Om Prakash vs Govt. of Delhi & Anr.

By Hon’ble Dr.Chhabilendra Roul, Member (A):-

The present Original Application is filed the applicant against order dated 19.2.2021 vide which the Respondent rejected the request of the applicant‟s prayer for grant of Compassionate Allowance under Rule 48 of the CCS (pension) rules, 1972.

Brief facts of the case are that the present applicant was enlisted as Constable in Delhi police on 8.8.1968. He was promoted as head constable in 1986. He was due for superannuation on 31.5.2008. While he was in service, FIR No.764/1980 under section 302 IPC, P.S. Sabzi Mandi, Delhi was filed against the applicant and others. The Additional Sessions Judge, Delhi vide order dated 03.02.1993 awarded the punishment of life imprisonment for the offence u/s 302/34 IPC to the applicant. The Hon‟ble Delhi high Court vide order dated 06.03.2009 rejected the appeal of the applicant. Subsequently, Hon‟ble Supreme Court vide judgment dated 16.12.2015 rejected the SLP by the applicant.

Consequent the conviction of the applicant in the criminal case, the Respondent vide order dated 04.01.2007 dismissed him from service invoking the provisions of Article 311(2) of the Constitution of India. The appeal by the applicant to the appellate authority was rejected. Thereafter the applicant filed OA No.1755/2007 before this Tribunal against the dismissal and rejection of his appeal by the appellate authority. The Tribunal vide order dated 18.12.2007 directed the respondents to reinstate the applicant in service from the date of dismissal. The respondents preferred an appeal before the Delhi high Court against the said order of the Tribunal and the High Court vide order dated 27.3.2009 rejected the appeal of the respondents. In the meanwhile, the applicant retired from service on attaining superannuation on 31.5.2008.

The respondents vide memo dated 02.03.2016 started the process of imposing the penalty of withholding applicant‟s full pension and gratuity permanently consequent upon his conviction in the criminal case. Vide order dated 20.6.2017, the respondents confirmed the above proposal of withholding 100% of monthly pension and 100% of gratuity. The applicant filed OA No.100/3072/2017 challenging the penalty of withholding pension and gratuity by this Tribunal vide order dated 29.01.2019. Even the Delhi High Court order dated 23.07.2018 has rejected the plea of the applicant for granting him provisional pension.

The applicant submitted a representation on 27.01.2021 to the Respondents praying for Compassionate Allowances under Rule 41 of CCS (pension) Rules, 1972, keeping in view his miserable financial condition. Vide the impugned order dated 19.2.2021, the Respondent rejected the prayer of the applicant for Compassionate Allowance stating that Rule 41 of CCS(pension) Rules, 1972 is not applicable in case of the applicant. Being aggrieved, the applicant has come to this Tribunal in the present OA seeking the following relief:-

On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.

The main ground taken by the applicant in this OA and reiterated by the learned counsel for the applicant is that the Respondent Deputy Commissioner of Police vide the impugned order has misinterpreted the provisions and applicability of Rule 41 of the CSS (Pension) Rules, 1972. The counsel for the applicant has taken recourse to the findings of this Tribunal in P.C. Mishra vs Union of India in OA No. 1175/2012 decided on 13.04.2013 wherein the apparent contradiction in Rule 9(1) and rule 41 of the said Rules was resolved. Therein it was held that:

The counsel for the applicant averred that the issue involved in P.C. Mishra case(supra) is identical as in the present case, and hence, similar relief should be granted to the applicant. He further argued that compassionate allowance has been made in such circumstances where pension and gratuity of the employee had been forfeited by the President Under Rule 9(1) of the CCS(pension) rules, 1972.

