Padam Singh Chauhan v. Union of India and Ors.

1. This petition has been filed under Article 226 of the Constitution of India, praying for the following reliefs: -

“I. To issue a writ of mandamus and such other appropriate writ or order or direction thereby quashing and setting aside the impugned order dated 18.04.2024 passed by the respondents further commanding the respondents to consider the compassionate allowance to the petitioner along with arrears.

II. To direct the respondents to pay the arrears of pension after granting compassionate allowance.”

2. It is the case of the petitioner that the petitioner, who was recruited as Constable (General Duty) in BSF on 01.05.1989, on completion of his basic training, was posted in 17 Battalion BSF and later joined 95 Battalion BSF on 06.05.1992. He was tried by the Summary Security Force Court (in short, ‘SSFC’) on 03.08.2000 for absenting himself without leave from 07.08.1999 to 16.10.1999 for 70 days, and from 06.05.2000 to 05.07.2000 for 59 days. The SSFC found the petitioner guilty of the charges, and taking into account his previous conviction, character, age, length of service, including 04 punishments already awarded to him since his enrolment, sentenced him to be dismissed from service vide Order. no. Estt/94/Bn/SSFC/ 2k/ 7596-7603 dated 03.08.2000.

3. Feeling aggrieved of the said Order, the petitioner submitted a Statutory Petition dated 05/07.09.2002, which was also dismissed by the Director General, Boarder Security Force, New Delhi (in short, ‘DG BSF’), vide Order dated 15.01.2003.

4. It is only 14 years thereafter, that the petitioner submitted a representation dated 18.05.2017 addressed to the Hon’ble Home Minister, Government of India and the DG BSF, New Delhi for reinstatement in service. His representation was also rejected vide Order no. L/No. Estt (Rectt)/Ftr-Guj/Re-Inst/ 94 BN/ 17/ 925-30 dated 13.10.2017 passed by the IG, Ftr Headquarter, BSF, Gujarat.

5. The petitioner then filed a Writ Petition before this Court, being WP(C) No. 10160/2023, tilted Padam Singh Chauhan v. UOI & Ors., praying therein for a direction to the respondents to consider his application for grant of Compassionate Allowance under Rule 41 of the CCS Pension Rules, 1972. The said petition was disposed of by this Court vide its Order dated 01.09.2019, directing the respondents to consider the petition as a representation of the petitioner for relief in terms of Proviso to Rule 41 of the CCS Pension Rules. This Court, however, clarified that it has neither considered nor commented on the merits of the claim of the petitioner and it would be open for the respondents to consider the request of the petitioner in accordance with law and on its own merits.

6. The respondents now, by an Order dated 18.04.2024, have rejected the representation of the petitioner, inter alia, on the ground that the past service of the petitioner shows a continuous undisciplined streak and that he was a habitual offender. It is also observed in the Impugned Order that in terms of the CCS Pension Rules, timelines have been prescribed for considering the request for Compassionate Allowance, however, in the present case, the application filed by the petitioner was grossly delayed.

7. Feeling aggrieved of the said Order, the petitioner has filed the present petition.

8. The learned counsel for the petitioner submits that the respondents have failed to appreciate that while considering an application for grant of relief under Rule 41 of the CCS Pension Rules, the respondents must not consider the act for which the delinquent is charged and has been removed from service. An act of moral turpitude is an act that has an inherent quality of baseness, vileness, or depravity with respect to a concerned person’s duty towards another. The respondents must consider whether the act of the delinquent is such as may be described as an act of dishonesty towards the employer or an act designed for personal gains from the employer; did it harm a third party interest; or it is, even otherwise, unacceptable that such delinquent be conferred the benefit flowing from Rule 41 of the CCS Pension rules. The learned counsel for the petitioner submits that in the present case, none of the above exceptions were made out against the petitioner. The only allegation against the petitioner was that he had absented himself from the duty, which cannot be categorised as an offence involving moral turpitude.

9. He submits that on the asking of the respondent, the petitioner had also submitted his income certificate, which would show his monthly income to be only Rs.4,500/- per month. He submits that, therefore, in terms of the Judgment of the Supreme Court in Mahinder Dutt Sharma v. Union of India and Others, (2014) 11 SCC 684, the respondents should have granted Compassionate Allowance to the petitioner. He submits that, in fact, in the said case, the absence of the delinquent employee therein was of more than 320 days, while in the case of the petitioner, it is only 129 days.

10. He submits that delay in filing of the representation seeking Compassionate Allowance cannot be a ground to reject such representation, inasmuch as, the Compassionate Allowance is in form of a pension, which is a recurring cause of action.

11. We have considered the submissions made by the learned counsel for the petitioner.

12. In the present case, as it would be evident from the above, the petitioner was dismissed from service vide Order dated 03.08.2000. His Statutory Petition against the same was also dismissed on 15.01.2003. It is only by a representation dated 18.05.2019, that the petitioner first sought re-instatement in service and later, requested for Compassionate Allowance in terms of Rule 41 of the CCS Pension Rules.

13. Rule 41 of the CCS Pension Rules, reads as under:- “(1) A Government servant who is dismissed or removed from service shall forfeit his pension and gratuity: Provided that the authority competent to dismiss or remove him from service may, if the case is deserving of special consideration, sanction a compassionate allowance not exceeding two-thirds of pension or gratuity or both which would have been admissible to him if he had retired on superannuation pension. (2) The competent authority shall, either on its own or after taking into consideration the representation of Government servant, if any, examine whether any compassionate allowance is to be granted and take a decision in this regard in accordance with the proviso to sub-rule (1) not later than three months after the date of issue of the order imposing the penalty of dismissal or removal from service. (3) The competent authority shall consider: a) each case of dismissal and removal from service on its merit to decide whether the case deserves of special consideration for sanction of a compassionate allowance and, if so, the quantum thereof; (b) the actual misconduct which occasioned the penalty of dismissal or removal from service and the kind of service rendered by the Government servant;