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Judgment
Heard Shri Ashish Srivastava, learned counsel for the applicant and Ms. Shikha Dixit, learned counsel for the respondents.
This Original Application is filed under section 19 of the Administrative Tribunal Act, 1985, seeking following reliefs:-
“8.(i) This Hon’ble Tribunal may pleased to quash the impugned order dated 28.06.2016 passed by the respondent no.2 (Annexure no.A-1 to this Original Application with compilation No.I).
(ii)This Hon’ble Tribunal may be pleased to direct the respondent no.2 for reconsideration of payment of compassionate allowance under rule 65 (2) of Railway Services (Pension) Rules, 1993.
(iii)Any other relief, which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicant.
(iv)Award the costs of the original application in favour of the applicant.”
Brief facts of the case are that the applicant is the widow of Late employee-Rafiquddin, who was working under the respondent department and died on dated 19.10.2001 after a prolong illness. It is also case of the applicant that a representation for grant of compassionate appointment to the elder son and also for family pension was moved on dated 23.10.2001 (Annexure No-3), which was rejected on dated 09.05.2005. It is also contended that the removal order passed against the husband of the applicant was not served upon him, thus, late employee shall be treated as employee of the respondents and applicant prayer for family pension and for compassionate appointment to her elder son, ought to have been considered by the respondents. The retiral benefit to some extent was allowed to the applicant and compassionate appointment was made to the son of the applicant on temporary basis but he was not permitted to join the duty. Thereafter, applicant approached before the Jabalpur Bench of this Tribunal by filing Original Application No.278 of 2009, which was decided on 27.07.2011, with the direction to the Disciplinary Authority to decide the issue of compassionate allowance taking recourse to the provision of Rule 65 (2) of the Railway Services (Pension) Rules, 1993, as applicant is the widow of the removed employee. It is further contended that the applicant moved representation, which was turned down vide order dated 05.10.2011. Since, the applicant was not aware about the order passed on the representation as an when she became aware, moved the present original application along with the delay condonation application.
Perusal of the order sheet of the present matter also revealed that the delay condonation application has already been allowed vide order dated 18.07.2023, thus, prayer has been made to set aside the order dated 28.06.2016 with the direction upon the competent authority to issue compassionate allowance to the applicant.
Counter has been filed by the respondent, reiterating all the facts disclosed in the original application and with the specific pleading that retiral benefit permissible to the deceased employee as well as applicant, has already been paid. The son of the deceased employee had been granted compassionate appointment on a temporary basis; but it was cancelled. No specific order for compassionate allowance has been passed by the Disciplinary Authority, while passing the removal order. Thus, the applicant is not entitled for any compassionate allowances.
Respondents have annexed letters dated 28.09.2011 as Annexure CR-1, the letter dated 23.07.2014 as Annexure CR-2, and the letters dated 25.07.2014, 05.10.2011 and also the letter dated 01.09.2014 issued by the respondents to the applicant annexed as Annexure CR-3. Accordingly, a prayer has been made to dismiss the original application.
No rejoinder affidavit has been filed by the applicant in response to the counter affidavit.
I have heard, the learned counsel appearing for the parties.
Referring to the judgment and order passed by the Jabalpur Bench of this Tribunal in Original Application No. 278 of 2009, learned counsel appearing for the applicant argued that the applicant is entitled to compassionate allowance under Rule 65 of the Railway Services (Pension) Rules, 1993. It was submitted that the issue raised by the applicant in his representation has not been considered by the respondents. Learned counsel further submitted that compassionate allowance may be granted to a removed or dismissed employee or his or her legal heir, where the Disciplinary Authority has not passed any specific order regarding grant of such allowance at the time of removal or dismissal.
To substantiate his submissions, learned counsel appearing for the applicant referred to Rule 65 of the Railway Services (Pension) Rules, 1993 (the erstwhile Rule), which has now been replaced by Rule 41 of the Railway Services (Pension) Rules, 2026. It was, therefore, prayed that the Original Application be allowed and the respondents be directed to grant compassionate allowance to the applicant, particularly in view of the fact that the financial condition of the applicant has deteriorated considerably.
Learned counsel appearing for the respondents argued that, since no specific order granting compassionate allowance was passed by the Disciplinary Authority while passing the order of removal, the applicant’s claim for compassionate allowance cannot be allowed. It was further submitted that the husband of the applicant had remained unauthorisedly absent from duty without sanction of leave, whereupon disciplinary proceedings were initiated against him and, pursuant to the same, his services were terminated by way of removal. Applicant’s claim for compassionate allowance has already been rejected, there is no illegality or infirmity in the impugned order. It was also argued that the applicant has not challenged the earlier order dated 05.10.2011 passed by the competent authority rejecting her claim for compassionate allowance, therefore, prayer of the applicant in the present form can also not be considered and allowed.
I have considered the rival submissions and gone through the entire record.
Before proceeding to deal with the submissions raised on behalf of the parties, it will be useful to quote the Rule 65 of the Railway Services (Pension) Rule, 1993; which reads as under:
“Compassionate allowance – (1) A railway servant who is dismissed or removed from service shall forfeit his pension and gratuity: Provided that the authority competent to dismiss or remove him 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 compensation pension.
(2)A compassionate allowance sanctioned under the proviso to sub-rule (1) shall not be less than three hundred seventy five rupees per mensem.”
