Desh Raj, Faridabad Haryana Vs. Union of India Through the General Manager, New Delhi and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1149437
CourtCentral Administrative Tribunal Principal Bench New Delhi
Decided OnApr-04-2014
Case NumberO.A.No. 1164 of 2012
JudgeTHE HONOURABLE MR. RAJ VIR SHARMA, JUDICIAL MEMBER
AppellantDesh Raj, Faridabad Haryana
RespondentUnion of India Through the General Manager, New Delhi and Others
Excerpt:
raj vir sharma, member (j). in this original application, the applicant has prayed for the following relief: (i).  that the honble tribunal may graciously be pleased to pass an order of quashing the impugned order dated 18.10.2011 declaring to the effect that the same is illegal, arbitrary and based on wrong facts and consequently pass an order directing the respondents to reconsider and to grant the compassionate allowance to the applicant as per rule-65 of the railway services (pension) rules, 1993 or previous pension rules from the date of removal from service with all consequential benefits including the arrears of back period pension. (ii).that the honble tribunal may graciously be pleased to pass an order directing the respondent to release the gpf amount to the applicant with interest. (iii).any other relief which the honble tribunal deem fit and proper may also be granted to the applicant along with the cost of litigation. 2. brief facts of the applicants case run thus: the applicant was initially appointed as dresser in the delhi division of northern railway with effect from 16.6.1958. when he was posted to railway hospital, tugalakabad, on 12.6.1981 the applicant proceeded on leave for 45 days. during the said leave period he developed some mental trouble, which was further aggravated, and he remaining in a state of insanity left home and was lost to his family, relations, office, etc. he returned home in the month of june 1988. without knowing that he was removed from service, the applicant made a request to the respondent-authorities on 16.6.1988 to allow him to take voluntary retirement. there being no response, he also made a further representation dated 8.8.1988. he received a letter dated 15.11.1988 from the ministry of personnel intimating him that his representation was forwarded to the railway board. the applicant made further representation dated 27.2.1989. when there was no response, a lawyers notice dated 15.11.1989 was served on the respondent-authorities. when he approached the concerned authorities, the applicant was informed that he was removed from service w.e.f. 11.12.1985, vide order dated 24.6.1986, but copy of the order of removal from service was not supplied to him. 2.1.the applicant made representation dated 5.4.2009 for granting compassionate allowance and paying him the gpf amount. as no reply was received from the respondent-authorities, he filed o.a.no.2957 of 2009 before this tribunal. the tribunal permitted withdrawal of the said o.a. and granted liberty to the applicant to prefer a detailed representation seeking benefit under the relevant rules. 2.2.the applicant through his advocate made representation dated 14.12.2009 to the respondent-authorities. as there was no response, the applicant filed oa no.2566 of 2011 before this tribunal. the tribunal, vide order dated 18.7.2011, disposed of the said o.a. and directed the respondents to consider the applicants representation within three months. the tribunal also directed the respondents to consider the said o.a. as a supplementary representation. 2.3. in compliance with the tribunals direction, the impugned order dated 18.10.2011 (annexure a/1) was passed by respondent no.3 rejecting the applicants request for granting him compassionate allowance. the grounds for rejection of the applicants claim, as stated in the impugned order, are that the quality of the service rendered by the applicant could not be ascertained; that the applicant had not preferred appeal against the order of punishment of removal from service; that the applicant did not submit any paper to prove his dedication and devotion to duty; that the applicant had sublet the railway quarters which amounted to misconduct; and that the applicant failed to submit details of dependent family members. 2.4. it is contended by the applicant that the service book and the disciplinary file are very much available in the northern railway health unit, tughlakabad and therefore, the authority, who passed the impugned order, was not correct to state that the quality of service rendered by the applicant could not be ascertained. the said respondent-authority, while considering the claim of the applicant for compassionate appointment, should not have taken into account the fact of non-filing of appeal against the order of punishment of removal from service in as much as the legality and/or validity of the said punishment order was not questioned by the applicant. as regards details of family members, the applicant wanted to submit an affidavit showing the details of family members, but the respondent no.3 refused to receive the same and therefore, the said authority was wrong in stating that the applicant did not furnish the details of the members of his family. 2.5. it is also contended by the applicant that he having admittedly rendered more than 23 years of regular service, respondents ought to have granted compassionate allowance. to buttress his contention, the applicant has relied on the decisions in ex.ct. dayanand v. union of india and others, 2000(1)atj 137; harish chander v. union of india and others, w.p. no.1730 of 1999,decided on 27.9.2002; sukha singh v. union of india, cwp no.13352/2004, decided on 17.11.2004; anna deoram londhe v. state of maharashtra, 1998(4)slr 480; ex.asi shadi ram v. govt. of nct of delhi, wp no.5544/2007; and ex.l/nk mahavir prasad v. uoi and others, wp (c ) no.2556 of 2010, decided on 26.8.2010. 3. a counter reply was filed by the respondents on 5.7.2012. it is stated by the respondents that the applicant went on lap w.e.f. 14.8.1981. as he did not join his duties on due date, he was declared unauthorized absent w.e.f. 1.10.1981. by memorandum dated 22.7.1982 he was served charge-sheet in sf-5 as per rule 9 of the railway servants (d and a) rules, 1968. on the basis of the dar enquiry, penalty of removal from service was imposed on him, vide order dated 24.6.1986, with immediate effect. in the same order, he was apprised about the opportunity of preferring appeal against the said punishment order, but he never appealed. leave encashment was granted to him vide letter dated 2.11.1986. in compliance with the tribunals order dated 18.7.2011 passed in oa no.2566 of 2011, the applicants claim for compassionate allowance was considered by the competent authority in accordance with the railway boards letter dated 4.11.2008 (rbe no.164/2008) and rejected, vide order dated 18.10.2011 (annexure a/1). as regards his claim for payment of gpf amount, the relevant records being not traced out, no decision could be taken by the competent authority. the statement of the applicant about the lack of knowledge of the order of his removal from service has been denied by the respondents stating that the same was communicated to him by registered post. the respondents have pointed out the delay of 23 years on the part of the applicant in making claim for compassionate allowance. 