Judgment:
This application is filed seeking declaration that the applicant is entitled for sanction of compassionate pension due to her husband during his life time, i.e from the date of removal of her husband from service to the date of his death under:
Rule 65 of Railway Services (Pension) Rules, 1993 and also for family pension to the applicant from the date of death of her husband.
2. The relevant facts in brief are as follows:
The applicant's husband, late Rama Rao was appointed in the Workshop on .8.1955. However, due to his ill health, he was not regularly attending to his duties which resulted in his removal from service by order dated 5.2.1980 issued by the Works Manager, Office of Dy CME Lallaguda, Hyderabad. According to the applicant, her husband was suffering from Paralysis and ultimately died on 7.11.1992 leaving behind her and her two daughters. Even before removal of her husband he was not keeping good health and was undergoing constant treatment till his death on 7.11.1992. The applicant's husband served for more than 24 years as on the date of removal and her husband left behind no property. Her husband was removed not on account of any misconduct or moral turpitude but only due to unauthorised absence necessiated due to continuous ill health. On 7.1.2000, the applicant made representation to R-3 and R-4 to consider grant of compassionate allowance to her husband consequent on his removal from service from 8.2.80 till 7.11.92 and family pension to the applicant from 8.11.92 onwards. According to the applicant, the applicant's husband during his life time also had submitted representation dated 7.9.89 seeking compassionate allowance but there was no response to any of the representation by the applicant's husband during his life time and also by the applicant after the death of her husband. The applicant pleaded that Rule 65 of Railway Services (Pension) Rules, 1993 provides that the authorities competent to dismiss or remove the employee from service may sanction compassionate allowance not exceeding 2/3rd of pension, or gratuity or both which would have been admissible to him if he had retired on compensation pension in deserving cases. The applicant further pleaded in the application that her husband was not removed from service on account of any misconduct but due to absence on account of bonafide ill health (paralysis), the action of the respondents in not sanctioning compassionate allowance under Rule 65 of Railway Services (Pension) Rules, 1993 is clearly illegal and unjustified.
3.The applicant had filed OA 94/ 2003 before this Tribunal seeking direction to the respondents to sanction compassionate allowance to her husband during his life time and also family pension to her from the date of death of her husband. This Tribunal disposed of the OA on 11.8.2004 directing the applicant to prefer fresh representation to the respondents 1 and 2 giving full details of the case and the respondents shall consider such representation on merits. In pursuance of the said order, the applicant made a detailed representation dated 10.9.2004 setting out the facts and circumstances and also the distressed condition in which the family is placed and requesting to sympathetically consider the grant of compassionate allowance till the death of her late husband and family pension since the date of her husband's death. The 2nd respondent issued letter dated 25.1.2005 to the applicant intimating her that compassionate allowance cannot be granted. Thereupon the applicant submitted representation to R-3 on 31.3.2005, but she was informed that her request for compassionate allowance and family pension is not permissible vide letter dated 5.5.2005. Subsequently, the Railway Board issued letter dated 9.5.2005 (RBE No. 79 of 2005) that past cases where a competent authority has not sanctioned compassionate allowance cannot be reopened and the head of the department should place before the competent authority the information about the qualifying service and other relevant facts considering the Railway servants either at the time of imposing the penalty of removal or immediately thereafter to facilitate the authority to take a decision as regards sanction of compassionate allowance. This procedure was not followed in the case of her husband, though her husband made representation on 7.9.89. Hence, the applicant prayed for calling for the records relating to letters dated 25.1.2005, 5.5.2005, 5.7.2005 and 9.5.2005 and to quash them to the extent that past cases should not be reopened, after declaring those letters as illegal, arbitrary, unjust and violative of Articles 14, 16 and 21 of the Constitution of India. She also prayed for a declaration that the applicant's husband is entitled for sanction of compassionate allowance during his life time from the date of removal till the date of his death and the applicant is entitled for family pension since the date of death of her husband under Rule 65 of Railway Services (Pension) Rules, 1993.
