CH VENKATESWARALU vs M/o Railways on 31 December 2020

ORAL ORDER

(As per Hon’ble Mr.B.V.Sudhakar, Administrative Member)

Through Video Conferencing:

2. The OA is filed in regard to grant of compassionate allowance.

3. Brief facts are that the applicant was appointed as Gangman in the respondents organisation and was issued a charge memo for unauthorised absence of 253 days on 1.11.2007, which culminated in his removal on 11.7.2009 based on an ex-parte inquiry. Appeal and review petition filed did not yield any favourable results. Consequently OA 950 of 2015 was filed which was disposed directing the respondents to consider the representation that would be made by the applicant. On submission of representation for compassionate allowance, the same was rejected and hence the OA.

4. The contentions of the applicant are that his case is covered by the Hon’ble Supreme Court judgment in Mahinder Dutt Sharma v U.O.I. His removal was for unauthorized absence and not for reasons of committing any fraud and indulging in any conduct which is wicked, dishonest, perverted, treacherous etc. The salary earned by his son is meagre and that rejection of the request made is illegal.

5. Respondents in the reply statement state that the applicant was removed from service on 12.10.2009 for unauthorised absence. Applicant made a belated request for compassionate allowance without enclosing the relevant documents. The applicant had been absent from service for more than 10 years and hence the order of removal. In compliance with the order

of this Tribunal in OA 950 of 2015 the request of the applicant was rejected on the grounds that the applicant has been mostly on leave after joining the post, was penalised for unauthorised absence with stoppage of increment for 2 years in the past and for not producing proof of sickness. The son of the applicant is earning and that the applicant did not adduce the hardships he is facing. Compassionate allowance cannot be sought as a matter of right. Respondents cited the verdict of the Hon’ble Jodhpur Bench of this Tribunal in OA 469/2015 to support their contentions.

6. Heard both the counsel and perused the documents on record.

7. I. Applicant was removed from service for unauthorised absence of 253 days on 12.10.2009 after conducting an ex parte inquiry. Ld. counsel for the applicant claims that he could not attend the inquiry, due to mental ill health and other family issues. It is seen from the records on file that the applicant has been on leave for 10 years 6 months and 23 days, which is too long a period. Maybe, his mental illness could be the cause. However, the applicant has also not appended any medical record about his ill health or of his family members. Nevertheless, his removal is on account of unauthorised absence. Hon’ble Supreme Court has considered the aspect of grant of compassionate allowance in Mahinder Dutt Sharma v U.O.I in CA 2111 of 2009 on 11.4.2014 as under: “13. In our considered view, the determination of a claim based under Rule 41 of the Pension Rules, 1972, will necessarily have to be sieved through an evaluation based on a series of distinct considerations, some of which are illustratively being expressed hereunder:-

(i) Was the act of the delinquent, which resulted in the service, an act of moral turpitude? An act of moral

turpitude, is an act which has an inherent quality of baseness, vileness or depravity with respect to a concerned person’s duty towards another, or to the society in general. In criminal law, the phrase is used generally to describe a conduct which is contrary to community standards of justice, honesty and good morals. Any debauched, degenerate or evil behaviour would fall in this classification.

(ii) Was the act of the delinquent, which resulted in the

service, an act of dishonesty towards his employer? Such an action of dishonesty would emerge from a behaviour which is untrustworthy, deceitful and insincere, resulting in prejudice to the interest of the employer. This could emerge from an unscrupulous, untrustworthy and crooked behaviour, which aims at cheating the employer. Such an act may or may not be aimed at personal gains. It may be aimed at benefiting a third party, to the prejudice of the employer.

(iii) Was the act of the delinquent, which resulted in the

service, an act designed for personal gains, from the employer? This would involve acts of corruption, fraud or personal profiteering, through impermissible means by misusing the responsibility bestowed in an employee by an employer. And would include, acts of double dealing or racketeering, or the like. Such an act may or may not be aimed at causing loss to the employer. The benefit of the delinquent, could be at the peril and prejudice of a third party.

(iv) Was the act of the delinquent, which resulted in the

service, aimed at deliberately harming a third party interest? Situations hereunder would emerge out of acts of disservice causing damage, loss, prejudice or even anguish to third parties, on account of misuse of the employee’s authority to control, regulate or administer activities of third parties. Actions of dealing with similar issues differently, or in an iniquitous manner, by adopting double standards or by foul play, would fall in this category.