4. further counter reply and amended counter reply were filed by the respondents on 16.8.2012 and 21.5.2013 respectively reiterating the same stand as in the counter reply dated 5.7.2012, save and except citing some case-laws regarding the scope of interference by the tribunal in disciplinary matters. 5. in the rejoinder replies, the applicant has refuted the stand taken by the respondents and submitted that claim for compassionate allowance being in the nature of pension, non-grant of compassionate allowance to the applicant is a continuing wrong and hence, the cause of action in this case is of continuous nature. 6. admittedly, after disciplinary enquiry, the penalty order was passed by the competent authority on 24.6.1986 removing the applicant from service with effect from 11.12.1985. the applicant pleaded lack of his knowledge about the said penalty order because he was in a state of insanity during the said period. it is his case that when he was on leave for 45 days from 12.6.1981, he developed mental trouble which was aggravated and he remained in a state of insanity and returned home in june 1988. admittedly, he was working as a dresser in railway hospital and if there was any mental trouble with him, he might have received treatment from the said hospital or from any other hospital/physician for such mental trouble. he has not produced any contemporaneous document to show that he had developed mental trouble soon after he proceeded on leave for 45 days from 12.6.1981. it is his case that after his recovery from madness he returned home in june 1988. if at all he was able to recollect the detailed particulars of his service as a dresser in the railways, which included his long absence of about seven (7) years, he could have reported for duty immediately after june 1988 along with appropriate medical certificate or any other proof in support of his being in a state of insanity. rather, from his representation dated 16.6.1988 (annexure a/3) addressed to respondent no.2 for allowing him to voluntarily retire from service, it transpires that from his native place he had sent the same by registered post with a/d, but he has not filed the postal acknowledgement before this tribunal. it is his further case that when he came to know about the penalty order, he made representation on 5.4.2009 for grant of compassionate allowance. the applicant has not stated as to on which date and from whom he came to know about the penalty order. even assuming for a moment that he came to know about the penalty of removal from service in 2009, he would have been well advised to assail the said penalty order by filing an appeal within a reasonable period from the date of his coming to know about the same taking the purported plea of insanity supported with appropriate medical certificate. but it appears that he did not do so. in the above circumstances, the plea taken by the applicant that he remained in a state of insanity from june 1981 to june 1988 is found to be shrouded with mystery and hence unacceptable. 7. the issue involved in the present o.a. is whether in terms of rule 65 of the railway services (pension) rules, 1993 the applicant is entitled to compassionate allowance. rule 65 is reproduced as under: 65.  compassionate allowance: (1). a railway servant who is dismissed or removed from service shall forfeit 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 rupees three hundred seventy-five rupees per mensum. 8. r.b.e. no.164/2008, a copy of which is at annexure r/1, is on the subject of grant of compassionate allowance, which, inter alia, provides as under: 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 boards 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 appears to be deserving for consideration being given, may be reviewed by the disciplinary authority concerned on receipt of representation 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 danda proceedings and service records are available. danda 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 the compassionate allowance should not be considered if the railway 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 individuals spouse and children dependent upon him. 9. a combined reading of the above rule 65 of the railway services (pension) rules, 1993 and the r.b.e.no.164/2008 makes it clear that compassionate allowance is not a matter of right. in cases where a person is dismissed or removed not on account of serious misconduct relating to service conditions and the circumstances also show that he has no means of livelihood or to survive, the authorities may consider him giving compassionate allowance, if the case deserves a special consideration, having regard to the entire service record. therefore, it is practically impossible in view of the wide variations that naturally exist in the circumstances attending in each case, to lay down categorically precise principles that can uniformly be applied to individual cases. each case has to be reached on the question whether there were any such extenuating features in the case as would make the punishment awarded unduly hard on the individual. poverty is not an essential condition precedent to grant of a compassionate allowance. 10. in the instant case, admittedly, the disciplinary authority had not taken any decision suo motu with regard to grant, or otherwise, of compassionate allowance, while passing the order of punishment of removal of the applicant from service. therefore, as per the tribunals direction, referred to above, respondent no.3 considered the claim of the applicant in terms of r.b.e.no.164/2008 (annexure r-1) and rejected the same, vide order dated 18.10.2011 (annexure a/1), the relevant portion of which reads thus: 3.(i). as the matter of removal of sh.deshraj is more than 25 years old, the records of his service and disciplinary matter available may not be considered exclusive. therefore, the quality of service rendered by sh.deshraj during his employment in railways could not be ascertained. 