Since, the Railway Services (Pension) Rule, 1993 has now been replaced by the Railway Services (Pension) Rule, 2026 and this rule was made effective from the year 2021 itself. Thus, it will also be useful to quote the relevant provision of the compassionate allowances contained in Rule 41, quoted as under:-
“Compassionate allowance.-(1) A Railway servant who is dismissed or removed from service shall forfeit his pension and gratuity:
(2)The competent authority shall, either on its own or after taking into consideration the representation of the railway servant, if any, examine whether any compassionate allowance is to be granted and take a decision in this regard in accordance with the proviso to sub-rule (1) not later than three months after the date of issue of the order imposing the penalty of dismissal or removal from service.
(3)The competent authority shall consider,-
(a)each case of dismissal and removal from service on its merit to decide whether the case deserves of special consideration for sanction of a compassionate allowance and, if so, the quantum thereof.
(b)the actual misconduct which occasioned the penalty of dismissal or removal from service and the kind of service rendered by the railway servant.
(c)In exceptional circumstances, factors like family members dependent on the railway servant along with other relevant factors.
(4)Where an order imposing the penalty of dismissal or removal from service was issued before the date of commencement of these rules and the competent authority, at that time, did not examine or decide whether or not any compassionate allowance was to be granted in that case, that authority shall take a decision in this regard not later than six months from the date of commencement of these rules.
(5)No compassionate allowance shall be sanctioned after the expiry of the aforesaid period of six months, to a railway servant on whom a penalty of dismissal or removal from service was imposed before the date of commencement of these rules.
(6)A compassionate allowance sanctioned under the proviso to sub-rule (1) shall not be less than the amount of minimum pension under Rule 44.”
It will also be useful to quote the relevant paragraphs of the judgment and order dated 27.07.2011 passed in OA No.278 of 2009, quoted as under:-
“9.Coming to the merits of the matter, as already held, the deceased Government servant had been removed from service. Shri Singh also files before us a copy of the appointment letter of the deceased Government servant, which says that the deceased Government servant was appointed on 05.11.1984. However, since the deceased Government servant was removed from service, it is well settled that the dependent family member is not entitled for any family pension. The Respondents have also submitted vide their Reply that whatever dues were available to the deceased Government servant were already paid to him. In this regard Para 3 of their Reply is reproduced as under:-
"That, looking to the brief history of the case, this Para is denied and it is further submitted that as due to the fault on the part of Railway Administration, the case of son of the applicant has been considered for compassionate appointment but as soon as the fact that the Rafique Uddin has been removed from service therefore his family members is not entitled for any family pension or the compassionate appointment & the other dues of NCPF amounting Rs.10062 & GSI amounting Rs.1770 total Rs.11832/- has been paid to Smt.Chanda on 11.6.07. Hence, nothing has been remain unpaid to the applicant and therefore this Para is denied".
10.In view of the above averment made by the Respondents, we do not find any merit in the claim made by the Applicant in Para 8.1 of the relief clause extracted above. Having said that, it is nevertheless a fact that the Applicant is the widow and we find from the order of removal that the authority who passed the removal order has not said a word about the grant of compassionate allowance. Under Rule 65(2) of the Railway Services (Pension) Rules, 1993 the disciplinary authority is competent to consider grant of compassionate allowance in deserving cases. There is no finding with regard to this in the order of removal. Therefore, we grant liberty to the Applicant to make a representation to the competent authority in this regard within 30 days of the receipt of this order and on receipt of such are presentation the competent authority of the Respondent-organization shall pass a speaking order in the matter within 90 days thereafter. The competent authority of the Respondent-organization shall also communicate its order to the Applicant within the said stipulated period.”
If the submissions advanced across the Bar are considered in the light of the observations recorded in the judgment passed in Original Application No. 278 of 2009, it is clear that the respondents were directed to consider the grant of compassionate allowance to the applicant in deserving cases. It appears that, without considering the direction contained in the said judgment in its true letter and spirit, the respondents, vide orders dated 05.10.2011 and 28.06.2016, rejected the applicant’s claim. It is an admitted position between the parties that the Disciplinary Authority, while passing the order of removal of the applicant, did not pass any order regarding the grant of compassionate allowance. In my considered opinion, this fact, by itself, is not sufficient to deprive the applicant of compassionate allowance, as is evident from the language employed in Rule 65 of the Railway Services (Pension) Rules, 1993. The Rule does not mandate that the issue of grant of compassionate allowance must necessarily be considered and decided simultaneously with the order of removal or dismissal passed by the Disciplinary Authority. An order granting compassionate allowance may also be passed at a subsequent stage. The essential condition for consideration of compassionate allowance is that the employee concerned has been dismissed or removed from service.
In the present case, therefore, the applicant’s claim for compassionate allowance could not have been rejected solely on the ground mentioned in the impugned orders. It is further clarified that although the order dated 05.10.2011 has not been specifically challenged in the relief clause of the Original Application, the Original Application cannot be dismissed solely on that ground. The delay in filing the Original Application has already been condoned, as noticed in the preceding paragraph. Accordingly, the orders dated 05.10.2011 and 28.06.2016 are liable to be set aside.
Thus, considering the entire facts and circumstances of the case, Original application is hereby allowed and the order dated 28.06.2016 as well as order dated 05.10.2011 passed by the respondents are hereby setting aside/quashed. Respondents are hereby directed to reconsider the issue of compassionate allowances afresh, in light of the observation recorded herein above, as well as taking into consideration the provision of Rule 65 of the Railway Services (Pension) Rule, 1993 (Repealed Act), which was in existence on the date of moving representation and also the Rule 41 of the Railway Services (Pension) Rule, 2026. Aforesaid exercise shall be completed within a period of three months from the date of production of the certified copy of the order.
All the pending MA also stand disposed of.
No order as to costs.