4.The respondents contested the application and field reply stating that the applicant's husband who was working as Painter, was removed from service with effect from 8.2.1980 and the applicant had filed a case before this Tribunal in OA 94/ 2003 for the same relief prayed for in this OA and this Tribunal passed orders directing the applicant to file fresh representation to the Deputy Chief Mechanical Engineer, Lallaguda and Chief Workshop Manager, Lallaguda (R-1) and (R-2) and instructed the respondents to consider the representation sympathetically and on merits. In pursuance of the said direction of the Tribunal the applicant submitted representation on 10.9.2004 to the Deputy Chief Mechanical Engineer, Lallaguda and on 31.3.2006 to the Chief Workshop Manager, Lallaguda. Both of them considered the representations on merits and regretted the request of the applicant on the ground that as per rules she is not entitled. The respondents pleaded that imposition of penalty of removal from service was not challenged in OA 94/ 2003. The office of R-2 did not receive any representations either from the applicant's husband or from the applicant. As per the Railway Board's letter dated 9.5.2005, the question of family pension does not arise in cases where the employee was not in receipt of compassionate allowance during his life time. The family pension can be granted only when the employee was in receipt of compassionate allowance. The records of those removed employees who are in receipt of compassionate allowance alone are preserved. Therefore, the grant of compassionate allowance to the staff dismissed/ removed from service is not automatic as contended by the applicant. It is the discretion of the disciplinary authority based on the merits of the case. The applicant's husband never applied for compassionate allowance during his life time. The respondents admitted that the applicant's husband was removed from service from 8.2.1980 for his unauthorised absence. It is further pleaded that as per Rule 65 of Railway Services (Pension) Rules, 1993, there is no provision to grant compassionate allowance to the family of the deceased employees who are removed/ dismissed from service. Further, Rule 65 of Railway Services (Pension) Rules, 1993 could not be applied to the deceased since he was removed from service from 8.2.1980. As per the provisions, it is not necessary that in every case of removal compassionate allowance should be granted and it is left to the discretionary power of the disciplinary authority. The respondents pleaded that they have complied with the orders of this Tribunal passed in OA 94/ 2003. The respondents relied upon a decision of the Hon'ble High Court of Punjab and Haryana in the case of Amar Singh Vs. State of Haryana reported in 1997 (1) SLR 401 stating that it is held therein that claim of compassionate allowance after a lapse of 20 years after removal from service is liable to be dismissed on delay and laches. The respondents prayed for dismissal of this OA as devoid of merits.
5.The applicant filed rejoinder reiterating the same contentions raised in the application. She pleaded that the authorities which removed her husband from service for his absence is required to consider and pass orders keeping his ill health and also poverty of the family. There was no requirement of filing an application by the removed employee seeking grant of compassionate allowance, especially when the employee is illiterate. She further submitted that as per Government of India's decision, it has been the practice to take into account not only the actual misconduct or course of misconduct which occasions the dismissal/ removal of the official but also the kind of service he has rendered which in this case was not taken into consideration. The reasons assigned for rejecting her case is only non-submission of application for compassionate allowance by her husband which is unjust and untenable.
6.During the course of hearing, the counsel for the applicant reiterated the contentions raised in the application and rejoinder. The counsel for the respondents reiterated the contentions raised in the reply.
7.The points that arise for consideration in this application are:
(i)Whether the employee is required to file an application seeking compassionate allowance under Rule 65 of Railway Services
(Pension) Rules?
(ii)If so, whether the applicant's husband did not file an application during his life time seeking compassionate allowance?
(iii)If so, whether the applicant is entitled to claim compassionate allowance to her husband and family pension to her after the death of her husband?
(iv) Whether the impugned orders are sustainable in law?
(v) To what result?