3.(ii). as per the available records, no extenuating factor that would be made the decision of removal of sh.deshraj unduly hard, could be made out. furthermore, sh.deshraj himself had also not found any such extenuating factor in the decision as he had never appealed before against the decision of his removal from service, nor he has pointed out any such factor in the present o.a. 3.(iii). the kind of service rendered by sh.deshraj could not be ascertained for want of relevant records. he had also not submitted any paper related to prove his dedication and devotion to the duty which could have been considered while deciding the matter. 3.(iv). as per records, sh.desh had been found indulged in subletting railway quarter allotted to him which is a grave act of misconduct and dishonesty. this act of dishonesty had also been made one of the grounds by the then competent authority for penalty of removal from service. as he had been found dishonest, which was one of the grounds for his removal; it renders him unworthy of consideration for award of compassionate allowance as per the condition laid out in the circular. 3.(v). to ascertain the financial needs of his dependents, a letter was issued to sh.deshraj (sent by regd. post to his present address as shown in the oa), requesting him therein to submit the details of spouse and children dependent upon him. but he has not submitted any details so far. in view of the facts and circumstances mentioned above, a well considered view on the representation of sh.deshraj has been taken. however, no merit was found in the matter which appears to be worthy of award of compassionate allowance to sh.deshraj. hence, the request of sh.deshraj for granting compassionate allowance is regretted. 11. from the above, it is found that due to inordinate and long delay of more than 25 years, all the service records and records pertaining to danda proceedings in respect of the applicant are not available to adjudge the kind of service rendered by him. therefore, the competent authority was unable to adjudge the quality of service rendered by the applicant while considering his claim for compassionate allowance. the competent authority also observed that on the basis of whatever records available at this distant point of time, he did not find any extenuating factor that would make the decision of removal of the applicant from service unduly hard. the competent authority also found that as per records, the applicant had been found indulged in subletting railway quarters allotted to him which was a grave act of misconduct and dishonesty. the disciplinary authority had imposed the penalty of removal after the charges of unauthorized absence of the applicant for years together with effect from 1.10.1981 and of subletting railway quarters were proved against the applicant. non-submission of the details of spouse and children by the applicant in spite of his being asked by letter sent by registered post was also taken as a factor by the competent authority to decline the request made by the applicant for compassionate allowance. 12. in terms of the paragraph 3 (i) of the rbe 164/2008 (annexure r-1), only those past cases could be reviewed where records pertaining to danda proceedings and service records are available. in the case of the applicant, as found by the competent authority, the complete service records and danda file in respect of the applicant were not available because of long and inordinate delay of more than 25 years. therefore, the applicants case could not have been reviewed in terms of paragraph 3(i) of the r.b.e.164/2008. however, the competent authority considered the applicants claim on the basis of whatever records were available. the contention of the applicant that all the service records including the disciplinary file are very much available in the northern railway unit,tughlakabad, is not supported by any material being produced before this tribunal. the affidavit filed by the applicant at annexure a/3 is a self-serving document showing the details of his dependents, namely, his wife smt. gayatri devi, wife,aged 58 years, and (ii) smt. vandna kumari, divorcee daughter, aged 31 years. the applicant has not filed any decree of divorce or any other contemporaneous document showing that his daughter being a divorcee is dependent on him. moreover, when it is his case that the competent authority refused to accept the said affidavit from him, the applicant should have sent the same by post to the competent authority. therefore, the aforesaid contentions of the applicant are not acceptable. 13. in ex.ct. daya nands (supra), the petitioner was enrolled in crpf on 5.9.1960 as constable. on 19.3.1981 the disciplinary authority dismissed the petitioner from service by way of enhancing the punishment. on 25.5.1981 the name of the petitioner was struck off from the strength of crpf and thus the petitioners services came to be terminated after he had served for 20 years and about 8 months. the competent authority refused to consider the petitioners representation for grant of compassionate allowance and the petitioner approached the honble high court of delhi. the honble court directed the respondent to grant the compassionate allowance to the petitioner. in the case at hand, there was delay of about 23 years when the applicant made the claim for compassionate allowance, the entire service records and danda file in respect of the applicant are not available, and his request had to be considered by the competent authority under rule 65 of the railway services (pension) rules, 1993 and in terms of the guidelines contained in rbe no.164/2008. therefore, the facts and circumstances of ex.ct dayanands case (supra) being different, the ratio laid down therein is not applicable to the case of the applicant in the present o.a. 14. in harish chanders case (supra), the petitioner was removed from service on the charge of unauthorized absence after having put in 29 years of service or so. he had made a representation for grant of compassionate allowance under rule 65 of the railway services (pension) rules, 1993, but the respondents had rejected it outright without according proper consideration to his case and without assigning any reason. it was the grievance of the petitioner that the respondents had failed to take into account his long service of 29 years or so and his overall condition which constituted a special circumstance and consideration for sanction of compassionate allowance under the relevant rule. in the circumstances, the honble high court disposed of the writ petition with the observation that the petitioner may make a fresh representation to the competent authority for grant of compassionate allowance. the honble court directed the concerned authority to consider the said representation in the light of the observations made in the judgment and pass appropriate reasoned orders under rules within three months from the receipt of such representation. in the case at hand, due to non-availability of the entire service records and disciplinary enquiry file in respect of the applicant after long lapse of 25 years, the competent authority could not adjudge the quality of the service rendered by the applicant. however, in compliance with the tribunals direction, the competent authority considered the claim of the applicant on the basis of whatever materials available and did not find merit in the same. therefore, the ratio of the decision in harish cahnders case(supra) is not applicable to the case of the present applicant. 