(v) Was the act of the delinquent, which resulted in the service, otherwise unacceptable, for the conferment of the benefits flowing out of Rule 41 of the Pension Rules, 1972? Illustratively, any action which is considered as depraved, perverted, wicked, treacherous or the like, as would

disentitle an employee for such compassionate consideration.”

According to the above judgment, the case of the applicant could be relooked as he was removed for unauthorised absence and not prohibited, for the reasons stated in the judgment cited supra.

II. The respondents claim that the integrity of the applicant is suspect, but they have not narrated any incident or enclosed documents to prove that the integrity of the applicant was doubtful. While making such a serious allegation, the respondents need to be cautious because they are casting aspersions of the character of the applicant without evidence. Character is the life line of any individual and it cannot be besmeared with undermining remarks in a casual manner. Integrity is the quality of being honest and having strong moral principles. Absence from duty without leave cannot by any stretch of imagination be construed as lack of integrity. Applicant did not indulge in any dishonest act. Applicant’s contention is that he could not attend the inquiry due to ill health. Therefore, his defence was not available to take a balanced view by the disciplinary authority before imposing the penalty of removal. It is true that compassionate allowance cannot be sought as a matter of right but at the same time, while imposing the penalty, the disciplinary authority should have, at least, let known the provision of compassionate allowance in his order of removal. It is a different matter as to whether it would be considered when applied for.

III. The applicant, a gang man, is from the lowest rung of the respondents organisation who are mostly semi literate and are not conversant with the ocean of rules which the respondents have. The son of the applicant is earning but it is not substantial as to eke out a decent living. The Jodhpur case referred to by the respondents has been gone into and each case has to be examined based on the facts and circumstances stated therein. Ill health of the applicant in the instant case is factor which has substance to be looked into. Respondents state that the applicant has not approached the Railway hospital. Well, the choice of a doctor or a hospital cannot be as per the dictates of the respondents but as per the confidence of the employee in the doctor/hospital. In the instant case the applicant claims that he had a mysterious mental illness for which he visited many temples for cure along with getting examined and treated at Govt. District Hospital, Narasaraopet. IV. One cannot deny the fact when one is out of the job, it will definitely cause severe financial strain and the attendant hardships. May be the applicant being a semi literate could not elucidate the hardships as was expected by the respondents in his representation. Lower rung employees are to be given that much of margin. A cursory reading of the representation will make it evident as to how difficult it is for such employees to communicate in a language other than their mother tongue. Indeed the representation was written by somebody who was as good or as bad as the applicant in drafting the representation and it was signed by the applicant in Telugu. This explains the plight of the applicant. The Tribunal has gone through the appellate and revision authority orders dated

12.10.2009 and 5.5.2014 rejecting the request for reinstatement and it is found they are neither speaking nor reasoned. When senior officers themselves are finding it arduous to go by the rule book/law, it would not be surprising if a gang man could not communicate as effectively as was required. The Tribunal does appreciate the anxiety of the respondents not to open the door liberally for grant of compassionate allowance, but compassion in processing the instant case is missing, which indeed is the crucial element for taking the decision as per the very nomenclature of the scheme. V. True, as stated by the respondents compassionate allowance has to be granted as a special consideration and the special consideration is that the applicant did not indulge in any activity prohibited by the Hon’ble Supreme Court in the judgment cited. Ld. Counsel for the applicant has prayed that the case may be considered on humanitarian grounds since the applicant is finding it difficult to make both ends meet and these days being dependent on any one including family members is an emotionally disturbing experience. Ld Counsel for the respondents stated that the claim for compassionate allowance is barred by limitation. However, this objection does not sustain as compassionate allowance is as good as pension and the later has a continuous cause of action. VI. In view of the Hon’ble Supreme Court observations cited supra and the observations made above, applicant is directed to submit a proper representation to the respondents within 30 days of receipt of this order stating the grounds and the law under which he is making the claim enclosing the relevant medical documents. On receipt of the said representation, respondents are directed to reconsider the request for compassionate allowance in accordance with rules/ law and communicate the decision to the applicant within a period of 3 months from the date of receipt of the representation from the applicant.

VII. With the above direction the OA is disposed of with no order as to costs.

(B.V.SUDHAKAR) ADMINISTRATIVE MEMBER

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