The counsel for the applicant further averred that the applicant rendered unblemished service to the respondents till his arraignment in the criminal case and he had earned all possible awards, police medals and commendation certificates during his service period. Because of the forfeiture of his pension and gratuity and lack of alternative financial resources and income by his family, the applicant and his family are undergoing severe financial stress. Looking at the financial stress of the family and his unblemished and exemplary service record prior to his arraignment in the criminal case, the respondents should have taken a considered and sympathetic view in granting compassionate allowance under rule 41 of the CSS( Pension) rules, 1972.

The counsel for the applicants further cited the judgment of the Apex Court in Mahinder Dutt Sharma vs Union of India & ors in CA No. 2111 of 2009 decided on 11.4.2014 ; Judgment of Delhi High Court in Ex. L/NK Mahabir Prasad Vs Union of India, WPC No. 2556/2010; and the judgment of Calcutta High Court in Sri Nani Gopal Deb vs Union of India &ors W.P.( C) No. 27383/2006 is support of his arguments. He further cited the order of this Tribunal in Dr. S.S. Rathi & ors in T.A. No. 7/2015 and in Anil Kumar v. Govt of Delhi in OA No. 2322/2022 where in the Tribunal has ordered payment of compassionate allowance to 9 co-delinquents. These delinquent officials were similarly placed as the applicant and hence, he argued, similar relief should be granted to the present applicant.

The counsel for the respondents strongly rebutted the contention of the applicant and the learned counsel for the applicant. He stated that the judgments quoted by the applicant in his OA and further cited by the learned counsel for the applicant are not applicable to the present case as the facts and circumstances of the present case are quite different than those cited cases. In all those cases, the employees were dismissed from service and their pension and gratuity was withheld permanently because of their proven involvement in criminal cases. But in the instant case, the applicant was reinstated in service and he retired from service in pursuance of the court orders. When an employee is retires from service and his monthly pension and gratuity is withheld permanently under Rule (9), then they have remedy for grant of Compassionate Allowance under Rule41 of the CSS (pension) rules, 1972. When an employee is retired from service normally and subsequently his monthly pension and gratuity is withheld permanently for proven case of involvement in criminal activities, Rule 41 does not apply. He quoted Rule 41 to substantiate his arguments. Rule 41 of CSS (Pension) Rules, 1972 states:

The counsel for respondents averred that the preamble of the Rule 41(1) and the proviso there under clearly uses the phrase “when the ,mgovernment servant is dismissed or removed from service”. Hence, the Rule does not apply to Government servants who are retired from service in normal course of time. In the instant case, the applicant was retired from service with effect from 31.5.2008. Because he was reinstated in service vide CAT order dated 18.12.2007 which was upheld by the Hon‟ble High court vide their order dated 27.3.2009.

I have gone through the records of the case thoroughly and heard the arguments by the counsels of both parties carefully. I do agree with the contention of the learned counsel for the respondents that the ratios of the judgments and orders quoted/cited by counsel for the applicant do not apply to the case at hand. The facts and circumstances in all those cases refer to cases, where the employees‟ monthly pension and gratuity was withheld permanently due to dismissal or removal from service because of their proven misconduct in judicial proceedings. It has been rightly pointed by the counsel for the respondents that the benefit of compassionate allowance is not available to employees who are retired from service normally but subsequently their monthly pension and gratuity are withheld permanently because of their proven misconduct in criminal proceedings. There is this fine distinction in these two types of cases. Though, in both the cases, Rule 9(1) has been employed due to proven misconduct in criminal proceedings, the scope of applicability of Rule 41 has been confined to cases where the employee is dismissed or removed from service. Had the law makers intended to include the case of government servants who retire normally but subsequently are subjected to penalty of withholding pension and gratuity permanently on account of proven misconduct in criminal proceedings, the same could have explicitly been mentioned under the Rule. In view of this, I do agree with the contention of the counsel for the respondents that Rule 41 is not applicable in case of the applicant. For the same reason, I do not find any infirmity in the impugned order by the respondent.

In view of the above, the OA lacks merit and hence is dismissed. There is no order regarding costs.

All pending MAs are also disposed of accordingly.