15. in anna deoram londhes case(supra), the petitioner therein was removed from service on account of conviction for offence punishable under section 324 ipc and the honble bombay high court held that the said conduct was not connected with the discharge of his duties and that since the petitioner therein had put in more than thirty years of service, he was otherwise eligible for superannuation or retiring pension. in the circumstances, the honble court directed the respondents to pay compassionate pension to the petitioner (since dead) and family pension to his widow. in the instant case, the applicant was removed from service as a result of disciplinary enquiry in which the charges of unauthorized absence for years together and of subletting the railway quarters were proved against him, there was delay of about 23 years when the applicant made the claim for compassionate allowance, and his request was to be considered by the competent authority under rule 65 of the railway services (pension) rules, 1993 and in terms of the guidelines contained in rbe no.164/2008 and the entire service records and danda file, which required to be considered by the competent authority, are not available. therefore, the facts and circumstances in anna deoram londhes case(supra) being different, the ratio laid down therein is not applicable to the case of the present applicant. 16. in ex. asi shadi rams case (supra), the honble delhi high court considered rule 41 of ccs (pension) rules, 1972 and guiding principles for grant of compassionate allowance formulated by the government of india. the honble court held that it is not only the misconduct which is the main reason for the petitioners dismissal from service that has to be considered but the entire service record of the petitioner has to be considered to come to the conclusion whether the petitioner is entitled to compassionate allowance. in the case at hand, the entire service records and the danda file in respect of the applicant are not available and therefore, the decision in ex. asi shadi rams case (supra) is in no way helpful to the case of the present applicant. 17. in sukha singhs case (supra), the petitioner was removed from service vide order dated 5.6.1984 as the charge of embezzlement of money was proved against him and his appeal was rejected, after which he made representation dated 20.9.1994 for grant of pension or in the alternate for compassionate allowance. the o.a.no.2477/1995 filed by the applicant was dismissed on 1.9.1999. cwp no.13352/2004 filed by the petitioner assailing the tribunals order dated 1.9.1999 was disposed of on 17.4.2004 with direction to the petitioner to make a fresh representation to the respondents who were directed to dispose of the same within on month. the said representation of the petitioner was rejected by the respondents vide order dated 27.8.2005. oa no.482/2006 filed by the petitioner against the said order dated 27.8.2005 was dismissed, vide order dated 2.8.2006. w.p. (civil) no.11646 of 2009 filed by the petitioner was dismissed by the honble high court, vide judgment dated 20.1.2010, upholding the tribunals order dated 2.8.2006. this decision also does not help the case of the applicant. 18. in ex.l/nk mahabir prasad v. uoi and others, w.p.(c) no.2556 of 2010, decided on 26.8.2010, the petitioner was recruited into crpf on 19.1.1971 in the post of constable. the petitioner was stated to have absented without leave on 4th august 1994 which he resumed on 23.9.1994 and again deserted the camp laws of the crpf on 26.9.1994 without permission. the disciplinary inquiry culminated in imposing the punishment of his dismissal from service with effect from 28.10.1995. the petitioner made representation on 2.11.2009 requesting for grant of compassionate allowance from the date of his dismissal from service. the reason for the request and the explanation for the delay in making the representation are both explained on grounds of poor economic conditions. this representation was considered and rejected by the competent authority on the ground that the petitioner had been dismissed after holding a disciplinary enquiry against him in accordance with the applicable rules and that the conduct of the petitioner disclosed that he was a delinquent of disobedient nature and habitual of being absent. the writ petition filed against the said order of the competent authority was allowed by the honble high court holding and declaring that the petitioner was entitled to award of compassionate allowance in terms of the applicable rules and guidelines and directed the respondents to make appropriate orders. in ex.l/nk mahabir prasads case(supra), the entire service records were available and the competent authority failed to consider the petitioners claim in accordance with rules and rejected the same solely because of imposition of punishment of dismissal from service in the disciplinary proceedings. but in the instant case, there was delay of about 23 years on the part of the applicant in making a representation for compassionate allowance and because of the delay, the entire service records and disciplinary file are not available and therefore, his claim could not be considered in the light of the rbe 164/2008. the facts and circumstances of ex,l/nk mahabir prasads case (supra) being different from that of the instant case, the ratio laid down by the honble court therein is not applicable to the applicants case. 19. in the light of the above discussions, i hold that impugned order (annexure a/1) does not suffer from any infirmity and that the o.a. is devoid of merit. accordingly, the original application is dismissed. no costs.
Judgment:

Raj Vir Sharma, Member (J).

In this Original Application, the applicant has prayed for the following relief:

(i).  That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 18.10.2011 declaring to the effect that the same is illegal, arbitrary and based on wrong facts and consequently pass an order directing the respondents to reconsider and to grant the compassionate allowance to the applicant as per rule-65 of the Railway Services (Pension) Rules, 1993 or previous pension rules from the date of removal from service with all consequential benefits including the arrears of back period pension.

(ii).That the Honble Tribunal may graciously be pleased to pass an order directing the respondent to release the GPF amount to the applicant with interest.

(iii).Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant along with the cost of litigation.

2. Brief facts of the applicants case run thus: The applicant was initially appointed as Dresser in the Delhi Division of Northern Railway with effect from 16.6.1958. When he was posted to Railway Hospital, Tugalakabad, on 12.6.1981 the applicant proceeded on leave for 45 days. During the said leave period he developed some mental trouble, which was further aggravated, and he remaining in a state of insanity left home and was lost to his family, relations, office, etc. He returned home in the month of June 1988. Without knowing that he was removed from service, the applicant made a request to the respondent-authorities on 16.6.1988 to allow him to take voluntary retirement. There being no response, he also made a further representation dated 8.8.1988. He received a letter dated 15.11.1988 from the Ministry of Personnel intimating him that his representation was forwarded to the Railway Board. The applicant made further representation dated 27.2.1989. When there was no response, a lawyers notice dated 15.11.1989 was served on the respondent-authorities. When he approached the concerned authorities, the applicant was informed that he was removed from service w.e.f. 11.12.1985, vide order dated 24.6.1986, but copy of the order of removal from service was not supplied to him.

2.1.The applicant made representation dated 5.4.2009 for granting compassionate allowance and paying him the GPF amount. As no reply was received from the respondent-authorities, he filed O.A.No.2957 of 2009 before this Tribunal. The Tribunal permitted withdrawal of the said O.A. and granted liberty to the applicant to prefer a detailed representation seeking benefit under the relevant rules.

2.2.The applicant through his Advocate made representation dated 14.12.2009 to the respondent-authorities. As there was no response, the applicant filed OA No.2566 of 2011 before this Tribunal. The Tribunal, vide order dated 18.7.2011, disposed of the said O.A. and directed the respondents to consider the applicants representation within three months. The Tribunal also directed the respondents to consider the said O.A. as a supplementary representation.

2.3. In compliance with the Tribunals direction, the impugned order dated 18.10.2011 (Annexure A/1) was passed by respondent no.3 rejecting the applicants request for granting him compassionate allowance. The grounds for rejection of the applicants claim, as stated in the impugned order, are that the quality of the service rendered by the applicant could not be ascertained; that the applicant had not preferred appeal against the order of punishment of removal from service; that the applicant did not submit any paper to prove his dedication and devotion to duty; that the applicant had sublet the Railway quarters which amounted to misconduct; and that the applicant failed to submit details of dependent family members.

2.4. It is contended by the applicant that the Service Book and the disciplinary file are very much available in the Northern Railway Health Unit, Tughlakabad and therefore, the authority, who passed the impugned order, was not correct to state that the quality of service rendered by the applicant could not be ascertained. The said respondent-authority, while considering the claim of the applicant for compassionate appointment, should not have taken into account the fact of non-filing of appeal against the order of punishment of removal from service in as much as the legality and/or validity of the said punishment order was not questioned by the applicant. As regards details of family members, the applicant wanted to submit an affidavit showing the details of family members, but the respondent no.3 refused to receive the same and therefore, the said authority was wrong in stating that the applicant did not furnish the details of the members of his family.

2.5. It is also contended by the applicant that he having admittedly rendered more than 23 years of regular service, respondents ought to have granted compassionate allowance. To buttress his contention, the applicant has relied on the decisions in Ex.CT. Dayanand v. Union of India and others, 2000(1)ATJ 137; Harish Chander v. Union of India and others, W.P. No.1730 of 1999,decided on 27.9.2002; Sukha Singh v. Union of India, CWP No.13352/2004, decided on 17.11.2004; Anna Deoram Londhe v. State of Maharashtra, 1998(4)SLR 480; Ex.ASI Shadi Ram v. Govt. of NCT of Delhi, WP NO.5544/2007; and Ex.L/NK Mahavir Prasad v. UOI and others, WP (C ) No.2556 of 2010, decided on 26.8.2010.

3. A counter reply was filed by the respondents on 5.7.2012. It is stated by the respondents that the applicant went on LAP w.e.f. 14.8.1981. As he did not join his duties on due date, he was declared unauthorized absent w.e.f. 1.10.1981. By Memorandum dated 22.7.1982 he was served charge-sheet in SF-5 as per Rule 9 of the Railway Servants (D and A) Rules, 1968. On the basis of the DAR enquiry, penalty of removal from service was imposed on him, vide order dated 24.6.1986, with immediate effect. In the same order, he was apprised about the opportunity of preferring appeal against the said punishment order, but he never appealed. Leave encashment was granted to him vide letter dated 2.11.1986. In compliance with the Tribunals order dated 18.7.2011 passed in OA No.2566 of 2011, the applicants claim for compassionate allowance was considered by the competent authority in accordance with the Railway Boards letter dated 4.11.2008 (RBE No.164/2008) and rejected, vide order dated 18.10.2011 (Annexure A/1). As regards his claim for payment of GPF amount, the relevant records being not traced out, no decision could be taken by the competent authority. The statement of the applicant about the lack of knowledge of the order of his removal from service has been denied by the respondents stating that the same was communicated to him by Registered Post. The respondents have pointed out the delay of 23 years on the part of the applicant in making claim for compassionate allowance.

