Santra vs Govt. Of NCT Of Delhi & Others

Aradhana Johri, Member (A)

The applicant is the widow of Sh. Shiv Narain who served under the respondents before his death. He was appointed as Constable on 22.06.1970

and subsequently promoted to Head Constable and later ASI. On 06.10.2004, he was removed from service for prolonged absenteeism after having

put in more than 34 years of service. His appeal and mercy appeal were rejected. He applied for pension which was not granted because he had been

dismissed. He expired on 10.04.2018 after which the applicant, the widow of the deceased employee, represented for compassionate allowance. Her

representation was rejected on 08.10.2018.

It is the contention of the applicant that her husband had an unblemished record due to which he was promoted twice. While performing his duties

he fell and sustained injuries due to which he was incapable of performing his duties. The applicant has claimed that the legal heirs of an employee are

entitled to claim compassionate allowance. Several rulings have been cited by the applicant in support of her contention. She has prayed for the

following reliefs:-

“(i) That the Hon’ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 08.10.2018 (A/1)

and consequently pass an order directing the respondents to consider and to grant the compassionate allowance to the husband of the

applicant under Rule-41 of the CCS (Pension) Rules, 1972, from the date of his removal from service and family pension to the present

applicant from the date of death of her husband with all consequential benefits including the life time arrears and arrears of compassionate

allowance with interest.

(ii) That the Hon’ble Tribunal may further graciously be pleased to pass an order of quashing the clarification dated 01.12.2014

referred in impugned order dated 08.10.2018 (un-communicated) any other clarification which debarred the widow to claim any life time

claim of her husband after his death.

(iii) Any other relief which the Hon’ble Tribunal deem fit and proper may also be granted to the applicant.â€​

It is to be noted that the applicant did not file the said clarification dated 01.12.2014 even though she prayed for it to be quashed.

The respondents have denied the claim of the applicant. They have stated that Rule 41 of CCS (Pension) Rules, 1972 which deals with

compassionate allowance, has to be read with Rule 54 (2)(iii) by which compassionate allowance or pension can only be claimed if after retirement

from service, the said employee was, on the date of death, in receipt of pension or compassionate allowance. They have contended that in the present

case the husband of the applicant was not only not in receipt of compassionate allowance but he had even made no claim for the same.

Heard Shri Yogesh Sharma, learned counsel for the applicant and Ms. Esha Mazumdar, learned counsel for the respondents.

The basic issue involved in this case is whether the legal heirs of a deceased employee who was not in receipt of compassionate allowance can be

sanctioned the same as per rules, if other conditions are satisfied.

The applicant has cited several rulings. Cases of Smt. Indra Saxena Vs. Union of India & Ors [OA No.15/2016 decided on 13.10.2017] and

Smt. Kashmiri vs. All India Institute of Medical Sciences & Anr. [OA No.2210/2013 decided on 21.08.2014], relied upon by the applicant are not

applicable in this case since the issue of legal heirs being entitled to compassionate allowance was neither raised nor discussed. In the case of Anna

Deoram Londhe vs. State of Maharashtra [1998 (5) SLR 480] of Hon’ble High Court of Bombay, proceedings had been initiated by the

employee during his life time, therefore this case is also distinguished. In Sumlesh vs. GNCT of Delhi & Ors .[OA No.2011/2018 decided on

09.07.2019], though Department of Pension & pensioner’s welfare letter dated 2014 has been mentioned but no finding has been given by this

Tribunal on that. In favour of the applicant is the case of Mrs. Chandra Kala Pradhan vs. Union of India & Or.s [2002 (1) ATJ 24] wherein this

Tribunal has held that legal heirs can initiate proceedings on service matters. They also derive benefit from Rekha Devi vs. GNCT of Delhi & An.r

[OA No.3069/2011 decided on 23.12.2011], wherein a single Bench of this Tribunal has discussed the issue of legal heirs claiming compassionate

allowance and held that denying compassionate allowance on account of absence of rule for it, is apparently not factually correct and is misconceived.

Rulings of the Hon’ble Apex Court in the case of Union of India & Ors. vs. M.K. Sarkar [2010 (2) SCC 59] and Jagdish Lal & Ors. vs.

State of Haryana & Ors [AIR 1997 (SC) 2366], cited by the respondents are on the issue of limitation and delay disentitling the discretionary relief

and do not have a bearing on the specific issue crystallized above.

Before reaching a conclusion on this matter, it is incumbent to consider the second relief claimed by the applicant which is closely interlinked. This

relief pertains to quashing the clarification dated 01.12.2014, referred to in the impugned order dated 08.10.2018. This clarification though not annexed

with the impugned order, on the direction of the court it was subsequently filed by the respondents after pleadings were completed. The said letter

dated 01.12.2014 is issued by Ministry of Home Affairs and reads as follows:-

“To

DCP/GA

Delhi Police, PHQ,

IP Estate, New Delhi.

Subject: Grant of compassionate allowance under Rule 41 of CCS (Pension) Rules, 1972 to Smt. Usha Rathi, wife of late Ex-HC Prem

Singh, No.100/NW.

Sir,

I am directed to refer to your letter No.13385/Estt.(III)/PHQ dated 04.09.2014 on the above subject.

The matter was examined and advice of D/O Pension and Pensioner’s Welfare was obtained, which is enclosed for ready reference.

Yours faithfully,

Sd/-

(Chitra Narayan)

Under Secretary (DP)

Tel:23094517â€​

In the said letter the advice of the Department of Pension & Pensioner’s Welfare has been enclosed. A perusal of the said advice dated

27.11.2014 discloses that it is an office noting which does not pertain to the matter of the applicant but to another person named Sh. Prem Singh. This

has led to a piquant situation since the advice in question cannot be quashed because it pertains to another person and not the applicant. If at all it is

challenged by the applicant in the OA then it has to be taken as a policy advice. Challenge to a policy matter can only be made before a Division

Bench.

Since the two reliefs claimed are closely interlinked, this matter may be listed before the appropriate Division Bench.