8.Points No. (i) to (iii):
The averments in the application that the applicant's husband was appointed in the respondent department on 8.8.1955 and he was removed from service on 5.2.1980 are not denied in the reply filed on behalf of the respondents. It is admitted in para 3 of the reply that the applicant's husband was removed from service only on account of the unauthorised absence and not on the ground of any negligence or any grave misconduct. It is also not disputed that if the applicant had taken the voluntary retirement after issuing a notice of not less than three months under Rule 67 of Railway Services (Pension) Rules, 1993 on account of his continuous ill health, he would have been entitled for all retirement benefits including pension as he completed 20 years of qualifying service by the date of his removal from service. In view of Rule 65(1) of Railway Services (Pension) Rules, 1993, he has to forfeit his pension and gratuity on account of removal from service for his unauthorised absence. But , as seen from the proviso under Rule 65 of Railway Services (Pension) Rules, 1993, the authority competent to dismiss or remove him may sanction a compassionate allowance not exceeding 2/3rd of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension, if the case is deserving of special consideration. It is nowhere stated in the proviso under Rule 65 that the employee who was dismissed or removed from service shall make an application seeking compassionate allowance. As seen from this proviso, the authority who is competent to remove the employee from service has to apply his mind whether the case deserves special consideration for the purpose of sanction of compassionate allowance as the order of punishment of removal forfeits pension and gratuity which the employee would have been otherwise entitled as of right. The maximum of compassionate allowance is also fixed under proviso to Rule 65 (1) and minimum is fixed under Rule 65 (2 of the Rules. The compassionate allowance shall not exceed 2/3rd of pension which would have been admissible to him if he had retired on compassionate pension. Rule 63 of the Rules deals with compensation pension. As per the said Rule compensation pension is payable to those who are selected for discharge owing to the abolition of his permanent post. Such employee is entitled for pension for the service he had rendered. Rule 69 of Railway Services (Pension) Rules, 1993 deals with the calculation of pension. Those who have completed 10 years of qualifying service is entitled for pension. None of the provisions relating to pension prescribe the requirement of an application to be filed by the employee. At any rate, no time limit is prescribed for filing an application seeking compassionate allowance under Rule 65 of Railway Services (Pension) Rules, 1993. In the absence of any provision, it cannot be said that the applicant's husband ought to have filed an application seeking compassionate allowance immediately after his removal. In fact, no removed employee would file an application seeking compassionate allowance immediately after the orders of removal as the employee is entitled as of right to challenge the order of removal by way of an appeal before the appellate authority and also by way of revision petition before the revision authority and also by way of an application before this Tribunal. Under those circumstances, it is too much to expect the removed employee to file an application before the disciplinary authority immediately after the punishment order is passed by the disciplinary authority, as filing of such application would be detrimental to his contentions that may be raised before the appellate authority, the revisional authority and also this Tribunal. According to the respondents, the applicant never made any application during his life time, while according to the applicant, her husband during his life time made an application seeking compassionate allowance as long back as on 7.9.89. She filed a copy of the same as Annexure A-XIII at page 29. The said letter is dated 7.9.89 and it is addressed to the General Manager, South Central Railway, Secunderabad. In the said application, it is stated that the applicant's husband served for a period of 25 years in the work shop at Lalaguda and he has got two unmarried daughters aged 10 and 12 and that he is suffering with paralysis since 10.1.79 and for that reason, he could not attend to duties since 10.1.79 and that at present himself and his family could not get one time meal a day and his whole family is about to come on the roads and there are none to look after him and his family and therefore, he prayed for grant of compassionate pension considering his total service of 25 years of service from 8.8.55 to 18.2.80 (the date of removal). However, the applicant who is an illiterate widow could not produce any acknowledgement to show that her husband filed such application. In fact, the applicant's husband also was an illiterate as is evident from the thumb impression found in the copy of the application dated 7.9.89. Even if it is assumed that no such application has been filed by the applicant's husband during his life time, it is not a bar for the applicant to file an application after the death of her husband, claiming compassionate allowance in favour of her husband from the date of removal till the date of his death, in view of the Five Member Larger Bench decision of this Tribunal (Calcutta Bench) in Mrs. Chandra Kala Pradhan Vs. Union of India reported in ATJ 2002 (1) CAT, Calcutta, page 25 wherein it is held that right to sue under service jurisprudence devolves upon the legal heirs after the death of the Government employee. Therefore, the applicant is entitled to make all the claims which her late husband was entitled to claim had he been alive. As it is not disputed that the applicant is the widow of late Rama Rao, who was removed from service on 8.2.80, for his unauthorised absence, she is entitled to make a claim.