4. Further counter reply and amended counter reply were filed by the respondents on 16.8.2012 and 21.5.2013 respectively reiterating the same stand as in the counter reply dated 5.7.2012, save and except citing some case-laws regarding the scope of interference by the Tribunal in disciplinary matters.

5. In the rejoinder replies, the applicant has refuted the stand taken by the respondents and submitted that claim for compassionate allowance being in the nature of pension, non-grant of compassionate allowance to the applicant is a continuing wrong and hence, the cause of action in this case is of continuous nature.

6. Admittedly, after disciplinary enquiry, the penalty order was passed by the competent authority on 24.6.1986 removing the applicant from service with effect from 11.12.1985. The applicant pleaded lack of his knowledge about the said penalty order because he was in a state of insanity during the said period. It is his case that when he was on leave for 45 days from 12.6.1981, he developed mental trouble which was aggravated and he remained in a state of insanity and returned home in June 1988. Admittedly, he was working as a Dresser in Railway Hospital and if there was any mental trouble with him, he might have received treatment from the said hospital or from any other hospital/physician for such mental trouble. He has not produced any contemporaneous document to show that he had developed mental trouble soon after he proceeded on leave for 45 days from 12.6.1981. It is his case that after his recovery from madness he returned home in June 1988. If at all he was able to recollect the detailed particulars of his service as a Dresser in the Railways, which included his long absence of about seven (7) years, he could have reported for duty immediately after June 1988 along with appropriate medical certificate or any other proof in support of his being in a state of insanity. Rather, from his representation dated 16.6.1988 (Annexure A/3) addressed to respondent no.2 for allowing him to voluntarily retire from service, it transpires that from his native place he had sent the same by Registered Post with A/D, but he has not filed the postal acknowledgement before this Tribunal. It is his further case that when he came to know about the penalty order, he made representation on 5.4.2009 for grant of compassionate allowance. The applicant has not stated as to on which date and from whom he came to know about the penalty order. Even assuming for a moment that he came to know about the penalty of removal from service in 2009, he would have been well advised to assail the said penalty order by filing an appeal within a reasonable period from the date of his coming to know about the same taking the purported plea of insanity supported with appropriate medical certificate. But it appears that he did not do so. In the above circumstances, the plea taken by the applicant that he remained in a state of insanity from June 1981 to June 1988 is found to be shrouded with mystery and hence unacceptable.

7. The issue involved in the present O.A. is whether in terms of Rule 65 of the Railway Services (Pension) Rules, 1993 the applicant is entitled to compassionate allowance. Rule 65 is reproduced as under:

65.  Compassionate Allowance:

(1). A railway servant who is dismissed or removed from service shall forfeit 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 Rupees three hundred seventy-five rupees per mensum.

8. R.B.E. No.164/2008, a copy of which is at Annexure R/1, is on the subject of Grant of Compassionate Allowance, which, inter alia, provides as under:

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 Boards 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 appears to be deserving for consideration being given, may be reviewed by the disciplinary authority concerned on receipt of representation 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 DandA proceedings and Service records are available. DandA 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 the compassionate allowance should not be considered if the Railway 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 individuals spouse and children dependent upon him.

9. A combined reading of the above Rule 65 of the Railway Services (Pension) Rules, 1993 and the R.B.E.No.164/2008 makes it clear that compassionate allowance is not a matter of right. In cases where a person is dismissed or removed not on account of serious misconduct relating to service conditions and the circumstances also show that he has no means of livelihood or to survive, the authorities may consider him giving compassionate allowance, if the case deserves a special consideration, having regard to the entire service record. Therefore, it is practically impossible in view of the wide variations that naturally exist in the circumstances attending in each case, to lay down categorically precise principles that can uniformly be applied to individual cases. Each case has to be reached on the question whether there were any such extenuating features in the case as would make the punishment awarded unduly hard on the individual. Poverty is not an essential condition precedent to grant of a compassionate allowance.

10. In the instant case, admittedly, the disciplinary authority had not taken any decision suo motu with regard to grant, or otherwise, of compassionate allowance, while passing the order of punishment of removal of the applicant from service. Therefore, as per the Tribunals direction, referred to above, respondent no.3 considered the claim of the applicant in terms of R.B.E.No.164/2008 (Annexure R-1) and rejected the same, vide order dated 18.10.2011 (Annexure A/1), the relevant portion of which reads thus:

3.(i). As the matter of removal of Sh.Deshraj is more than 25 years old, the records of his service and disciplinary matter available may not be considered exclusive. Therefore, the quality of service rendered by Sh.Deshraj during his employment in Railways could not be ascertained.

