance. The issue has also been raised in DC/JCM Meeting held in December, 2007.
3.The matter has, therefore, been considered by the Board in consultation with Department of Pension and Pensioners' Welfare and it has been decided to reiterate that in cases where a decision has already been taken by the disciplinary authority not to grant compassionate allowance, such a decision is final, which should not be reviewed at any later stage. However, in partial modification of Board's letter dated 09.05.2005, it has also been decided by the Board that out of the past cases in which the disciplinary authority had not passed any specific orders for or against grant of compassionate allowance, if any case appeanto be deserving for consideration being given, may be reviewed by the disciplinary authority concerned on receipt of representations of dismissed/removed employees or the family members of the deceased employees keeping in view the following conditions:
(i)Only those past cases can be reviewed where records pertaining to D&A proceedings and Service records are available. D&A proceedings are essential to take a fair decision duly considering the gravity of the offence and other aspects involved therein and to confirm that the question of sanction or otherwise of compassionate allowance was not considered by the competent authority at any stage. Service records are essential to adjudge the kind of service rendered by the dismissed/removed employee and to determine the net qualifying service for working out the quantum of compassionate allowance, if sanctioned.
(ii)Each case will have to be considered on its merits and conclusion reached on the question whether there were any extenuating factors associated with the case that would make the punishment of dismissal/removal, which though imposed in the interest of the Railways, appear unduly hard on the individual.
(iii)Not only the grounds on which the Railway servant was removed/dismissed, but also the kind of service rendered should be taken into account.
(iv)Award of compassionate allowance should not be considered if the Railwày servant had been dishonest, which was a ground for his removal/dismissal.
(v)Though poverty is not an essential condition precedent to the award of compassionate allowance, due consideration can be made of the individual's spouse and children dependent upon him.
4.On review of such cases, if the competent authority sanctions compassionate allowance to a dismissed/removed Railway servant, the same shall be effective from the date of removal/dismissal. In case the competent authority decides to sanction family pension to the spouse or eligible family member of the deceased Railway servant, compassionate allowance shall be sanctioned notionally from the date of dismissal/removal to make the family eligible for family pension and in such cases family pension shall be payable for the period commencing from the date following the date of death of the removed/dismissed Railway servant.
5.Please acknowledge receipt.
6.Hindi version will follow”.
A perusal of RBE No. 164/2008 dated 04.11.2008 shows that the Railway Board considered the cases where, at the time of removal/dismissal or immediately thereafter, the competent authority had not passed any specific order regarding grant of compassionate allowance. The Board permitted such past cases to be reviewed by the competent authority, subject to the conditions mentioned therein. The Board further provided in paragraph 4 that, on such review, if compassionate allowance is sanctioned, the same shall be effective from the date of removal/dismissal. It was also provided that, where the competent authority decides to sanction family pension to the spouse or eligible family member of the deceased Railway servant, compassionate allowance shall be sanctioned notionally from the date of dismissal/removal for making the family eligible for family pension.
In the present case, it is clear that at the time of passing of the removal order, no order for payment of compassionate allowance was made. On the contrary, the record shows that the father of the applicant himself applied for compassionate allowance on 23.07.2008, and the same was sanctioned on 30.08.2008. RBE No. 164/2008 was issued on 04.11.2008. Thus, it is clear that the compassionate allowance had already been granted on 30.08.2008, i.e. prior to the issuance of RBE No. 164/2008. Although the Disciplinary Authority did not pass any specific order regarding the grant of compassionate allowance, the same had already been granted prior to the issuance of the aforesaid RBE. Therefore, the present case cannot be treated as a past case as referred to in paragraph No. 3 of RBE No. 164/2008, and the matter cannot be reopened for granting compassionate allowance to the father of the applicant from the date of removal. In the opinion of the Tribunal, this is not a fit case to issue any direction to reconsider the applicant's prayer for grant of arrears of compassionate allowance from the date of removal. The prayer made by the applicant, for the reasons discussed hereinabove, cannot be accepted. The OA, having no merit, is liable to be dismissed. Hence, it is dismissed. There shall be no order as to costs. All pending Miscellaneous Applications, if any, also stand disposed of.