9.Coming to the plea of delay and laches raised by the respondents, there is no provision in the pension rules prescribing time limit for claim of pension in the event of failure of the employer to pay the eligible pension. It is already observed supra that there is no need for an application to be filed seeking compassionate allowance. In my considered view, it is the responsibility of the officer who is empowered to pass orders of removal/ dismissal to consider whether the case deserves special consideration for sanction of compassionate allowance and pass appropriate order in this regard while passing order of removal.. There is nothing on record to show that the authority who passed the orders of removal of the applicant's husband considered as to whether the case deserves special consideration for sanction of compassionate allowance. In my considered view wherever the authority is of the view that it is not a deserving case for sanction of compassionate allowance he is expected to mention in the orders of removal that the case does not deserve special consideration for sanction of compassionate allowance. Because, but for the order of removal , the employee is entitled for the pension as of right for the service rendered by him and while forfeiting such right to pension, it is obligatory on the part of the authority concerned to give reasons as to why the proviso under Rule 65 (1) of Railway Services (Pension) Rules, 1993 is not applicable. Further, in the absence of a specific provision prescribing time limit seeking compassionate allowance, it cannot be said that no application for compassionate allowance can be filed at a belated stage. At the most, in case of belated claims, the claim can be restricted from the date of claim. In some cases, the removed/ dismissed employees may be able to maintain themselves and their families without the assistance of compassionate allowance as on the date of removal but later they find it difficult to maintain themselves or their families. In such cases, they are entitled to fall back on the employer to whom they served, to seek compassionate allowance for their sustenance. In case of illiterate persons, out of ignorance of provision relating to compassionate allowance, they fail to seek compassionate allowance. Even the Railway Board has recognized such instances where the removed employees and their families failed to avail the benefit of compassionate allowance out of ignorance of the provision relating to compassionate allowance, as is evident from Serial Circular No. 145/ 1995 which reads as follows:
“3. However, it has been brought to the notice of Headquarters that a good number removed/ dismissed employees who deserve sanction of compassionate allowance could not avail themselves of this benefit due to ignorance of existence of these provisions. It has also been reported that especially families have been put to much hardship, when such railway servants expire leaving the families in dire distress.
4.The issue has been examined carefully. It is considered with accent on the welfare of the ex-railway servant deserving special consideration and their family members, that a system should be evolved which shall take care of the operation of Rule 65 of the current Pension Rules automatically.”