3.(ii). As per the available records, no extenuating factor that would be made the decision of removal of Sh.Deshraj unduly hard, could be made out. Furthermore, Sh.Deshraj himself had also not found any such extenuating factor in the decision as he had never appealed before against the decision of his removal from service, nor he has pointed out any such factor in the present O.A.

3.(iii). The kind of service rendered by Sh.Deshraj could not be ascertained for want of relevant records. He had also not submitted any paper related to prove his dedication and devotion to the duty which could have been considered while deciding the matter.

3.(iv). As per records, Sh.Desh had been found indulged in subletting Railway quarter allotted to him which is a grave act of misconduct and dishonesty. This act of dishonesty had also been made one of the grounds by the then competent authority for penalty of removal from service. As he had been found dishonest, which was one of the grounds for his removal; it renders him unworthy of consideration for award of compassionate allowance as per the condition laid out in the circular.

3.(v). To ascertain the financial needs of his dependents, a letter was issued to Sh.Deshraj (sent by Regd. Post to his present address as shown in the OA), requesting him therein to submit the details of spouse and children dependent upon him. But he has not submitted any details so far.

In view of the facts and circumstances mentioned above, a well considered view on the representation of Sh.Deshraj has been taken. However, no merit was found in the matter which appears to be worthy of award of compassionate allowance to Sh.Deshraj. Hence, the request of Sh.Deshraj for granting compassionate allowance is regretted.

11. From the above, it is found that due to inordinate and long delay of more than 25 years, all the service records and records pertaining to DandA proceedings in respect of the applicant are not available to adjudge the kind of service rendered by him. Therefore, the competent authority was unable to adjudge the quality of service rendered by the applicant while considering his claim for compassionate allowance. The competent authority also observed that on the basis of whatever records available at this distant point of time, he did not find any extenuating factor that would make the decision of removal of the applicant from service unduly hard. The competent authority also found that as per records, the applicant had been found indulged in subletting Railway quarters allotted to him which was a grave act of misconduct and dishonesty. The disciplinary authority had imposed the penalty of removal after the charges of unauthorized absence of the applicant for years together with effect from 1.10.1981 and of subletting Railway quarters were proved against the applicant. Non-submission of the details of spouse and children by the applicant in spite of his being asked by letter sent by registered post was also taken as a factor by the competent authority to decline the request made by the applicant for compassionate allowance.

12. In terms of the paragraph 3 (i) of the RBE 164/2008 (Annexure R-1), only those past cases could be reviewed where records pertaining to DandA proceedings and service records are available. In the case of the applicant, as found by the competent authority, the complete service records and DandA file in respect of the applicant were not available because of long and inordinate delay of more than 25 years. Therefore, the applicants case could not have been reviewed in terms of paragraph 3(i) of the R.B.E.164/2008. However, the competent authority considered the applicants claim on the basis of whatever records were available. The contention of the applicant that all the service records including the disciplinary file are very much available in the Northern Railway Unit,Tughlakabad, is not supported by any material being produced before this Tribunal. The affidavit filed by the applicant at Annexure A/3 is a self-serving document showing the details of his dependents, namely, his wife Smt. Gayatri Devi, wife,aged 58 years, and (ii) Smt. Vandna Kumari, divorcee daughter, aged 31 years. The applicant has not filed any decree of divorce or any other contemporaneous document showing that his daughter being a divorcee is dependent on him. Moreover, when it is his case that the competent authority refused to accept the said affidavit from him, the applicant should have sent the same by post to the competent authority. Therefore, the aforesaid contentions of the applicant are not acceptable.

13. In Ex.CT. Daya Nands (supra), the petitioner was enrolled in CRPF on 5.9.1960 as Constable. On 19.3.1981 the disciplinary authority dismissed the petitioner from service by way of enhancing the punishment. On 25.5.1981 the name of the petitioner was struck off from the strength of CRPF and thus the petitioners services came to be terminated after he had served for 20 years and about 8 months. The competent authority refused to consider the petitioners representation for grant of compassionate allowance and the petitioner approached the Honble High Court of Delhi. The Honble Court directed the respondent to grant the compassionate allowance to the petitioner. In the case at hand, there was delay of about 23 years when the applicant made the claim for compassionate allowance, the entire service records and DandA file in respect of the applicant are not available, and his request had to be considered by the competent authority under Rule 65 of the Railway Services (Pension) Rules, 1993 and in terms of the guidelines contained in RBE No.164/2008. Therefore, the facts and circumstances of Ex.CT Dayanands case (supra) being different, the ratio laid down therein is not applicable to the case of the applicant in the present O.A.

14. In Harish Chanders case (supra), the petitioner was removed from service on the charge of unauthorized absence after having put in 29 years of service or so.

He had made a representation for grant of compassionate allowance under Rule 65 of the Railway Services (Pension) Rules, 1993, but the Respondents had rejected it outright without according proper consideration to his case and without assigning any reason. It was the grievance of the petitioner that the respondents had failed to take into account his long service of 29 years or so and his overall condition which constituted a special circumstance and consideration for sanction of compassionate allowance under the relevant rule. In the circumstances, the Honble High Court disposed of the writ petition with the observation that the petitioner may make a fresh representation to the Competent Authority for grant of compassionate allowance. The Honble Court directed the concerned authority to consider the said representation in the light of the observations made in the judgment and pass appropriate reasoned orders under rules within three months from the receipt of such representation. In the case at hand, due to non-availability of the entire service records and disciplinary enquiry file in respect of the applicant after long lapse of 25 years, the competent authority could not adjudge the quality of the service rendered by the applicant. However, in compliance with the Tribunals direction, the competent authority considered the claim of the applicant on the basis of whatever materials available and did not find merit in the same. Therefore, the ratio of the decision in Harish Cahnders case(supra) is not applicable to the case of the present applicant.

15. In Anna Deoram Londhes case(supra), the petitioner therein was removed from service on account of conviction for offence punishable under Section 324 IPC and the Honble Bombay High Court held that the said conduct was not connected with the discharge of his duties and that since the petitioner therein had put in more than thirty years of service, he was otherwise eligible for superannuation or retiring pension. In the circumstances, the Honble Court directed the respondents to pay compassionate pension to the petitioner (since dead) and family pension to his widow. In the instant case, the applicant was removed from service as a result of disciplinary enquiry in which the charges of unauthorized absence for years together and of subletting the railway quarters were proved against him, there was delay of about 23 years when the applicant made the claim for compassionate allowance, and his request was to be considered by the competent authority under Rule 65 of the Railway Services (Pension) Rules, 1993 and in terms of the guidelines contained in RBE No.164/2008 and the entire service records and DandA file, which required to be considered by the competent authority, are not available. Therefore, the facts and circumstances in Anna Deoram Londhes case(supra) being different, the ratio laid down therein is not applicable to the case of the present applicant.

16. In Ex. ASI Shadi Rams case (supra), the Honble Delhi High Court considered Rule 41 of CCS (Pension) Rules, 1972 and Guiding principles for grant of Compassionate Allowance formulated by the Government of India. The Honble Court held that it is not only the misconduct which is the main reason for the petitioners dismissal from service that has to be considered but the entire service record of the petitioner has to be considered to come to the conclusion whether the petitioner is entitled to compassionate allowance. In the case at hand, the entire service records and the DandA file in respect of the applicant are not available and therefore, the decision in Ex. ASI Shadi Rams case (supra) is in no way helpful to the case of the present applicant.

17. In Sukha Singhs case (supra), the petitioner was removed from service vide order dated 5.6.1984 as the charge of embezzlement of money was proved against him and his appeal was rejected, after which he made representation dated 20.9.1994 for grant of pension or in the alternate for compassionate allowance. The O.A.No.2477/1995 filed by the applicant was dismissed on 1.9.1999. CWP No.13352/2004 filed by the petitioner assailing the Tribunals order dated 1.9.1999 was disposed of on 17.4.2004 with direction to the petitioner to make a fresh representation to the respondents who were directed to dispose of the same within on month. The said representation of the petitioner was rejected by the respondents vide order dated 27.8.2005. OA No.482/2006 filed by the petitioner against the said order dated 27.8.2005 was dismissed, vide order dated 2.8.2006. W.P. (Civil) No.11646 of 2009 filed by the petitioner was dismissed by the Honble High Court, vide judgment dated 20.1.2010, upholding the Tribunals order dated 2.8.2006. This decision also does not help the case of the applicant.

18. In Ex.L/NK Mahabir Prasad v. UOI and others, W.P.(C) No.2556 of 2010, decided on 26.8.2010, the petitioner was recruited into CRPF on 19.1.1971 in the post of Constable. The petitioner was stated to have absented without leave on 4th August 1994 which he resumed on 23.9.1994 and again deserted the camp laws of the CRPF on 26.9.1994 without permission. The disciplinary inquiry culminated in imposing the punishment of his dismissal from service with effect from 28.10.1995. The petitioner made representation on 2.11.2009 requesting for grant of compassionate allowance from the date of his dismissal from service. The reason for the request and the explanation for the delay in making the representation are both explained on grounds of poor economic conditions. This representation was considered and rejected by the competent authority on the ground that the petitioner had been dismissed after holding a disciplinary enquiry against him in accordance with the applicable rules and that the conduct of the petitioner disclosed that he was a delinquent of disobedient nature and habitual of being absent. The writ petition filed against the said order of the competent authority was allowed by the Honble High Court holding and declaring that the petitioner was entitled to award of compassionate allowance in terms of the applicable rules and guidelines and directed the respondents to make appropriate orders. In EX.L/NK Mahabir Prasads case(supra), the entire service records were available and the competent authority failed to consider the petitioners claim in accordance with rules and rejected the same solely because of imposition of punishment of dismissal from service in the disciplinary proceedings. But in the instant case, there was delay of about 23 years on the part of the applicant in making a representation for compassionate allowance and because of the delay, the entire service records and disciplinary file are not available and therefore, his claim could not be considered in the light of the RBE 164/2008. The facts and circumstances of Ex,L/NK Mahabir Prasads case (supra) being different from that of the instant case, the ratio laid down by the Honble Court therein is not applicable to the applicants case.

19. In the light of the above discussions, I hold that impugned order (Annexure A/1) does not suffer from any infirmity and that the O.A. is devoid of merit. Accordingly, the Original Application is dismissed. No costs.