From the above quoted observations in the said circular, it is clear that the Railway Board is very much concerned about the welfare of not only the removed employees but also their families who deserve compassion. So, the only consideration for grant of compassionate allowance is whether the removed employee or his family, as the case may be, is really in distress and unable to maintain themselves without the assistance of compassionate allowance. In the instant case, according to the applicant, the applicant was suffering from paralysis all through since the date of his removal and ultimately died of paralysis and there is no other source of income for them and his family is in distress condition. Whether the family is really in distress is a question of fact which can be verified by the respondents before passing orders on the representation made by such removed employee during his life time or his dependent family members after his death. But, without making any enquiry regarding the financial status of the family, the application filed for compassionate allowance from such removed employee or dependent family members, cannot be rejected outright. Deserveness or otherwise is to be determined before passing orders on such representation. Wherever it is found that the removed employee/ dependent members of the removed employee's family are in distress condition, the erstwhile employer is bound to go to the rescue of such families. Otherwise, it create a social problem for the society as such people are forced to become beggars in the street. Therefore, in deserving cases, compassionate allowance cannot be denied on technical objections. This Tribunal in OA 532/ 2006, considered similar technical objections taken by the respondent railways to defend the claim of compassionate allowance and rejected such objections and directed the respondents to reconsider the grant of compassionate allowance in accordance with the proviso under Rule 65 of Railway Services (Pension) Rules, 1993 in the light of the observations made therein. In that case, this Tribunal relied upon the Division Bench decision of Madras High Court in M. Jayalakshmi Vs. Union of India and others in writ petition No. 13579/ 2000 dated 12.9.2001 reported in 2002 (3) ATJ 374 wherein the Division Bench of the Hon'ble High Court directed the respondent railways to consider the representation of the applicant in accordance with law irrespective of the hefty delay in approaching Railways seeking compassionate allowance. Further, this Tribunal in OA 77/ 2003 dated 8.9.2004 in Smt. Saleha Begum Vs. General Manager (Personnel), South Central Railway directed the General Manager to consider the representation of the widow of the Goods Driver for sanction of compassionate allowance though the removed employee was in receipt of compassionate allowance during his life time. In that case also the representation had been rejected on the ground that her husband during his life time did not make any application seeking compassionate allowance and therefore the widow of removed employee is not entitled to claim compassionate allowance. The said rejection of representation was challenged in that OA. Similar contentions as raised in the present OA had been raised in that OA also, but the Division Bench of this Tribunal vide order dated 8.9.2004 rejected all the contentions including the contention regarding limitation. The applicant herein stands on much better footing than the applicant therein. Because the husband of the applicant in OA 77/ 2003 was removed from service on a serious charge of negligent driving which resulted in derailment of train whereas in the instant case the applicant's husband was removed from service on a charge of unauthorised absence which is not a grave misconduct The husband of the applicant in OA 77/ 2003 did not file any application seeking compassionate allowance and he was not in receipt of compassionate allowance by the date of his death. It was only after her husband's death, Saleha Begum, the applicant therein filed application seeking compassionate allowance and Railways took the same stand as is taken in this case for rejection of claim for compassionate allowance. This Tribunal rejected the contentions of the Railways and directed the Railways to pay compassionate pension to the widow of the deceased employee. Therefore, in my considered view, the rejection of the representation made by the applicant without making any inquiry regarding the financial condition of the applicant is not in accordance with the spirit of compassionate allowance provided under Rule 65 (1) of Railway Services (Pension) Rules, 1993. The respondents ought to have treated the representation made by the applicant as an application filed as a legal heir of the deceased employee for compassionate allowance and made necessary inquiries and fixed the quantum of compassionate allowance notionally and accordingly fixed the compassionate pension for the applicant. Of course, as there is a hefty delay in making representation, the compassionate pension is liable to be restricted to the date of representation made by the applicant after the demise of her husband. It is already observed supra that the applicant failed to produce the acknowledgement to show that her husband had filed an application seeking compassionate allowance on 7.9.89. As seen from the orders passed in OA 94/ 1993 dated 11.8.2004, the applicant submitted a representation on 7.1.2000 seeking grant of compassionate allowance to her husband and also family pension to her. Therefore, in case it is found that the applicant is really in distress, the appropriate compassionate pension may be fixed and paid to her with effect from 7.1.2000. Thus, these points are found accordingly.
10.Point No. (iv):
In view of the findings in points (i) to (iii), the impugned order of rejection are not sustainable in law and is liable to be set aside and the respondents are required to be directed to make necessary inquiry to determine whether the applicant is really in distress and unable to maintain herself, and in case it is found that she is really in distress, the respondents shall fix appropriate compassionate pension and pay to her with effect from 7.1.2000. Thus, this point is found accordingly.
11.Point No. (v):
In the result, the OA is disposed of and the impugned rejection order is set aside and the respondents are directed to reconsider the representation of the applicant and make necessary inquiries to determine whether the applicant is really in distress and unable to maintain herself and in case it is found that she is really in distress, the respondents shall fix the compassionate pension and pay the same with effect from 7.1.2000. No order as to costs.